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HomeMy WebLinkAbout2023-07-20 Council Agenda PacketThursday, July 20, 2023 9:00 AM City of Fresno 2600 Fresno Street Fresno, CA 93721 www.fresno.gov Council Chambers (In Person and/or Electronic) City Council President - Tyler Maxwell Vice President - Annalisa Perea Councilmembers: Mike Karbassi, Miguel Angel Arias, Luis Chavez, Garry Bredefeld, Nelson Esparza City Manager - Georgeanne A. White City Attorney - Andrew Janz City Clerk - Todd Stermer, CMC Meeting Agenda - Final Regular Meeting 07/20/2023 MA/GB 6-0 AS AMENDED MK ABSENT July 20, 2023City Council Meeting Agenda - Final The City Council met in regular session in the Council Chamber, City Hall, on the date and time above written. PUBLIC PARTICIPATION – Public participation during Fresno City Council meetings is always encouraged and can occur in one of the two following ways: 1) Participate In Person: Council Chambers, City Hall, 2nd Floor, 2600 Fresno Street, Fresno, CA 93721 a) To speak during a City Council meeting in person: fill out a speaker card (available in the Council Chamber) and place it in the speaker card collection basket at the front of the Council Chamber. You may also approach the speaker podium upon the Council President’s call for public comment. 2) Participate Remotely via Zoom: https://fresno-gov.zoom.us/webinar/register/WN_A1rcjG45SfW9YBICMjb8fw a) The above link will allow you to register in advance for remote participation in the meeting via the Zoom platform. After registering, you will receive a confirmation email containing additional details about joining the meeting. b) To speak during a City Council meeting while attending remotely: while in the Zoom application, click on the icon labeled “Participants” at the bottom of the screen. Then select “RaiseHand” at the bottom of the Participants window. Your digital hand will now be raised. You will be asked to “unmute” when your name is called to speak. You will not be visible via video and there will be no opportunity to share your screen. All public speakers will have up to 3 minutes to address Council pursuant to Rule No. 10 of the Rules of Procedure for the City Council of the City of Fresno (available in the City Clerk’s Office). SUBMIT DOCUMENTS / WRITTEN COMMENTS - Pursuant to Rule 11 (c) of the Rules of Procedure, no documents shall be accepted for Council review unless submitted to the City Clerk at least 24 hours prior to the Council Agenda item be heard. Documents / written comments related to an agenda item can be submitted by one of the following methods: 1) eComment – eComment allows the public to submit agenda related comments through a website prior to the meeting. Submitted comments are limited to 1440 characters and will be a part of the official record. Page 2 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final a) Submit an e-Comment by visiting https://fresno.legistar.com/Calendar.aspx and selecting the “eComment” link. b) e-Comment is available for use upon publication of the agenda and closes 24 hours prior to the meeting start time [pursuant to Rule 11(c)]. c) e-Comment is not permitted for Land use or CEQA items d) The e-Comment Electronic User Agreement can be viewed at: https://www.fresno.gov/cityclerk/ 2) E-mail – Agenda related documents and comments can be e-mailed to the Office of the City Clerk at least 24 hours prior to the agenda item being heard, pursuant to Rule 11(c). a) E-mail the Clerk’s Office at clerk@fresno.gov b) E-mails should include the agenda date, and the related agenda item number. VIEWING CITY COUNCIL MEETINGS (non-participatory) - For your convenience, there are several ways to view Fresno City Council meetings live: 1) City of Fresno website: https://fresno.legistar.com/Calendar.aspx (click “In Progress” to view the live meeting). 2) Community Media Access Collaborative website: https://cmac.tv/ 3) YouTube - City of Fresno Council, Boards and Commissions Channel: https://www.youtube.com/channel/UC3ld83D8QGn1YBDw6aD5dZA/videos 4) Facebook: https://www.facebook.com/FresnoCA/videos 5) Cable Television: Comcast Channel 96 and AT&T Channel 99 Should any of the five viewing methods listed above experience technical difficulties, the Council meeting will continue uninterrupted. Council meetings will only be paused to address verifiable technical difficulties for all users participating via Zoom or in the Council Chamber. The City of Fresno’s goal is to comply with the Americans with Disabilities Act (ADA). Anyone requiring reasonable ADA accommodations, including sign language interpreters, or other reasonable accommodations such as language translation, should contact the office of the City Clerk at (559) 621-7650 or clerk@fresno.gov. To help ensure availability of these services, you are advised to make your request a minimum of three business days prior to the scheduled meeting. Page 3 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final 9:09 A.M. ROLL CALL Invocation by Father Jim Pappas with Saint George Greek Orthodox Church Pledge of Allegiance to the Flag APPROVE AGENDA CEREMONIAL PRESENTATIONS ID 23-905 Proclamation for “Honoring Carden School for their achievement at this year’s Science Fair” Sponsors:Councilmember Bredefeld ID 23-1092 Proclamation for “Kristine Cai Day” Sponsors:Councilmember Karbassi and Office of Mayor & City Manager ID 23-1100 Fresno Animal Center’s “Pet of the Month” presented by Fresno Humane Animal Services Sponsors:Office of Mayor & City Manager COUNCILMEMBER REPORTS AND COMMENTS MAYOR/MANAGER REPORTS AND COMMENTS CITY CLERK AND CITY ATTORNEY REPORTS AND COMMENTS UNSCHEDULED COMMUNICATION PLEASE NOTE: UNSCHEDULED COMMUNICATION IS NOT SCHEDULED FOR A SPECIFIC TIME AND MAY BE HEARD ANY TIME DURING THE MEETING 1. CONSENT CALENDAR 1.-A.ID 23-1068 Approval of Minutes for June 29, 2023, Regular Meeting. Sponsors:Office of the City Clerk Page 4 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final 1.-B.ID 23-1091 BILL - (For Introduction) to Amend Section 2-1105 of the Fresno Municipal Code, relating to Campaign Contributions - Limitations on amount and document filing methods. Sponsors:Office of the City Clerk 1.-C.ID 23-1089 Actions related to a California Office of Emergency Services (Cal OES) Training Agreement for $77,250 for Regional Task Force MOBEX Event 1. Accept FY 2024 Cal OES training award for $77,250 for Regional Task Force MOBEX event. 2. ***RESOLUTION - Adopting the 7th Amendment to the Annual Appropriation Resolution No. 2023-185 to increase appropriations by $77,300 from Cal OES to provide mobilization exercise (MOBEX) training to Regional Task Force (RTF) members. (Requires 5 affirmative votes)(Subject to Mayor’s Veto). Sponsors:Fire Department 1.-D.ID 23-1088 Actions pertaining to the Municipal Service Center Electrical Infrastructure and Rehab project: 1. Adopt finding of a Categorical Exemption pursuant to Section 15301(b) Existing Facilities and Section 15302(c) Replacement or Reconstruction of the California Environmental Quality Act (CEQA) Guidelines 2. Award a construction contract to A -C Electric Company of Bakersfield, California, in the amount of $10,147,090 for the construction of the Municipal Service Center Electrical Infrastructure and Rehab project (Bid File 12300704) (District 3) Sponsors:General Services Department Page 5 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final 1.-E.ID 23-1098 Actions pertaining to the Fresno Water Tower Electrical Upgrade project: 1. Adopt finding of a Categorical Exemption pursuant to Section 15301(a) Existing Facilities of the California Environmental Quality Act (CEQA) Guidelines 2. Award a construction contract to Art’s Construction Co., Inc. of Fresno, California, in the amount of $695,000 for the construction of the Fresno Water Tower Electrical Upgrade project (Bid File 12301487)(District 3) 3. Authorize the Director of General Services or designee to execute all related documents Sponsors:General Services Department 1.-F.ID 23-1124 Actions pertaining to a lease agreement between the City of Fresno and Tutelian Holdings I, LLC, a California limited liability company, for office space located at 2440 Tulare Street. 1. Adopt a finding of Categorical Exemption per staff determination, pursuant to Section 15301/Class 1 (Existing Facilities) of the California Environmental Quality Act (CEQA) Guidelines 2. Approve a 10-year lease agreement between the City of Fresno and Tutelian Holdings I, LLC, a California limited liability company in the amount of $157,719 annually, with annual increases averaging 2.5%, plus the proportionate share of building operating costs estimated at $69,408 annually Sponsors:General Services Department and City Attorney's Office 1.-G.ID 23-1094 Approve a three-year Service Agreement with Info-Tech Research Group for membership services and access to industrywide product information and support services in the amount of $116,010.03, with annual payments of $38,670.01, utilizing competitively bid California Multiple Award Schedule (CMAS) contract 3-19-70-3685A. Sponsors:Information Services Department Page 6 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final 1.-H.ID 23-1104 Actions pertaining to the implementation of customer relationship management software for Council Offices: 1.Affirm City Manager’s determination that Incapsulate, LLC is uniquely qualified. 2.Award a contract to Incapsulate, LLC for the Customer Relationship Management implementation for Council Offices in the amount of $154,638.50. 3.***RESOLUTION - Adopting the 5th Amendment to the Annual Appropriation Resolution (AAR) No. 2023-185 to appropriate $154,700.00 for implementation of customer relationship management software for Council Offices (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) Sponsors:Information Services Department and Councilmember Esparza 1.-I.ID 23-1109 Approve the appointment of Emogene Nelson to Housing Authority of the City of Fresno for a term ending 4/30/2027. Approve the appointment of Paul Idsvoog to Housing Authority of the City of Fresno for a term ending 4/30/2024. Approve the appointment of Birdevinder Rickie Dhillon to the Disability Advisory Commission for a term ending 6/30/2024. Approve the appointment of Joseph Catania to the Tower District Specific Plan Implementation Committee for a term which serves at the pleasure of the Mayor. Approve the reappointment of Vernon J. Tracy to the Civil Service Board for a term ending 6/30/2027. Sponsors:Office of Mayor & City Manager 1.-J.ID 23-1082 Actions pertaining to the Consultant Services Agreement with eProperty Innovations, LLC: 1.Affirm the City Manager’s determination that eProperty Innovations, LLC, is uniquely qualified to provide professional consultant services for the planning and development of the City of Fresno’s Land Bank operational framework. 2.Approve the Consultant Services Agreement between the City of Fresno and eProperty Innovations, LLC, in the amount of $79,580 for professional consultant services. Sponsors:Office of Mayor & City Manager, Councilmember Chavez, Councilmember Esparza and Councilmember Karbassi 1.-K.ID 23-1083 Actions Pertaining to a Requirements Contract for Charter Bus Services: 1.Approve the award of a requirements contract to Best Tours &Travel for two (2) years with two (2) optional one (1) year extensions for charter bus services for Parks, Afterschool, Recreation and Community Services (PARCS) programming Page 7 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final (Bid File 12302539) 2. Authorize spending authority for charter bus services in an amount not to exceed $153,700 plus annual CPI increases, and no minimum spending guarantee expressed or implied under any respective requirements contract 3. Authorize the City Manager or designee to execute all related documents on behalf of the City Sponsors:Parks, After School and Recreation and Community Services Department 1.-L.ID 23-1039 Actions pertaining to funding provided by the U.S. Department of Housing and Community Development Office of Community Planning and Development (HUD CPD): 1. ***RESOLUTION - Adopting Substantial Amendment 2022-02 to the Fiscal Year (FY) 2022-2023 Annual Action Plan and authorizing submission to the U.S. Department of Housing and Urban Development (HUD) to reprogram $1,417,211.98 in HOME Investment Partnership (HOME) funds from prior year HOME project savings; and authorizing the City Manager or designee to sign all implementing documents as approved to form by the City Attorney (Subject to Mayor’s veto) Sponsors:Planning and Development Department 1.-M.ID 23-931 Actions pertaining to the Vehicle Miles Traveled (VMT) Mitigation Program: 1. Approve second amendment to the consultant services agreement with LSA Associates, Inc. extending contract performance date to December 31, 2024, and authorizing additional compensation in the amount of $151,595, for a total of $450,225.11. Sponsors:Planning and Development Department Page 8 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final 1.-N.ID 23-942 Actions pertaining to the Climate Adaptation and Environmental Justice Planning: 1. ***RESOLUTION Adopt the 3rd Amendment to the Annual Appropriation Resolution No. 2023-185 to Appropriate $650,000 from unspent FY 2023 General Fund Appropriations for General Plan Climate Adaptation and Environmental Justice Planning Consultant Services (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) 2. Approve a consultant services agreement with Dudek for professional services related to Climate Adaptation and Environmental Justice Planning in the amount of $650,000. Sponsors:Planning and Development Department 1.-O.ID 23-1093 Accept a $300,000 contribution to the Community Benefits Fund from Lone Oak Fresno, LLC, for a project located at 791 and 998 East North Avenue, Fresno, APN 329-090-16 and 329-090-17. Sponsors:Planning and Development Department 1.-P.ID 23-1061 Approve a second amendment to the agreement with Fresno Unified School District (FUSD) for Student Resource Officers (SROs) at school sites, to provide an additional sergeant at FUSD school sites. This amendment provides for reimbursement in the amount of $117,513 from FUSD. Sponsors:Police Department 1.-Q.ID 23-744 Actions pertaining to the 2022 Edward Byrne Memorial Justice Assistance Grant (JAG) Program: 1. Authorize the Chief of Police to accept $325,212 in total grant funding for the 2022 JAG Program from the U.S. Department of Justice, Bureau of Justice Assistance for the City and County of Fresno 2. Authorize the Chief of Police to execute all related documents for the acceptance, modification, extension and administration of 2022 JAG Program 3. Authorize the Chief of Police to execute an agreement between the City of Fresno and the County of Fresno regarding the 2022 JAG Program Sponsors:Police Department Page 9 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final 1.-R.ID 23-1074 Approve a consultant services agreement with Tetra Tech BAS, Inc., for an amount not to exceed $363,700, to conduct a composting facility feasibility study for the Fresno-Clovis Regional Wastewater Reclamation Facility (Council District 3). Sponsors:Department of Public Utilities 1.-S.ID 23-1084 Reject all bids for the Requirements Contract for meter boxes, lids, and related parts (Bid File 9665) (Citywide) Sponsors:Department of Public Utilities 1.-T.ID 23-1085 Approve the Second Amendment to the consultant services agreement with SEAM Group, LLC, to extend the term of the contract to December 31, 2024, for the previously approved contract in the amount of $387,200, for the Occupational Safety and Health Administration Compliant Lockout-Tagout Program at the Fresno-Clovis Regional Wastewater Reclamation Facility (Council District 3). Sponsors:Department of Public Utilities 1.-U.ID 23-1086 Approve a consultant services agreement with Haley & Aldrich Incorporated, for an amount not to exceed $318,500, to provide a forensic investigation of structural components at the Northeast Surface Water Treatment Facility’s ozone contact basin and filter gallery (Council District 6). Sponsors:Department of Public Utilities 1.-V.ID 23-1087 Actions pertaining to the Installation of a 16-inch diameter water main in Polk Avenue from Gettysburg Avenue to Acacia Avenue (Bid File 12301690) (Council District 1): 1. Adopt a finding of Categorical Exemption pursuant to Class 2, Section 15302(c) (Replacement or Reconstruction) of the California Environmental Quality Act Guidelines. 2. Award a construction contract to West Valley Construction Company, Inc., in the amount of $963,992. Sponsors:Department of Public Utilities Page 10 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final 1.-W.ID 23-1096 Actions pertaining to the Fresno-Clovis Regional Wastewater Reclamation Facility remote racking systems (Council District 3): 1. ***Resolution - Adopt a Resolution authorizing the purchase and installation of remote racking upgrades for circuit breakers at the Fresno-Clovis Regional Wastewater Reclamation Facility from Wesco International, Inc., in an amount not to exceed $900,637, without advertised competitive bidding.(Subject to Mayor’s Veto) 2. Award a sole source purchase agreement to Wesco International, Inc., in the amount of $900,637, to provide necessary safety upgrades to 59 medium voltage circuit breakers at the Fresno-Clovis Regional Wastewater Reclamation Facility. Sponsors:Department of Public Utilities 1.-X.ID 23-1038 Approve Contract Change Order No. 6 to Strategic Mechanical, Inc. in the amount of $9,958.15 for the Department of Transportation Fresno Area Express Replace HVAC FAX Administration Building Project, Project ID: FC00036 (Council District 3) Sponsors:Public Works Department and Department of Transportation Page 11 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final 1.-Y.ID 23-1119 Actions pertaining to the Senior Activity Center and Affordable Housing Project (Council District 4) 1. Adopt an addendum to the Mitigated Negative Declaration as prepared for Environmental Assessment No. P23-02319, dated April 21, 2023, for the proposed project pursuant to the State of California Environmental Quality Act (CEQA) 2. Approve a 57-Year Ground Lease Agreement with Integrated Community Development, or related legal entity, to develop and operate the Senior Affordable Rental Housing project located at 4323-4333 North Blackstone Avenue 3. Approve an Affordable Housing Agreement with Integrated Community Development, or related legal entity, to develop a Senior Affordable Rental Housing project located at 4323-4333 North Blackstone Avenue 4. Approve Phase 1 of a Progressive Design-Build Contract with Integrated Community Development to provide design services related to the Senior Activity Center Project in an amount not to exceed $634,117 Sponsors:Public Works Department, Planning and Development Department, Parks, After School and Recreation and Community Services Department 1.-Z.ID 23-1077 Actions pertaining to Resolution of Intention Number 1152-D to vacate a portion of North Hayes Avenue, south of West Bullard Avenue (Council District 2): 1. Adopt a finding of Categorical Exemption per Environmental Assessment Number P22-02007, pursuant to Section 15304/Class 4 of the California Environmental Quality Act (CEQA) Guidelines 2. Adopt the attached Resolution of Intention Number 1152-D to vacate a portion of North Hayes Avenue, south of West Bullard Avenue Sponsors:Public Works Department Page 12 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final 1. -AA. ID 23-1101 RESOLUTION - Of Intention to Annex Final Tract Map Number 6383 as Annexation Number 146 to the City of Fresno Community Facilities District Number 11 and to Authorize the Levy of Special Taxes; and setting the Public Hearing for Thursday, August 10, 2023, at 10:05 am (Located on the northeast corner of North Armstrong Avenue and East Floradora Avenue) (Council District 7) Sponsors:Public Works Department 1. -BB. ID 23-1095 BILL - (For introduction) - Amending Section 4-117 to the Fresno Municipal Code relating to National Targeted Hiring in contracts for any Public Work of Improvement not covered by a Project Labor Agreement and increasing median income levels for National Economically Disadvantaged Area Sponsors:Public Works Department 1. -CC. ID 23-1076 Award a requirements contract to Allied Rodent Control in the amount of $83,420.00 per year to provide rodent control services at various facilities and parks (Bid File 12301318) (City Wide) Sponsors:Public Works Department 1. -DD. ID 23-1024 Approve Contract Change Order No. 03 in the amount of an estimated $174,390.40 for increases in unit cost amounts to Dave Christian Construction Co., Inc. for the North Abby Street HMA Pavement Overlay from Divisadero Street to Olive Avenue, Project ID PW00784 (Bid File 3785) (Council District 3). Sponsors:Public Works Department 1. -EE. ID 23-1132 RESOLUTION - Adopting an amended list of proposed Public Works projects to receive Senate Bill 1 (SB 1) Road Maintenance and Rehabilitation Account funding for City Fiscal Year 2024. Sponsors:Public Works Department Page 13 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final 1. -FF. ID 23-1066 Actions pertaining to professional on-call architectural and engineering design services for the Public Works Engineering Division on City of Fresno parks capital improvement projects (Citywide) 1. Approve an On-Call Consultant Services Agreement with O’Dell Engineering Inc., of Fresno, California in the amount of $3,000,000 2. Approve an On-Call Consultant Services Agreement with Blair, Church and Flynn Consulting Engineers Inc., of Clovis, California in the amount of $3,000,000 3. Approve an On-Call Consultant Services Agreement with GHD Inc., of Fresno, California in the amount of $3,000,000 Sponsors:Public Works Department, Parks, After School and Recreation and Community Services Department 1. -GG. ID 23-1073 Approve an agreement for professional engineering services with Quad Knopf Inc., dba QK, of Fresno, California for $82,930 with a $7,500 contingency, for design and construction support services for the Roeding Park Pickleball Court Project (Council District 3) Sponsors:Public Works Department, Parks, After School and Recreation and Community Services Department 1. -HH. ID 23-1065 RESOLUTION - Approving the Final Map of Tract No. 6402, and accepting dedicated public uses offered therein except for dedications offered subject to City acceptance of developer installed required improvements - located on East Alluvial Avenue west of North Willow Avenue (Council District 6) Sponsors:Public Works Department 1.-II.ID 23-1031 Actions related to award of a contract with Trapeze Software Group, Inc. of Cedar Rapids, Iowa, in the amount of $1,189,131.00: 1. Affirm the City Manager’s determination that Trapeze Software Group, Inc. is uniquely qualified to perform maintenance services for existing Trapeze-based software products. 2. Affirm the City Manager’s determination that Trapeze Software Group, Inc. is uniquely capable as defined by the Federal Transit Administration for sole source non-competitive procurements, to perform software maintenance services for the Department of Transportation. 3. Award a three (3) year with two (2) 1-year options services contract to Trapeze Software Group, Inc. for the maintenance of existing Trapeze-based software products in the amount of $1,189,131.00. FAX anticipates expending $217,125 for the Page 14 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final first year of this agreement, $225,517 the second year, and $236,793 the third and final year. This service contract includes two optional years, which FAX can opt to exercise. 4. Authorize the Director of Transportation or designee to execute all related documents. Sponsors:Department of Transportation 1.-JJ.ID 23-1027 Approve the Department of Transportation / Fresno Area Express (FAX) federally mandated Title VI Service Equity Analysis for proposed service changes, with conclusions of no disparate impacts on minority populations or disproportionate burdens on low-income populations. Sponsors:Department of Transportation 1. -KK. ID 23-1050 Resolution - Creating A Pilot Program to Improve The Safety Of And Establish Procedures For Sidewalk Vending In Tower District Sponsors:Vice President Perea and Councilmember Arias 1. -LL. ID 23-1097 Resolution - To Bring Focused Attention to an Affordable Connectivity Program to Bridge the Digital Divide for Residents Who Lack Internet Access Sponsors:Vice President Perea 1. -MM. ID 23-1115 ***Resolution - to adopt a Commercial Façade Improvement Grant Program for Districts 1 and 4 (Subject to Mayor’s Veto) Sponsors:Council President Maxwell and Vice President Perea CONTESTED CONSENT CALENDAR Page 15 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final 2. SCHEDULED COUNCIL HEARINGS AND MATTERS 10:00 A.M. #1 ID 23-1049 HEARING to adopt Resolutions and Ordinance to Annex Territory and Levy a Special Tax regarding City of Fresno Community Facilities District Number 11, Annexation Number 145 (Final Tract Map Number 6283) (Located on the southeast corner of North Fowler Avenue and East Dakota Avenue) (Council District 4) 1. ***RESOLUTION - to Annex Territory to Community Facilities District No. 11 and Authorizing the Levy of a Special Tax for Annexation No. 145 (Subject to Mayor’s Veto) 2. ***RESOLUTION - Calling Special Mailed-Ballot Election (Subject to Mayor’s Veto) 3. ***RESOLUTION - Declaring Election Results (Subject to Mayor’s Veto) 4. ***BILL - (For introduction and adoption) - Levying a Special Tax for the Property Tax Year 2022-2023 and Future Tax Years Within and Relating to Community Facilities District No. 11, Annexation No. 145 (Subject to Mayor’s Veto) Sponsors:Public Works Department 10:00 A.M. #2 ID 23-1069 Appearance by Alberta Boran to discuss cleanliness of Fresno. (Resident of District 2) Sponsors:Office of the City Clerk 10:00 A.M. #3 ID 23-1118 Appearance by Mary Padilla to discuss who are we representing. (Resident of District 2) Sponsors:Office of the City Clerk Page 16 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final 10:05 A.M. (CONTINUED TO AUGUST 10, 2023, AT 10:05 A.M.) ID 23-1079 HEARING to consider the adoption of the Central Southeast Area Specific Plan and related Environmental Assessment, State Clearinghouse (SCH No. 2023020138), and related actions: 1. ADOPT the Subsequent Mitigated Negative Declaration, Environmental Assessment No. P22-00400 dated February 1, 2023 (Exhibit I), prepared pursuant to CEQA Guidelines Section 15162 and 15070 et. Seq. and the Mitigation Monitoring and Reporting Program prepared pursuant to CEQA Guidelines Section 15097. 2. APPROVE Plan Amendment Application P22-00400 which proposes to: a. RESOLUTION - Approving repeal of the Roosevelt Community Plan, pertaining to approximately 15,721 acres (Exhibit N) b. BILL (For Introduction)(For Adoption) - Approving the repeal of the Butler/Willow Specific Plan, pertaining to approximately 563 acres (Exhibit O) c. RESOLUTION - Approving adoption of the Central Southeast Area Specific Plan and accompanying Planned Land Use Ma (Exhibit P) d. RESOLUTION - Approving adoption of the Planned Land Use Map (Figure LU-1) of the Fresno General Plan to incorporate the land use changes proposed in the Central Southeast Area Specific Plan (Exhibit Q) e. BILL (For Introduction)(For Adoption) - Approving the rezone of approximately 136 acres of property within the Central Southeast Area Specific Plan area to be consistent with the planned land uses proposed in the Plan (Exhibit R) 3. RESOLUTION - Authorizing the Planning Department Director or her designee to correct any typographical errors and update the text, policies, maps, tables, and exhibits contained in the Central Southeast Area Specific Plan, the Fresno General Plan, and the Development Code to reflect the final action taken by the Council, to the extent that such updates are necessary to maintain consistency (Exhibit S). Sponsors:Planning and Development Department 10:10 A.M. (CONTINUED TO AUGUST 10, 2023 AT 10:10 A.M.) ID 23-1080 HEARING to Consider Plan Amendment and Rezone Application No. Page 17 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final P22-00507, Development Permit Application No. P22-00505, and related Environmental Assessment No. P22-00507/P22-00505 pertaining to ±1.23 acres of property located on the west side of North Sugar Pine Avenue between West Fir Avenue and West Beechwood Avenues. (Council District 2) - Planning & Development Department. 1. ADOPT the Mitigated Negative Declaration as prepared for Environmental Assessment No. P22-00505/P22-00507, dated December 9, 2022, for the proposed project pursuant to the State of California Environmental Quality Act (CEQA); and, 2. RESOLUTION - Approving Plan Amendment Application No. P22-00507, requesting authorization to amend the Fresno General Plan to change the planned land use designation for the subject property from Residential - Medium Density (±1.23 acres) to Commercial - General (±1.23 acres); and, 3. BILL - (For introduction and adoption) - Approving Rezone Application No. P22-00507, requesting authorization to amend the Official Zoning Map of the City of Fresno to rezone the subject property from the RS-5 (Residential Single Family, Medium Density) (±1.23 acres) zone district to the CG (Commercial - General) (±1.23 acres) zone district in accordance with the Plan Amendment Application; and, 4. APPROVE - Development Permit Application No. P22-00505, requesting authorization to construct an 11,664-square-foot medical clinic and associated parking, circulation, and infrastructure improvements on the approximately 1.23-acre site, subject to compliance with Conditions of Approval dated March 1, 2023. Sponsors:Planning and Development Department 3. GENERAL ADMINISTRATION 3.-A.ID 23-1103 Presentation on the Fresno County Multi-Jurisdictional Housing Element Sponsors:Planning and Development Department 3.-B.ID 23-1130 Actions pertaining to the creation of the Capital Projects Department within the City of Fresno: 1. ***RESOLUTION - Creating the Capital Projects Department within the City of Fresno (Subject to Mayor’s Veto) 2. ***RESOLUTION - Adopting the 6th Amendment to the Annual Appropriations Resolution (AAR) No. 2023-185 appropriating $50,000,000 for the Downtown Fresno Public Infrastructure Improvement Projects and to reclassify $4,492,800 from the Department of Public Works and $1,867,900 from the Department of Public Utilities into the new Capital Projects Page 18 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final Department (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) 3. ***RESOLUTION - Adopt the First Amendment to the Position Authorization Resolution (PAR) No. 2023-184 adding 46 position and transferring 74 positions from the Department of Public Works and 20 positions from the Department of Public Utilities to The Capital Projects Department. (Subject to Mayor’s Veto) 4. ***RESOLUTION - Adopt the First Amendment to the FY 2024 Salary Resolution No. 2023-183, amending Exhibit 13-1, Unit 13, Exempt Supervisory and Professional (CFPEA) by increasing the salary step plan for Professional Engineer; and amending Exhibit 14, Unit 14, Exempt Management Classes (CFMEA) by retitling Public Works/Public Utilities Manager - Licensed Engineer to Licensed Engineer Manager and increasing the salary step range for the classification; and amending Exhibit 2, Non-Represented Management and Confidential Classes by increasing the Maximum of Range E5. (Subject to Mayor’s Veto) Sponsors:Office of Mayor & City Manager 4. CITY COUNCIL Page 19 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final 5. CLOSED SESSION 5.-A.ID 23-1064 CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION Government Code Section 54956.9, subdivision (d)(4): 1 potential case Sponsors:City Attorney's Office 5.-B.ID 23-1070 CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION Government Code Section 54956.9, subdivision (d)(1) TAT Fresno, LLC v. City of Fresno; Fresno Superior Court Case No.: 22CECG00234 Sponsors:City Attorney's Office 5.-C.ID 23-1072 CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION Government Code Section 54956.9, subdivision (d)(1) HAVEN #20, LLC v. City of Fresno; Fresno Superior Court Case No.: 22CECG00238 Sponsors:City Attorney's Office 5.-D.ID 23-1081 CONFERENCE WITH LEGAL COUNCIL - POTENTIAL EXPOSURE TO LITIGATION: Government Code Section 54956.9(d)(2): PW Fund B, LP, et al. v. City of Fresno Sponsors:City Attorney's Office 5.-E.ID 23-1116 CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION Government Code Section 54956.9, subdivision (d)(4): 1 potential case Sponsors:City Attorney's Office 5.-F.ID 23-1117 CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION Government Code Section 54956.9, subdivision (d)(4): 1 potential case Sponsors:City Attorney's Office ADJOURNMENT UPCOMING SCHEDULED COUNCIL HEARINGS AND MATTERS Page 20 City of Fresno ***Subject to Mayoral Veto July 20, 2023City Council Meeting Agenda - Final AUGUST 10, 2023 10:05 A.M. - City of Fresno Community Facilities District No. 11 - Final Tract Map No. 6383 as Annexation No. 146. AUGUST 10, 2023 10:10 A.M. - PROPOSED VACATION OF A PORTION OF NORTH HAYES AVENUE, SOUTH OF WEST BULLARD AVENUE UPCOMING EMPLOYEE CEREMONIES EMPLOYEE OF THE QUARTER - 9:00 A.M. • October 18, 2023 (Wednesday) - Employee of the Fall Quarter EMPLOYEE SERVICE AWARDS - 10:00 A.M. • November 15, 2023 (Wednesday) - Employee Service Awards 2023 CITY COUNCIL MEETING SCHEDULE August 10, 2023 - 9:00 A.M. August 24, 2023 - 9:00 A.M. September 14, 2023 - 9:00 A.M. September 28, 2023 - 9:00 A.M. October 5, 2023- 9:00 A.M. October 19, 2023 - 9:00 A.M. November 2, 2023 - 9:00 A.M. November 16, 2023 - 9:00 A.M. December 7, 2023 - 9:00 A.M. December 14, 2023 - 9:00 A.M. Page 21 City of Fresno ***Subject to Mayoral Veto City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-905 Agenda Date:7/20/2023 Agenda #: CEREMONIAL PRESENTATION Proclamation for “Honoring Carden School for their achievement at this year’s Science Fair” City of Fresno Printed on 7/31/2023Page 1 of 1 powered by Legistar™ 07/20/2023 PRESENTED City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1092 Agenda Date:7/20/2023 Agenda #: REPORT TO THE CITY COUNCIL SUBJECT Proclamation for “Kristine Cai Day” City of Fresno Printed on 7/31/2023Page 1 of 1 powered by Legistar™ 07/20/2023 PRESENTED CITY OF FRESNO byy|vx Éy VÉâÇv|ÄÅxÅuxÜ `|~x ^tÜutáá| WHEREAS, Kristine Cai has been with Fresno Council of Governments for 21 years and proudly served as Deputy Director from 2019-2023. Graduating with a master’s degree from Kansas State University in Regional and Community Planning and a bachelor’s degree in English from Guangzhou Foreign Language Institute University in China, Kristine went to work with the San Joaquin Council of Governments in 1999 before joining Fresno COG in 2002; and WHEREAS, During her professional career, Kristine has prided herself on being a leader in utilizing integrated planning techniques, combining transportation, and land use and air quality planning in development of Fresno COG’s Regional Transportation Plan /Sustainable Communities Strategy. Kristine has worked on and implemented many projects and programs that advanced mobility for people and goods, improved air quality and advanced sustainable planning practices in the Fresno region as well as the San Joaquin Valley; and WHEREAS, Highlights of Kristine’s career include: serving as Fresno COG project manager for three cycles (2014-2022) of the Fresno Council of Governments Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS), initiating and leading the development of the SB 743 Regional Implementation Guidelines that are now being widely used by local governments in Fresno County, managing the Measure C Transit Oriented Development (TOD) program since the inception of the program in 2006, and serving as project manager for the eight San Joaquin Valley MPOs on a Valley-wide Household Travel Survey; and WHEREAS, Although Kristine has resigned from Fresno COG, she will still be serving the Valley in her new role as a consultant. Kristine has a son (Todd) who lives in the Bay Area, and she is moving to the Bay Area to be closer to him and family/friends. In her spare time, Kristine likes to travel. To date she has been to Japan, Britain, Spain, the Netherlands, Canada, China, and Taiwan. She also likes to play pickleball with friends; and NOW, THEREFORE BE IT RESOLVED, that we Mayor Jerry Dyer and the Fresno City Council recognize the many years of service to the City of Fresno, and do hereby honor: “Kristine Cai” in the City of Fresno. IN WITNESS WHEREOF, we have hereunto set our hands and affixed the seal of the City of Fresno, California, this 20th day of July 2023. _____________________________________________ __________________________________________ JERRY P. DYER, Honorable Mayor MIKE KARBASSI , Councilmember District 2 _____________________________________________ __________________________________________ TYLER MAXWELL, Council President ANNALISA PEREA, Council Vice President _____________________________________________ __________________________________________ MIGUEL ARIAS, Councilmember District 3 LUIS CHAVEZ, Councilmember District 5 _____________________________________________ __________________________________________ GARRY BREDEFELD, Councilmember District 6 NELSON ESPARZA, Councilmember District 7 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1100 Agenda Date:7/20/2023 Agenda #: CEREMONIAL PRESENTATION Fresno Animal Center’s “Pet of the Month” presented by Fresno Humane Animal Services City of Fresno Printed on 7/31/2023Page 1 of 1 powered by Legistar™ 7/20/2023 PRESENTED City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1068 Agenda Date:7/20/2023 Agenda #: 1.-A. REPORT TO THE CITY COUNCIL FROM:TODD STERMER, City Clerk Office of the City Clerk SUBJECT Approval of Minutes for June 29, 2023, Regular Meeting. Attachment: Draft Minutes for June 29, 2023, Regular Meeting City of Fresno Printed on 7/31/2023Page 1 of 1 powered by Legistar™ 07/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT 2600 Fresno Street Fresno, CA 93721 www.fresno.gov City of Fresno Meeting Minutes - Draft City Council President - Tyler Maxwell Vice President - Annalisa Perea Councilmembers: Mike Karbassi, Miguel Angel Arias, Luis Chavez, Garry Bredefeld, Nelson Esparza City Manager - Georgeanne A. White City Attorney - Andrew Janz City Clerk - Todd Stermer, CMC 9:00 AM Council Chambers (In Person and/or Electronic) Thursday, June 29, 2023 Regular Meeting The City Council met in regular session in the Council Chamber, City Hall, on the date and time above written. 9:08 A.M. ROLL CALL Councilmember Nelson Esparza Council President Tyler Maxwell Vice President Annalisa Perea Councilmember Mike Karbassi Councilmember Miguel Angel Arias Councilmember Luis Chavez Councilmember Garry Bredefeld Present:7 - Invocation by Pastor Terry Townsend of Peoples Church Pastor Terry Townsend gave the invocation. Pledge of Allegiance to the Flag Councilmember Bredefeld led the Pledge of Allegiance. APPROVE AGENDA Assistant City Clerk Parra announced the following changes to the agenda: Scheduled Hearing and Matters item 10:05 A.M. #2 (ID 23-1028) regarding the hearing to consider the adoption of the Central Southeast Area Specific City of Fresno ***Subject to Mayoral Veto Page 1 June 29, 2023City Council Meeting Minutes - Draft Plan – was removed from the agenda by staff and tabled to July 20, 2023, at 10:05 a.m. Scheduled Hearing and Matters item 10:10 A.M. (ID 23-1029) regarding hearing to consider Plan Amendment and Rezone Application No. P23-00507 – was removed from the agenda by staff and tabled to July 20, 2023, at 10:10 A.M. City Council item 4-A (ID 23-1059) regarding resolution naming the Fresno Police Department regional training center – was removed from the agenda by Councilmember Arias to an undetermined date. Councilmember Karbassi motioned to keep City Council item 4-A (ID 23-1059) regarding resolution naming the Fresno Police Department regional training center on the agenda for discussion. Councilmember Bredefeld seconded the motion. The motion carried 6-1 by the following vote: Ayes: 6 - Perea, Karbassi, Maxwell, Chavez, Bredefeld, Esparza No: 1 - Arias Consent Calendar item 1-E (ID 23-1045) regarding agreement with Bakman Water Company – there was a change requested to be read into the record – Paragraph 1 of the Agreement has been modified and shall read as follows: 1. Grant Amount. City shall provide GRANTEE the amount of $2,700,000 (“Funds”) for the services described in Exhibit A, attached hereto. The Funds shall be distributed to GRANTEE once the Agreement is fully executed. The parties acknowledge that the Funds may not suffice to cover the entire obligation of FCTC Senior, LP (“Developer”) for the Improvements. As to any shortfall GRANTEE intends to execute a separate agreement between GRANTEE and Developer for payment to GRANTEE, by Developer, of Developer’s portion of the costs of the Improvement, which are in excess of the Funds; in any event, City shall not be responsible for any shortfall. Paragraph 3 of the Agreement has been modified and shall read as follows: 3. Term of Agreement and Time for Performance. This Agreement shall be effective from the Effective Date through August 31, 2024, subject to earlier termination in accordance with this Agreement (“Term”). The services as described in Exhibit A are to commence expeditiously. Should GRANTEE City of Fresno ***Subject to Mayoral Veto Page 2 June 29, 2023City Council Meeting Minutes - Draft fail to fulfill any condition precedent necessary for disbursement of funds prior to August 31, 2024, then the City may terminate the Agreement so that any unused funds may be otherwise obligated as required by ARPA, no later than December 31, 2024, and expended by December 31, 2026. Consent Calendar item 1-I (ID 23-1056) regarding agreement with Baker Tilly US, LLP - was removed from the agenda by all sponsors and tabled to an undetermined date. Councilmember Bredefeld registered a "no" vote on Consent Calendar item 1-AA (ID 23-1042) regarding the Operation and Maintenance Cooperative Agreement with California High Speed Rail Authority. Councilmember Arias, Councilmember Esparza, and Vice President Perea recused themselves from Consent Calendar item 1-O (ID 23-951) regarding an amendment to the consultant services agreement with Wallace, Roberts, and Todd, LLC. Councilmember Chavez requested the meeting adjourn in memory of Manuel Vacca formal soccer with Chivas and veteran journalist. ITEMS MOVED TO CONTESTED CONSENT FOR FURTHER DISCUSSION: 1-C (ID 23-1052) regarding resolution adopting the 46 Amendment to the AAR – was moved to Contested Consent by Councilmember Arias. 1-D (ID 231040) regarding agreement with green dot corporation to provide an alternative direct deposit option via a prepaid card - was moved to Contested Consent by Councilmember Arias. 1-H (ID 23-988) regarding the 3rd amendment to the animal control services agreement between the city of Fresno and the Fresno humane Animal Services - was moved to Contested Consent by Councilmember Arias. 1-M (ID 23-286) regarding amended and reinstated agreement for option to purchase 959 North Parkway Drive - was moved to Contested Consent by Councilmember Arias. 1-T (ID 23-1003) regarding actions pertaining to lift station 15 and 16 improvements - was moved to Contested Consent by Councilmember Arias. City of Fresno ***Subject to Mayoral Veto Page 3 June 29, 2023City Council Meeting Minutes - Draft 1-V (ID 23-1057) regarding First Amendment to the professional public Information Services contract for Department of Public utilities with Two Q - was moved to Contested Consent by Councilmember Arias. 1-X (ID 23-972) regarding award a product purchase contract to JAM services - was moved to Contested Consent by Councilmember Arias. 1-BB (ID 23-1055) regarding approve an increase to the current Fortney Evidence Tow Service Contract - was moved to Contested Consent by Councilmember Arias. On motion of Councilmember Esparza, seconded by Vice President Perea, the above agenda was APPROVED AS AMENDED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - CEREMONIAL PRESENTATIONS ID 23-1060 Proclamation for "Brittany Jacob Day." PRESENTED ID 23-1018 Fresno Animal Center’s “Pet of the Month” presented by Fresno Humane Animal Services PRESENTED COUNCILMEMBER REPORTS AND COMMENTS Councilmember Karbassi Reports and Comments: Announced the reopening of the dual left turn lanes on Nees and Audubon to relieve traffic congestion and acknowledged the staff for their efforts in the reopening of the lanes. Acknowledged the staff for the repaving of Forkner. Announced the Sycamore Island is open for fishing and hiking opportunities. Gave tribute to Manjeet Singh, an Indian-American immigrant who sacrificed his life to save children from a canal and who was awarded the Carnegie Medal posthumously. Discussed July 4, 2023, celebrations and the concerns about noise for veterans, seniors, and pets. The opening of cooling centers located at Mosqueda Center, Maxi L Park Center, Ted C. Wills Community Center, and the Pinedale Community Center. The cooling centers will be open during high temperatures from 12:00 P.M. to 8:00 P.M. City of Fresno ***Subject to Mayoral Veto Page 4 June 29, 2023City Council Meeting Minutes - Draft Councilmember Arias Reports and Comments: Announced the July 4, 2023, free firework event shows at McLean stadium and Chukchansi stadium and addressed the safety precautions regarding fireworks and fires near open fields. Discussed the concerns and obstacles faced by businesses in downtown Fresno and Chinatown. He requested the administration look into the issues with street closures and the high cost of alert lights for markets and events and parking arrangements and the need to encourage the use of parking garages during downtown concerts. Acknowledged staff for their efforts on the $250 million awarded to the City of Fresno to redo downtown infrastructure. Councilmember Chavez Reports and Comments: Acknowledged the Beautify Fresno team for organizing cleanups across the city particularly the cleaning of the community garden by the Jackson neighborhood association. Requested the meeting be adjourned in memory of Manuel Vacca, the publisher of El Sol Azteca newspaper. Councilmember Esparza Reports and Comments: Acknowledged Vice President Perea for joining and introducing the legislation at the Van Ness and Clinton intersection event.Congratulated Celida Garcia District Director, for her admission into the MPA program at Fresno State. Wished everyone in advance a Happy Independence Day and Fourth of July and requested staff to remind residents about the consequences of lighting illegal fireworks or allowing them on their property. Vice President Perea Reports and Comments: Attended the press conference to discuss potential intersection improvements at Clinton and Van Ness. Announced movies in the Parks event at Lions Park located at 4650 North Marks, events starts at 8:00 P.M. featuring the 1984 version of Karate Kid. Announced the weekly Tower District Farmers Market. Announced the Rainbow Family Day at the Zoo, starting at 2:00 P.M. Announced on July 10, 2023, there will be a Neighborhood watch meet and greet at Moto Deli located at 1916 North Echo Street and upcoming movie night at Inspiration Park on July 13, 2023, and Lions Park on July 20, 2023. Appreciation extended to the City Attorney's Office and the City Clerk's Office for their hard work and support. MAYOR/MANAGER REPORTS AND COMMENTS City Manager White Reports and Comments: Discussed the Senior affordable housing at Fancher Creek. and acknowledged City Attorney's Office, Bakeman and Councilmember Chavez for their significant efforts in City of Fresno ***Subject to Mayoral Veto Page 5 June 29, 2023City Council Meeting Minutes - Draft the project. CITY CLERK AND CITY ATTORNEY REPORTS AND COMMENTS City Attorney Janz Reports and Comments:Acknowledged legal teams and administration for their efforts in the Senior Affordable housing at Fancher Creek. Announced there was a favorable verdict in the Gonzalez vs. City of Fresno matter. UNSCHEDULED COMMUNICATION Upon call, the following members of the public addressed Council: Steve Diddy, Craig Jones, Tijante Tucker, Serenity Vassar, James Boyd, Syonna Manning, Lawrence Chisom (4-A), Pastor B.T. Lewis (4-A), Ben Hopper, Alan Patzkowsky, Fernando Elizando, Jose Luis Barraza (10:05#2), Jennifer Leandra, Shar Thompson, Ramon Perez, Jolie Clare, Lynn Owens, Jose Leon Barraza (10:05#2) Shawn, Lisa Flores, Linear Akines, Kiel Lopez-Schmidt (1-CC), Deserie Matos, Jose Solorio (4-A), and Dez Martinez (4-A). 1. CONSENT CALENDAR APPROVAL OF THE CONSENT CALENDAR On motion of Councilmember Arias, seconded by Councilmember Esparza, the CONSENT CALENDAR was hereby adopted by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 1.-A.ID 23-1033 Approval of minutes for June 15, 2023, Special Meeting and June 22, 2023, Regular Meeting. APPROVED ON CONSENT CALENDAR 1.-B.ID 23-983 Actions related to the Service Agreement with The Arc Fresno/Madera Counties (ARC): 1. Affirm the City Manager’s determination that ARC is uniquely qualified to provide job coaching, education, and social skills training for adults with developmental and intellectual disabilities. 2. Approve the Service Agreement with ARC for litter abatement services at Fresno Yosemite International Airport (FAT) for a term of five years. Annual costs are $91,173.94, plus a three percent increase in successive years. Total costs during the full five-year term of the agreement are $484,054.85. (Council District 4) APPROVED ON CONSENT CALENDAR City of Fresno ***Subject to Mayoral Veto Page 6 June 29, 2023City Council Meeting Minutes - Draft 1.-E.ID 23-1045 Approve a Grant Agreement with Bakman Water Company allocating up to $2,700,000 in American Rescue Plan Act (ARPA) funding for the construction of water infrastructure necessary to meet safety standards and fire suppression requirements for the development of affordable housing at the Fancher Creek Town Center development. APPROVED ON CONSENT CALENDAR 1.-F.ID 23-1006 Approve the award of a cooperative purchase contract to Haaker Equipment Company Inc. of La Verne, California for the purchase of two Elgin CNG Broom Bear street sweepers in the amount of $1,158,438 for Public Works Street Maintenance Division APPROVED ON CONSENT CALENDAR 1.-G.ID 23-1046 Actions pertaining to temporary water service for fire suppression within Fancher Creek Town Center: 1. Adopt a finding of Categorical Exemption pursuant to Section 15301/Class 1 (Existing Facilities) of the California Environmental Quality Act (CEQA) Guidelines. 2. Approve a Temporary Water Service Agreement with Bakman Water Company APPROVED ON CONSENT CALENDAR 1.-I.ID 23-1056 Approve a consultant agreement with Baker Tilly US, LLP in the amount of $256,443, plus a not-to-exceed contingency amount of $10,000, to provide consulting services on development of an assessment - along with recommendations for options - to improve the services and affordability of electricity in the City of Fresno; authorize the City Manager or designee to execute all related documents. (Citywide) The above item was removed from the agenda by all sponsors and tabled to no return date. TABLED 1.-J.ID 23-1053 Actions pertaining to the International Union of Operating Engineers, Stationary Engineers, Local 39 for Unit 1 1. ***Adopt a successor Memorandum of Understanding between the City of Fresno and International Union of Operating Engineers, Stationary Engineers, Local 39 (Local 39), Non-Supervisory Blue Collar, Unit 1 (Subject to Mayor’s veto) 2. ***RESOLUTION: Adopt the Fifteenth Amendment to FY 2023 Salary Resolution No. 2022-152, amending Exhibit 1, Non-Supervisory Blue Collar (Local 39), to provide a salary increase for respective classes as required by the Memorandum City of Fresno ***Subject to Mayoral Veto Page 7 June 29, 2023City Council Meeting Minutes - Draft of Understanding between the City of Fresno and International Union of Operating Engineers, Stationary Engineers, Local 39 (Local 39) (Subject to Mayor’s veto) RESOLUTION 2023-195 ADOPTED APPROVED ON CONSENT CALENDAR 1.-K.ID 23-1004 Actions pertaining to Community Gardens: 1.Award a two-year professional services agreement in an amount not to exceed $40,000 per year to Fresno Metropolitan “Metro” Ministry for Community Garden Liaison services at three City of Fresno community gardens with the option of two, one -year extensions. (Council Districts 3 and 5) 2.Authorize the City Manager or designee to execute all related documents. APPROVED ON CONSENT CALENDAR 1.-L.ID 23-909 Approve agreement with Marjaree Mason Center to operate as a homeless family emergency shelter for a total award amount of $110,167.00. APPROVED ON CONSENT CALENDAR 1.-N.ID 23-1011 Approve agreement with Mental Health Systems to operate the Fresno HOME as a low-barrier emergency homeless shelter for a total amount of $1,449,183.89. APPROVED ON CONSENT CALENDAR 1.-O.ID 23-951 Approve an amendment to the consultant services agreement with Wallace, Roberts, and Todd, LLC ., for professional planning and environmental analysis services related to the update of the Tower District Specific Plan in the amount of $170,590. Councilmember Arias, Councilmember Esparza, and Vice President Perea recused themselves from the above item. The motion carried 4-0 by the following vote: Aye: 4 - Karbassi, Maxwell, Chavez, Bredefeld Recuse: 3 - Perea, Arias, Esparza APPROVED ON CONSENT CALENDAR 1.-P.ID 23-986 ***RESOLUTION - Adopting the 45th Amendment to the Annual Appropriation Resolution (AAR) No. 2022-154 appropriating $132,600 in Emergency Solutions Grant-Coronavirus (ESG-CV) (Subject to Mayor’s Veto) City of Fresno ***Subject to Mayoral Veto Page 8 June 29, 2023City Council Meeting Minutes - Draft RESOLUTION 2023-197 ADOPTED APPROVED ON CONSENT CALENDAR 1.-Q.ID 23-987 Actions pertaining to supplemental Emergency Solutions Grant funding provided by the U.S. Department of Housing and Community Development Office of Community Planning and Development (HUD CPD) to prevent, prepare for, and respond to the Coronavirus: 1.Approve an Amendment to the Emergency Solutions Grant - Coronavirus Agreement with Elevate Community Services to increase the funding by $132,539.21 for a total award of $385,805.42 for emergency shelter within the City of Fresno. 2.Approve the seventh revision of the Emergency Solutions Grant - Coronavirus Activity Allocations to reallocate $132,539.21 to fund emergency shelter operations APPROVED ON CONSENT CALENDAR 1.-R.ID 23-1000 BILL - (for Introduction) - Granting a non-exclusive roll-off franchise for roll-off collection within the City of Fresno to Valley Dumpster Service LLC in preparation for a public hearing on the matter and final vote to approve the non-exclusive franchise on August 10, 2023, at 10:00 a.m. (Citywide). BILL B-22 INTRODUCED AND APPROVED APPROVED ON CONSENT CALENDAR 1.-S.ID 23-1002 Actions pertaining to the cleaning of Digester #1 and cleaning and rehabilitation of Digester #12 at the Fresno-Clovis Regional Wastewater Reclamation Facility (Bid File 12302079) (Council District 3): 1.Adopt a finding of Categorical Exemption pursuant to Section 15301(d)/Class 1 of the California Environmental Quality Act (CEQA) Guidelines. 2.Award a construction contract to F .D. Thomas, of Central Point, Oregon, in the amount of $1,200,010. APPROVED ON CONSENT CALENDAR 1.-U.ID 23-915 Actions pertaining to the Downtown Fresno Neighborhood Beautification and Cleanup Project (Council Districts 1, 3, & 7): 1. Affirm the City Manager’s determination that Fresno Arts Council is uniquely qualified 2. Approve the Agreement between City of Fresno and Fresno Arts Council, Inc. of Fresno CA, a uniquely qualified consultant, in the amount of $536,222 for procurement of transportation art on behalf of the City of Fresno. APPROVED ON CONSENT CALENDAR City of Fresno ***Subject to Mayoral Veto Page 9 June 29, 2023City Council Meeting Minutes - Draft 1.-W.ID 23-967 Approve the Second Amendment to the Consultant Services Agreement with The Taylor Group Architects in the amount of $132,500, for a total increased contract amount of $1,107,500, with a remaining contingency of $70,000, for professional architectural services for the design of plans and general construction contract documents for the New Fire Station 12 (Council District 1) APPROVED ON CONSENT CALENDAR 1.-Y.ID 23-977 Approve the First Amendment to the Consultant Services Agreement with Provost & Pritchard Engineering Group, Inc ., of Fresno, California in the amount of $22,748, for a total increased contract amount of $172,648, with a $10,000 contingency, for professional engineering services and preparation of right -of-way documents for the Blackstone Avenue Smart Mobility Project between McKinley Avenue and Shields Avenue (Council District 7) APPROVED ON CONSENT CALENDAR 1.-Z.ID 23-981 Award a construction contract in the amount of $3,260,116 to Granite Construction Company of Fresno, CA, as the lowest responsive and responsible bidder, for the Downtown Fresno Neighborhood Beautification and Cleanup Project (Bid File No. 12302141) (Council Districts 1, 3, & 7) APPROVED ON CONSENT CALENDAR 1.-AA.ID 23-1042 Actions pertaining to the Operation and Maintenance Cooperative Agreement with California High Speed Rail Authority (Council Districts 1, 2, 3, and 5): 1.Approve the Ownership and Maintenance Cooperative Agreement between the California High -Speed Rail Authority and the City of Fresno to establish a record of final ownership and perpetual maintenance for the California High -Speed Rail System located within the City of Fresno 2.Authorize the Public Works Director or designee to accept the lump sum payment of $5,000,000 for graffiti abatement costs related to the Operations and Maintenance Cooperative Agreement with California High Speed Rail (Subject to Mayor’s Veto) Councilmember Bredefeld registered a "no" vote on the above item. The motion carried 6-1 by the following vote: Aye: 6 - Perea, Karbassi, Arias, Maxwell, Chavez, Esparza No: 1 - Bredefeld APPROVED ON CONSENT CALENDAR City of Fresno ***Subject to Mayoral Veto Page 10 June 29, 2023City Council Meeting Minutes - Draft 1.-CC.ID 23-1051 ***Resolution - To conduct a traffic assessment to include options for improved safety for the intersection of Van Ness and Clinton Avenues (Subject to Mayor’s Veto) RESOLUTION 2023-198 ADOPTED APPROVED ON CONSENT CALENDAR CONTESTED CONSENT CALENDAR 1.-C.ID 23-1052 ***RESOLUTION - Adopting the 46th Amendment to the Annual Appropriation Resolution No. 2022-154 to increase appropriations by $400,000 to cover anticipated General Fund expense overages for the Fire Department. (Subject to Mayor’s Veto) Councilmember Arias moved this item to Contested Consent to discuss the reason for the change. Council discussion on this item included: Why wasn't the matter addressed during the budget hearings, how did the department end up being $400,000 short to close the fiscal year, how did this oversight occur despite having a finance department and a controller's office, are there other departments overspending that the City is not aware of, where is the additional $400,000 coming from, and is the funding for the shortfall coming from the general fund or third-party sources. RESOLUTION 2023-194 ADOPTED On motion of Councilmember Arias, seconded by Vice President Perea, that the above Action Item be ADOPTED. The motion carried by the following vote: Aye:Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld6 - Absent:Esparza1 - 1.-D.ID 23-1040 Approve an agreement with Green Dot Corporation to provide an alternative direct deposit option via a prepaid card program in lieu of a paper check, with no cost to the City of Fresno. Councilmember Arias moved this item to Contested Consent to get clarification on how many employees utilize the service. Council discussion on this item included: how many employees utilize the alternative direct deposit option via the prepaid card program, when does the Bank of America agreement expire, is the city considering choosing City of Fresno ***Subject to Mayoral Veto Page 11 June 29, 2023City Council Meeting Minutes - Draft another bank due to Bank of America's decision to no longer provide the services our employees need, will the RFP process for a new bank be completed before the expiration of the current contract, are there concerns about Bank of America's decision affecting employees and the city's relationship with them, and will the RFP process be scrutinized deeply to ensure fulfillment of contract requirements and address the issues faced with Bank of America. APPROVED On motion of Councilmember Arias, seconded by Councilmember Chavez, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 1.-H.ID 23-988 Approve the third amendment to the animal control services agreement between the City of Fresno and Fresno Humane Animal Services in the amount not to exceed $2,321,500 for a five-month term beginning July 1, 2023 to November 30, 2023. Councilmember Arias moved this item to Contested Consent to discuss the concerns and complaints from residents regarding the management of cats. Council discussion on this item included: what would the extension of this contract do in relation to the cat issue, anticipate improving services around cats and spay/neutering when it is brought in-house, will bringing the services in-house address the challenges we currently face, how does the city plan to address the concerns and complaints from residents regarding the management of cats and dogs, how is the city going to manage the large number of cats and dogs when there are limited resources, how will the city address the increased number of complaints and ensure that the animal center operates at a higher level, and how does the city plan to handle the expectations and responsibilities placed on us by the community in managing the animal center. APPROVED On motion of Councilmember Arias, seconded by Councilmember Chavez, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - City of Fresno ***Subject to Mayoral Veto Page 12 June 29, 2023City Council Meeting Minutes - Draft 1.-M.ID 23-286 Actions pertaining to an Amended and Restated Agreement for Option to Purchase 959 N. Parkway Drive (District 3): 1.***RESOLUTION - Finding good cause and clear and convincing benefit to the public to allow a purchase option on subject property for more than five years without a request for proposal process, allow close of escrow on the subject property to extend beyond 12 months of council approval, and allow the removal of a reverter clause; and finding substantial community benefits to justify a sales price less than fair market value pursuant to Fresno Municipal Code section 4-204 relating to the disposition of real property commonly known as 959 N. Parkway Drive, Fresno, CA (APN 449-324-11) (Requires 5 affirmative votes) (Subject to Mayor’s veto) 2.Approve the Amended and Restated Agreement for Option to Purchase 959 N. Parkway Drive between the City of Fresno and Fresno Housing Authority in the amount of $1,000 Councilmember Arias moved this item to Contested Consent to explain for the record what this item project does. Council discussion on this item included: calcification on if the city is opening up a new shelter and if there is available beds,if the project is being operated currently as a shelter, is it fully occupied, does this item clean up a mistake by the assessor's office regarding the purchase price, has the property already been acquired and is it operational and is it pretty full. RESOLUTION 2023-196 ADOPTED On motion of Councilmember Arias, seconded by Councilmember Karbassi, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 1.-T.ID 23-1003 Actions pertaining to Lift Station 15 and 16 Improvements (Bid File 12301689) (Council Districts 2 and 4): 1.Adopt a finding of Categorical Exemption pursuant to Class 1, Section 15301(b)(d) (Existing Facilities) of the California Environmental Quality Act Guidelines. 2.Award a construction contract to HPS Mechanical, Inc ., in the amount of $698,106. Councilmember Arias moved this item to Contested Consent to discuss of the city is going to replace the lift station in City Hall or is there a specific City of Fresno ***Subject to Mayoral Veto Page 13 June 29, 2023City Council Meeting Minutes - Draft status regarding that lift station. APPROVED On motion of Councilmember Arias, seconded by Councilmember Esparza, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 1.-V.ID 23-1057 Approve a First Amendment to the professional public information services contract for the Department of Public Utilities with Two Q, Inc . dba JP Marketing to extend the agreement through June 30, 2024, and increase the contract amount by $808,698 to fund continuity of services, for a revised total contract amount of $2,993,673. Councilmember Arias moved this item to Contested Consent to discuss the contract regarding the Prop 218 process. Council discussion on this item included: When does the city anticipate bringing Prop 218 to the council, is the city going to launch a marketing campaign targeted at the legislative body to convince them to support Prop 218, does the city need a marketing firm since we have an in-house Communications team, can the city manage to send a mailing list in-house, what are the other tasks the marketing firm will be responsible for, apart from Prop 218; if there will be any billboards paid for by the marketing firm convincing the Council on Prop 218 before the Council knows what it encompasses, and when will the Prop 218 item come before Council. APPROVED On motion of Council President Maxwell, seconded by Vice President Perea, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea and Karbassi4 - No:Arias and Bredefeld2 - Absent:Chavez1 - 1.-X.ID 23-972 Award a product purchase contract in the amount of $708,732.52 to JAM Services, Inc. of Livermore, California for the streetlight materials required for the Chinatown Project 1 & 6 Streetlights - Bid File No. 12302405 (Council District 3) City of Fresno ***Subject to Mayoral Veto Page 14 June 29, 2023City Council Meeting Minutes - Draft Councilmember Arias moved this item to Contested Consent to discuss what the item does. Council discussion on this item included: if the street lights engineered to accommodate overhead string lighting, if the poles are structurally capable of handling overhead string lighting, and will the poles be able to handle overhead string lighting in the future if the council decides to implement it. APPROVED On motion of Councilmember Arias, seconded by Councilmember Karbassi, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias and Bredefeld6 - Absent:Chavez1 - 1.-BB.ID 23-1055 Approve an increase to the current Fortney Towing Evidence Tow Service Contract, Bid File No. 9515, in an amount not to exceed $501,600 to cover the expenses incurred and projected through FY 2024 and to execute the first one -year extension through September 30, 2024. Councilmember Arias moved this item to Contested Consent to discuss the reasons for storing evidence in vehicles. Council discussion on this item included: the need to spend more money on storing evidence in vehicles, why the need to hold onto the vehicles used as evidence, what are the reasons for the backlog of vehicles, particularly those associated with murder investigations, what is the process for disposing of vehicles once we get the green light, where is the additional money coming from to cover the expenses, is the money coming from the police budget, does the additional request cover the full increase or just a portion, does the requested amount cover a year and a half of storage fees, will there be a need to address additional increases in the next budget cycle, and is there any opposition to the item. APPROVED On motion of Councilmember Arias, seconded by Vice President Perea, that the above Action Item be APPROVED. The motion carried by the following vote: City of Fresno ***Subject to Mayoral Veto Page 15 June 29, 2023City Council Meeting Minutes - Draft Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 2. SCHEDULED COUNCIL HEARINGS AND MATTERS 10:00 A.M. #1 ID 23-1032 Appearance by Maria Alvarez Garcia to discuss dog abuse accountability. (Resident of District 2) Maria Alvarez Garcia addressed the Council regarding dog abuse accountability. 10:00 A.M. #2 ID 23-1058 HEARING to adopt Resolutions and Ordinance to Annex territory and Levy a Special Tax regarding City of Fresno Community Facilities District Number 11, Annexation Number 144 (Final Tract Map Number 6276) (located on the northwest corner of North Parc West Drive and North Grantland Avenue) (Council District 1) 1. ***RESOLUTION - to Annex Territory to Community Facilities District No. 11 and Authorizing the Levy of a Special Tax for Annexation No. 144 (Subject to Mayor’s Veto) 2. ***RESOLUTION - Calling Special Mailed-Ballot Election (Subject to Mayor’s Veto) 3. ***RESOLUTION - Declaring Election Results (Subject to Mayor’s Veto) 4. ***BILL - (For introduction and adoption) - Levying a Special Tax for the Property Tax Year 2022-2023 and Future Tax Years Within and Relating to Community Facilities District No. 11, Annexation No. 144 (Subject to Mayor’s Veto) The above hearing was called to order at 10:55 A.M. Upon call, there was no Council discussion, no staff presentation, and no public comment. The public comment period closed at 10:56 A.M. RESOLUTION 2023-199 ADOPTED RESOLUTION 2023-200 ADOPTED RESOLUTION 2023-201 ADOPTED BILL B-23 INTRODUCED/ADOPTED AS ORDINANCE 2023-022 On motion of Vice President Perea, seconded by Councilmember Arias, that the above Action Item be ADOPTED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - City of Fresno ***Subject to Mayoral Veto Page 16 June 29, 2023City Council Meeting Minutes - Draft 10:05 A.M. #1 ID 23-1005 HEARING to consider the proposed Annual Assessment for the City of Fresno Landscaping and Lighting Maintenance District No. 1 (Citywide) 1. ***RESOLUTION - Confirming the diagram and assessment and levy of annual assessment, 2023-2024, for Landscaping and Lighting District No. 1 (Subject to Mayor’s Veto) The above hearing was called to order at 10:58 A.M. Upon call, there was no Council discussion, no staff presentation, and no public comment. The public comment period closed at 10:58 A.M. RESOLUTION 2023-202 ADOPTED On motion of Councilmember Arias, seconded by Councilmember Karbassi, that the above Action Item be ADOPTED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 10:05 A.M. #2 ID 23-1028 Hearing - To consider the adoption of the Central Southeast Area Specific Plan and related Environmental Assessment, State Clearinghouse (SCH No. 2023020138), and related actions: 1. ADOPT the Subsequent Mitigated Negative Declaration, Environmental Assessment No. P22-00400 dated February 1, 2023 (Exhibit I), prepared pursuant to CEQA Guidelines Section 15162 and 15070 et. Seq. and the Mitigation Monitoring and Reporting Program prepared pursuant to CEQA Guidelines Section 15097. 2. APPROVE Plan Amendment Application P22-00400 which proposes to: a. RESOLUTION - Approving repeal of the Roosevelt Community Plan, pertaining to approximately 15,721 acres (Exhibit N) b. BILL - Approving the repeal of the Butler/Willow Specific Plan, pertaining to approximately 563 acres (Exhibit O) c. RESOLUTION - Approving adoption of the Central Southeast Area Specific Plan and accompanying Planned Land Use Ma (Exhibit P) d. RESOLUTION - Approving adoption of the Planned Land Use Map (Figure LU-1) of the Fresno General Plan to incorporate the land use changes proposed in the Central City of Fresno ***Subject to Mayoral Veto Page 17 June 29, 2023City Council Meeting Minutes - Draft Southeast Area Specific Plan (Exhibit Q) e. BILL - Approving the rezone of approximately 136 acres of property within the Central Southeast Area Specific Plan area to be consistent with the planned land uses proposed in the Plan (Exhibit R) 3. RESOLUTION - Authorizing the Planning Department Director or her designee to correct any typographical errors and update the text, policies, maps, tables, and exhibits contained in the Central Southeast Area Specific Plan, the Fresno General Plan, and the Development Code to reflect the final action taken by the Council, to the extent that such updates are necessary to maintain consistency (Exhibit S). The above item was removed from the agenda by staff and tabled to July 20, 2023, at 10:05 A.M. TABLED 10:10 A.M. ID 23-1029 HEARING to Consider Plan Amendment and Rezone Application No. P22-00507, Development Permit Application No. P22-00505, and related Environmental Assessment No. P22-00507/P22-00505 pertaining to ±1.23 acres of property located on the west side of North Sugar Pine Avenue between West Fir Avenue and West Beechwood Avenues. (Council District 2) - Planning & Development Department. 1. ADOPT the Mitigated Negative Declaration as prepared for Environmental Assessment No. P22-00505/P22-00507, dated December 9, 2022, for the proposed project pursuant to the State of California Environmental Quality Act (CEQA); and, 2. RESOLUTION - Approving Plan Amendment Application No. P22 -00507, requesting authorization to amend the Fresno General Plan to change the planned land use designation for the subject property from Residential - Medium Density (±1.23 acres) to Commercial - General (±1.23 acres); and, 3. BILL - (For introduction and adoption) - Approving Rezone Application No. P22-00507, requesting authorization to amend the Official Zoning Map of the City of Fresno to rezone the subject property from the RS-5 (Residential Single Family, Medium Density) (±1.23 acres) zone district to the CG (Commercial - General) (±1.23 acres) zone district in accordance with the Plan Amendment Application; and, 4. APPROVE - Development Permit Application No. P22-00505, requesting authorization to construct an 11,664-square-foot medical clinic and associated parking, circulation, and infrastructure improvements on the approximately 1.23-acre site, subject to compliance with Conditions of Approval dated March 1, City of Fresno ***Subject to Mayoral Veto Page 18 June 29, 2023City Council Meeting Minutes - Draft 2023. The above item was removed from the agenda by staff and tabled to July 20, 2023, at 10:10 A.M. TABLED 3. GENERAL ADMINISTRATION 4. CITY COUNCIL 4.-A.ID 23-1059 Resolution - Naming the Fresno Police Department Regional Training Center the “Jerry P. Dyer Regional Police Training Center” Council President Maxwell and Councilmember Bredefeld introduced the item to Council. Upon call, the following members of the public address Council: Jose Solorio and Dominic Holland. Councilmember Arias spoke in opposition on the matter. RESOLUTION 2023-193 ADOPTED On motion of Council President Maxwell, seconded by Councilmember Karbassi, that the above Action Item be ADOPTED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Chavez and Bredefeld6 - No:Arias1 - 5. CLOSED SESSION During open session, City Attorney Janz announced the items that would be discussed in closed session. Council withdrew to closed session at 11:52 A.M. 5.-A.ID 23-1062 CONFERENCE WITH LEGAL COUNCIL - POTENTIAL EXPOSURE TO LITIGATION: Government Code Section 54956.9(d)(2): PW Fund B, LP, et al. v. City of Fresno The above item was discussed in closed session. There were no open session announcements regarding this item. DISCUSSED ADJOURNMENT City of Fresno ***Subject to Mayoral Veto Page 19 June 29, 2023City Council Meeting Minutes - Draft Adjourned from closed session at 12:30 P.M. in memory of Manuel Vacca. City of Fresno ***Subject to Mayoral Veto Page 20 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1091 Agenda Date:7/20/2023 Agenda #: 1.-B. REPORT TO THE CITY COUNCIL FROM:TODD STERMER, City Clerk Office of the City Clerk SUBJECT BILL - (For Introduction) to Amend Section 2-1105 of the Fresno Municipal Code, relating to Campaign Contributions - Limitations on amount and document filing methods. RECOMMENDATION Staff recommends the City Council introduce a Bill amending Section 2-1105 of the Fresno Municipal Code (FMC) relating to the Campaign Contributions Limitations to reflect the City-adopted current contribution limits as updated by the Fair Political Practices Committee (FPPC) in 2023; specify that the City limits for small contributor committee contributions refers to Government Code 85302(b); and various minor cleanups. EXECUTIVE SUMMARY As permitted by Government Code 85702.5, FMC Section 2-1105 establishes the City’s campaign contribution limits per election from persons and small contributor committees. The City refers to FPPC updates on odd-numbered years to establish its limits. Upon adoption, the FMC will reflect the City’s contribution limit changes to $5,500 and $10,900 per person and small contributor committee, respectively. The proposed revisions to Section 2-1105 also codify the City’s practice of referring to state limitations for state-seat election contribution limits, rather than the state’s limitations for local elections, for small contributor committees. BACKGROUND Pursuant to Fresno Municipal Code Section 2-1105(c) the City’s contribution limitations shall be adjusted in January of every odd-numbered year to reflect the FPPC’s updates, based on an increase or decrease in CPI. This update reflects that and clarifies which section of the Government Code is the reference for small contributor committees. ENVIRONMENTAL FINDINGS Environmental findings are not applicable as this Bill only concerns campaign reporting requirements. LOCAL PREFERENCE City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 B-24 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1091 Agenda Date:7/20/2023 Agenda #: 1.-B. Not applicable FISCAL IMPACT None. Attachment:Ordinance City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ 1 of 4 Date Adopted: Date Approved Effective Date: City Attorney Approval: ________ Ordinance No. BILL NO. ORDINANCE NO. AN ORDINANCE OF THE CITY OF FRESNO, CALIFORNIA, AMENDING SECTION 2-1105 OF THE FRESNO MUNICIPAL CODE, RELATING TO CAMPAIGN CONTRIBUTIONS—LIMITATIONS ON AMOUNT AND DOCUMENT FILING METHODS THE COUNCIL OF THE CITY OF FRESNO DOES ORDAIN AS FOLLOWS: SECTION 1. Section 2-1105 of the Fresno Municipal Code is amended to read. SECTION. 2-1105. - CAMPAIGN CONTRIBUTIONS—LIMITATIONS ON AMOUNT AND DOCUMENT FILING METHODS. (a)A person, other than a small contributor committee or a political party committee, may not make to any candidate for elective City office, and a candidate for elective City office may not accept from a person, any contribution totaling more than [five thousand five hundred dollars $5,500)] four thousand nine hundred dollars ($4,900) per election. The provisions of this section do not apply to a candidate's contributions of his or her personal funds to his or her own campaign. (b)A small contributor committee may not make to any candidate for elective City office, and a candidate for elective City office may not accept from a small contributor committee, any contribution totaling more than [ten thousand nine hundred dollars ($10,900)] nine thousand seven hundred dollars ($9,700) per election. 2 of 4 (c)The contribution limitations set forth in this article shall be adjusted in January of every odd-numbered year to reflect any increase or decrease in the Consumer Price Index, as determined by the Fair Political Practices Commission pursuant to Government Code Sections 83124, [adjusting the limits set forth in Government Code Section] 85301(a) [for subsection (a) hereinabove], and 85302(a[b]) [for subsection (b) hereinabove]. (d)It is the finding of the City Council that an elected officer, candidate, committee or other person required to file statements, reports, or other documents described by Chapter 4 of the Government Code [Political Reform Act of 1974] (commencing with [Government Code] Section 84100) shall file those statements, reports, or other documents online or electronically with the City. The City's online system can and will operate securely and effectively and will not unduly burden filers. By way of this finding, the use of online or electronic filing is hereby authorized and required for elected officers, candidates, committees and other persons filing statements, reports or other documents described in Chapter 4 of the Government Code. (1)In any instance in which an original statement, report or other document must be filed with the Secretary of State and a copy of that statement, report, or other document is required to be 3 of 4 filed with the City, the filer may, but is not required to, file the copy online or electronically. SECTION 2. This ordinance shall become effective and in full force and effect at 12:01 a.m. on the thirty-first day after its final passage. 4 of 4 * * * * * * * * * * * * * * STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing ordinance was adopted by the Council of the City of Fresno, at a regular meeting held on the day of 2023. AYES : NOES : ABSENT : ABSTAIN : Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Vote: , 2023 TODD STERMER, CMC City Clerk By: Date Deputy APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Amanda Freeman Date Senior Deputy City Attorney City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1089 Agenda Date:7/20/2023 Agenda #: 1.-C. REPORT TO THE CITY COUNCIL FROM:BILLY P. ALCORN, Interim Fire Chief Fire Department SUBJECT Actions related to a California Office of Emergency Services (Cal OES) Training Agreement for $77,250 for Regional Task Force MOBEX Event 1. Accept FY 2024 Cal OES training award for $77,250 for Regional Task Force MOBEX event. 2. ***RESOLUTION - Adopting the 7th Amendment to the Annual Appropriation Resolution No. 2023-185 to increase appropriations by $77,300 from Cal OES to provide mobilization exercise (MOBEX) training to Regional Task Force (RTF) members. (Requires 5 affirmative votes)(Subject to Mayor’s Veto). RECOMMENDATION It is recommended the Council adopt the resolution to accept the FY 2024 Cal OES training award for $77,250 and the accompanying AAR to appropriate the funds in the FY 2024 Fire Department budget. EXECUTIVE SUMMARY The Fresno Fire Department is the host agency for RTF 5 and is one of two RTFs that cover the Central Valley to include the counties of Mariposa, Merced, Madera, Fresno, Kings, Tulare and Kern. As host agency for Regional Task Force 5, Fresno Fire has been awarded $77,250 to execute a MOBEX training event for local Regional Task Force teams. BACKGROUND There are currently ten Regional Urban Search & Rescue Task Forces (RTF) located throughout the State of California. These US&R Task Force are comprised of 29 people specially trained and equipped for large complex urban search and rescue operations. The multi-disciplinary organization provides five functional elements that include Supervision, Search, Rescue, Medical and Logistics. City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT R. 2023-203 APPROVED ON CONSENT File #:ID 23-1089 Agenda Date:7/20/2023 Agenda #: 1.-C. LOCAL PREFERENCE Local preference was not implemented because this item is not an award of a construction or services contract. ENVIRONMENTAL FINDINGS This item is not a project as defined by the California Environmental Quality Act. FISCAL IMPACT There is no fiscal impact to the general fund. Attachment:OES Agreement A221010052 7th Amendment to Annual Appropriation Resolution 2023-185 City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ DocuSign Envelope ID: 18047190-842D-43FA-B244-9525300CB79A DocuSign Envelope ID: 18047190-842D-43FA-B244-9525300CB79A 6/20/2023 JUN 21 2023 PD:skb California Governor’s Office of Emergency Services City of Fresno CA-RTF5 MOBEX Training Agreement No. A221010052 EXHIBIT A STATEMENT OF WORK (SOW) California Regional Task Force 5 (CA-RTF5) Mobilization Exercise and Training 1. OBJECTIVE The California Governor's Office of Emergency Services hereinafter referred to as "Cal OES" requires the City of Fresno, hereinafter referred to as "Fire Agency”, to conduct and participate in training for one (1) twelve (12) hour operational period Mobilization Exercise (MOBEX ), with an additional two (2) hours for mobilization and another two (2) hours for demobilization. Training shall be provided from May 2023 to April 2024. This Mobilization Exercise shall provide training for new Urban Search and Rescue (US&R) and CA-RTF5 team members and continuing education for existing personnel to maintain competency. These teams aid in structural collapse rescue, or may be pre-positioned when a significant disaster threatens a community. MOBEXs are necessary to support Search and Rescue efforts, breaching/breaking efforts, shoring, canines, cranes/Heavy Equipment and Rigging Specialists (HERS), and Medical Specialists. The Fire Agency is approved for a 3% administrative fee for processing invoices for reimbursement. 2. TERM/PERIOD OF PERFORMANCE A. The period of performance for the agreement shall be May 1, 2023, or upon approval, whichever is later, through April 30, 2024, with the option to extend for two (2) additional twelve (12) month periods at the original rates evaluated and considered. B. Teams shall submit a proposed date for their MOBEX within thirty (30) days after the execution of the Agreement. C. The Fire Agency shall not be authorized to deliver or commence the performance of services as described in this SOW until the agreement has been fully executed. Any delivery or performance of service that is commenced prior to the execution of the agreement shall be considered voluntary on the part of the Fire Agency and non- compensable. D. Upon mutual consent, Cal OES and the Fire Agency may execute written amendments. California Governor’s Office of Emergency Services City of Fresno CA-RTF5 MOBEX Training Agreement No. A221010052 3. BUDGETED AMOUNT The initial award of this agreement shall not exceed $77,250.00, and there is no obligation on Cal OES' part to utilize the entire amount. Any increases in the budgeted amount will be at the rates evaluated and considered herein. 4. QUALIFICATIONS Attendees must be a rostered member of the Regional US&R Task Force. 5. PROJECT TASKS AND DELIVERABLES The Fire Agency must perform project tasks and/or deliverables including, but not limited to, the following: A.Provide Training Exercise Plan (TEP) to include: (a)Initial plan no later than six (6) months prior to MOBEX execution; (b)Midterm plan no later than three (3) months prior to MOBEX execution; (c)Final plan no later than thirty (30) days prior to MOBEX execution. B.Fire Agency will conduct a survey of site location for capabilities, confirm address of location, and provide proposed scenarios no later than three (3) months prior to MOBEX execution. C.Fire Agency will identify the number of evaluators and controllers needed to meet objectives, which RTF teams are providing them; and create an evaluator/controller roster no later than thirty (30) days prior to MOBEX execution. D.Fire Agency will conduct a site walk, exercise brief, orientation of site; and review exercise scenarios with the evaluators / controllers one (1) to three (3) days prior to the MOBEX execution. E.Fire Agency will complete exercise set up to include staging and positioning of personnel, equipment, and consumables prior to MOBEX execution. F.Cal OES, in conjunction with the Fire Agency, will schedule the MOBEX training to maintain sustainability for the Regional US&R Task Force team. G.The training will consist of one (1) twelve (12) hour Mobilization Exercise which includes pre and post exercise planning; mobilization (transportation of personnel and cache); exercise operational period (establishment of base operations and onsite operations); and demobilization of personnel and cache. California Governor’s Office of Emergency Services City of Fresno CA-RTF5 MOBEX Training Agreement No. A221010052 H.The MOBEX will provide initial training for new team members and continual education for existing personnel to maintain competency and prepare for readiness to respond to any local, regional, or state disaster or catastrophe at which their specialized US&R and technical rescue capabilities are required in support of first responder units. I.The staff attending the MOBEX will ensure that the Fire Agency is prepared for response to US&R event within the State of California. J.The hosting Fire Agency will confirm that all attendees are rostered members of the Regional US&R Task Force. K.Cal OES will reimburse the Fire Agency for consumable items such as lumber, concrete, steel, tool bits/blades, chain, batteries, or items that require replacement during normal wear and tear expended during training, not to exceed the amount for consumables contained in Exhibit B-1, Cost Sheet. L.The Fire Agency will produce and provide an After Action Report (AAR) utilizing Homeland Security Exercise and Evaluation Program (HSEEP) format to Cal OES Contract Manager within sixty (60) days from training exercise completion. M.The Fire Agency shall provide exercise evaluators to support partner Regional Task Force teams for their MOBEX requirements. N.The Lead Evaluator manages the evaluation Team and produces the Evaluation Summary for the participating Task Force(s) and submits the evaluation results to the Fire Agency and Cal OES at the end of the training. O.The Fire Agency will ensure that all reimbursable training meets the California Specialiized Training Institute (CSTI ) requirement/standards or receive pre-approval from Cal OES. P.The Fire Agency will provide Cal OES a team roster along with documentation that all students have completed the required MOBEX. 6. ACCEPTANCE OF SERVICES Payment for services performed under this agreement shall be in accordance with the Cost Sheet, Exhibit B-1. The approval process is outlined in the Performance Section of this SOW. Acceptance criteria shall consist of the following: A. The Fire Agency is responsible for obtaining approval from Cal OES before beginning any services. California Governor’s Office of Emergency Services City of Fresno CA-RTF5 MOBEX Training Agreement No. A221010052 B. The Fire Agency shall meet all timelines and deliverable due dates as described herein. C. It shall be Cal OES' sole determination as to whether services have been successfully completed and are acceptable. D. The Fire Agency costs related to rework of unacceptable work products shall be costs of the Fire Agency and shall not be billed to Cal OES. E. Invoices shall be due and payable, and payment shall be made, only after satisfactory completion of the training and acceptance of the invoice by Cal OES. 7. FIRE AGENCY RESPONSIBILITIES A. This serves as a notice under Executive Order N-6-22 that as a Contractor or grantee, compliance with the economic sanctions imposed in response to Russia’s actions in Ukraine is required, including with respect to, but not limited to, the federal executive orders identified in the Executive Order and the sanctions identified on the U.S. Department of the Treasury website (https://home.treasury.gov/policy- issues/financial-sanctions/sanctions-programs-and-country-information/ukraine- russia-related-sanctions). Failure to comply may result in the termination of contracts or grants, as applicable. B. The Fire Agency shall provide all equipment, training materials, support services and/or software necessary to perform the required duties outlined herein. C. The Fire Agency shall designate a primary contact person to whom all project communications may be addressed and who has the authority to act on all aspects of the services. D. If a Fire Agency employee is unable to perform due to illness, resignation, or other factors beyond the Fire Agency’s control, the Fire Agency shall provide qualified and suitable substitute personnel. E. Any modifications by the Fire Agency have to be approved by the Cal OES Contract Manager. 8. CAL OES RESPONSIBILITIES A. Cal OES shall designate a person to whom all Fire Agency communication will be addressed, and who has the authority to act on all aspects of the services. This person will review the SOW and associated documents with the Fire Agency to ensure understanding of the responsibilities of both parties. California Governor’s Office of Emergency Services City of Fresno CA-RTF5 MOBEX Training Agreement No. A221010052 B.Cal OES shall provide access to department staff and management, offices, and operation areas, as required, to complete the tasks and activities defined under this agreement. 9. PERFORMANCE Cal OES will be the sole judge of the acceptability of all work performed and all work products produced by the Fire Agency as a result of this SOW. Should the work performed, or the products produced by the Fire Agency fail to meet Cal OES' conditions, requirements, specifications, guidelines, or other applicable standards, the following resolution process will be employed, except as superseded by other binding processes: A.Cal OES will notify the Fire Agency of such problems in writing within five (5) business days. B.The Fire Agency must respond to Cal OES within five (5) business days after initial problem notification. The response shall include a corrective action plan and detailed explanation of how the Fire Agency plans to mitigate the issue. i.Failure by the Fire Agency to respond to Cal OES' initial problem notification within the required time limit may result in immediate termination of the Contract. In the event of such termination, Cal OES shall pay all amounts due to the Fire Agency for all work accepted prior to termination. C.Cal OES will, within five (5) business days after receipt of the Fire Agency’s corrective action plan, notify the Fire Agency in writing whether it accepts or rejects the plan. i.If Cal OES rejects the corrective action plan, the Fire Agency will submit a revised plan within three (3) business days. Failure by the Fire Agency to respond to Cal OES' notification may result in immediate termination of the Agreement. D.Upon receipt of the revised corrective action plan, Cal OES will notify the Fire Agency in writing whether it accepts or rejects the revised plan within three (3) business days. i.Rejection of the revised corrective action plan will result in immediate termination of the Agreement. E.In the event of Agreement termination, Cal OES shall pay all amounts due to the Fire Agency for all work accepted prior to termination. 10. PROBLEM ESCALATION The parties acknowledge and agree that specific technical and project-related problems or issues may arise, and that such matters shall be brought to Cal OES' attention. There may be instances where the severity of the problem(s) justifies escalated reporting. To this California Governor’s Office of Emergency Services City of Fresno CA-RTF5 MOBEX Training Agreement No. A221010052 extent, the Fire Agency will determine the level of severity and notify the appropriate Cal OES personnel. Cal OES personnel notified and the time period taken to report the problem or issue shall be at a level commensurate with the severity of the problem or issue. The relevant Cal OES personnel include, but are not limited to, the following: First level: Jack Fry, Deputy Chief, CSTI Fire and Rescue Training (916)628-7015 Jack.Fry@CalOES.ca.gov Second level: Alex Cabassa, Assistant Director, CSTI (916) 845-8752 Alex.Cabassa@CalOES.ca.gov Third level: Larry Collins, Deputy Chief, Special Operations & Hazardous Materials Division, Fire and Rescue Branch (916) 845-8636 Larry.Collins@CalOES.ca.gov 11. TERMINATION OF AGREEMENT Cal OES reserves the right to terminate this Agreement subject to thirty (30) days written notice to the Fire Agency. In the event of such termination, Cal OES shall pay all amounts due the Fire Agency for all services rendered and accepted prior to termination. Additional conditions for termination include, but are not limited to, the following: A. This Agreement can be immediately terminated for cause. The term "for cause" shall mean that the Fire Agency fails to meet the terms, conditions, and/or responsibilities of the agreement. In this instance, the Agreement termination shall be effective as of the date indicated on Cal OES' notification to the Fire Agency. B.This Agreement may be suspended or cancelled without notice, at the option of the Fire Agency, if the Fire Agency or Cal OES' premises or equipment are destroyed by fire or other catastrophe, or so substantially damaged that it is impractical to continue service, or in the event the Fire Agency is unable to render service as a result of any action by any governmental authority. C.The Fire Agency may submit a written request to terminate this Agreement only if Cal OES should substantially fail to perform its responsibilities as provided herein. 12. SUBCONTRACTING PROVISIONS A.City of Fresno will act as the prime Fire Agency under this Agreement. In addition to identifying all personnel proposed to work under this Agreement, the Fire Agency shall also identify its subcontractor affiliation, as applicable. California Governor’s Office of Emergency Services City of Fresno CA-RTF5 MOBEX Training Agreement No. A221010052 B.Subcontracting is limited to other Regional Task Force teams for the sole purpose of performing the exercise evaluations, as this cannot be completed by the Primary Fire Agency. C.Cal OES reserves the right to approve all subcontractors prior to the performance of any work by the subcontractor. D.All subcontractors must meet or exceed the minimum qualifications for the project team personnel set forth in Paragraph 4, Exhibit A. and must possess the qualifications during the term of the Agreement. E.Nothing contained in this Agreement shall create any contractual relationship between Cal OES and any subcontractor, and no subcontract shall relieve the Fire Agency of its responsibilities and obligations hereunder. The Fire Agency is fully responsible to Cal OES for the acts and omissions of its subcontractor and of persons either directly or indirectly employed by any of them. F.The Fire Agency’s obligation to pay its subcontractor is an independent obligation from Cal OES' obligation to make payments to the Fire Agency. As a result, Cal OES shall have no obligation to pay or to enforce the payment of any monies to any subcontractor. 13. AUTHORIZED REPRESENTATIVES The authorized representatives during the term of this Agreement are identified in the tables below. Changes to the Authorized Representatives are allowed without contract amendment via written notice to the representatives identified below. For service-related inquiries: The California Governor's Office of Emergency Services City of Fresno NAME: Jason Kindt, Contract Mgr. / Emergency Management Coordinator / Instructor II NAME: Chad Tucker Battalion Chief/RTF-5 Program Manager ADDRESS: 10391 Peter A McCuen Mather, CA 95655 ADDRESS: 911 H Street Fresno, CA 93721 PHONE: (916) 628 3701 PHONE: (559) 621-4408 California Governor’s Office of Emergency Services City of Fresno CA-RTF5 MOBEX Training Agreement No. A221010052 EMAIL: Jason.kindt@CalOES.ca.gov EMAIL: Chad.tucker@fresno.gov For administrative Agreement inquiries: The California Governor's Office of Emergency Services City of Fresno NAME: Miranda Wilson Contract Analyst NAME: Christy Cronin Senior Management Analyst ADDRESS: 10391 Peter A McCuen Mather, CA 95655 ADDRESS: 911 H Street Fresno, CA 93721 PHONE: (916) 845-8828 PHONE: (559) 621-2489 EMAIL: Miranda.Wilson@CalOES.ca.gov EMAIL: Christina.cronin@fresno.gov California Governor’s Office of Emergency Services City of Fresno CA-RTF5 MOBEX Training Agreement No. A221010052 EXHIBIT B BUDGET DETAIL AND PAYMENT PROVISIONS 1. Payment for services performed under this agreement shall be in accordance with the Cost Sheet, Exhibit B-1. It shall be Cal OES' sole determination as to whether a service has been successfully completed and is acceptable. 2. Invoices shall be submitted after services are rendered and shall include the following information: A. Agreement No. B. Fire Agency C. Service D. Itemized Cost E. Invoice Date F. Invoice Number Invoices shall be due and payable, and payment shall be made, only after Cal OES' Contract Manager's acceptance of services. 3. The Contractor’s costs related to items such as travel and per diem shall be inclusive in the Cost Sheet, Exhibit B-1, and will not be paid separately as part of this Agreement. 4. Submit invoices to: California Governor's Office of Emergency Services Accounting Unit APInvoices@caloes.ca.gov and CSTIinvoice@caloes.ca.gov 5. It is mutually agreed that if the Budget Act of the current year and/or any subsequent years covered under this agreement does not appropriate sufficient funds for the program, this agreement shall be of no further force and effect. In this event, Cal OES shall have no liability to pay any funds whatsoever to the Fire Agency or to furnish any other considerations under this Agreement. The Fire Agency shall not be obligated to perform any provisions of this agreement. 6. If funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, Cal OES shall have the option to either cancel this agreement with no liability occurring to Cal OES or offer an amendment to the Fire Agency to reflect the reduced amount. California Governor’s Office of Emergency Services City of Fresno CA-RTF5 MOBEX Training Agreement No. A221010052 7. All payments will be made in accordance with, and within the time specified in, Government Code Chapter 4.5, commencing with Section 927. California Governor’s Office of Emergency Services City of Fresno CA-RTF5 MOBEX Training Agreement No. A221010052 EXHIBIT B-1 COST SHEET The Fire Agency shall provide all labor, materials, equipment, and every other item of expense, direct or indirect, including tax, necessary to complete the services in accordance with the specifications described in the Statement of Work, Exhibit A, at the rates specified below. Cal OES makes no guarantee, expressed or implied, on the actual amount of services/hours that shall be required for this Agreement, and reserves the right to omit portions or quantities of work, as may be deemed necessary. The rates referenced below shall be binding for the term of the Agreement. ITEM NO. DESCRIPTION QUANTITY UNIT PRICE 1 Task Force Mobilization Exercise and Training RTF5 Exercise $40,000.00 2 Consumables* Not To Exceed $10,000.00 3 Transportation of personnel and cache 1 $10,000.00 4 Evaluation 1 $10,000.00 5 Personnel Planning / AAR 1 $ 5,000.00 6 Administrative Fee 1 $ 2,250.00 Grand Total $77,250.00 * Receipts shall be submitted for expenditures related to consumable purchases. California Governor’s Office of Emergency Services City of Fresno CA-RTF5 MOBEX Training Agreement No. A221010052 EXHIBIT C GENERAL TERMS AND CONDITIONS The General Terms and Conditions (GTCs) are hereby incorporated by reference and can be accessed by visiting the following links: Non-IT Services General Terms and Conditions (Rev. 04/2017): https://www.dgs.ca.gov/-/media/Divisions/OLS/Resources/GTC-April-2017- FINALapril2017.ashx?la=en&hash=04E212331938533CCF1EC73EB0BC1FDCBADAC601 Date Adopted: 1 of 2 Date Approved: Effective Date: Resolution No. RESOLUTION NO. ___________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO ADOPTING THE 7th AMENDMENT TO THE ANNUAL APPROPRIATION RESOLUTION NO. 2023-185 TO APPROPRIATE $77,300 FROM THE CALIFORNIA OFFICE OF EMERGENCY SERVICES (CAL OES) TO PROVIDE MOBILIZATION EXERCISE (MOBEX) TRAINING TO REGIONAL TASK FORCE (RTF) MEMBERS BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FRESNO: THAT PART III of the Annual Appropriation Resolution No. 2023-185 be and is hereby amended as follows: Increase/(Decrease) TO: FIRE DEPARTMENT Undefined $ 77,300 THAT account titles and numbers requiring adjustment by this Resolution are as follows: Undefined Revenues: Account String: 2070-0000-1620-320-433574-16-3-0000-0000- $ 77,300 Total Revenues $ 77,300 Appropriations: Account String: 2070-0000-1620-320-651101-16-3-0000-0000- $ 77,300 Total Appropriations $ 77,300 THAT the purpose is to appropriate $77,300 from the California Office of Emergency Services (Cal OES) to provide Mobilization Exercise (MOBEX) training to the Regional Task Force (RTF) members. 2 of 2 CLERK’S CERTIFICATION STATE OF CALIFORNIA} COUNTY OF FRESNO } ss. CITY OF FRESNO } I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing Resolution was adopted by the Council of the City of Fresno, California, at a regular meeting thereof, held on the Day of , 2023 AYES: NOES: ABSENT: ABSTAIN: Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Veto: , 2023 TODD STERMER, CMC City Clerk BY: ____________________________ Deputy City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1088 Agenda Date:7/20/2023 Agenda #: 1.-D. REPORT TO THE CITY COUNCIL FROM:BRIAN BARR, Director General Services Department BY:ROBIN O’MALLEY, Facilities Manager General Services Department, Facilities Management Division DEBBIE BERNARD, Project Manager General Services Department, Facilities Management Division SUBJECT Actions pertaining to the Municipal Service Center Electrical Infrastructure and Rehab project: 1. Adopt finding of a Categorical Exemption pursuant to Section 15301(b) Existing Facilities and Section 15302(c) Replacement or Reconstruction of the California Environmental Quality Act (CEQA) Guidelines 2. Award a construction contract to A-C Electric Company of Bakersfield, California, in the amount of $10,147,090 for the construction of the Municipal Service Center Electrical Infrastructure and Rehab project (Bid File 12300704) (District 3) RECOMMENDATION Staff recommends Council adopt a finding of a Categorical Exemption and award a construction contract to A-C Electric Company of Bakersfield, California, for $10,147,090 for the Municipal Service Center (MSC) Electrical Infrastructure and Rehab project and authorize the Director of General Services or designee to execute all related documents. EXECUTIVE SUMMARY The MSC was constructed in the 1970’s and is the central hub for core City services. These services include Fleet Maintenance, Facilities Maintenance, Traffic Operations Center, Street Maintenance, Solid Waste Management, 911 backup center, fuel stations, and houses critical citywide communication infrastructure. The MSC’s current electrical infrastructure is obsolete, does not meet current safety requirements, and parts are no longer manufactured. To bridge the gap, refurbished parts have been used to keep systems operating, however this is becoming increasingly more difficult to maintain. As exhibited by recent power outages, the existing infrastructure cannot reliably provide back-up power to Building I, supporting critical citywide communications. This includes back- up 911 center communications, one of the City’s two internet connections, connectivity for vehicle computers in police vehicles, bus rapid transit security cameras, traffic signal priority systems, and City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 MA/AP 6-0 MK ABSENT File #:ID 23-1088 Agenda Date:7/20/2023 Agenda #: 1.-D. network services within the MSC. This project focuses on the replacement of the end-of-life electrical infrastructure at the MSC.It also replaces the single existing generator with three separate generators increasing the capability of emergency backup power systems. BACKGROUND Located at 2101 ‘G’Street,the MSC sits on approximately 27.11 acres,has 26 buildings or canopy structures within its campus.The MSC is home to many core City services.These services include Fleet Maintenance,Facilities Maintenance,Traffic Operations Center,Street Maintenance,Solid Waste Management,911 backup center,LNG fuel station,unleaded fuel station,and houses critical citywide communication infrastructure.The Department of Transportation bus yard is located at the MSC, however it has separate electrical and emergency backup systems. The MSC electrical infrastructure is original to the MSC build out in the 1970s.The main switchboards are well past their useful life and parts are no longer available,making repairs difficult. The MSC is currently fed by a 4000 Amp (4000A)service from PG&E and a 144-kiloWatt (kW) emergency backup generator.The emergency generator provides very limited power to the MSC and is not reliable due to the age of the infrastructure and generator. This project was first initiated in FY2018/19.The project was not designed to address the California Air Resource Board Advanced Clean Fleets mandate of April 28,2023,and will require significant additional investment beyond this project to pay for the additional infrastructure and electric vehicle chargers.The existing infrastructure must be replaced before additional power can be sought from PG&E for fleet electrification.PG&E recently communicated that the MSC power grid is operating at maximum capacity and cannot accommodate any additional electrical needs from the City until upgrades are completed by PG&E in a few years. In addition,power for the new 911 dispatch center is not included in this project.The new 911 dispatch center is assumed to require a new electrical feed from PG&E,as the electrical loads are anticipated to be significant and warrant a separate feed from the utility. This project focuses on the replacement of the end-of-life electrical infrastructure supporting the core services in the Municipal Service Center.The existing equipment is no longer repairable and does not meet current safety standards.Replacement infrastructure includes 4000A,1200A,multiple 1000A,multiple 600A and 400A switchboards completely overhauling the MSC electrical main distribution.It also replaces the single existing generator with three separate generators increasing the capability of emergency backup services at the MSC.The new generators will total 950kW combined. A new 300kW (500A)generator will provide full power to Building I,supporting critical citywide communications.This includes back-up 911 center communications,one of the City’s two internet connections,connectivity for vehicle computers in police vehicles,bus rapid transit security cameras, traffic signal priority systems, and network services within the MSC. A new 400kW (600A)generator will provide full power to the existing 911 backup center in Building A, including critical building services such as ISD’s network distribution equipment,HVAC,lighting,and City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1088 Agenda Date:7/20/2023 Agenda #: 1.-D. including critical building services such as ISD’s network distribution equipment,HVAC,lighting,and Police Department’s dispatch system. A new 250kW (400A)generator will provide full power to the Traffic Operations Center,LNG and gasoline fueling stations, and emergency circuits for the remainder of the campus. A Notice Inviting Bids was published on October 5,2022,distributed to six building exchanges,and posted on the City’s website.The specifications were distributed to 31 prospective bidders.One bid proposal was received and opened in a public bid opening on November 1,2022.The sole bidder has agreed to extend their bid through July 31, 2023. The City Attorney has approved the contract as to form. ENVIRONMENTAL FINDINGS Staff has determined that a Categorical Exemption is appropriate,based on Section 15301(b) Existing Facilities and Section 15302(c)Replacement or Reconstruction of the CEQA Guidelines. Section 15301(b)exempts the repair or minor alteration of existing publicly owned utilities used to provide electric power.Section 15302(c)exempts the replacement of existing utility systems involving negligible expansion of capacity.Furthermore,Staff has determined that none of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines,Section 15300.2 apply to this project.Staff recommends Council,based upon its own independent judgment,adopt finding of a Categorical Exemption per staff determination,pursuant to Section 15301(b)and Section 15302(c)of the CEQA Guidelines for the MSC Electrical Infrastructure and Rehab project. LOCAL PREFERENCE Local preference was not implemented as the lowest responsive and responsible bidder is a local company as defined by FMC Section 4-108. FISCAL IMPACT No general funds shall be used for this project.The total cost of this project is estimated at $11,704,384.This project will be funded by $7,704,384 in American Rescue Plan Act (ARPA)funds and $4,000,000 from the MSC Repair and Replacement fund as appropriated in the FY2024 adopted budget. Attachments: Bid Evaluation Standard Contract City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ DPW 23.0/01-06-12 DPW PLA DIV I.pdf 1.19 rev.01-22 CONTRACT CITY OF FRESNO, CALIFORNIA PUBLIC WORK OF IMPROVEMENT THIS CONTRACT is made and entered into by and between CITY OF FRESNO, a California municipal corporation (City), and [Contractor Name], [Legal Identity] (Contractor) as follows: 1. Contract Documents. The “Notice Inviting Bids,” “Instructions to Bidders,” “Bid Proposal,” and the “Specifications” including “General Conditions,” “Special Conditions,” and “Technical Specifications” for the following: [Title] (Bid File No. [Bid File No.]) [Alternates (if any)] copies of which are annexed hereto, together with all the drawings, plans, and documents specifically referred to in said annexed documents, including Performance and Payment Bonds, if required, and are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents. 2.Price and Work. For the monetary consideration of [Written Dollar Amount] dollars and [Written Cents Amount] cents ($[Amount]), as set forth in the Bid Proposal, Contractor promises and agrees to perform or cause to be performed, in a good and workmanlike manner, under the direction and to the satisfaction of the City’s “Engineer,” and in strict accordance with the Specifications, all of the work as set forth in the Contract Documents. 3.Payment. City accepts Contractor’s Bid Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. 4.Indemnification. To the furthest extent allowed by law including California Civil Code Section 2782, Contractor shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited to personal injury, death at any time and property damage) incurred by City, Contractor or any other person, and from any and all claims, demands and actions in law or equity (including attorney’s fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Contract. Contractor’s obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. If Contractor should subcontract all or any portion of the work to be performed under this Contract, Contractor shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. 5. Trench Shoring Detailed Plan. Contractor acknowledges the provisions of Section 6705 of the California Labor Code and, if said provisions are applicable to this Contract, agrees to comply therewith. 6.Worker’s Compensation Certification. In compliance with the provisions of Section 1861 of the California Labor Code, Contractor hereby certifies as follows: I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of work of this Contract and will make my subcontractors aware of this provision. [Signatures follow on the next page.] DPW 23.0/01-06-12 DPW PLA DIV I.pdf 1.20 rev.01-22 IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by City shall be subsequent to that of Contractor’s, and this Contract shall be binding and effective upon execution by both parties. [Contractor Name], [Legal Identity] By: Name: (Type or print written signature.) Title: (If corporation or LLC, Board Chair, Pres. or Vice Pres.) Dated: By: Name: (Type or print written signature.) Title: (If corporation or LLC, CFO, Treasurer, Secretary or Assistant Secretary) Dated: CITY OF FRESNO, a California municipal corporation By: [Name], [Title] Department of Public Works Dated: ATTEST: TODD STERMER, CMC City Clerk By: Deputy No signature of City Attorney required. Standard Document #DPW 23.0 has been used without modification as certified by the undersigned. By: [City Certifier Name] [City Certifier Title] Department of Public Works City address: City of Fresno Attention: [Name], [Title] [Street Address] Fresno, CA [Zip] City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1098 Agenda Date:7/20/2023 Agenda #: 1.-E. REPORT TO THE CITY COUNCIL FROM:BRIAN BARR, Director General Services Department BY:ROBIN O’MALLEY, Facilities Manager General Services Department, Facilities Management Division DEBBIE BERNARD, Project Manager General Services Department, Facilities Management Division SUBJECT Actions pertaining to the Fresno Water Tower Electrical Upgrade project: 1. Adopt finding of a Categorical Exemption pursuant to Section 15301(a) Existing Facilities of the California Environmental Quality Act (CEQA) Guidelines 2. Award a construction contract to Art’s Construction Co., Inc. of Fresno, California, in the amount of $695,000 for the construction of the Fresno Water Tower Electrical Upgrade project (Bid File 12301487)(District 3) 3. Authorize the Director of General Services or designee to execute all related documents RECOMMENDATION Staff recommends Council adopt a finding of a Categorical Exemption and award a construction contract to Art’s Construction Co., Inc. of Fresno, California, for $695,000 for the Water Tower Electrical Upgrade project and authorize the Director of General Services or designee to execute all related documents. EXECUTIVE SUMMARY The Old Fresno Water Tower was built in 1894 and was in constant use as a water supply to downtown Fresno until 1963. The City of Fresno has entered into an agreement with a local entrepreneur to run a coffee bar/café within the water tower. The existing electrical service is operating at maximum capacity and cannot support the necessary electrical loads needed for the tenant. Therefore, this project will increase the available electrical service with a new PG&E transformer and upgrade all associated electrical panels and switchboards, as required for the tenant to operate a coffee bar/café. BACKGROUND The Fresno Water Tower was built in 1894 and was in constant use until 1963, when the pumping City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1098 Agenda Date:7/20/2023 Agenda #: 1.-E. The Fresno Water Tower was built in 1894 and was in constant use until 1963,when the pumping machinery was no longer adequate.The water tower was added to the National Register of Historic Places in 1971.In 2001,the second floor was removed,and the interior of the tower remodeled to become the visitors’center for the City and County of Fresno.As part of this remodeling a landscaped plaza and separate restroom building,which contains the electrical panels for the water tower as well as the entire Eaton Plaza,were built adjacent to the tower.The existing service is operating at maximum capacity and the only option for the City is to seek additional power from PG&E and upgrade the existing electrical infrastructure. The City of Fresno recently entered into an agreement to lease the water tower to a local coffee bar/café entrepreneur as part of the downtown revitalization movement.The existing PG&E electrical service available cannot support the necessary electrical loads for the tenant.This project will increase the available electrical service with a new PG&E transformer,new main switchboard,and new electrical panels to allow the coffee bar/café to be on their own service,separate from the City’s service at Eaton Plaza. Plans and specifications were prepared by John Borrelli and Associates,Inc.,and a Notice Inviting Bids was published on May 15,2023,and distributed to nine (9)building exchanges and posted on the City’s website.The specifications were distributed to 22 prospective bidders.Three on-line bid proposals were received and opened in a public bid opening on June 20,2023,with bid amounts ranging from $695,000 to $1,122,000.Staff has determined that Art’s Construction Co.,Inc.is the lowest responsive and responsible bidder. The City Attorney has approved the contract as to form. ENVIRONMENTAL FINDINGS Staff has determined that a Categorical Exemption is appropriate,based on Section 15301(a) Existing Facilities of the CEQA Guidelines.Section 15301(a)exempts interior or exterior alterations involving such things as electrical conveyances.Furthermore,staff has determined that none of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines,Section 15300.2 apply to this project.Staff recommends Council,based upon its own independent judgment,adopt finding of a Categorical Exemption per staff determination,pursuant to Section 15301(a)of the CEQA Guidelines for the Fresno Water Tower Electrical Upgrades project. LOCAL PREFERENCE Local preference was not implemented as the lowest responsive and responsible bidder is a local company as defined by FMC Section 4-108. FISCAL IMPACT No general funds shall be used for this project.The total cost of this project is being funded by Facilities operating funds as appropriated in the FY24 adopted budget. Attachments: Bid Evaluation and Fiscal Impact Statement City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1098 Agenda Date:7/20/2023 Agenda #: 1.-E. Standard Contract City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ DPW 23.0/01-06-12 DPW PLA DIV I.pdf 1.19 rev. 01-22 CONTRACT CITY OF FRESNO, CALIFORNIA PUBLIC WORK OF IMPROVEMENT THIS CONTRACT is made and entered into by and between CITY OF FRESNO, a California municipal corporation (City), and [Contractor Name], [Legal Identity] (Contractor) as follows: 1. Contract Documents. The “Notice Inviting Bids,” “Instructions to Bidders,” “Bid Proposal,” and the “Specifications” including “General Conditions,” “Special Conditions,” and “Technical Specifications” for the following: [Title] (Bid File No. [Bid File No.]) [Alternates (if any)] copies of which are annexed hereto, together with all the drawings, plans, and documents specifically referred to in said annexed documents, including Performance and Payment Bonds, if required, and are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents. 2. Price and Work. For the monetary consideration of [Written Dollar Amount] dollars and [Written Cents Amount] cents ($[Amount]), as set forth in the Bid Proposal, Contractor promises and agrees to perform or cause to be performed, in a good and workmanlike manner, under the direction and to the satisfaction of the City’s “Engineer,” and in strict accordance with the Specifications, all of the work as set forth in the Contract Documents. 3. Payment. City accepts Contractor’s Bid Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. 4. Indemnification. To the furthest extent allowed by law including California Civil Code Section 2782, Contractor shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited to personal injury, death at any time and property damage) incurred by City, Contractor or any other person, and from any and all claims, demands and actions in law or equity (including attorney’s fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Contract. Contractor’s obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. If Contractor should subcontract all or any portion of the work to be performed under this Contract, Contractor shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. 5. Trench Shoring Detailed Plan. Contractor acknowledges the provisions of Section 6705 of the California Labor Code and, if said provisions are applicable to this Contract, agrees to comply therewith. 6. Worker’s Compensation Certification. In compliance with the provisions of Section 1861 of the California Labor Code, Contractor hereby certifies as follows: I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of work of this Contract and will make my subcontractors aware of this provision. [Signatures follow on the next page.] DPW 23.0/01-06-12 DPW PLA DIV I.pdf 1.20 rev.01-22 IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by City shall be subsequent to that of Contractor’s, and this Contract shall be binding and effective upon execution by both parties. [Contractor Name], [Legal Identity] By: Name: (Type or print written signature.) Title: (If corporation or LLC, Board Chair, Pres. or Vice Pres.) Dated: By: Name: (Type or print written signature.) Title: (If corporation or LLC, CFO, Treasurer, Secretary or Assistant Secretary) Dated: CITY OF FRESNO, a California municipal corporation By: [Name], [Title] Department of Public Works Dated: ATTEST: TODD STERMER, CMC City Clerk By: Deputy No signature of City Attorney required. Standard Document #DPW 23.0 has been used without modification as certified by the undersigned. By: [City Certifier Name] [City Certifier Title] Department of Public Works City address: City of Fresno Attention: [Name], [Title] [Street Address] Fresno, CA [Zip] City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1124 Agenda Date:7/20/2023 Agenda #:1.-F. REPORT TO THE CITY COUNCIL FROM:BRIAN BARR, Director General Services Department BY:JORDAN CONARD, Property Specialist I General Services Department SUBJECT Actions pertaining to a lease agreement between the City of Fresno and Tutelian Holdings I, LLC, a California limited liability company, for office space located at 2440 Tulare Street. 1. Adopt a finding of Categorical Exemption per staff determination, pursuant to Section 15301/Class 1 (Existing Facilities) of the California Environmental Quality Act (CEQA) Guidelines 2. Approve a 10-year lease agreement between the City of Fresno and Tutelian Holdings I, LLC, a California limited liability company in the amount of $157,719 annually, with annual increases averaging 2.5%, plus the proportionate share of building operating costs estimated at $69,408 annually RECOMMENDATION Staff recommends Council adopt a finding of Categorical Exemption per staff determination, pursuant to Section 15301/Class 1 (Existing Facilities) of the CEQA Guidelines and approve a 10-year lease agreement between the City of Fresno and Tutelian Holdings I, LLC, a California limited liability company, for office space at 2440 Tulare Street, in the amount of $157,719 annually in rent payments, with annual increases averaging 2.5%, plus the City’s proportionate share of building operating costs estimated at $69,408 annually. EXECUTIVE SUMMARY As adopted in the FY2024 budget, the City Attorney’s Office anticipates adding staff positions to address a significant increase in the department’s workload. The City Attorney’s Office has outgrown the available space at City Hall and a portion of the office must relocate off-site to accommodate its additional staffing needs. General Services Department and City Attorney’s Office have negotiated a 10-year lease with Tutelian Holdings I, LLC for 6,499 square feet of office space located at 2440 Tulare Street, Suite 100 in Fresno. The term of the proposed lease will end on October 31, 2033. The proposed negotiated lease rate in the first year is $1.80 per square foot ($11,699 per month) and increases by an average of 2.5% annually. In addition to the monthly rent due, the City shall also pay 7.55% of building operating costs, estimated at $69,408 annually. The security deposit has been waived and base rent City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 MA/NE 7-0 File #:ID 23-1124 Agenda Date:7/20/2023 Agenda #:1.-F. operating costs,estimated at $69,408 annually.The security deposit has been waived and base rent is abated for the first two months following the term commencement date. BACKGROUND The City Attorney’s Office provides the City with advice to the Council and all City Officers on all matters of the law pertaining to their offices.Services range from transactional work on economic development projects,large scale financings,contracts,land use,and personnel,to a full range of litigation, responses to Public Record Act Requests, and code enforcement. As adopted in the FY2024 budget and position authorization,the City Attorney’s Office anticipates adding 10 full time attorneys and staff positions to address a significant increase in the department’s workload.While increasing capacity to address the City’s legal needs,the City Attorney’s Office has outgrown the available space at City Hall and a portion of the office must relocate off-site to accommodate added staffing. Staff has identified suitable office space at 2440 Tulare Street. The City Attorney’s Office is seeking to lease 6,499 square feet of office space at 2440 Tulare Street, Suite 100 with an effective term of September 1, 2023, through October 31, 2033. The proposed negotiated lease rate is $1.80 per square foot ($11,699 per month)for rent and increases by an average of 2.5%annually.This office space is currently occupied by the City’s Budget and Management Studies Department.Budget’s lease terminates July 31,2023,and staff will be relocated to City Hall this summer.The negotiated lease rate is a net decrease from the Budget Department’s prior lease agreement term of $2.55 per square foot ($16,562 per month). In addition to the monthly rent due,the City shall also pay 7.55%of building operating costs estimated at $69,408 annually.The City’s share of building operating costs is proportionate to the square footage of the leased office space to the total rentable square footage of the building. The lease agreement has been reviewed and approved by the City Attorney’s Office as to form. ENVIRONMENTAL FINDINGS Staff has performed preliminary environmental assessments of this project and has determined this project is exempt under Section 15301/Class 1 (Existing Facilities)of CEQA Guidelines as it involves no alteration of existing facilities,with no expansion of use.Furthermore,none of the exceptions to Categorical Exemptions set forth in CEQA Guidelines, Section 15300.2, apply to this project. LOCAL PREFERENCE Local preference was not considered because this action does not include a bid or award of a City construction contract. FISCAL IMPACT The lease payments have been included in the adopted FY2024 budget under the City Attorney’s Office through Budget Motion 104.Funding for future years will be included in the appropriate fiscal year’s budget subject to Council approval. City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1124 Agenda Date:7/20/2023 Agenda #:1.-F. Attachment:Lease Agreement City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1094 Agenda Date:7/20/2023 Agenda #: 1.-G. REPORT TO THE CITY COUNCIL FROM:BRYON HORN, Chief Information Officer Information Services Department SUBJECT Approve a three-year Service Agreement with Info-Tech Research Group for membership services and access to industrywide product information and support services in the amount of $116,010.03, with annual payments of $38,670.01, utilizing competitively bid California Multiple Award Schedule (CMAS) contract 3-19-70-3685A. RECOMMENDATION Staff recommends Council authorize the Chief Information Officer to enter into a three-year Service Agreement (Agreement) with Info-Tech Research Group (Info-Tech) for membership services and access to industrywide product information and support services in the amount of $116,010.03, with annual payments of $38,670.01,utilizing CMAS contract 3-19-70-3685A. EXECUTIVE SUMMARY The City of Fresno’s Information Services Department (ISD) is requesting approval to contract services from Info-Tech for three years in the total amount of $116,010.13. Info-Tech’s membership services and access to industrywide product information has greatly enhanced ISD’s ability to make strategic, timely and well-informed decisions and recommendations. Pricing is based on CMAS contract 3-19-70-3685A. Info-Tech not only provides access to benchmarking of hardware/software, reviews, and evaluations, they also provide a representative to guide the City in utilizing their services. We use Info-Tech to research software/hardware in order to find good solutions for the City. One such success was finding CERVIS Software for Beautify Fresno. We have also used them as advisors and subject matter experts in governance. They also offer contract negotiation services as part of our membership. BACKGROUND In November 2021, ISD entered into a one-year agreement with Info-Tech to provide services to the City of Fresno including access to a product database, white papers, tutorials as well as contract negotiation, governance and strategy planning for Information Technology. ISD has used Info-Tech for researching software - such as finding CERVIS software for Beautify Fresno as well as helping with governance and information technology alignment. Info-Tech offers a wide range of information for technology firms and departments and ISD has found them very useful as a tool for helping City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1094 Agenda Date:7/20/2023 Agenda #: 1.-G. for technology firms and departments and ISD has found them very useful as a tool for helping provide information and services to the City.ISD now desires to continue utilizing Info-Tech’s services by entering into a three-year agreement. ENVIRONMENTAL FINDINGS The approval of this request is not a project as defined by the California Environmental Quality Act. LOCAL PREFERENCE Local preference was not implemented because this membership is being procured utilizing CMAS contract 3-19-70-3685A. FISCAL IMPACT Funding is available in the Information Services Department’s (ISD)Systems Acquisition and Replacement (SAM) FY24 appropriations. Attachments: Service Agreement City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ City of Fresno, Information Services Department Service Proposal Neha Sherpuri Member Services Director nsherpuri@infotech.com 1-888-670-8889 ext.3679 June 26, 2023 Page 1 of 4 Hi Bryon, On behalf of our entire team at Info-Tech Research Group, I am pleased to present this proposal for IT Research and Advisory services to you and your IT department at City of Fresno, Information Services Department. Info-Tech's IT Research and Advisory membership provides you with access to our powerful diagnostic tools and key research to help you systematically improve your IT department’s performance. To help you maximize the impact of your membership, we also provide an unmatched level of member service. I welcome the opportunity to work with you and your IT executives at City of Fresno, Information Services Department. Should you have questions at any time, please contact me directly at your convenience. Sincerely, Neha Sherpuri Member Services Director nsherpuri@infotech.com 1-888-670-8889 ext.3679 Info-Tech Research Group 3960 Howard Hughes Parkway Suite 500, Las Vegas, NV, USA 89169 infotech.com Proposal prepared for:   Bryon Horn City of Fresno, Information Services Department 2600 Fresno St Rm 1059, Fresno, California, United States  93721-3620 Page 2 of 4 SERVICE AGREEMENT WITH INFO-TECH RESEARCH GROUP Service Start Date: July 21, 2023 || Contract Length: 3-year Contact: Bryon Horn City of Fresno, Information Services Department Product Description Quantity Subtotal Total Team Membership Access to core research content - project blueprints, Info-Tech Academy, online Leadership training, software selection content, tools and templates library 4.00 $11,869.00 $11,869.00 Legacy Leadership Membership Legacy Leadership Membership: Unlimited analyst calls, full diagnostic access, contract reviews, assigned executive advisor, 1 software selection engagement per year 1.00 $26,801.01 $26,801.01 Total:$38,670.01 All items stated on this document are in USD and is subject to applicable taxes. Page 3 of 4 State of California Multiple Award Schedule (CMAS) - 3-19-70-3685A Payment Terms: Net 45 Unless otherwise stated, consulting and workshop engagements do not include travel and expenses, which will be charged in addition to the fees listed. Workshops purchased as part of membership expire without refund or credit at the end of the membership period covered by the purchase. Workshops purchased outside membership expire without refund or credit 1-year after purchase. Please work with your member services representative to select and schedule workshops prior to expiration. Subject to applicable taxes. If your company is tax exempt, please provide a valid tax exemption certificate with the signed proposal. This Service Agreement is subject to the terms and conditions set out in CMAS No 3-19-70-3685A. Unless agreed to in writing, any customer terms, including purchase order terms and conditions, are of no force or effect. By signing this Service Agreement, you agree to pay the fees set out herein annually for the term indicated. This proposal has a definite expiry date of July 21, 2023. Please return this signed Service Agreement to Info-Tech by DocuSign, email nsherpuri@infotech.com or fax (1-519-432-2506). Please include PO if required. Thank you for your business! _________________________________________________________________________________________________________________ The signature below affirms your commitment to pay for the services ordered in accordance with the terms of this Service Agreement. If you are tax exempt, please provide tax exemption certificate. Term Number Invoice Date Invoice Amount Term Start Date Term End Date Notes 1 July 21, 2023 $38,670.01 July 21, 2023 July 21, 2024 Year 1 of the Membership 2 May 20, 2024 $38,670.01 July 21, 2024 July 21, 2025 Year 2 of the Membership 3 May 20, 2025 $38,670.01 July 21, 2025 July 21, 2026 Year 3 of the Membership Name _______________________________ Signature _____________________________ Title _________________________________ Date _________________________________ Page 4 of 4 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1104 Agenda Date:7/20/2023 Agenda #: 1.-H. REPORT TO THE CITY COUNCIL FROM:BRYON HORN, Chief Information Officer Information Services Department BY:SARAH BEYE, Division Manager Information Services Department SUBJECT Actions pertaining to the implementation of customer relationship management software for Council Offices: 1. Affirm City Manager’s determination that Incapsulate, LLC is uniquely qualified. 2. Award a contract to Incapsulate, LLC for the Customer Relationship Management implementation for Council Offices in the amount of $154,638.50. 3. ***RESOLUTION - Adopting the 5 th Amendment to the Annual Appropriation Resolution (AAR) No. 2023-185 to appropriate $154,700.00 for implementation of customer relationship management software for Council Offices (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) RECOMMENDATION Staff recommends the City Council affirm the uniquely qualified designation for Incapsulate, LLC (Incapsulate), award a contract in the amount of $154,638.50 to Incapsulate for implementation and hosting of customer relationship management (CRM) software for Council Offices, adopt the 5 th Amendment to the Annual Appropriation Resolution approving the appropriation of unallocated carryover resources, and authorize the City Manager or designee to execute the contract. This CRM system will be specific to Council Offices to suit their needs for a product to manage constituent communications and will integrate with the City’s FresGO CRM. Licensing fees are covered under the City’s CRM software purchase and is budgeted in ISD’s FY24 budget. EXECUTIVE SUMMARY On June 8, 2023, Council approved the replacement of the City’s CRM software which the City’s FresGO program is built on. Incapsulate was selected as the preferred solution from RFP (Bid File 12300269). Incapsulate also conducted two demonstrations of their Salesforce constituent customer relationship management solution for Council staff. This system would seamlessly integrate with the new CRM system being implemented to replace FresGO. When developing a CRM system, it is imperative that one vendor design and implement a program which is why there is the designation of uniquely qualified on this proposal. City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT R. 2023-204 APPROVED ON CONSENT File #:ID 23-1104 Agenda Date:7/20/2023 Agenda #: 1.-H. BACKGROUND On May 24,2023,Incapsulate held a demonstration of their Salesforce Council constituent CRM solution.On May 25,2023,ISD brought the FresGO replacement CRM project (RFP 12300269)to Council at which time Council President Maxwell asked to push the item to the next Council meeting of June 8,2023.Council also requested that there be a second demonstration for Council staff of the constituent CRM solution. The second demonstration for Council staff was held on June 1, 2023. On June 8,2023,Incapsulate and Carahsoft were awarded $1,006,067.71 to implement the Salesforce platform based on RFP (Bid File 12300269). ISD is now asking to award to Incapsulate their Salesforce Council constituent CRM solution for $154,638.50 for implementation and support.Licensing fees are covered under the CRM RFP 12300269 award.Due to their award to implement the solution for the FresGO replacement CRM, demonstration of their understanding of our project needs,and the details of their plan to implement the project, Incapsulate is uniquely qualified. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act (CEQA)Guidelines Section 15378 this item does not qualify as a “project” for purposes of the CEQA. LOCAL PREFERENCE Local preference was not implemented because this vendor is uniquely qualified. FISCAL IMPACT Funding is available in the Information Services Department’s (ISD)Systems Acquisition and Replacement (SAM) Fund due to unallocated carryover resources. Attachments: Consultant Services Agreement Scope of Work / Quote Annual Appropriation Resolution No. 2023-185 Uniquely Qualified Memorandum City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ ALL-S Generic CSA Total Fee (04-2022) -1- AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANT SERVICES THIS AGREEMENT is made and entered into, effective on ______________________, by and between the CITY OF FRESNO, a California municipal corporation (City), and INCAPSULATE, LLC, a Limited Liability Company (Consultant). RECITALS WHEREAS, City desires to obtain professional software consulting and implementation services for Council CRM (Project); and WHEREAS, Consultant is engaged in the business of furnishing services as a software consulting and implementation company and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, Consultant acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and WHEREAS, this Agreement will be administered for City by its City Manager (Administrator) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and premises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. Consultant shall perform to the satisfaction of City the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above (Effective Date) and shall continue in full force and effect through March 31, 2024, subject to any earlier termination in accordance with this Agreement. The services of Consultant as described in Exhibit A are to commence upon the Effective Date and shall be completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed prior to expiration of this Agreement and in accordance with any performance schedule set forth in Exhibit A. 3. Compensation. (a) Consultant’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee of One Hundred Fifty-Four Thousand Six Hundred Thirty-Eight Dollars and Fifty Cents ($154,638.50). Such fee includes all expenses incurred by Consultant in performance of the services. (b) Detailed statements shall be rendered monthly for services performed in the preceding month and will be payable in the normal course of City business. DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 7/5/2023 ALL-S Generic CSA Total Fee (04-2022) -2- (c) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to Consultant’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. Consultant shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. 4. Termination, Remedies, and Force Majeure. (a) This Agreement shall terminate without any liability of City to Consultant upon the earlier of: (i) Consultant’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against Consultant; (ii) seven calendar days prior written notice with or without cause by City to Consultant; (iii) City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to City any and all unearned payments and all properties and materials in the possession of Consultant that are owned by City. Subject to the terms of this Agreement, Consultant shall be paid compensation for services satisfactorily performed prior to the effective date of termination. Consultant shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of Consultant to satisfactorily perform in accordance with the terms of this Agreement, City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, City’s damages caused by such failure. In no event shall any payment by City pursuant to this Agreement constitute a waiver by City of any breach of this Agreement which may then exist on the part of Consultant, nor shall such payment impair or prejudice any remedy available to City with respect to the breach. (d) Upon any breach of this Agreement by Consultant, City may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) Consultant shall provide City with adequate written assurances of future performance, upon Administrator’s request, in the event Consultant fails to DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) -3- comply with any terms or conditions of this Agreement. (f) Consultant shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. Consultant shall notify Administrator in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Administrator of the cessation of such occurrence. 5. Confidential Information and Ownership of Documents. (a) Any reports, information, or other data prepared or assembled by Consultant pursuant to this Agreement shall not be made available to any individual or organization by Consultant without the prior written approval of the Administrator. During the term of this Agreement, and thereafter, Consultant shall not, without the prior written consent of City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of City, including but not limited to business plans, marketing plans, financial information, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in City. (b) Any and all writings and documents prepared or provided by Consultant pursuant to this Agreement are the property of City at the time of preparation and shall be turned over to City upon expiration or termination of the Agreement. Consultant shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. (c) If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as Consultant represents to City that Consultant and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, City relies upon the skill of Consultant and any subcontractors to do and perform such services in a skillful manner and Consultant agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by City shall not operate as a release of Consultant or any subcontractors from said DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) -4- professional standards. 7. Indemnification. To the furthest extent allowed by law, Consultant shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to City, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, Consultant or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to Consultant shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. No action taken by City pursuant to this section shall in any way relieve Consultant of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) -5- (c) The fact that insurance is obtained by Consultant shall not be deemed to release or diminish the liability of Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Consultant, its principals, officers, agents, employees, persons under the supervision of Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with Consultant and City prior to the commencement of any services by the subcontractor. Consultant and any subcontractor/sub-consultant shall establish additional insured status for City, its officers, officials, employees, agents, and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 9. Conflict of Interest and Non-Solicitation. (a) Prior to City’s execution of this Agreement, Consultant shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, Consultant shall have the obligation and duty to immediately notify City in writing of any change to the information provided by Consultant in such statement. (b) Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.). At any time, upon written request of City, Consultant shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, Consultant and the respective subcontractor(s) are in full compliance with all laws and regulations. Consultant shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, Consultant shall immediately notify City DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) -6- of these facts in writing. (c) In performing the work or services to be provided hereunder, Consultant shall not employ or retain the services of any person while such person either is employed by City or is a member of any City council, commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) Consultant represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this Agreement or any rights/benefits hereunder. (e) Neither Consultant, nor any of Consultant’s subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project unless fully disclosed to and approved by the City Manager, in advance and in writing. Consultant and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. Notwithstanding any approval given by the City Manager under this provision, Consultant shall remain responsible for complying with Section 9(b), above. (f) If Consultant should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, Consultant shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (g) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, Consultant at its sole cost and expense shall: (a) Immediately establish and maintain a viable and ongoing recycling program, approved by City’s Solid Waste Management Division, for each office and facility. Literature describing City recycling programs is available from City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (b) Immediately contact City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of City’s Solid Waste Management Division the establishment of the recycling program in paragraph (i) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of City DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) -7- within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Administrator or designee. (b) Records of Consultant’s expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of Consultant pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to City until such action is resolved, or until the end of said time period whichever shall later occur. If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by City, Consultant shall have provided evidence to City that Consultant is licensed to perform the services called for by this Agreement (or that no license is required). If Consultant should subcontract all or any portion of the work or services to be performed under this Agreement, Consultant shall require each subcontractor to provide evidence to City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. 12. Nondiscrimination. To the extent required by controlling federal, state and local law, Consultant shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, Consultant agrees as follows: (a) Consultant will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) Consultant will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Consultant shall ensure that applicants are DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) -8- employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to Consultant’s employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) Consultant will, in all solicitations or advertisements for employees placed by or on behalf of Consultant in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) Consultant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of Consultant’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, Consultant is acting solely as an independent contractor. Neither Consultant, nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of City for any purpose. City shall have no right to control or supervise or direct the manner or method by which Consultant shall perform its work and functions. However, City shall retain the right to administer this Agreement so as to verify that Consultant is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between Consultant and City. Consultant shall have no authority to bind City absent City’s express written consent. Except to the extent otherwise provided in this Agreement, Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, Consultant and its DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) -9- officers, agents and employees shall have absolutely no right to employment rights and benefits available to City employees. Consultant shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, Consultant shall be solely responsible, indemnify, defend and save City harmless from all matters relating to employment and tax withholding for and payment of Consultant's employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in City employment benefits, entitlements, programs and/or funds offered employees of City whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, Consultant may be providing services to others unrelated to City or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives. 16. Assignment. (a) This Agreement is personal to Consultant and there shall be no assignment by Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by Consultant, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) Consultant hereby agrees not to assign the payment of any monies due Consultant from City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). City retains the right to pay any and all monies due Consultant directly to Consultant. 17. Compliance With Law. In providing the services required under this Agreement, Consultant shall at all times comply with all applicable laws of the United States, the State of California and City, and with all applicable regulations promulgated by DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) -10- federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) -11- 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both City and Consultant. 29. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. [SIGNATURES FOLLOW ON THE NEXT PAGE.] DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) -12- IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: GEORGEANNE WHITE, City Manager City Manager's Office ATTEST: TODD STERMER, CMC City Clerk By: Deputy No signature of City Attorney required. Standard Document #ALL-S Generic CSA Total Fee (04-2022) has been used without modification, as certified by the undersigned. By: GEORGEANNE WHITE City Manager Addresses: City: City of Fresno Attention: Bryon Horn, Chief Information Officer 2600 Fresno Street, Room 159 Fresno, CA 93721 Phone: (559) 621-7101 E-mail: Bryon.Horn@fresno.gov INCAPSULATE, LLC, a Limited Liability Company By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Any Applicable Professional License: Number: Name: Date of Issuance: Consultant: Incapsulate, LLC Attention: Ajay Batishj, Chief Executive Officer 650 Massachusetts Ave NW Ste 600 Washington DC 20036 Phone: (888) 589-2571 E-mail: (866) 890-4848 Attachments: 1. Exhibit A - Scope of Services 2. Exhibit B - Insurance Requirements 3. Exhibit C - Conflict of Interest Disclosure Form DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 Chief Growth Officer Manosh Chakravorty Controller Ramana Bhamidipati ALL-S GCS Agt Total Fee (03-2022) Page 1 of 1 EXHIBIT A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (City) and Incapsulate, LLC (Consultant) Council CRM See attached DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) Page 1 of 4 EXHIBIT B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (City) and Incapsulate, LLC (Consultant) Council CRM MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). If personal automobile coverage is used, the City, its officers, officials, employees, agents, and volunteers are to be listed as additional insureds. 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to Consultant’s profession. Architect’s and engineer’s coverage is to be endorsed to include contractual liability. MINIMUM LIMITS OF INSURANCE Consultant, or any party the Consultant subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) Page 2 of 4 (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents, and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS Consultant shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Consultant shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its officers, officials, employees, agents, and volunteers; or (ii) Consultant shall provide a financial guarantee, satisfactory to City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. City, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds. Consultant shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) Page 3 of 4 by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 2. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents, and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, Consultant’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents, and volunteers shall be excess of Consultant’s insurance and shall not contribute with it. Consultant shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: Consultant and its insurer shall waive any right of subrogation against City, its officers, officials, employees, agents, and volunteers. If the Professional (Errors and Omissions) policy is written on a claims-made form: The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by Consultant. 1. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five year discovery period. 2. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by Consultant, Consultant must purchase “extended reporting” coverage for a minimum of five years completion of the Agreement work or termination of the Agreement, whichever occurs first. 3. A copy of the claims reporting requirements must be submitted to City for review. 4. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty calendar days’ written notice by certified mail, return receipt requested, has been given to City. Consultant is also responsible for providing written notice to the City under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 ALL-S Generic CSA Total Fee (04-2022) Page 4 of 4 cancellation, non-renewal, or reduction in coverage or in limits, Consultant shall furnish City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for City, Consultant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. VERIFICATION OF COVERAGE Consultant shall furnish City with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to City’s execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of City, Consultant shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 EXHIBIT C DISCLOSURE OF CONFLICT OF INTEREST Council CRM YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature Date (Name) (Company) (Address) Additional page(s) attached. (City, State Zip) 650 Massachusetts Ave NW, Suite 600 Washington, DC 20001 DocuSign Envelope ID: E0975B32-14A7-48E7-86B6-395765AD5085 7/5/2023 Incapsulate Manosh Chakravorty Incapsulate Quote for City of Fresno Council CRM July 2023 2 Proprietary & Confidential - For Intended Audience Only Scope: Fresno City Council receives a number of questions, issues and complaints on the phone and via email. The Council would like to implement a Customer Relationship Management (CRM) System to effectively manage email interactions with their constituents. Incapsulate can provide this Solution using the Salesforce Service Cloud Platform Project Details: ●Setup Salesforce Service Cloud ●Configure Email to Case ●Configure User Security ●Configure Case Management ●Configure Reports & Dashboard Timeline: Production Ready in Eight (8) Weeks Fresno | Council CRM Implementation Overview 3 Proprietary & Confidential - For Intended Audience Only Fresno | Council CRM Architecture 4 Proprietary & Confidential - For Intended Audience Only Fresno | Council CRM Timeline Wk 1 Wk 2 Wk 3 Wk 4 Wk 5 Wk 6 Wk 7 Wk 8 UAT ●Assist in User Acceptance Testing Discovery & Alignment ●Conduct Discovery ●Align Requirements ●Document Acceptance Criteria Fresno to provide ●Access to Salesforce Environment Project Kickoff System Acceptance Training ●Conduct Remote Train-The-Trainer Training Deployment ●Support Go Live Activities System Go Live Salesforce - Service Cloud ●Configure Email to Case ●Configure Email Templates for Notifications & Correspondence ●Configure Reports & Dashboards Salesforce - System Setup ●Configure User Roles & Profiles ●Set Up Private Security Model 5 Proprietary & Confidential - For Intended Audience Only Fresno | Council CRM User Stories Details (1 of 2) Category Type User Story Details Salesforce Setup Initial Setup Setup of new SFDC Service Cloud Instance Security Configure Profile Council/workers Portal Users Configure Role 2 Roles per district Configure Org Wide Default Sharing rules and record visibility For Cases - each district to only see their Cases Set up of Org Wide Emails 1 Email per district Analytics Dashboard Configure a dashboard that includes 4 reports One standard Dashboard with the 4 reports that will be configured and cloned for each council member. Integration Address Validation Validate address against City Database City to provide access to city official address repository 6 Proprietary & Confidential - For Intended Audience Only Fresno | Council CRM User Stories Details (2 of 2) Category Type User Story Details Salesforce Configuration General Functionality Account and Contact management Contact/Account Duplicate process Email Template Estimated 10 Email templates (HTML based) Email Alert Emails auto sent on creation and closure Apps 1 App for the Councils to share Page Layout Cases, Accounts, Contacts Lightning Record Page Configuration Cases, Accounts, Contacts Validation Rule Estimate 5 validations on the Cases Estimate 3 on Contacts and Accounts List Views for Cases, Contacts and Accounts estimate total of Enable Chatter internal purposes only Email to Case 7 Routing Rules for Email Case Management Support Process to manage the lifecycle of Cases, 1 Record Type for all Cases 7 Proprietary & Confidential - For Intended Audience Only Fresno | Council CRM Implementation Cost * Excludes any Contract Vehicle Uplift and Salesforce License Cost Type Category Price *Notes One Time Incapsulate Professional Services $149,638.50 Implementation of CRM Total (Professional Service)$149,638.50 Annual Optional Managed Services $5,000.00 Application Support for bug fixes only provided by Global Support Team Total (Optional Managed Service)$5,000.00 Total (Professional & Optional Managed Service)$154,638.50 8 Proprietary & Confidential - For Intended Audience Only Fresno | Council CRM Payment Schedule * Excludes any Contract Vehicle Uplift and Salesforce License Cost Type Date Price *Deliverable Incapsulate Professional Services Project Kickoff $75,498.57 Implementation Plan Month 1 $45,482.51 Requirements Traceability Matrix Month 2 $28,657.42 UAT Approval Optional Managed Services Project Kickoff $5,000.00 Project Kickoff Meeting 9 Proprietary & Confidential - For Intended Audience Only Fresno | Key City Responsibilities ●Fresno will provide timely access to Council staff and Subject Matter Experts (SMEs)) ●Fresno will provide all necessary licenses at Project Kickoff ●Resolution of issues by the City in three (3) business day will allow implementation to remain on target ●Fresno will provide the necessary administrative and security access to enable Email to Case Functionality from the Council website ●Fresno will provide System acceptance one (1) business day after UAT ●Fresno will provide End User Training ●Fresno will be responsible for any Business Change Management activities 10 Proprietary & Confidential - For Intended Audience Only Fresno | Council CRM Key Assumptions Public Web Portal ●Out of scope Data Migration ●Out of scope Integration ●Integration limited to address validation only ●Assumes city will provide necessary address repository to validate addresses, Incapsulate not responsible to maintain the repository ●Integration with any other external system is out of scope, for example Telephony, GIS for reporting, MailChimp and SurveyMonkey Web Portal & Mobile App ●Out of Scope Standard Reports & Dashboard ●Only One (1) Dashboard with up to four (4) reports will be configured and cloned for each council member. Changes to cloned reports are not in scope ●Location and map related reporting will be done by the City GIS team and not through Salesforce Train-The-Trainer ●Up to Six (6) one hour remote train the trainer training sessions ●End user training, change management and rollout support is not in scope System ●Project will be delivered remotely by a blended Onshore and Offshore Team ●System will be delivered in a new Salesforce org and all licenses will be available at Project Kickoff ●Configuration only. custom development is not in scope ●All Salesforce limits apply. Compatible with n-1 browser versions ●Fresno will be responsible for providing required access to external systems ●Campaign, Newsletters, Mass Email Communication will be managed in Mailchimp or SurveyMonkey and not in Salesforce. ●Setting up OmniChannel, Chat, Chat Bot, Text Bot etc are out of scope ●7 email address for council will be routed into Salesforce, Email addresses are accessible by the client to set up forwarding rules ●Standard address validation with coordinates included Managed Services ●Incapsulate Hyper Care not included in quote ●Application Support will be provided by a blended Onshore (20%) and Offshore (80%) Team Deployment ●Incapsulate will deploy the system into production ●Fresno Team will be responsible for providing the necessary admin access ●Plan assumes a 2 week discovery, SME and client resources are available during this discovery period ●Plan assumes 2 weeks of UAT and Go Live, assumes client resources to complete UAT ●Developing online forms is out of scope Documentation ●Standard Salesforce documentation will be provided ●Custom documentation is not in scope 11 Thank You Dilshad Albert dalbert@incapsulate.com 202-476-0024 Date Adopted: 1 of 2 Date Approved: Effective Date: Resolution No. RESOLUTION NO. ___________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO ADOPTING THE 5th AMENDMENT TO THE ANNUAL APPROPRIATION RESOLUTION NO. 2023-185 TO APPROPRIATE $154,700 TO THE INCAPSULATE, LLC FOR THE CUSTOMER RELATIONSHIP MANAGEMENT SOFTWARE IMPLEMENTATION BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FRESNO: THAT PART III of the Annual Appropriation Resolution No. 2023-185 be and is hereby amended as follows: Increase/(Decrease) TO: INFORMATION SERVICES DEPARTMENT System Acq. & Maintenance $ 154,700 THAT account titles and numbers requiring adjustment by this Resolution are as follows: System Acq. & Maintenance Revenues: Account String: 5000-5041-3105-620-430101-31-0-0000-0000- $ 154,700 Total Revenues $ 154,700 Appropriations: Account String: 5000-5041-3105-620-653302-31-0-0000-0000- $ 154,700 Total Appropriations $ 154,700 THAT the purpose is to appropriate $154,700 to the Incapsulate, LLC for the customer relationship management software implementation for council offices. 2 of 2 CLERK’S CERTIFICATION STATE OF CALIFORNIA} COUNTY OF FRESNO } ss. CITY OF FRESNO } I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing Resolution was adopted by the Council of the City of Fresno, California, at a regular meeting thereof, held on the Day of , 2023 AYES: NOES: ABSENT: ABSTAIN: Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Veto: , 2023 TODD STERMER, CMC City Clerk BY: ____________________________ Deputy City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1109 Agenda Date:7/20/2023 Agenda #:1.-I. REPORT TO THE CITY COUNCIL FROM:JERRY P. DYER, Mayor Office of Mayor & City Manager BY:MATTHEW GRUNDY, Deputy Mayor Office of Mayor & City Manager CHRIS MONTELONGO, Deputy Chief of Staff Office of Mayor & City Manager SUBJECT Approve the appointment of Emogene Nelson to Housing Authority of the City of Fresno for a term ending 4/30/2027. Approve the appointment of Paul Idsvoog to Housing Authority of the City of Fresno for a term ending 4/30/2024. Approve the appointment of Birdevinder Rickie Dhillon to the Disability Advisory Commission for a term ending 6/30/2024. Approve the appointment of Joseph Catania to the Tower District Specific Plan Implementation Committee for a term which serves at the pleasure of the Mayor. Approve the reappointment of Vernon J. Tracy to the Civil Service Board for a term ending 6/30/2027. RECOMMENDATION Staff recommends approval. EXECUTIVE SUMMARY The Fresno Housing Authority has seven commissioners appointed by the Mayor. One term has expired, and one vacancy exists. The Mayor’s Office is providing the appointments of Emogene Nelson (District 2 resident) and Paul Idsvoog (District 2 resident) for consideration. The Disability Advisory Commission has seven members appointed by the Mayor. There are currently two vacancies. The Mayor’s Office is providing the appointment of Birdevinder Rickie Dhillon (District 3 resident) for consideration. The Tower District Specific Plan Implementation Committee has seven members. District 1 appoints four members, District 3 appoints two members, and the Mayor appoints one. The Mayor’s Office is providing the appointment of Joseph Catania (District 3 resident) for consideration. The Civil Service Board has five members appointed by the Mayor. One vacancy currently exists. The Mayor’s Office is providing the reappointment of Vernon J. Tracy (District 2 resident) for City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1109 Agenda Date:7/20/2023 Agenda #:1.-I. consideration. Attachment:Nelson Appointment Package Idsvoog Appointment Package Dhillon Appointment Package Catania Appointment Package Tracy Reappointment Package City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ TO: THROUGH: BY: X Name: Address: Phone: Appointed to: Term: JERRY P. DYER MAYOR NOTIFICATION OF APPOINTMENT BY MAYOR TO BOARD OR COMMISSION City Council Todd Stermer, City Clerk Jerry P. Dyer, Mayor Reappointment New Appointment Name of person replaced: Sabrina Kelley Emogene Nelson Housing Authority of the City of Fresno Through 4/30/2027 City Council Agenda 7/20/2023 TO: THROUGH: BY: X Name: Address: Phone: Appointed to: Term: JERRY P. DYER MAYOR NOTIFICATION OF APPOINTMENT BY MAYOR TO BOARD OR COMMISSION City Council Todd Stermer, City Clerk Jerry P. Dyer, Mayor Reappointment New Appointment Name of person replaced: �tacy Vaillancourt Paul ldsvoog Housing Authority of the City of Fresno Through 4/30/2024 City Council Agenda 7120/2023 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1082 Agenda Date:7/20/2023 Agenda #:1.-J. REPORT TO THE CITY COUNCIL FROM:JERRY DYER, Mayor Office of Mayor & City Manager BY:PHILIP SKEI, Assistant Director Planning & Development Department SUBJECT Actions pertaining to the Consultant Services Agreement with eProperty Innovations, LLC: 1. Affirm the City Manager’s determination that eProperty Innovations, LLC, is uniquely qualified to provide professional consultant services for the planning and development of the City of Fresno’s Land Bank operational framework. 2. Approve the Consultant Services Agreement between the City of Fresno and eProperty Innovations, LLC, in the amount of $79,580 for professional consultant services. RECOMMENDATION Staff recommends the City Council affirm the City Manager’s determination that eProperty Innovations, LLC, is uniquely qualified to provide professional consultant services for the planning and development of the City of Fresno’s Land Bank operational framework; approve the Consultant Services Agreement between the City of Fresno and eProperty Innovations, LLC, in the amount of $79,580 for professional consultant services; and authorize the City Manager, or her designee, to sign all documents necessary to effectuate the Consultant Services Agreement. EXECUTIVE SUMMARY The City of Fresno (City) is evaluating the viability and potential positive impact of establishing a Land Bank to purposefully acquire real property and underutilized land that can be positioned for near- and intermediate-term reuse as affordable housing, green space, transit-oriented development, and/or to advance community and economic development in targeted areas throughout Fresno. The Land Bank, if viable, will provide the City with the opportunity to repurpose abandoned, vacant, and neglected properties in a manner consistent with the values and needs of the communities it serves, as well as the chance to hold the land in careful stewardship, if necessary, until a new purpose can be determined. The City’s Land Bank would be intended to create long-term, quality affordable housing, support community goals, stabilize neighborhoods where vacancies are concentrated, and support equitable development. Recognized for its’ domain expertise on land banks and land banking, eProperty Innovations, LLC, has been approved by the City Manager as a Uniquely Qualified Vendor to evaluate the viability and potential positive impact of a Land Bank, including an operational framework. The Consultant Services Agreement, if approved, would allow for up to City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1082 Agenda Date:7/20/2023 Agenda #:1.-J. operational framework.The Consultant Services Agreement,if approved,would allow for up to $79,580 to be spent to obtain the necessary professional consultant services for this evaluation. BACKGROUND Published on April 18,2022,the City’s One Fresno Housing Strategy endorses the establishment of a Land Bank as one of the priority recommendations to produce housing in the city.During the fiscal year 2023 budget cycle,the City Council approved an allocation of $40,000,000 of American Rescue Plan Act (ARPA)funding to support the affordable housing development priorities of the One Fresno Housing Strategy,which includes a land bank.If established,the City’s Land Bank would potentially add hundreds of units of affordable housing over the coming years,as well as be strategically utilized to acquire other parcels that serve the community’s benefit.The Land Bank strategy aligns with HUD’s National Housing Objective,the Statewide Housing Objectives,and the City’s local Housing Element. If deemed viable and ultimately funded,the City’s Land Bank would identify and accumulate underutilized land and vacant properties for reuse and future development in the near-and intermediate-term as affordable housing,green space,transit-oriented development,and/or to advance community and economic growth throughout the City,particularly in targeted areas as outlined in the local Housing Element and One Fresno Housing Strategy.The Land Bank would allow the City to acquire,hold,and distribute property for the purpose of creating more affordable housing stock and other community-focused objectives.The Land Bank would provide the City with the opportunity to repurpose abandoned,vacant,and neglected properties in a manner consistent with the values and needs of the communities it serves,as well as the chance to hold the land in careful stewardship,if necessary,until a new purpose can be determined.The outcome of the Land Bank strategy is intended to reduce blight,improve neighborhood quality,increase socio-economic diversity,provide access to affordable housing,and improve overall well-being within the city.The Land Bank would support neighborhood goals,stabilize neighborhoods where vacancies are concentrated,and sustain equitable development.If ultimately deemed viable and funded,the City’s Land Bank would be the first municipal land bank in California and would help achieve the City’s goals to add new affordable housing units into the development pipeline,produce more affordable and climate-smart housing,and continue adding units to the affordable housing pipeline for many years ahead. The City Manager has approved eProperty Innovations,LLC (Consultant),as a Uniquely Qualified Vendor to evaluate the viability and potential positive impact of a Land Bank,including an operational framework.Recognized for its’domain expertise on land banks and land banking,and currently working with 37 land banks across the U.S.,the Consultant is an experienced and qualified resource for these services.With over 20 years of experience,General Manager,Brian White,is recognized as a national expert on land banks and land banking and has the relevant knowledge and proven experience in the planning and development of land bank operational frameworks.In response to a request from staff,the Consultant has agreed to provide consultant services for a potential future Land Bank in the City of Fresno. The Consultant’s team recently visited the City of Fresno and met with City staff,City officials,and other stakeholders,which resulted in the development of a planned scope of services,timetables, and schedule of fees,needed for the Consultant to complete the proposed analysis and operational framework. City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1082 Agenda Date:7/20/2023 Agenda #:1.-J. The creation of the proposed analysis and operational framework will take place in two phases,with each phase lasting 8 to 10 weeks.Phase 1 will be devoted to performing additional research,data gathering and analysis,further stakeholder engagement,and prioritization.The cap stone deliverable of Phase 1 will be a presentation of the findings and recommendations.Phase 2 will consist of the development of the operational framework for the City’s Land Bank,building on outputs of Phase 1. This phase will include developing policies and procedures,a staffing plan and budget,and other elements to support the activation of the Land Bank.The cap stone deliverables will include documents,plans,and operational guidance that the City would use in the future to launch and stand up a Land Bank. The schedule of fees and costs for each Phase of the project include Consultant Team staff time, incidental expenses,and travel costs for six (6)2-day site visits to the City by the Consultant Team. The estimated costs for Phase 1 are $46,620;and include the analysis of the local real estate market,eligible uses for land bank property,capacity of inventory,and feasibility.Phase 1 will also include community interviews,focus groups,and community involvement.The estimated costs for Phase 2 are $32,960;and include the development of the governance structure,resource development,community outreach and engagement planning,and plans for leveraging technology. The Consultant Services Agreement,if approved,would allow for up to $79,580 to be spent to obtain the necessary professional consultant services for the analysis of the viability and potential positive impact of a City Land Bank, including an operational framework. This Agreement has been reviewed and approved as to form by the City Attorney’s Office.The City’s Risk Management Division has reviewed and approved insurance and indemnity provisions. ENVIRONMENTAL FINDINGS This is not a “project”pursuant to Section 15378 of the California Environmental Quality Act (CEQA) Guidelines. LOCAL PREFERENCE This grant agreement is not subject to local preference. FISCAL IMPACT The source of funding for the agreement is American Rescue Plan (ARPA)funding.The General Fund is not impacted. Attachments: -Uniquely Qualified Memorandum -Consultant Services Agreement City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ ALL-B Generic CSA Not to Exceed (05-2022)/CAO BMC 2-21-23 -1- AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANT SERVICES THIS AGREEMENT (Agreement) is made and entered into effect on _______________________, by and between the CITY OF FRESNO, a California municipal corporation (City), and eProperty Innovations, LLC, (Consultant). RECITALS WHEREAS, the City desires to obtain professional consultant services for the creation of a Land Bank operational framework (Project); and WHEREAS, the Consultant is engaged in the business of furnishing services as a consultant and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, the Consultant acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and WHEREAS, this Agreement will be administered for the City by its Development and Planning Director (Administrator) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and premises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. The Consultant shall perform to the satisfaction of the City the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above (Effective Date) and shall continue in full force and effect through November 30, 2023, subject to any earlier termination in accordance with this Agreement or by extension with mutual agreement of both parties. The services of the Consultant as described in Exhibit A are to commence upon the Effective Date and, per the Consultant’s commercially reasonable efforts, shall be completed in a sequence assuring expeditious completion, but in any event, subject to the terms and conditions of this Agreement, all such services shall be completed prior to expiration of this Agreement and in accordance with any performance schedule set forth in Exhibit A. 3. Compensation. (a) Unless otherwise agreed in writing between the parties, the Consultant’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee not to exceed $79,580, paid on the basis of the rates set forth in the schedule of fees and expenses contained in Exhibit A. ALL-B Generic CSA Not to Exceed (05-2022)/CAO BMC 2-21-23 -2- (b) Monthly statements shall be provided showing the services provided, by whom, and at what cost, with sufficient level of detail or explanation to provide support. Consultant shall document incidental expenses incurred for which reimbursement is required with receipts for expenses $25 and over. Payment on properly submitted and supported invoices shall be due within 30 days of receipt by the City. Failure to pay invoices in a timely manner may cause a suspension of additional services by Consultant. The City shall not be obligated to reimburse any expense for which it has not received a detailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. (c) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to the Consultant’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. The Consultant shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. 4. Termination, Remedies, and Force Majeure. (a) This Agreement shall terminate without any liability of the City to the Consultant upon the earlier of: (i) the Consultant’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the Consultant; (ii) fourteen calendar days prior written notice with or without cause by the City to the Consultant; (iii) the City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, the Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the City any and all unearned payments and all properties and materials in the possession of the Consultant that are owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid compensation for services satisfactorily performed prior to the effective date of termination. The Consultant shall not be paid for any costs incurred which reasonably could have been avoided after receipt of notice of termination. (c) Subject to the other terms and conditions of this Agreement, in the event there is a failure of the Consultant to satisfactorily perform services to comply with the description of same agreed by the parties in Exhibit A, Consultant shall be given written notice of such non-compliance by the City and a failure of Consultant to bring the services into compliance within thirty (30) days after receipt of such written notice, the City may terminate this Agreement for breach. In no event shall any payment by the City pursuant to this Agreement constitute a waiver by the City of any breach of this ALL-B Generic CSA Not to Exceed (05-2022)/CAO BMC 2-21-23 -3- Agreement which may then exist on the part of the Consultant, nor shall such payment impair or prejudice any remedy available to the City with respect to the breach. (d) Upon any breach of this Agreement by a party, the other Party may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all actual and direct damages for the breach of the Agreement. If it is determined that the City improperly terminated this Agreement for breach of the Consultant, such termination shall be deemed a termination for convenience.,. (e) During the thirty-day period following written notice by the City of the failure of the services to comply with the description agreed by the parties in Exhibit A, the Consultant shall provide the City with written assurances of future performance to bring the services into such compliance, upon Administrator’s request. (f) The Consultant shall be liable for default unless partial performance or nonperformance is caused by an occurrence beyond the reasonable control of the Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Consultant shall notify Administrator in writing as soon as it is reasonably possible after the commencement of any such excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Administrator of the cessation of such occurrence. The parties acknowledge and agree that, notwithstanding anything to the contrary elsewhere in this Agreement, the Consultant shall not be liable, and the services and Consultant shall not be deemed to be in default or breach, for delays, partial or incomplete performance, or any nonperformance caused by the City or any of its representatives or any third party. The City agrees that it shall be liable for timely providing to the Consultant any and all information, documents, and materials, and for providing access to and the cooperation of, any and all of its representatives, necessary or useful in the reasonable discretion of the Consultant to enable the Consultant to successfully perform the services. 5. Confidential Information and Ownership of Documents. (a) Any reports, information, or other data prepared or assembled by the Consultant pursuant to this Agreement shall not be made available to any individual or organization by the Consultant without the prior written approval of the Administrator. During the term of this Agreement, and thereafter, the Consultant shall not, without the prior written consent of the City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary ALL-B Generic CSA Not to Exceed (05-2022)/CAO BMC 2-21-23 -4- and confidential information of the City, including but not limited to business plans, marketing plans, financial information, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the City. (b) Any and all writings and documents prepared or provided by the Consultant pursuant to this Agreement are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement. The Consultant shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. (c) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as the Consultant represents to the City that the Consultant and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, the City relies upon the skill of the Consultant and any subcontractors to do and perform such services in a skillful manner and the Consultant agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by the City shall not operate as a release of the Consultant or any subcontractors from said professional standards. 7. Indemnification. To the furthest extent allowed by law, CONSULTANT shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees, litigation expenses and cost to enforce this agreement) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of CONSULTANT, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. ALL-B Generic CSA Not to Exceed (05-2022)/CAO BMC 2-21-23 -5- (a) Throughout the life of this Agreement, the Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by the City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to the City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, the Consultant or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to the Consultant shall be withheld until notice is received by the City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to the City. Any failure to maintain the required insurance shall be sufficient cause for the City to terminate this Agreement. No action taken by the City pursuant to this section shall in any way relieve the Consultant of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by the City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish the liability of the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify the City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers, agents, employees, persons under the supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) The Consultant and any subcontractor/sub-consultant shall establish additional insured status for the City, its officers, officials, employees, agents and volunteers by using ISO form CG 20 26 04 13 or by an executed manuscript company endorsements providing additional insured status as broad as that contained in ISO Form CG 20 26 04 13. 9. Conflict of Interest and Non-Solicitation. ALL-B Generic CSA Not to Exceed (05-2022)/CAO BMC 2-21-23 -6- (a) Prior to the City’s execution of this Agreement, the Consultant shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation and duty to immediately notify the City in writing of any change to the information provided by the Consultant in such statement. (b) The Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state, and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.). At any time, upon written request of the City, the Consultant shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, the Consultant and the respective subcontractor(s) are in full compliance with all laws and regulations. The Consultant shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, the Consultant shall immediately notify the City of these facts in writing. (c) In performing the work or services to be provided hereunder, the Consultant shall not employ or retain the services of any person while such person either is employed by the City or is a member of any City council, commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) The Consultant represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit, or procure this Agreement or any rights/benefits hereunder. (e) Neither the Consultant, nor any of the Consultant’s subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project unless fully disclosed to and approved by the City Manager, in advance and in writing. The Consultant and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. Notwithstanding any approval given by the City Manager under this provision, the Consultant shall remain responsible for complying with Section 9(b), above. (f) If the Consultant should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, the Consultant ALL-B Generic CSA Not to Exceed (05-2022)/CAO BMC 2-21-23 -7- shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (g) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event the Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall: (a) Immediately establish and maintain a viable and ongoing recycling program, approved by the City’s Solid Waste Management Division, for each office and facility. Literature describing the City recycling programs is available from the City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (b) Immediately contact the City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of the City’s Solid Waste Management Division the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Administrator or designee. (b) Records of the Consultant’s expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to the City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of the Consultant pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to the City until such action is resolved, or until the end of said time period whichever shall later occur. If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by the City, the Consultant shall have provided evidence to the City that the Consultant is licensed to perform the services called for by this Agreement (or that no license is required). If the Consultant should subcontract all or any portion of the work or services to ALL-B Generic CSA Not to Exceed (05-2022)/CAO BMC 2-21-23 -8- be performed under this Agreement, the Consultant shall require each subcontractor to provide evidence to the City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. 12. Nondiscrimination. To the extent required by controlling federal, state and local law, the Consultant shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, the Consultant agrees as follows: (a) The Consultant will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) The Consultant will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The Consultant shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to the Consultant’s employment practices including, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. ALL-B Generic CSA Not to Exceed (05-2022)/CAO BMC 2-21-23 -9- (d) The Consultant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of the Consultant’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, the Consultant is acting solely as an independent contractor. Neither the Consultant, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of the City for any purpose. The City shall have no right to control or supervise or direct the manner or method by which the Consultant shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify that the Consultant is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between the Consultant and the City. The Consultant shall have no authority to bind the City absent the City’s express written consent. Except to the extent otherwise provided in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, the Consultant and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to the City employees. The Consultant shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, the Consultant shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to employment and tax withholding for and payment of the Consultant’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in the City employment benefits, entitlements, programs and/or funds offered employees of the City whether arising by reason of any common law, de facto, leased, or co- employee rights or other theory. It is acknowledged that during the term of this Agreement, the Consultant may be providing services to others unrelated to the City or to this Agreement. ALL-B Generic CSA Not to Exceed (05-2022)/CAO BMC 2-21-23 -10- 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, electronically transmitted by e-mail, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 16. Assignment. (a) This Agreement is personal to the Consultant and there shall be no assignment by the Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by the Consultant, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) The Consultant hereby agrees not to assign the payment of any monies due the Consultant from the City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all monies due the Consultant directly to the Consultant. 17. Compliance With Law. In providing the services required under this Agreement, the Consultant shall at all times comply with all applicable laws of the United States, the State of California and the City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. ALL-B Generic CSA Not to Exceed (05-2022)/CAO BMC 2-21-23 -11- 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both the City and the Consultant. 29. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. ALL-B Generic CSA Not to Exceed (05-2022)/CAO BMC 2-21-23 -12- [SIGNATURES FOLLOW ON THE NEXT PAGE.] 7/6/23 For: IN WITNESS WHEREOF , the parties have executed this Agreement at Fresno, California , the day and year first above written. CITY OF FRESNO, a California municipal corporation By :------------ Georgeanne A. White , City.Manager APPROVED AS TO FORM : ANDREW JANZ City Attorney By: ___________ _ Tracy N. Parvanian Date Supervising Deputy City Attorney ATTEST: TODD STERMER ,_ CMC City Clerk By: ___________ _ Deputy Addresses: CITY: City of Fresno Attention: Phil Skei, Assistant Director 2600 Fresno Street, CH3N 3065 Fresno, CA 93721 Phone: (559) 621-8057 E-mail : philip .skei@fresno.gov Attachments : 1. Exhibit A -Scope of Services 2 . Exhibit B -Insurance Requirements eProperty Innovations, LLC , By:----U--~~~- Name: ~~, r,.. tJ c,,, lA l+tt L Title : ~ /\:-~ fl,; c,~/ 6 r-'\ (If corporation or'LLC ., Board Chair, Pres. or V ice Pres.) By: ------------ Name: __________ _ Title: __________ _ (If corporation or LLC ., CFO , Treasurer, Secretary or A ssistant Secretary) Any Applicable Professional License : Number: _________ _ Name: __________ _ Date of Issuance: ______ _ CONSULTANT: eProperty Innovations, LLC Attention : Brian White , General Manager 1751 W Howard Street, Unit D 283 Chicago IL 60626 Phone : (703) 460-9011 E-mail: brian .white@epropertyinnovations.com 3. Exhibit C -Conflict of Interest Disclosure Form ALL-B G eneric CSA Not to Exceed (05-2022)/CAO B MC 2-21-23 -13- ALL-B Generic CSA Not to Exceed (05-2022) /CAO BMC 2-16-23 Page 1 of 3 EXHIBIT A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (City) and eProperty Innovations, LLC (Consultant) Creation of Land Bank Operational Framework for the City of Fresno Phase 1 (8-10 weeks) will be devoted to additional research, data gathering and analysis, stakeholder engagement, and prioritization. The cap stone deliverable will be a presentation and/or report documenting findings and recommendations. (Additional detail and cost estimates are below). Phase 2 (8-10 weeks) will be devoted to developing the operational framework for the land bank, building on outputs of Phase 1. Phase 2 will include developing policies and procedures, a staffing plan and draft budget, and other elements to support the activation of a land bank. The cap stone deliverables will include documents, plans, and operational guidance that can be used by COF to launch and stand up a land bank. ALL-B Generic CSA Not to Exceed (05-2022) /CAO BMC 2-16-23 Page 2 of 3 SCHEDULE OF FEES AND EXPENSES Phase 1: • Documents and plans analysis • 1x1 interviews and focus groups • Real estate market analysis (high level, i.e. not a full market analysis) • Discussion and prioritization of: o Timelines and production goals. o Eligible and intended uses for land bank property. o Acquisition, holding, disposition strategies. o Internal and external coordination. o Budgeting. o Leadership and governance. o Community involvement. • Data gathering and analysis of potential property inventory (pipelines). • Analysis of community development capacity and disposition potential for inventory. • Analysis of legal, political, statutory and programmatic/regulatory landscape. • Feasibility analysis and scenario planning. Project Costs (Phase 1) • Staff time (Consultant Team) $36250 • Travel, includes six (6) 2-day visits to COF by consultant $6600 • Incidental expenses $3500 Total – Phase 1 $46,620 Phase 2 • Identification of key challenges, opportunities for implementation. • Develop proposed governance structure. • Develop preliminary policies and procedures and governance documents. • Engage in operational Planning, including: o Staff and budget planning (not including hiring) o Community outreach and engagement planning ALL-B Generic CSA Not to Exceed (05-2022) /CAO BMC 2-16-23 Page 3 of 3 o Communications planning o Resource development planning o Plans for leveraging technology Project Costs (Phase 2) • Staff time (Consultant Team) $22,860 • Travel, includes six (6) 2-day visits to COF by consultant $6600 • Incidental expenses $3500 Total – Phase 2 $32,960 ALL-B Generic CSA Not to Exceed (05-2022) /CAO BMC 2-16-23 Page 1 of 5 EXHIBIT B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (City) and eProperty Innovations, LLC (Consultant) Creation of Land Bank Operational Framework for the City of Fresno MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to CONSULTANT’S profession. MINIMUM LIMITS OF INSURANCE CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: ALL-B Generic CSA Not to Exceed (05-2022) /CAO BMC 2-16-23 Page 2 of 5 (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY : $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event CONSULTANT purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS CONSULTANT shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and CONSULTANT shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the CITY’S Risk Manager or his/her designee. At the option of the CITY’S Risk Manager or his/her designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects CITY, its officers, officials, employees, agents and volunteers; or ALL-B Generic CSA Not to Exceed (05-2022) /CAO BMC 2-16-23 Page 3 of 5 (ii) CONSULTANT shall provide a financial guarantee, satisfactory to CITY’S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall CITY be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. CITY, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. CONSULTANT shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 2. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, CONSULTANT’S insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, employees, agents and volunteers. Any insurance or self- insurance maintained by the CITY, its officers, officials, employees, agents and volunteers shall be excess of CONSULTANT’S insurance and shall not contribute with it. CONSULTANT shall establish primary and non- contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: CONSULTANT and its insurer shall waive any right of subrogation against CITY, its officers, officials, employees, agents and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims- made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by CONSULTANT. ALL-B Generic CSA Not to Exceed (05-2022) /CAO BMC 2-16-23 Page 4 of 5 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by CONSULTANT, CONSULTANT must purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to CITY for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to CITY. CONSULTANT is also responsible for providing written notice to the CITY under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, CONSULTANT shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, CONSULTANT shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by CONSULTANT shall not be deemed to release or diminish the liability of CONSULTANT, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONSULTANT, its principals, officers, agents, employees, persons under the supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. VERIFICATION OF COVERAGE ALL-B Generic CSA Not to Exceed (05-2022) /CAO BMC 2-16-23 Page 5 of 5 CONSULTANT shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY’S Risk Manager or his/her designee prior to CITY’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, CONSULTANT shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. SUBCONTRACTORS - If CONSULTANT subcontracts any or all of the services to be performed under this Agreement, CONSULTANT shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate side agreement with the City to provide required indemnification and insurance protection. Any required side agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee. If no side agreement is required, CONSULTANT shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and CONSULTANT shall ensure that CITY, its officers, officials, employees, agents, and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with CONSULTANT, and CITY, prior to commencement of any work by the subcontractor. City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1083 Agenda Date:7/20/2023 Agenda #: 1.-K. REPORT TO THE CITY COUNCIL FROM:AARON A. AGUIRRE, Director Parks, After School, Recreation and Community Services Department BY:SHELBY MACNAB, Business Manager Parks, After School, Recreation and Community Services Department SUBJECT Actions Pertaining to a Requirements Contract for Charter Bus Services: 1. Approve the award of a requirements contract to Best Tours &Travel for two (2) years with two (2) optional one (1) year extensions for charter bus services for Parks, Afterschool, Recreation and Community Services (PARCS) programming (Bid File 12302539) 2. Authorize spending authority for charter bus services in an amount not to exceed $153,700 plus annual CPI increases, and no minimum spending guarantee expressed or implied under any respective requirements contract 3. Authorize the City Manager or designee to execute all related documents on behalf of the City RECOMMENDATION Staff recommends that the Fresno City Council approve the award of a requirements contract to Best Tours & Travel for two (2) years with two (2) optional one (1) year extensions for charter bus services and authorize spending authority in an amount not to exceed $153,700 plus annual CPI increases, and no minimum spending guarantee expressed or implied under any respective requirements contract. Staff also recommend that the City Council authorize the City Manager or designee to execute all related documents on behalf of the City. EXECUTIVE SUMMARY The PARCS Department is requesting that the Fresno City Council award a two (2) year requirements contract for charter bus services with two (2) optional one (1) year extensions to Best Tours & Travel, authorize spending authority for charter bus services in an amount not to exceed $153,700 plus annual CPI increases, and authorize the City Manager or designee to execute all related documents on behalf of the City. This contract is a requirements contract, and the City is not obligated to any minimum purchase. BACKGROUND Charter bus services are being sought for travel to Camp Fresno and occasional trips to destinations within Fresno County for youth science camp and other camp enrichment experiences. On May 16, 2023, a notice inviting bids for charter bus services was published in the Fresno Business Journal and posted on Planet Bids. A proposal conference was held on May 22, 2023 to answer prospective bidder’s questions. There was one prospective bidder in attendance. One proposal was received by the Purchasing Division of the General Services Department and opened on May 30, 2023. On June 1, 2023, the proposal was evaluated by the scoring committee based on the proposers cost as shown on the proposal, ability to meet the stated service requirements, past performance and experience, conformance to the terms and conditions of the RFP, financial stability and other related information including employee training and City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 7-0 File #:ID 23-1083 Agenda Date:7/20/2023 Agenda #: 1.-K. terms and conditions of the RFP,financial stability and other related information including employee training and supervision.The scoring committee identified questions related to proposal pricing and charter bus accessibility features. On June 12,2023 a virtual meeting was facilitated by the Purchasing Division to ask Best Tours &Travel clarifying questions submitted by the scoring committee.On June 28,2023 Best Tours &Travel submitted an amended proposal which included clarifying information about the price range for services,and information regarding wheelchair accessible charter bus services. Staff recommend Council approve the award of a requirements contract to Best Tours &Travel for two (2)years with two (2)optional one (1)year extensions for charter bus services in the amount not to exceed $153,700 plus annual CPI increases and authorize the City Manager or designee to execute all related documents. ENVIRONMENTAL FINDINGS Pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15378, this item is not a project for the purposes of CEQA. LOCAL PREFERENCE The RFP committee did account for local preference and local preference was part of the criteria used by the committee in their evaluation process. FISCAL IMPACT Appropriations for fiscal year 2024 transportation services are currently reflected in the PARCS Department’s budget. Future appropriations will be included as part of the annual budgeting process. Attachments: RFP 12302539 and Sample Contract Bid Evaluation City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ RFP 05-2021 PAGE 1 REQUEST FOR PROPOSALS FOR REQUIREMENTS CONTRACT FOR CHARTER BUS SERVICES PROPOSAL NUMBER: 12302539 PROPOSAL SUBMISSION DEADLINE: Prior to 3:00 p.m. , May 30, 2023 PROPOSAL CONTACT: Dyan Ayala PURCHASING DIVISION Email: dyan.ayala@fresno.gov Phone: (559) 621-8367 OR 621-1332 Fax: (559) 457-1455 RFP 05-2021 PAGE 2 CITY OF FRESNO PROPOSAL SPECIFICATIONS REQUEST FOR PROPOSALS Requirements Contract for Charter Bus Services Table of Contents I - INTRODUCTION ....................................................................................................................................................... 3 NOTICE INVITING PROPOSALS........................................................................................................................................ 4 INSTRUCTIONS TO PROPOSERS ...................................................................................................................................... 5 Submittal of Proposal ................................................................................................................................................ 5 ACH Payment Initiative -Electronic Payment ............................................................................................................ 6 ADA ........................................................................................................................................................................... 6 Public Records ........................................................................................................................................................... 6 Selection Process and Evaluation Criteria ................................................................................................................. 6 Time to Award ........................................................................................................................................................... 7 Contract Documents ................................................................................................................................................. 7 Questions, Clarifications, and Concerns .................................................................................................................... 7 Contacts with City Staff ............................................................................................................................................. 8 REGULATED COMMUNICATIONS IN CITY PROCUREMENT PROCESS ORDINANCE .................................................... 8 Notification of Staff Determination .......................................................................................................................... 8 Debarment ................................................................................................................................................................ 9 OUTREACH TO SMALL BUSINESS ENTERPRISES IN SUBCONTRACTING ..................................................................... 9 II - PROPOSAL AND CONTRACT DOCUMENTS ............................................................................................................ 10 CHECK LIST ................................................................................................................................................................... 11 COST PROPOSAL........................................................................................................................................................... 12 PROPOSER QUALIFICATION QUESTIONNAIRE .............................................................................................................. 17 REFERENCES ................................................................................................................................................................. 22 STATEMENT OF ACCEPTANCE OF THE INDEMNIFICATION ........................................................................................... 23 NONCOLLUSION DECLARATION ................................................................................................................................... 24 ADDENDA ..................................................................................................................................................................... 25 PROPOSAL DEPOSIT ..................................................................................................................................................... 26 SIGNATURE PAGE ......................................................................................................................................................... 28 SAMPLE CERTIFICATION ............................................................................................................................................... 30 SAMPLE SERVICE CONTRACT ....................................................................................................................................... 31 III - GENERAL CONDITIONS ........................................................................................................................................ 33 MINIMUM LIMITS OF INSURANCE ...................................................................................................................... 36 IV – SPECIAL CONDITIONS.......................................................................................................................................... 43 V - SCOPE OF WORK .................................................................................................................................................. 47 RFP 05-2021 PAGE 3 I - INTRODUCTION - Notice Inviting Proposals - Instructions to Proposers RFP 05-2021 PAGE 4 NOTICE INVITING PROPOSALS Electronic Proposals will be received by the office of the Purchasing Manager of the City of Fresno, all in accordance with the Specifications for: REQUIREMENTS CONTRACT FOR CHARTER BUS SERVICES REQUEST FOR PROPOSALS NO. 12302539 The City of Fresno is soliciting proposals to provide Charter Bus Services for the Parks, After School, Recreation and Community Services (PARCS) Department. This request is for a TWO (2) year Contract with TWO (2) possible ONE (1) year extensions. The RFP forms, Instructions to Proposers, copies of plans and/or specifications may be obtained from the Office of the Purchasing Manager (phone 559 621-1332) via the City’s web site: http://www.fresno.gov, Doing Business (at the top of the screen), Bid Opportunities. Proposals may be submitted electronically via Planet Bids only. Proposals are to be submitted electronically using Planet Bids prior to the opening at 3 p.m. on Tuesday, May 30, 2023, at which time they will be publicly opened and recorded. Join the bid opening meeting at https://zoom.us/j/92047244398 or call (669) 900-9128, meeting ID 920 4724 4398. All proposals must be made on the proposal forms provided by the Purchasing Manager and must be accompanied by a deposit in the amount of Five Hundred Dollars ($500) in the form of a Cashier's or Certified Check, an irrevocable letter of credit, a certificate of deposit, or a bidder's bond of a corporate surety, authorized by the California Insurance Commissioner to do business in the State of California, payable and acceptable to the City of Fresno. All deposits will be held until a Contract has been executed with the successful Proposer or all proposals have been rejected. Copies of Proposal Deposits may be submitted electronically, with the exception of a certified or cashier’s check, which must be brought to the Purchasing Manager’s office prior to the bid opening and labeled accordingly with proposal number. The City of Fresno hereby notifies all Proposers that no person shall be excluded from participation in, denied any benefits of, or otherwise discriminated against in connection with the award and performance of any contract on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation or on any other basis prohibited by law. A proposal conference will be held at 10:00 a.m. on May 22, 2023. Join the meeting by going to https://zoom.us/j/92047244398 or call (669)900-9128, meeting ID 920 4724 4398.. Prospective Proposers are encouraged to attend since City Staff will be present to answer any questions regarding the Specifications. Services of an interpreter and additional accommodations can be made available. Requests for accommodations should be made at least five working days but no later than 48 hours prior to the scheduled meeting/event. Please contact the Buyer listed on the cover at 559- 621-1332 or Dyan.Ayala@fresno.gov. The City of Fresno reserves the right to reject any and all proposals. RFP 05-2021 PAGE 5 INSTRUCTIONS TO PROPOSERS REQUIREMENTS CONTRACT FOR CHARTER BUS SERVICES REQUEST FOR PROPOSALS NO. 12302539 1. No proposal will be considered for award unless it is submitted on the proposal forms furnished by the Purchasing Manager, completely filled out, properly signed by the Proposer and filed electronically via Planet Bids on or before the date and time specified in the Notice Inviting Proposals. The time clock in the Purchasing Division will be the official clock for documenting the time of filing. 2. No proposal will be considered for award unless the Proposer has complied with the following: Proposers must submit a deposit in the amount of Five Hundred Dollars ($500) with their proposal in the form of a Certified or Cashier's Check, an irrevocable letter of credit, a certificate of deposit, or a bidder's bond of a corporate surety, authorized by the California Insurance Commissioner to do business in the State of California, payable and acceptable to the City of Fresno. Such deposit shall be retained by the City of Fresno as a guarantee that the Proposer, if awarded all or part of the proposal, will, within fifteen (15) calendar days (except in the event federal funding is applicable to this Contract, then 10 working days) from the date the Notice of Award is mailed to the Proposer, execute and return a Contract furnished by the City. All deposits will be returned when the Contract(s) has been executed for all items awarded, or if all proposals are rejected. Copies of Bid Deposits may be submitted electronically, with the exception of a certified or cashier’s check, which must be brought to the Purchasing Manager’s office prior to the bid opening and labeled accordingly with proposal number. 3. The City will award a Contract or reject any or all proposals within the time stated in the Specifications, and no proposal may be withdrawn within that period of time. Any award of a Contract exceeding $50,000, shall be subject to the approval of the City Council. 4. The City reserves the right to reject any and all proposals. Submittal of Proposal 5. Each Proposer shall carefully examine each and every term of this Request for Proposals; and each Proposer shall judge all the circumstances and conditions affecting its proposal. Failure on the part of any Proposer to make such examination and to investigate thoroughly shall not be grounds for any declaration that the Proposer did not understand the conditions of this Request for Proposals. 6. The Proposer shall comply with any and all federal, state, or local laws, now in effect or hereafter promulgated, which apply to the services and products herein specified. 7. This solicitation for proposals does not commit the City of Fresno to enter into a Contract or to pay any costs incurred in the preparation of responses to the request. The City of Fresno reserves the right to accept or reject any proposals, and to negotiate with any qualified source, or to cancel in part or in its entirety this Request for Proposals. It may accept the proposal that it considers to be in the interest of the City of Fresno, with or without negotiation. 8. The City reserves the right to waive any informality or minor irregularity when it is in the best interest of the City to do so, to negotiate for the modification of any proposal with mutual consent of the Proposer, to re-advertise for proposals if desired, and to accept the proposal which in the judgment of the City, even though it does not offer the lowest cost, is nevertheless deemed to offer the best value for the public and City. Any proposal which is RFP 05-2021 PAGE 6 incomplete, conditional, obscure, or which contains irregularities of any kind, may be cause for rejection. ACH Payment Initiative -Electronic Payment Proposer shall provide complete and accurate billing invoices in order to receive payment. Billing invoices submitted must contain all information and supporting documentation required by the contract. Payment for invoices submitted by the proposer shall only be rendered electronically unless payment by paper check is expressly authorized by the Controller, in the Controller’s sole discretion, due to extenuating circumstances. Such electronic payment shall be made in accordance with ordinary City procedures and practices. The proposer shall comply with the Controller’s procedures to authorize electronic payments. Proposer acknowledges that it will not receive payment on any invoices submitted under this Contract if it does not comply with the Controller’s electronic payment procedures, except where the Controller has expressly authorized payment by paper check as set forth above. ADA Accessibility Requirements: Supplier warrants that it complies with California and federal disabilities laws and regulations; and the Services will conform to the accessibility requirements of WCAG 2.0AA. Supplier agrees to promptly respond to and resolve any complaint regarding accessibility of its Services. The City may require Proposer to comply with these accessibility requirements if they are awarded a contract. Public Records 9. The proposals received shall become the property of the City of Fresno and are subject to public disclosure. Those parts of a proposal which are defined by the Proposer as business or trade secrets as that term is defined in California Civil Code, Section 3426.1, and are reasonably marked "Trade Secrets", "Confidential", or "Proprietary", and placed in a separate envelope shall only be disclosed to the public if such disclosure is required or permitted under the California Public Records Act or otherwise by law. Proposers who indiscriminately and without justification identify most, or all, of their proposal as exempt from disclosure may not be considered for award. Proposals, excluding confidential information, will be available for review after posting of staff recommendation. Selection Process and Evaluation Criteria 10. Proposal Evaluation The Selection Committee will review and evaluate all proposals after formal receipt. To receive proper consideration, the proposal must meet the requirements of these Specifications. The evaluation process will provide credit only for those capabilities and advantages which are clearly stated in the Proposer's written proposals. In other words, advantages which are not stated will not be considered in the evaluation process. Proposers whose proposals include a failure to comply with or take exception to these Specifications may not be considered for award and dropped from the evaluation process. The Selection Committee will evaluate the proposals on the following criteria: a. Cost as shown on the proposal form. RFP 05-2021 PAGE 7 b. Ability to meet the stated service requirements. c. Past Performance and Experience based on References and experience shown on "Statement of Qualifications and Experience." d. Conformance to the terms and conditions of the RFP. e. Financial Stability based on information provided in the Statement of Qualifications. f. Other related information. The City reserves the right to accept or reject any or all proposals and may select, and negotiate with one or more Proposers concurrently, and enter into a Contract with such Proposer who is determined, by the City, to provide the services which are in the interest of the City. The City may agree to such terms and conditions as it may determine to be in its interest. The City reserves the right to select more than one Proposer and enter into contracts with multiple proposers concurrently.11. The Selection Committee reserves the right to request additional information from Proposers, to negotiate terms and conditions of the Contract, to visit sites, to request demonstrations or oral presentations, or ask Proposers to appear before the Selection Committee to clarify points of their proposal. 12. Selection will be based on qualitative analysis and cost. Any award shall be on the basis of the criteria specified and made to the Proposer whose proposal is judged as providing the best value in meeting the interest of the City and the objectives of the project, in the City’s sole discretion. 13. The City reserves the right to make the selection of a Proposer based on any or all factors of value, whether quantitatively identifiable or not, including, but not limited to, the anticipated initiative and ability of the Proposer to perform the services set forth herein.Time to Award 14. The Proposer agrees that the City may have ONE HUNDRED TWENTY (120) DAYS to accept or reject proposals. It is further understood that, if the Proposer to whom any award is made fails to enter into a Contract as provided in the Specifications, award may be made to another Proposer, who shall be bound to perform as if she/he had received the award in the first instance. Contract Documents 15. The proposer shall submit the required contract documents in a form acceptable to the Purchasing Division 2101 G. Street, Building A – Fresno, CA 93706 within 15 calendar days (except in the event in the event federal funding is applicable to this Contract, then 10 working days) from the Notice of Award of proposal. Failure to provide said documents within the designated period shall be sufficient cause to award to the next proposer offering the next best value to the City. Questions, Clarifications, and Concerns 16. The Specifications describing this project have been carefully prepared. Any questions or concerns relating to these Specifications shall be directed in writing to the designated Procurement Specialist of the Purchasing Division (see cover page) and may be submitted electronically by utilizing the Question and Answers field on Planet Bids. RFP 05-2021 PAGE 8 Questions will be accepted only up to five (5) working days prior to the proposal date to allow the City, if necessary, to issue an addendum to all proposers stating revisions, deletions, or additions to be made to the Specifications as a result of any questions. If questions arise after the deadline, please contact the designated Procurement Specialist of the Purchasing Division, but the City will not guarantee a response. The City will not be responsible for verbal responses made by parties other than the Purchasing Manager or designee. Contacts with City Staff 17. Before an award is made, any contact with City staff, other than the Purchasing Manager or designee(s), without prior written authorization is strictly prohibited and may render the Proposer non-responsible. REGULATED COMMUNICATIONS IN CITY PROCUREMENT PROCESS ORDINANCE 18. The Regulated Communications in City Procurement Process Ordinance (Article 6, Chapter 4 of the Fresno Municipal Code) became effective May 7, 2004. With certain specified exceptions, the Ordinance provides that no Respondent, Bidder, Proposer (as the case may be) shall initiate, engage in, or continue any communication to or with any City elected official concerning or touching upon any matter which is the subject of this competitive procurement process. Any Respondent, Bidder, Proposer or elected official (as the case may be) who initiates, engages in, continues in, or receives any regulated communication shall file the written disclosure required by the Regulated Communications in City Procurement Process Ordinance. Any Respondent, Bidder, or Proposer violating the Regulated Communications in City Procurement Process Ordinance may be disqualified from participating in this procurement process and/or determined to be non-responsible. Additionally, the City may set aside the award of a contract, prior to its execution, to a party found to have violated the Ordinance. Note: The full text of Fresno Municipal Code, Chapter 4, Article 6 may be viewed on the City’s website at, http://www.fresno.gov. Under Government, “City Clerk” - Fresno Municipal Code- Or view the Fresno Municipal Code directly at https://library.municode.com/ca/fresno/codes/code_of_ordinances?nodeId=MUCOFR_CH 4CIPUCOSA_ART6RECOELOFPRPR Notification of Staff Determination 19. Once the City has reviewed and evaluated the proposals received and has determined for award the responsible proposal that provides the best value to the City, that determination will be posted on the City's website http://www.fresno.gov, reference link “Departments” (at the top of screen), “General Services,” “Purchasing,” and “Anticipated Formal Bid Award.” It is the sole responsibility of interested Proposers to seek this information. Proposers will be given an opportunity to submit, in writing, within 5 days to the Purchasing Manager any concerns with the RFP process or Staff Determination. Such writing will be taken under consideration by the City Manager and may be acted upon within 5 days. If no RFP 05-2021 PAGE 9 action is taken within such 5 days, then there shall be no change in Staff Determination. The exercise of Proposer of its right to submit its written concerns shall be a condition precedent to seeking judicial review of any award of a contract hereunder. Debarment 20. A Proposer may be debarred from bidding or proposing upon or being awarded any contract with the City, or from being a subcontractor or supplier at any tier upon such contract, in accordance with the procedures in Fresno Municipal Code Section 4-104 adopted by Council on May 17, 2018. The initial period of any such debarment shall not be less than one year and may be permanent depending on the violation. A Proposer may request a hearing, in accordance with Fresno Municipal Code Section 4-104, upon receipt of a notice of proposed debarment from the City Manager or designee. A copy of the Ordinance may be obtained from the City Clerk’s Office, 2600 Fresno Street, Fresno, California 93721. OUTREACH TO SMALL BUSINESS ENTERPRISES IN SUBCONTRACTING 21. The City of Fresno hereby notifies all Proposers that it is the City's policy to provide all small business enterprises, including minority, women, and disabled veteran business enterprises, equal access and opportunity for participation in the performance of all construction contracts, professional service contracts, procurement of supplies, equipment and other services. Therefore, the City requests that a Proposer who intends to subcontract a portion of the work seek out small business enterprises that are potential subcontractors, suppliers, or consultants, and actively solicit their interest, capability, and prices. RFP 05-2021 PAGE 10 II - PROPOSAL AND CONTRACT DOCUMENTS RFP 05-2021 PROPOSAL SECTION PAGE 11 (Submit with Proposal.) Proposer’s Name: _________________________ CHECK LIST Proposers are requested to submit this Checklist and the following information, providing the content in the sequence shown below. If documentation provided is incomplete, the Proposer may be ineligible for award of a Contract. 1. COVER LETTER, including company name, address, contact name, phone number and fax number. 2. PROPOSAL DEPOSIT in the form of: Certified Check Proposer's Bond Cashier's Check Irrevocable Letter of Credit Certificate of Deposit Annual Bidder's Bond 3. COST PROPOSAL (p.12-16)(complete attached form) 4. STATEMENT OF QUALIFICATIONS AND EXPERIENCE 5. CITY FORMS (pp.23-26) (complete/return attached forms) STATEMENT INDICATING ACCEPTANCE OF INDEMNIFICATION AND INSURANCE REQUIREMENTS NON-COLLUSION DECLARATION ADDENDA AND PROPOSAL DEPOSIT 6. Signature page of all ADDENDA issued, Addendum No. 7. REFERENCES (p. 22) 8. PROPOSER QUESTIONNAIRE (pp. 17-21) (complete attached form) 9. SIGNATURE PAGES (pp. 28), including (for corporations) Notary Acknowledgment in corporate form, certification by secretary and board resolution or other document to authorize individual who signs proposal. 10. ACH AUTHORIZATION AGREEMENT (p. 27) Signature page of ACH payment. RFP 05-2021 PROPOSAL SECTION PAGE 12 (Submit with Proposal) Proposer's Name COST PROPOSAL REQUIREMENTS CONTRACT FOR CHARTER BUS SERVICES REQUEST FOR PROPOSALS NO. 12302539 TERM OF CONTRACT The Contract shall be in effect for TWO (2) year(s) from the date of the Notice to Proceed. The Contract may be extended in accordance with the provisions set forth in the Special Conditions of these Specifications. TO THE PURCHASING MANAGER, CITY OF FRESNO Having carefully examined the Request for Proposals, attachments and related documents, the undersigned proposes and agrees to provide to the City of Fresno, in accordance with the Specifications annexed hereto and made a part thereof, the following services at the following rates: Section 1 - Camp Fresno 2023: (Continued) ITEM # DESCRIPTION TRIP DETAIL ITINERARY BUS DETAIL COST DETAIL 1 Camp Fresno 2023 Day Trip Round-trip transportation to and from Camp Fresno. July 27, 2023 July 28, 2023 August 3, 2023 August 4, 2023 Total passengers per trip: 80 9:00AM Departure City Hall 2600 Fresno Street Fresno CA, 93721 Destination: Camp Fresno 53849 Dinkey Creek Road Shaver Lake, CA 93664 Charter bus to remain onsite. 4:30PM Departure Camp Fresno 53849 Dinkey Creek Road Shaver Lake, CA 93664 Destination: Ted C. Wills Community Center 770 N San Pablo Ave. Fresno, CA, 93726 Two charter buses seating up to 48 passengers each. Total number of seats in charter bus #1: Total number of seats in charter bus #2: Please provide cost per trip date and total cost. Cost per bus: $ *2 buses per trip date = $ Cost per trip date * 4 trip dates = $ total cost RFP 05-2021 PROPOSAL SECTION PAGE 13 (Submit with Proposal) Proposer's Name __________________________ (Continued) ITEM # DESCRIPTION TRIP DETAIL ITINERARY BUS DETAIL COST DETAIL 2 Camp Fresno 2023 – Drop Off Transportation to Camp Fresno. Charter bus will not remain on site. July 31, 2023 Total passengers: 80 9:00AM Departure City Hall 2600 Fresno Street Fresno CA, 93721 Destination: Camp Fresno 53849 Dinkey Creek Road Shaver Lake, CA 93664 Two charter buses seating up to 48 passengers each. Total number of seats in charter bus #1: Total number of seats in charter bus #2: Cost per bus: $ *2 buses per trip date = $ total cost 3 Camp Fresno 2023 - Pick Up Transportation from Camp Fresno to Ted C. Wills Community Center. August 2, 2023 Total passengers: 80 11:00AM Departure Camp Fresno 53849 Dinkey Creek Road Shaver Lake, CA 93664 Destination: Ted C. Wills Community Center 770 N San Pablo Ave. Fresno, CA, 93726 Two charter buses seating up to 48 passengers each. Total number of seats in charter bus #1: Total number of seats in charter bus #2: Cost per bus: $ *2 buses per trip date = $ total cost Section 1 - Camp Fresno 2023 sub-total: (Item #1 + Item #2 + Item #3) $ RFP 05-2021 PROPOSAL SECTION PAGE 14 (Submit with Proposal) Section 2 – Camp Fresno 2024: Proposer's Name: __________________________ (Continued) ITEM # DESCRIPTION TRIP DETAIL ITINERARY BUS DETAIL COST DETAIL 4 Camp Fresno 2024 – Day Trips Round-trip transportation to and from Camp Fresno Approximately 14 trip dates between June 2024 and August 2024 Total passengers per trip: 80 9:00AM* Departure City Hall 2600 Fresno Street Fresno CA, 93721 Destination: Camp Fresno 53849 Dinkey Creek Road Shaver Lake, CA 93664 Charter bus to remain onsite. 4:30PM* Departure Camp Fresno 53849 Dinkey Creek Road Shaver Lake, CA 93664 Destination: Ted C. Wills Community Center 770 N San Pablo Ave. Fresno, CA, 93726 *actual times may vary by up to 1 hour. Two charter buses seating up to 48 passengers each. Total number of seats in charter bus #1: Total number of seats in charter bus #2: Please provide cost per trip date and total cost. Cost per bus: $ *2 buses per trip date = $ Cost per trip date *14 trip dates = $ total cost 5 Camp Fresno 2024 – Drop Off Transportation to Camp Fresno. Charter bus will not remain on site. Approximately 7 trip dates between June 2024 and August 2024 Total passengers: 80 9:00AM* Departure City Hall 2600 Fresno Street Fresno CA, 93721 Destination: Camp Fresno 53849 Dinkey Creek Road Shaver Lake, CA 93664 *actual time may vary by up to 1 hour. Two charter buses seating up to 48 passengers each. Total number of seats in charter bus #1: Total number of seats in charter bus #2: Please provide cost per trip date and total cost. Cost per bus: $ *2 buses per trip date = $ Cost per trip date *7 trip dates = $ total cost RFP 05-2021 PROPOSAL SECTION PAGE 15 (Submit with Proposal) Proposer's Name Section 3 – Various Trips: ITEM # DESCRIPTION AND ESTIMATED QUANTITIES BUS DETAIL COST DETAIL 7 Daily Rate – various trips (20- 29 passengers) The daily rate is defined as each hour the City is in possession of the charter, up to 12 hours, including the time the bus is unoccupied at the trip site. Approximately 5 trips per year. Total number of seats: If the daily rate covers a period less than 12 hours, please explain: $ Cost per day * 5 trips = $ Total cost (Continued) ITEM # DESCRIPTION TRIP DETAIL ITINERARY BUS DETAIL COST DETAIL 6 Camp Fresno 2024 - Pick Up Transportation from Camp Fresno to Ted C. Wills Community Center. Approximately 7 trip dates between June 2024 and August 2024 Total passengers: 80 11:00AM* Departure Camp Fresno 53849 Dinkey Creek Road Shaver Lake, CA 93664 Destination: Ted C. Wills Community Center 770 N San Pablo Ave. Fresno, CA, 93726 *actual time may vary by up to 1 hour. Two charter buses seating up to 48 passengers each. Total number of seats in charter bus #1: Total number of seats in charter bus #2: Please provide cost per trip date and total cost. Cost per bus: $ *2 buses per trip date = $ Cost per trip date *7 trip dates = $ total cost Section 2- Camp Fresno 2024 sub-total: (Item #4 + Item #5 + Item #6) $ RFP 05-2021 PROPOSAL SECTION PAGE 16 (Submit with Proposal) Proposer's Name The Total Amount of Proposal is ______________________________________________ Dollars and ________________ Cents. The above amount shall include any and all applicable taxes. The quantities listed on the proposal page(s) are estimates for the initial term. The actual requirement of the City may be more or less than the quantities specified. The City will pay for only those items which it actually delivered or received during the term of the Contract. The City reserves the right to reject any and all proposals. 8 Daily Rate – various trips (30- 39 passengers) The daily rate is defined as each hour the City is in possession of the charter, up to 12 hours, including the time the bus is unoccupied at the trip site. Approximately 5 trips per year. Total number of seats: If the daily rate covers a period less than 12 hours, please explain: $ Cost per day * 5 trips = $ Total cost 9 Daily Rate – various trips (40- 48 passengers) The daily rate is defined as each hour the City is in possession of the charter, up to 12 hours, including the time the bus is unoccupied at the trip site. Approximately 5 trips per year. Total number of seats: If the daily rate covers a period less than 12 hours, please explain: $ Cost per day * 5 trips = $ Total cost Section 3 - Various trips sub-total: (Item #7 + Item #8 + Item #9) $ RFP 05-2021 PROPOSAL SECTION PAGE 17 (Submit with Proposal.) Proposer’s Name: _________________________ PROPOSER QUALIFICATION QUESTIONNAIRE FOR REQUEST FOR PROPOSALS FOR: REQUIREMENTS CONTRACT FOR CHARTER BUS SERVICES REQUEST FOR PROPOSALS NO. 12302539 TO: THE PURCHASING MANAGER OF THE CITY OF FRESNO The undersigned Proposer submits the following information in accordance with the proposal Specifications: (Use additional sheets as needed.) 1. a. Business Name (If using more than one business name, please list all names.): b. Address: Is your firm operating as a franchisee? Yes or No If yes, list the franchiser, and number of years your business has been franchised: 2. Provide the names, titles, qualifications, years of experience, and years with your firm, for all key personnel in authority in your business, including the key personnel that will be involved in this project, and the extent to which they will be involved in the performance of this Contract. 3. Description of Contractor’s qualification requirements for drivers. Description shall include information on new applicant/new hire screening process including background check and drug testing; average length of service; experience with mountain terrain, and a description of mandatory training programs for drivers. 4. How many years has your business been established? How many years has your business been under your present name? How many years under former names? (List name and number of years) How many years has your business been providing services? 5. Do you have any affiliated companies? (If parent company, list subsidiaries and divisions. If subsidiary or division, name parent company, its principals, and their addresses): 6. Have there been any contract terminations for the services your firm performs before the fulfillment of the contract within the past three years? Yes or No If so, list the date, client, and reason for termination below: RFP 05-2021 PROPOSAL SECTION PAGE 18 (Submit with Proposal.) Proposer’s Name: _________________________ PROPOSER QUALIFICATION QUESTIONNAIRE (Continued) FOR REQUEST FOR PROPOSALS FOR: REQUIREMENTS CONTRACT FOR CHARTER BUS SERVICES REQUEST FOR PROPOSALS NO. 12302539 7. Provide an organization chart, indicating full-time personnel, job titles, locations, and whether each individual works out of an office or is in the field. Organization chart attached? Yes or No 8. Does the proposer currently possess sufficient resources to meet the initial requirements (See Estimated Quantities for each line item, pgs.12-16 for this contract? Yes or No If “Yes”, describe the inventory and if “No”, describe how you will meet the initial requirements: 9. Describe how you will meet the requirement to provide charter bus services (pages 12-16 and 47- 49) for the City of Fresno PARCS Department. Include a description of proposer’s ability to provide the services required by this RFP. 10. Describe the proposers plan to manage this account. Outline the roles and organization of a dedicated account representative or team which will support this business, including a description of the process to schedule charter bus services. a. Provide copies of quote forms and describe how these forms are transmitted. 11. Describe the cancelation and change policy for charters, including any fees associated with cancelations or changes during various time periods. Ex. One month, two weeks, one week, seventy-two hours and day of cancelation. RFP 05-2021 PROPOSAL SECTION PAGE 19 (Submit with Proposal.) Proposer’s Name: _________________________ PROPOSER QUALIFICATION QUESTIONNAIRE (Continued) FOR REQUEST FOR PROPOSALS FOR: REQUIREMENTS CONTRACT FOR CHARTER BUS SERVICES REQUEST FOR PROPOSALS NO. 12302539 12. Please identify the amenities and accessibility features available for each coach using the table below. If applicable, list additional amenities or accessibility features by adding additional lines. Coach Bus Capacity (# of seats) 20-29 passenger charter bus Number of passengers: 30-39 passenger charter bus Number of passengers: 40-48 passenger charter bus Number of passengers: High Back Seats (yes/no) Restroom (yes/no) Underneath Storage Bays (yes/no) Air Conditioning & Heat (yes/no) Overhead Luggage Bays (yes/no) Audio Visual Equipment (yes/no) Seat Belts (yes/no) ADA Accessibility Features Aisles (list width) Wheelchair spaces (list number) Lift equipment (yes/no) Other (Describe): 13. Describe the emergency procedures in place for on-road vehicle breakdowns, including procedures for evacuating the bus. RFP 05-2021 PROPOSAL SECTION PAGE 20 (Submit with Proposal.) Proposer’s Name: _________________________ PROPOSER QUALIFICATION QUESTIONNAIRE (Continued) FOR REQUEST FOR PROPOSALS FOR: REQUIREMENTS CONTRACT FOR CHARTER BUS SERVICES REQUEST FOR PROPOSALS NO. 12302539 14. Describe contractor’s ability to accommodate passengers with disabilities or and mobility devices including walkers, wheelchairs or other assistive equipment. Include reference to any policies or equipment used to enable accommodations (for example: wheelchair lift equipment). 15. Contractor must acknowledge compliance with generally accepted standard of the charter bus transportation industry for operation and maintenance practices. At a minimum, proposer acknowledges compliance with all provisions of applicable statuses and agreements, which may affect safety, and with all US Department of Transportation and State of California regulations, directives, orders, rules, and standards. Yes or No If no, describe any non-compliance: 16. Describe Contractor’s procedures used for the cleaning of the exterior and interior of the vehicles, including the frequency of cleaning. 17. Describe Contractor’s policy on allowing food, drink, and/or coolers on board vehicles used under this contract. 18. Subcontracting: If the contractor intends to utilize subcontractors, the Contractor must disclose the following below: a. The legal business name; address; telephone number; a description of subcontractor’s organization and the services it will provide; and information concerning. subcontractor’s ability to provide the Contract Activities. b. The relationship of the subcontractor to the Contractor. c. Whether the Contractor has a previous working experience with the subcontractor. If yes, provide the details of that previous relationship. d. A complete description of the Contract Activities that will be performed or provided by the subcontractor. e. Of the total bid, the price of the subcontractor’s work. 19. Attach or describe the Contractor’s policy of on-going verification and screening of drivers. RFP 05-2021 PROPOSAL SECTION PAGE 21 (Submit with Proposal.) Proposer’s Name: _________________________ PROPOSER QUALIFICATION QUESTIONNAIRE (Continued) FOR REQUEST FOR PROPOSALS FOR: REQUIREMENTS CONTRACT FOR CHARTER BUS SERVICES REQUEST FOR PROPOSALS NO. 12302539 20. Describe in detail all driver restrictions and procedures for driver transfer during day trips of up to 12 hours (maximum number of consecutive hours driver, etc.) 21. For bid items #7 through #9 (pages 15-16) are half-day rates available? If so, please describe the number of hours considered a half-day and identify the half-day rate below. RFP 05-2021 PROPOSAL SECTION PAGE 22 (Submit with Proposal) Proposer's Name ______________________________ REFERENCES REQUIREMENTS CONTRACT FOR CHARTER BUS SERVICES REQUEST FOR PROPOSALS NO. 12302539 Please list at least three references of similar size and type of services, including governmental agencies, if available. 1. AGENCY/COMPANY NAME: ADDRESS: CONTACT PERSON: E-MAIL: PHONE NUMBER: FAX NUMBER: LENGTH OF CONTRACT: NUMBER OF YEARS: TYPE OF SERVICE PROVIDED: 2. AGENCY/COMPANY NAME: CONTACT PERSON: E-MAIL: PHONE NUMBER: FAX NUMBER: LENGTH OF CONTRACT: NUMBER OF YEARS: TYPE OF SERVICE PROVIDED: 3. AGENCY/COMPANY NAME: ADDRESS: CONTACT PERSON: E-MAIL: PHONE NUMBER: FAX NUMBER: LENGTH OF CONTRACT: NUMBER OF YEARS: TYPE OF SERVICE PROVIDED: RFP 05-2021 PROPOSAL SECTION PAGE 23 (Submit with Proposal) Proposer's Name STATEMENT OF ACCEPTANCE OF THE INDEMNIFICATION AND INSURANCE REQUIREMENTS FOR REQUEST FOR PROPOSALS FOR: REQUIREMENTS CONTRACT FOR CHARTER BUS SERVICES REQUEST FOR PROPOSALS NO. 12302539 The Proposer shall sign below that the Proposer accepts in whole the Indemnification and Insurance Requirements set forth in these Specifications. If the Proposer takes exception to some portions, those portions shall be listed here below and the Proposer shall sign that the Proposer accepts all portions of the requirements not listed. Note: Any exceptions may cause a Proposer to not be awarded a contract. ACCEPT DO NOT ACCEPT If "DO NOT ACCEPT" is checked, please list exceptions: INSERT IF APPLICABLE Signature of Authorized Person _______________________________________ Type or Print Name of Authorized Person RFP 05-2021 PROPOSAL SECTION PAGE 24 (Submit with Proposal) Proposer's Name NONCOLLUSION DECLARATION Public Contract Code section 7106 The undersigned declares: I am the __________________________ of _________________________________________, Title of Authorized Person Bidding Firm, the party making the foregoing bid. The bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The bid is genuine and not collusive or sham. The bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid. The bidder has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or to refrain from bidding. The bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder. All statements contained in the bid are true. The bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof, to effectuate a collusive or sham bid, and has not paid, and will not pay, any person or entity for such purpose. Any person executing this declaration on behalf of a bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the bidder. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on _________, at ________________, ______. Date City State Signature of Authorized Person Print Name of Authorized Person The above Noncollusion Declaration is part of the Bid Proposal. Bidders are cautioned that making a false declaration may subject the certifier to criminal prosecution. RFP 05-2021 PROPOSAL SECTION PAGE 25 (Submit with Proposal) Proposer's Name ADDENDA The City makes a concentrated effort to ensure any addenda issued relating to these Specifications are distributed to all interested parties. It shall be the Proposer's responsibility to inquire as to whether any addenda to the Specifications have been issued. Upon issuance by the City, all addenda are part of the proposal. Signing the proposal on the signature page thereof shall also constitute signature on all addenda. TIME PERIOD TO AWARD/REJECT The undersigned Proposer agrees that the City may have ONE HUNDRED TWENTY (120) DAYS from the date proposals are opened to accept or reject proposals. It is further understood that, if the Proposer to whom any award is made fails to enter into a Contract as provided in the Specifications, award may be made to another Proposer, who shall be bound to perform as if she/he had received the award in the first instance. RFP 05-2021 PROPOSAL SECTION PAGE 26 (Submit with Proposal) Proposer's Name PROPOSAL DEPOSIT FOR REQUEST FOR PROPOSALS FOR: REQUIREMENTS CONTRACT FOR CHARTER BUS SERVICES REQUEST FOR PROPOSALS NO. 12302539 Accompanying this proposal is a Proposal Deposit in the amount of Five Hundred Dollars ($500) in the form of: Certified Check Bidder's Bond Cashier's Check Irrevocable Letter of Credit Certificate of Deposit Annual Bidder's Bond Proposal Deposit is deposited by the undersigned Proposer with the City of Fresno as a guarantee that the Proposer, if awarded all or part of the Contract, will, within fifteen (15) calendar days (except in the event federal funding is applicable to this Contract, then 10 working days) from the date the Notice of Award is mailed to the Proposer, execute and return a Contract furnished by the City. Copies of Proposal Deposits may be submitted electronically, with the exception of a certified or cashier’s check, which must be brought to the Purchasing Manager’s office prior to the bid opening and labeled accordingly with proposal number. Such Deposit is made with the understanding that failure to execute such Contract will result in damage to the City, that the amount of such damage would be difficult to determine and that in the event of such default said Deposit shall become the property of the City; or, if a Bidder's Bond is deposited, the amount of the obligation thereof, but not more than the above stated amount, shall thereupon be due and payable to the City of Fresno as liquidated damages for such default, payment of said amount to be the joint and several obligation of the Proposer and the corporate surety. BUSINESS LOCATION The undersigned Proposer does not maintain a place of business in the City of Fresno. The undersigned Proposer maintains a place of business in the City of Fresno at: , Fresno, CA BUSINESS LICENSE The undersigned Proposer has a current City of Fresno Business License and the number is . If the successful Proposer does not have a City of Fresno Business License, he/she shall obtain such a license prior to the issuance of a Notice to Proceed for the Work and maintain in effect throughout the term of this Contract. CONTRACTOR’S LICENSE The undersigned Proposer holds a valid Class State of California Contractor’s License. The License Number is and was issued on . Expiration Date: , if applicable. RFP 05-2021 PROPOSAL SECTION PAGE 27 (Submit with Proposal) Initial:____________________ CITY OF FRESNO FINANCE DEPARTMENT ACCOUNTS PAYABLE SECTION AUTHORIZATION AGREEMENT FOR DIRECT PAYMENTS (ACH CREDITS) Company Contact Email Name ______________________________ Address _____________________________________ (Required) Contact Name Telephone Number The City of Fresno, Finance Department, (FINANCE DEPARTMENT), is authorized to initiate credit entries to the company above, (COMPANY), in the account below at the depository financial institution named below, (DEPOSITORY), and to credit the same to such account. Company acknowledges that the origination of ACH transactions to its account must comply with the provisions of U.S. law. Depository Name Branch City State Zip Code Routing Account Number Number o ACH Authorization Agreement Form already on file with City. This authorization is to remain in full force and effect until FINANCE DEPARTMENT has received written notification of its termination. The FINANCE DEPARTMENT and DEPOSITORY have a reasonable time to process the termination. Name(s) (Please print) Signature Date Title RFP 05-2021 PROPOSAL SECTION PAGE 28 (Submit with Proposal) SIGNATURE PAGE By my signature on this proposal I certify, under penalty of perjury under the laws of the State of California, that the statements contained in this proposal are true and correct. PROPOSAL SUBMITTED BY: (Please follow the instructions for each line, as explained below.) (1) ( ) ( ) Firm Phone Fax (2) (Corp.) (Individual) (Partner) (Other) (3) Business Address City State Zip Code (4) By: Signature of Authorized Person Type or Print Name of Authorized Person and Title Federal Tax I.D. No.: Date: RFP 05-2021 PROPOSAL SECTION PAGE 29 INSTRUCTIONS FOR SIGNATURE PAGE LINE 1: The name of the Proposer must be the same as that under which a license is issued, if a license is required. If the Proposer is a corporation, enter the exact name of the corporation under which it is incorporated; if Proposer is an individual, enter name; if Proposer is an individual operating under a trade name, enter name and dba (trade name in full); if a partnership, enter the correct trade style of the partnership; if a joint venture, enter exact names of entities joining in the venture. LINE 2: Identify here the character of the name shown under (1), i.e., corporation (including state of incorporation), individual, partnership, or joint venture. LINE 3: Enter the address to which all communications and notices regarding the Proposal and any Contract awarded thereunder are to be addressed. LINE 4: (a) If the Proposer is a corporation, the Proposal must be signed by an officer or employee authorized to sign Contracts on behalf of the corporation evidenced by inclusion of one of the following certified by the secretary of the corporation, authorizing the officer or employee to sign contracts (sample certification attached): a copy of the Secretary of State printout, a copy of the Articles of Incorporation, a copy of the Bylaws, a copy of the Board Resolution or Minutes authorizing the officer or employee to sign Contracts. (b) If Proposer is an individual, he/she must sign the Proposal, or if the Proposal is signed by an employee or agent on behalf of the Proposer, a copy of a power of attorney must be on file with the City of Fresno prior to the time set for the opening of the proposals or must be submitted with the Proposal. (c) If the Proposer is a partnership, the Proposal must be signed by all general partners; or by a general partner(s) authorized to sign Contracts on behalf of the partnership evidenced by inclusion of either a copy of the Partnership Agreement or a recorded Statement of Partnership. (d) If the Proposer is a joint venture, the Proposal must be signed by all joint venturers; or by a joint venturer(s) authorized to sign Contracts on behalf of the joint venture evidenced by inclusion of either a copy of the Joint Venture Agreement or a recorded Statement of Joint Venture; and if the joint venturer(s) is a corporation or a partnership signing on behalf of the Joint Venture, then Paragraphs (a) and c) above apply respectively. Where Proposer is a partnership or a corporation, the names of all other general partners, or the names of the president and secretary of the corporation, and their business addresses must be typewritten below: NAME ADDRESS NOTE: All addresses must be complete with street number, City, State, and Zip Code. RFP 05-2021 PROPOSAL SECTION PAGE 30 SAMPLE CERTIFICATION I, , certify that I am the secretary Name of the corporation named herein; that who signed this Name Bid Proposal on behalf of the corporation, was then of Title said corporation; that said Bid Proposal is within the scope of its corporate powers and was duly signed for and on behalf of said corporation by authority of its governing body, as evidenced by the attached true and correct copy of the Name of Corporate Document By: Name: Title: Secretary Date: RFP 05-2021 PROPOSAL SECTION PAGE 31 SAMPLE SERVICE CONTRACT THIS CONTRACT is made and entered into by and between the CITY OF FRESNO, a California municipal corporation (City), and [Contractor Name], [Legal Identity] (Contractor) as follows: 1. CONTRACT DOCUMENTS. The "Notice Inviting Proposals," "Instructions to Proposers," "Proposal" and the "Specifications" including "General Conditions," "Special Conditions", “Federal Conditions”, “Functional Specifications” and “Technical Requirements” for the following: [Title] (Request for Proposals No. [Number]) copies of which are annexed hereto, together with all the documents specifically referred to in said annexed documents, including the Performance Bond, if required, are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents. 2. PRICE. For the monetary consideration of [WRITTEN $ AMOUNT] DOLLARS AND [WRITTEN CENTS AMOUNT] CENTS ($[DOLLAR AMOUNT]), as set forth in the Proposal, Contractor promises and agrees to perform or cause to be performed, in a good and workmanlike manner, and to the satisfaction of City, and in strict accordance with the Specifications, all of the work as set forth in the Contract Documents. 3. PAYMENT. City accepts Contractor's Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. 4. INDEMNIFICATION. To the furthest extent allowed by law, including California Civil Code section 2782 (if applicable), Contractor shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited to personal injury, death at any time and property damage) incurred by City, Contractor or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Contractor, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If Contractor should subcontract all or any portion of the work to be performed under this Contract, Contractor shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. [Signatures follow on the next page.] RFP 05-2021 PROPOSAL SECTION PAGE 32 IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by City shall be subsequent to that of Contractor's, and this Contract shall be binding and effective upon execution by both parties. CITY OF FRESNO, A California municipal corporation By: Georgeanne A. White, City Manager APPROVED AS TO FORM: ANDREW JANZ City Attorney By: [Name] Date Senior Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy [CONTRACTOR], [Legal Identity] By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) REVIEWED BY: Addresses: CITY: City of Fresno Attention: Shelby MacNab Business Manager 1515 E. Divisadero Street Fresno, CA 93619 Telephone: (559) 621-2957 E-Mail: Shelby.MacNab@Fresno.gov CONTRACTOR: [Contractor Name] Attention: [Name] [Title] [Street Address] [City, State Zip] Telephone: [area code and #] E-Mail: [E-Mail address] RFP 05-2021 PROPOSAL SECTION PAGE 33 III - GENERAL CONDITIONS RFP 05-2021 PROPOSAL SECTION PAGE 34 III. GENERAL CONDITIONS 1. DEFINITIONS: Wherever used in the Specifications, including the Instructions to Proposers, the proposal, or any of the Contract Documents, the following words shall have the meaning herein given, unless the context requires a different meaning. (a) "City" and "City of Fresno" shall each mean the City of Fresno, CA, unless otherwise indicated. (b) "City Manager" shall mean the City Manager of the City of Fresno. (c) "Contract" and "Contract Documents" shall each mean and refer to these Specifications, including the Instructions to Proposers, the proposal and any addenda thereto, the Contract and all City of Fresno specifications, and other papers and documents incorporated by reference into or otherwise referred to in any of the foregoing documents, whether or not attached thereto. (d) "Contractor" shall mean each person or entity awarded a Contract hereunder and named or to be named in the Contract with the City of Fresno to furnish the goods or services, or both, to be furnished under the Contract. (e) "Council" and "City Council" shall each mean the Council of the City of Fresno. (f) "Proposer" shall mean each person or entity submitting a proposal, whether or not such person or entity shall become a Contractor by virtue of award of a Contract by the City. (g) "Purchasing Manager" shall mean the Purchasing Manager of the City of Fresno. (h) "Specifications" shall mean the Contract Documents. 2. DELIVERY OF SERVICES: If Contractor is delayed providing services by (i) any acts or omissions of City or its employees, or others acting under authority of City by contract or otherwise, (ii) acts of God which Contractor could not reasonably have foreseen and provided for, (iii) illegal strikes, boycotts or like illegal obstructive action by employee or labor organizations, or (iv) any illegal general lockouts or other defensive action by employers, whether general or by organizations of employers; Contractor shall have no claim for damages against City for any such cause of delay, but shall be entitled to an extension of time as will reasonably compensate Contractor for actual loss of time occasioned thereby. Contractor may apply to the City Manager for such extension. However, no such extension of time shall be granted unless Contractor shall have notified the Purchasing Manager, in writing, within one week after the commencement or occurrence of the condition or event which is expected to cause a delay in delivery, of such condition or event and the actual or estimated number of days of delay anticipated on account thereof. The decision of the City Manager as to the number of additional days, if any, to be allowed for completion of delivery on account of such condition or event, will be given in writing to Contractor. 3. TERMINATION FOR CONVENIENCE: The City reserves the right to terminate this Contract for any reason, upon sixty (60) days written notice to the Contractor. In the event of such termination, the Contractor shall be paid for satisfactory service performed to the date of termination. 4. TERMINATION FOR CAUSE: a. If the Contractor shall fail to complete delivery, within the time or times specified herein, of all or any part of the materials, equipment, supplies or services to be provided under the Contract, the City Manager of the City of Fresno or designee, acting for and on behalf of the City, may at any time after the expiration of the time for cure, terminate the Contract as to the whole thereof, RFP 05-2021 PROPOSAL SECTION PAGE 35 or in the event partial delivery has been made and accepted, as to such of the items or service to be furnished which have not been delivered or accepted prior to such termination. b. The City may terminate this Contract if the Contractor materially breaches any of its obligations under this Contract and fails to commence and diligently pursue reasonable efforts to cure such breach within fifteen (15) days after written notice by the City specifically describing the breach. c. Such termination shall be effective upon receipt by Contractor of written notice of termination from said City Manager or designee, which notice shall be deemed to have been received by Contractor, if mailed by certified mail, within forty-eight hours to Contractor's address as contained in the proposal to the City or, if personally delivered, upon the delivery thereof to Contractor, the authorized representative of Contractor, or to the Contractor's said address. 5. CONTRACT DOCUMENTS: Upon award of the Contract, the Contractor shall execute and submit all required documents to the Purchasing Manager, 2101 G. Street, Building A, Fresno, California 93706, in a form acceptable to the City of Fresno within fifteen (15) calendar days (except in the event federal funding is applicable to this Contract, then 10 working days) from the date of Notice of Award. Failure to provide said documents within the designated period shall be sufficient cause to forfeit the proposal deposit and initiate a City departmental recommendation for City to award the Contract to another Proposer. 6. INSURANCE REQUIREMENTS. (a) Throughout the life of this Agreement, Contractor shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by City's Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, Contractor or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to Contractor shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. No action taken by City pursuant to this section shall in any way relieve Contractor of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by Contractor shall not be deemed to release or diminish the liability of Contractor, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Contractor. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Contractor, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them. RFP 05-2021 PROPOSAL SECTION PAGE 36 Coverage shall be at least as broad as: The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). If personal automobile coverage is used, the City, its officers, officials, employees, agents, and volunteers are to be listed as additional insureds. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. A Professional Liability (Abuse & Molestation) that insures against liability arising out of the bodily injury, personal injury, and third-party property damage occurring because of the wrongful or negligent acts attributable to the institution. This coverage should protect against a wide range of potential claims, including but not limited to athletics, alcohol, assault, verbal and/or physical abuse, campus crime, sexual molestation and other sexual misconducts. MINIMUM LIMITS OF INSURANCE CONTRACTOR, or any party the CONTRACTOR subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: COMMERCIAL GENERAL LIABILITY $2,000,000 per occurrence for bodily injury and property damage; $2,000,000 per occurrence for personal and advertising injury; $4,000,000 aggregate for products and completed operations; and, $4,000,000 general aggregate applying separately to the work performed under the Agreement. COMMERCIAL AUTOMOBILE LIABILITY $5,000,000 per accident for bodily injury and property damage. Workers’ Compensation Insurance as required by the State of California with statutory limits and EMPLOYER’S LIABILITY with limits of liability not less than: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, RFP 05-2021 PROPOSAL SECTION PAGE 37 (iii) $1,000,000 disease policy limit. PROFESSIONAL LIABILITY (Abuse and Molestation) : (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event CONTRACTOR purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS CONTRACTOR shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and CONTRACTOR shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the CITY’S Risk Manager or his/her designee. At the option of the CITY’S Risk Manager or his/her designee, either: The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects CITY, its officers, officials, employees, agents and volunteers; or CONTRACTOR shall provide a financial guarantee, satisfactory to CITY’S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall CITY be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: CITY, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. CONTRACTOR shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. For any claims relating to this Agreement, CONTRACTOR’S insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, agents and volunteers shall be excess of CONTRACTOR’S insurance and shall not contribute with it. CONTRACTOR shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 RFP 05-2021 PROPOSAL SECTION PAGE 38 or by an executed manuscript insurance company endorsement that provides primary and non contributory status as broad as that contained in ISO Form CG 20 01 04 13. Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: CONTRACTOR and its insurer shall waive any right of subrogation against CITY, its officers, officials, employees, agents and volunteers. If the Professional Liability (Abuse & Molestation) insurance policy is written on a claims-made form: The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by CONTRACTOR. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by CONTRACTOR, CONTRACTOR must purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. A copy of the claims reporting requirements must be submitted to CITY for review. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to CITY. CONTRACTOR is also responsible for providing written notice to the CITY under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, CONTRACTOR shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, CONTRACTOR shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by CONTRACTOR shall not be deemed to release or diminish the liability of CONTRACTOR, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONTRACTOR. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONTRACTOR, its principals, officers, agents, employees, persons under the supervision of CONTRACTOR, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. VERIFICATION OF COVERAGE RFP 05-2021 PROPOSAL SECTION PAGE 39 CONTRACTOR shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY’S Risk Manager or his/her designee prior to CITY’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, CONTRACTOR shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. SUBCONTRACTORS - -If CONTRACTOR subcontracts any or all of the services to be performed under this Agreement, CONTRACTOR shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee. If no Side Agreement is required, CONTRACTOR will be solely responsible for ensuring that it’s subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry. 8. INDEMNIFICATION: To the furthest extent allowed by law, CONTRACTOR shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by CITY, CONTRACTOR or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses and any costs or fees to enforce this agreement), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. CONTRACTOR'S obligations under the preceding sentence shall apply regardless of whether CITY or any of its officers, officials, employees, agents or volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of CITY or any of its officers, officials, employees, agents or volunteers. If CONTRACTOR should subcontract all or any portion of the work to be performed under this Agreement, CONTRACOR shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 9. PRECEDENCE OF CONTRACT DOCUMENTS: The order of precedence of documents shall be: (1) Rules and Regulations of Federal Agencies relating to the source of funds for this project; (2) Supplemental Agreements, Change Orders, or Contract the one dated later having precedence over another dated earlier; (3) Special Conditions; (4) General Conditions; (5) Scope of Work. Whenever any conflict appears in any portion of the Contract, it shall be resolved by application of the order precedence. 10. FEDERAL IMMIGRATION REFORM AND CONTROL ACT OF 1986: As a material part of any contract for a City of Fresno project, every Contractor who has employees who will work on a City of Fresno project, is required to comply with all of the provisions of the Federal Immigration Reform and Control Act of 1986 (P.L. 99-603, 100 Stat. 3359). This requirement includes compliance with all of the employee documentation provisions. Furthermore, the Contractor will make any employee documentation required to comply with the Act immediately available to the City upon its request for each individual employee working on a City of Fresno project. RFP 05-2021 PROPOSAL SECTION PAGE 40 11. WORKMANSHIP GUARANTY: The workmanship of the services to be performed for the City by the Contractor will be in accord with the Specifications, and where not specified, in accord with generally accepted standards. 12. ALTERATION OF TERMS: No alterations or variations of the terms of this Contract shall be valid unless made in writing and signed by both parties. 13. CONTRACT CHANGES: No changes or modifications to the Contract shall be made unless agreed to and signed by both parties. No prior, current or post award verbal agreement or agreements with any officer, agent or employee of the City shall affect or modify any terms or obligations of these Specifications or any Contract resulting from this procurement. 14. AMENDMENTS: The City of Fresno reserves the right to add, modify, or delete items from the Contract including Special Conditions or Scope of Work. Any changes shall be made only by means of a formal amendment signed by both the City and Contractor. 15. ASSIGNMENT: The Contract is personal to the Contractor and there shall be no assignment, transfer, sale, or subcontracting by the Contractor of its rights or obligations under the Contract without the prior written approval of the City. Any attempted assignment, transfer, sale, or subcontracting by the Contractor, its successors, or assigns, shall be null and void unless approved in writing by the City. 16. TERMINATION BY CITY FOR NON-APPROPRIATION: In the event of non-appropriation relating to the Contract, City shall have the right to terminate the Contract at the end of any fiscal year of City, in the manner and subject to the terms specified in this paragraph. City shall endeavor to give written notice of such termination not less than sixty (60) days prior to the end of such fiscal year, and shall notify Contractor of any anticipated termination. For purposes of this paragraph, "fiscal year" shall mean the twelve-month fiscal period of City which commences on July 1 in every year and ends on the following June 30. For purposes of this paragraph, "non-appropriation" shall mean the failure of the City or City's governing body to appropriate money for any fiscal year of City sufficient for the continued performance of the Contract by City. 17. INDEPENDENT CONTRACTOR: In the furnishing of the services provided for herein, the Contractor is acting as an independent contractor. Neither the Contractor, nor any of its officers, associates, agents or employees shall be deemed an employee, joint venturer, partner, or agent of the City for any purpose. However, the City shall retain the right to verify that the Contractor is performing its respective obligations in accordance with the terms of the Contract. Because of its status as an independent contractor, Contractor and its officers, agents and employees shall have absolutely no right to employment rights and benefits available to City employees. Contractor shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, Contractor shall be solely responsible, indemnify, defend and save City harmless from all matters relating to employment and tax withholding for and payment of Contractor’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in City employment benefits, entitlements, programs and/or funds offered employees of City whether arising by reason of any common law, de facto, leased, or co- employee rights or other theory. It is acknowledged that during the term of this Agreement, Contractor may be providing services to others unrelated to City or to this Agreement. 18. GOVERNING LAW AND VENUE: The Contract shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of the Contract and any rights and duties thereunder shall be Fresno County, California. RFP 05-2021 PROPOSAL SECTION PAGE 41 19. COMPLIANCE WITH LAW: In providing the services required under the Contract, Contractor shall at all times comply with all applicable laws of the United States, the State of California and the City of Fresno, and with all applicable regulations promulgated by Federal, State, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of the Contract. 20. SEVERABILITY: The provisions of the Contract are severable. The invalidity, or unenforceability of any one provision in the Contract shall not affect the other provisions. 21. INTERPRETATION: The Contractor acknowledges that the Contract in its final form is the result of the combined efforts of the parties and that, should any provision of the Contract be found to be ambiguous in any way, such ambiguity shall not be resolved by construing the Contract in favor or against any party, but rather by construing the terms in accordance with their generally accepted meaning. 22. ATTORNEY'S FEES: If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of the Contract, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 23. EXHIBITS: Each exhibit and attachment referenced in the Contract is, by the reference, incorporated into and made a part of the Contract. 24. MAINTENANCE OF RECORDS: Records of Contractor pertaining to the services hereunder shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives upon request during regular business hours throughout the life of the Contract and for a period of three years after final payment and for the period of time required by law. In addition, all books, documents, papers, and records of Contractor pertaining to the Contract shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. This section shall survive expiration or termination of the Contract. 25. RECYCLING: In the event Contractor maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, Contractor at its sole cost and expense shall: (a) After award, immediately establish and maintain a viable and ongoing recycling program, approved by the City's Solid Waste Management Division, for each office and facility. Literature describing City recycling programs is available from City's Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (b) Immediately contact the Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of City's Solid Waste Management Division the establishment of the recycling program in paragraph (i) above and the ongoing maintenance thereof. 26. NOTICES: Any notice required or intended to be given to either party under the terms of this Contract shall be in writing and shall be deemed to be duly given if delivered personally or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of the Proposal in the case of the Contractor and at the address in the Special Conditions for mailing of invoices in the case of City, or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. RFP 05-2021 PROPOSAL SECTION PAGE 42 27. BINDING: Subject to Section 15 of these General Conditions, once this Contract is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives. 28. WAIVER: The waiver by either party of a breach by the other of any provision of this Contract shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Contract. No provisions of this Contract may be waived unless in writing and signed by all parties to this Contract. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 29. CUMULATIVE REMEDIES: No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 30. NO THIRD PARTY BENEFICIARIES: The rights, interests, duties and obligations defined within this Contract are intended for the specific parties hereto as identified in the preamble of this Contract. Notwithstanding anything stated to the contrary in this Contract, it is not intended that any rights or interests in this Contract benefit or flow to the interest of any third parties. 31. EXTENT OF AGREEMENT: Each party acknowledges that they have read and fully understand the contents of this Contract. This Contract represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Contract may be modified only by written instrument duly authorized and executed by both City and Contractor. 32. HEADINGS: The section headings in this Contract are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Contract. RFP 05-2021 PROPOSAL SECTION PAGE 43 IV – SPECIAL CONDITIONS RFP 05-2021 PROPOSAL SECTION PAGE 44 IV. SPECIAL CONDITIONS TERM OF CONTRACT: This Contract shall be in effect for TWO (2) years from the date of the Notice to Proceed. The Contract may be extended, with the mutual written consent of both parties, for TWO (2) years, in ONE (1) year increments with price increases/decreases in accordance with the provisions set forth herein, all other terms and conditions specified herein remaining the same. If either the City or Contractor elects not to extend the Contract, or upon expiration of the final one-year extension term, the Contractor shall aid the City in continuing, uninterruptedly, the requirements of the Contract, by continuing to perform on a temporary basis, when specifically requested to do so in writing by the Purchasing Manager, for a specified term not to exceed twelve months. Such continuance shall be subject to price increases/decreases in accordance with the provisions set forth herein, and all other terms and conditions remaining the same as if the contract had been extended for such a temporary period by an amendment hereto. CONTRACT PRICE ADJUSTMENTS For the initial first two years of the Contract, pricing will be fixed at the proposal pricing. For extensions, the rates of compensation for operations shall be negotiated between the parties, however any increases shall not exceed the most recently published U.S. Department of Labor, Bureau of Labor Statistics and Consumer Price Index for Urban Wage Earners and Clerical Workers, U.S. City Average. The Purchasing Manager of the City of Fresno shall be the authorized City agent in any such negotiation. The Contractor must provide adequate documentation to substantiate any request for price increase. Prices on the Bid Proposal submitted must include all associated costs, including but not limited to labor, supplies, travel, overhead, profit, and transportation. If, during the course of this contract, the Contractor's price of any of the item(s) bid is below the contract bid price, the City will receive the lowest pricing. The Contractor shall voluntarily provide the City with the benefits of any more favorable terms it has, or negotiates, with any organization or facility whose circumstances and operations are substantially the same as those of the City. COMPENSATION ESCALATION DUE TO CHANGE IN MINIMUM WAGE In the event the Contractor is required by a collective bargaining labor agreement or by the Federal Government increases the minimum wage then the contract rates as defined in this proposal shall be subject to negotiation between the Contractor and the City of Fresno. In the event that negotiated changes in contract rates cannot be agreed upon by the City of Fresno and the Contractor, then the Contract may be terminated by either party in accordance with the General Conditions of This Contract. If the Contractor and the City of Fresno agree to a negotiated change in contract rates as defined in this proposal, the Contractor shall increase the minimum hourly wages and salaries paid to its employees performing services under this Contract in accordance with new negotiated wages and salaries. *Note: The Minimum wage rate in California is currently at $15.50 an hour for all employers, effective January 1, 2023 Proposers should consider wage rates, when completing their proposal. (IF APPLICABLE) PAYMENT: The Proposer shall invoice the City of Fresno in order to initiate the payment process. Invoices shall conspicuously display the City's purchase order number and shall be submitted to: ATTENTION: City of Fresno RFP 05-2021 PROPOSAL SECTION PAGE 45 PARCS Division 1515 E. Divisadero Street Fresno, CA 93721 Contractor hereby agrees not to assign the payment of any monies due Contractor from City under the terms of this Contract to any other individual(s), corporation(s) or entity(ies). City retains the right to pay any and all monies due Contractor directly to Contractor. SAFETY Contractor agrees and understands that the Contractor must make available, upon reasonable requests, all such records as may be necessary to ascertain the safety of equipment including but not limited to maintenance records. RFP 05-2021 PROPOSAL SECTION PAGE 46 V - SCOPE OF WORK RFP 05-2021 PROPOSAL SECTION PAGE 47 V. SCOPE OF WORK A. GENERAL REQUIREMENTS 1. Contractor to provide charter bus transportation services according to the dates, itinerary and itemization outlined on pages 12-16. 2. Trips consist of round-trip and one-way transportation to Camp Fresno and other destinations, primarily within Fresno County (see pages 12-16). 3. Trips may occur on weekdays and/or weekends. 4. All drivers transporting youth must be fingerprinted and TB tested. 5. Buses shall be equipped with storage compartments sufficient for the group’s equipment. 6. PARCS will provide one lead chaperone per bus to act as the main point of contact for the driver during the duration of the trip. 7. Contractor shall provide charter bus(es) which are clean, well maintained, and free of debris and markings. 8. Contractor must appoint one individual, specifically assigned to the City of Fresno account, that will respond to inquiries regarding the contract, answering questions related to ordering and delivery, etc. The Contractor must notify the City of Fresno’s Contract Administrator at least three calendar days before removing or assigning a new contractor representative. B. SCHEDULING 1. Within five business days of receiving a request for scheduling, contractor to confirm dates and detailed itinerary in writing. Itinerary to include, at minimum: date(s) of trips, arrival time, departure time, destinations, itemized costs, any legally required rest periods during the trip and the name and phone number of dispatch should any questions arise. 2. No later than two hours prior to departure, contractor to provide name and cell phone number of driver(s) assigned to the trip to PARCS. C. ARRIVAL TIME 1. The driver will arrive at the pickup point a minimum of twenty (20) minutes prior to the scheduled departure time for the loading of equipment. 2. Pickup and discharge of passengers shall be made at designated points only. RFP 05-2021 PROPOSAL SECTION PAGE 48 D. BUS DRIVER RESPONSIBILITIES 1. Upon arrival at the trip destination, the driver will keep the lead chaperone(s) informed as to the location of the bus. The driver will remain in the immediate area of the bus and available by cell phone during the duration of the trip. 2. Driver shall communicate with lead chaperone(s) when taking any legally required rest periods. 3. A charter bus shall not be put into motion until all passengers are seated and attendance has been completed by the lead chaperone to confirm all passengers are accounted for. 4. All passengers must remain seated while the bus is in motion. 5. Unless traveling to the restroom, only the trip chaperone(s) may stand or walk while the bus is in motion to supervise passengers. The trip chaperone(s) must coordinate their movements on the bus with the driver to ensure his/her safety. 6. Driver may be required to assist in the loading or unloading of luggage as required by the group. 7. In the event that a driver encounters reduced visibility during a trip that in their opinion causes it to be unsafe, the driver has the responsibility to pull vehicle over in a safe location, and wait until conditions improve. Drivers shall notify, or cause to be notified, the PARCS Department Contract Administrator of the delay as soon as possible. 8. Safety instruction is to be given to all passengers prior to departure on each trip. The instruction must include the location of emergency exits and location and use of emergency equipment. The driver of the trip must sign a trip document certifying that they have given the safety instruction to the group, prior to departure of the trip. Document shall be retained for the duration of the contract and made available upon request. REVIEW OF SERVICE 1. The City reserves the right for a representative to observe and/or board any Proposer’s bus performing work for the City at any time, with or without prior notification. 2. The City representative, at their discretion, may inspect the bus, equipment certifications, registration, insurance, driver inspection report and the driver’s documents and logs. The City representative may also, at their discretion, ride as a passenger on the trip for any length of time for observation purposes. 3. The City representative shall show City of Fresno Employee badge as identification during any review of service. RFP 05-2021 PROPOSAL SECTION PAGE 49 CONSEQUENCES OF POOR SERVICE 1. The City has the right to cancel this service agreement with one or more contractors if the contracted company does not show up for a trip, is over thirty (30) minutes late for a trip on three (3) or more occasions during the service agreement period, provides a vehicle and/or driver that is not certified or does not provide a vehicle as specified in the order. 2. In the event that the contractor fails to deliver as and when specified, the City reserves the right to cancel the order, or any part thereof, without prejudice to its other rights, and the Contractor agrees that the City may charge the Contractor with any loss or expense sustained as a result of such failure to deliver. ANTI-IDLING 1. The City requires all buses to comply with both City and State anti-idling regulations, in an effort to preserve the heath of the community. A charge of $50 may be assessed against the Proposer’s invoice for the trip for each violation observed by a City representative. City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1039 Agenda Date:7/20/2023 Agenda #: 1.-L. REPORT TO THE CITY COUNCIL FROM:JENNIFER CLARK, Director Planning and Development Department THROUGH:PHILIP SKEI, Assistant Director Planning and Development Department BY:BRANDON SISK, Senior Management Analyst Community Development Division SUBJECT Actions pertaining to funding provided by the U.S. Department of Housing and Community Development Office of Community Planning and Development (HUD CPD): 1. ***RESOLUTION - Adopting Substantial Amendment 2022-02 to the Fiscal Year (FY) 2022- 2023 Annual Action Plan and authorizing submission to the U.S. Department of Housing and Urban Development (HUD) to reprogram $1,417,211.98 in HOME Investment Partnership (HOME) funds from prior year HOME project savings; and authorizing the City Manager or designee to sign all implementing documents as approved to form by the City Attorney (Subject to Mayor’s veto) RECOMMENDATION Staff recommends the City Council adopt Substantial Amendment 2022-02 to the 2022-2023 Annual Action Plan; and authorize the City Manager or designee to sign all necessary implementing documents as approved to form by the City Attorney. EXECUTIVE SUMMARY To further the City’s commitment to develop and rehabilitate affordable housing, staff identified funds from HOME program administration and rehabilitation savings that are available for reprogramming. The purpose of the substantial amendment is to reprogram the funds available to increase the availability of safe and affordable housing for low-income and special needs households. BACKGROUND The City of Fresno (City) is a federal entitlement community that receives an annual allocation of grant funds from the U.S. Department of Housing and Urban Development (HUD) for the following City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 MA/AP 7-0 R. 2023-205 File #:ID 23-1039 Agenda Date:7/20/2023 Agenda #: 1.-L. entitlement programs: ·Community Development Block Grant (CDBG) ·HOME Investment Partnerships (HOME) ·Emergency Solutions Grant (ESG) ·Housing Opportunities for Persons with AIDS (HOPWA) As an entitlement community,the City is required to prepare an Annual Action Plan detailing the uses of entitlement funds to meet its affordable housing and community development goals as outlined in its Consolidated Plan. The City is proposing to make a substantial amendment to its Program Year 2022 Annual Action Plan to reprogram HOME program administration and rehabilitation savings. The substantial amendment reprograms $1,417,211.98 in HOME program savings from previous years to fund affordable housing development or rehabilitation for low-income and special needs households.The funds will be awarded through the City’s 2023-2024 Notice of Funding Availability for Affordable Housing Development which closes on July 14, 2023. Citizen Participation ·May 19, 2023: Public Notice distributed via Fresno Bee ·May 19,2023:Public notice distributed on social media,through the Housing and Community Development Division (HCDD) email distribution list ·May 19,2023:Draft documents published to HCDD webpage for 30-day public comment period ·June 19, 2023: End of 30-day public comment period The City received two public comments during the public comment period which are included in the attached Public Draft of Substantial Amendment 2022-02.A summary of comments received by the City during the July 20,2023,City Council meeting will be considered and included in the final Substantial Amendment submitted to HUD. ENVIRONMENTAL FINDINGS This is not a project for purposes of CEQA pursuant to CEQA guidelines Section 15378 and is exempt for NEPA purposes pursuant to 24 CFR 58.34. LOCAL PREFERENCE Local preference is not applicable because of the use of federal funding. FISCAL IMPACT Adoption of Substantial Amendment 2022-02 will allow the City to expend $1.4 million of entitlement funding. City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1039 Agenda Date:7/20/2023 Agenda #: 1.-L. Attachments:Resolution - Substantial Amendment 2022-02 Public Draft of Substantial Amendment 2022-02 City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ 2022-2023 Annual Action Plan Substantial Amendment 2022-02 U.S. Department of Housing and Urban Development Community Planning and Development Programs Planning and Development Department Housing and Community Development Division 2600 Fresno Street, Room 3065 Fresno, CA 93721 559-621-8300 HCDD@fresno.gov May 19, 2023 2022-2023 Annual Action Substantial Amendment 2022-02 May 19, 2023 Page 2 of 13 Summary The City of Fresno (City) is a federal entitlement community that receives annual allocations of HOME Investment Partnership (HOME) funds from the U.S. Department of Housing and Urban Development (HUD). The City is required to prepare an Annual Action Plan detailing the uses of entitlement funds to meet its affordable housing and community development goals as outlined in its Consolidated Plan. For program year 2022-2023, the City is proposing to make a substantial amendment to its submitted plan. The purpose of the substantial amendment is to reprogram $1,417,211.98 in HOME program savings from previous years to fund affordable housing development. These efforts are consistent with the 2020-2024 Consolidated Plan goal to improve access to affordable housing for low-income and special needs households. To reprogram the funds, a substantial amendment is required. On May 19, 2023, the City published Substantial Amendment 2022-02 to the 2022-2023 Annual Action Plan for the required 30-day public comment period. Sources of Funds Substantial Amendment 2022-02 will reprogram $1,417,211.98 of HOME funds for affordable housing development. Table 1 - Source of Funds Entitlement Grant Program Year Action Plan Project IDIS Activity ID Number Activity Name Amount Originally Awarded Amount Expended Amount Previously Reprogrammed Amount to be Reprogrammed HOME 2017 7 3 Home Rehabilitation (HOME) $1,008,908 $0 $400,000 $608,908 HOME 2018 18 18 HOME Program Administration $349,506 $79,831.47 $0 $269,674.53 HOME 2019 17 17 HOME Program Administration $324,235 $137,038.95 $0 $187,196.05 HOME 2020 14 14 HOME Program Administration $345,228 $138,762.56 $0 $206,465.44 HOME 2021 14 14 HOME Program Administration $328,968 $184,000.04 $0 $144,967.96 Total Sources to Be Reprogrammed $1,417,211.98 Uses of Reprogrammed Funds The City is proposing to utilize the HOME program savings to increase the funds available for affordable housing development. Table 2 - Uses of Funds Entitlement Grant Program Year Action Plan Project IDIS Activity ID Number Activity Name Proposed Funding HOME 2022 3 TBD Affordable Housing Development or Rehabilitation $1,417,211.98 Total Uses of Reprogrammed Funds $1,417,211.98 2022-2023 Annual Action Substantial Amendment 2022-02 May 19, 2023 Page 5 of 13 Integrated Data and Information System (IDIS) Project Information Table 3 - IDIS Project Information IDIS Field IDIS Entry Program Year 2022 Project ID No. 3 Project Name Affordable Housing Development or Rehabilitation Target Area Citywide Goals Supported Safe and Affordable Housing Needs Addressed Affordable Housing Funding HOME: $1,417,211.98 Description Funds will be used for single- or multi-family affordable housing development or rehabilitation. Target Date June 30, 2026 Goal Units constructed: 11 household housing units Location Description To Be Determined Planned Activity Development/Rehabilitation of Affordable Housing 2022-2023 Annual Action Substantial Amendment 2022-02 May 19, 2023 Page 6 of 13 Public Comments and Notification The City made Substantial Amendment 2022-02 available for public comment between May 19, 2023, and June 19, 2023, at 5 PM. Two comments received. Michaela Bennet, resident experiencing homelessness I'd like Fresno to purchase the church property for sale on Bullard near First, Fresno, CA ($7.5 million dollars) for tiny houses and other services. 74% of homeless people are NOT substance users, but have had a major destabilizing event and no affordable housing. I'm on yr 5+ in my car in Fresno, age 61, no drugs/drink/crimes, due to the brain problem epilepsy (too much electricity, causes seizures). Former paralegal, A's college. I am clean, quiet, responsible. The church property is near schools, grocery stores, medical offices, hospital, and public transportation. Also the Politi Public Library. Other things people need to stabilize their lives, including pharmacies. https://www.colliers.com/en/properties/existing-church-with-excess-land/usa-1284-e-bullard-ave- fresno-ca-93710-usa/usa1117806 [City Response:  The City has a Request for Proposals out through July 31, 2023 at 3 PM to solicit qualified housing development organizations to submit applications to provide sites for 24 tiny homes. The City will evaluate the proposals and award the tiny homes to an organization or organizations at no cost to build.  Thank you for bringing the property to the City’s attention.  This comment has been accepted.] David Schulze, partner at C&D Water By using the airspace above the subgrade portion of Highway 41, between Sierra and Dakota, two rows of +/- 350, totaling some 700 units per mile, to 25 or 50 floors in height, would render some three and a half to seven million dollars per month in rental revenue into public coffers, per mile.At 15 foot on center, fifty feet long, charging 600 dollars a month rent.Plenty of room left in the center, for air exchange, alternative forms of transportation, both travel and locally related commercial lease space.All units have balcony, with view.Ground floor, open mercado, first five floors, parking & commercial, residential starts on sixth floor.Two floors of zero rent, comes with construction employment opportunity.The homeless and unemployment problems in Fresno disappear.The first leg of the hyperloop tube that reaches Curry Village is completed, thus ensuring Fresno is forever the one and only high-speed Gateway to Yosemite.The two-block walk from the CHSR to the Yosemite Hyperloop generates over 5 million per year in visitor spending tax revenues and ensures the CHSR has an actual destination attached to its first completed leg. [City Response:  Thank you for bringing this to the City’s attention.  This comment has been accepted.] 2022-2023 Annual Action Substantial Amendment 2022-02 May 19, 2023 Page 7 of 13 Public Notice – Fresno Bee 2022-2023 Annual Action Substantial Amendment 2022-02 May 19, 2023 Page 8 of 13 Social Media (Facebook) 2022-2023 Annual Action Substantial Amendment 2022-02 May 19, 2023 Page 9 of 13 Social Media (Twitter) 2022-2023 Annual Action Substantial Amendment 2022-02 May 19, 2023 Page 10 of 13 Public Comment – Michaela Bennett (1 of 2) 2022-2023 Annual Action Substantial Amendment 2022-02 May 19, 2023 Page 11 of 13 Public Comment – Michaela Bennett (2 of 2) 2022-2023 Annual Action Substantial Amendment 2022-02 May 19, 2023 Page 12 of 13 Public Comment – Davis Schulze (1 of 2) 2022-2023 Annual Action Substantial Amendment 2022-02 May 19, 2023 Page 13 of 13 Public Comment – Davis Schulze (2 of 2) City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-931 Agenda Date:7/20/2023 Agenda #: 1.-M. REPORT TO THE CITY COUNCIL FROM:JENNIFER CLARK Planning and Development Department BY:SOPHIA PAGOULATOS, Planning Manager Planning and Development Department SUBJECT Actions pertaining to the Vehicle Miles Traveled (VMT) Mitigation Program: 1. Approve second amendment to the consultant services agreement with LSA Associates, Inc. extending contract performance date to December 31, 2024, and authorizing additional compensation in the amount of $151,595, for a total of $450,225.11. RECOMMENDATION Staff recommends City Council approve the second amendment to the consultant services agreement with LSA Associates, Inc. to extend the contract performance period to December 31, 2024 and to increase compensation by $151,595 and to authorize the City Manager or designee to sign the consultant services agreement. EXECUTIVE SUMMARY Additional time and appropriations are needed in order to complete an environmental analysis for the City’s VMT Mitigation Program. A scope augment and time extension are proposed to the City’s current contract with LSA Associates, Inc to enable completion of this work. The current contract amount is $269,158 with a contingency of $29,472, which was approved by the City Council on July 29, 2021. The amendment would bring the total contract amount to $450,225.11. BACKGROUND Senate Bill 743, which took effect in 2020, required California jurisdictions to adopt vehicle miles traveled as a new transportation metric under the California Environmental Quality Act, replacing the prior metric, level of service. This changed mitigation from congestion relief to reducing vehicle miles traveled (VMT), that is, driving of single-occupant vehicles. Reducing VMT requires a multi-faceted approach, including more compact and mixed land use, and more investment in transit, bicycle, and pedestrian facilities to encourage mode shift. Because incentivizing a behavioral shift from vehicles to transit, bicycle and pedestrian travel is new, a large body of data which guarantees the effectiveness of one approach over another is lacking, making it difficult to make absolute conclusions about VMT City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-931 Agenda Date:7/20/2023 Agenda #: 1.-M. mitigation measures. City staff has nearly completed a draft VMT Mitigation Program which includes the following: 1.An urban design calculator that includes design recommendations that may reduce VMT; and 2.A VMT fee program that will fund transit,bicycle and pedestrian incentives and improvements that should reduce VMT. However,since data is still being collected about the effectiveness of VMT reduction measures,a VMT mitigation program should be analyzed under CEQA.The proposed environmental analysis will be a focused EIR analyzing the City’s proposed VMT Mitigation Program and providing CEQA coverage at the programmatic level,so that individual projects will not be required to do EIR’s to cover potential VMT impacts.This will streamline development of projects that would have VMT impacts. ENVIRONMENTAL FINDINGS This is not a project pursuant to CEQA guidelines Section 15378. LOCAL PREFERENCE Local preference was not implemented because this item is an amendment to an existing consultant services agreement. FISCAL IMPACT Funding from the current 2023 departmental appropriations will be used.Specifically,the Local Early Action Planning (LEAP)grant from the State of California Department of Housing and Community Development will be used.The purpose of the grant is to streamline and facilitate housing development. ATTACHMENT: Exhibit A - Second Amendment to Agreement City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ LSA is a business name of LSA Associates, Inc. CARLSBAD CLOVIS IRVINE LOS ANGELES PALM SPRINGS POINT RICHMOND RIVERSIDE ROSEVILLE SAN LUIS OBISPO 2565 Alluvial Avenue, Suite 172, Clovis, California 93611 559.490.1210 www.lsa.net June 6, 2023 Sophia Pagoulatos Planning Manager Planning and Development Department City of Fresno 2600 Fresno Street, Room 3065 Fresno, CA 93721 Subject: Proposal to Prepare an Environmental Impact Report for the Vehicle Miles Traveled Mitigation Program Dear Ms. Pagoulatos: LSA is pleased to submit this proposed scope, schedule, and budget to prepare an Environmental Impact Report (EIR) for the City of Fresno (City) to assess the potential environmental impacts associated with implementing the Vehicle Miles Traveled (VMT) Mitigation Program (herein referred to as the “proposed Project.”) The preparation of the materials and templates will be staffed by Ashley Davis, Principal, who will oversee the project, and Kyle Simpson, Principal, who will manage the project and prepare the text updates. Amy Fischer, President, will also review and provide input on project deliverables. SCOPE OF WORK LSA will use utilize the City’s General Plan Program Environmental Impact Report (PEIR) to program an EIR for the VMT Mitigation Program. The following provides a description of the tasks that LSA will complete. TASK 1: PROJECT KICKOFF, DATA COLLECTION, AND BACKGROUND INFORMATION Following issuance of the authorization to proceed, LSA will begin compiling background information and coordinating with the City to hold a kickoff meeting, as described below. 1.1: Project Initiation To initiate work on the EIR, LSA will meet with City staff to discuss expectations regarding the tasks to be undertaken as part of the environmental documentation effort. During this meeting, LSA will: • Lead a discussion regarding overall project administration, communications, invoicing procedures, and general protocols. • Confirm the proposed scope of work and expectations for use of any previously prepared technical materials or other background materials that may be available. • Discuss the significance criteria for each topic to be addressed in the EIR. • Gather relevant information and data if there is information LSA has not yet received. EXHIBIT A 6/7/23 2 • Discuss the City’s desired schedule for the review process. Items to discuss include project planning, coordination, and schedule, including establishing target dates for issuance of the Notice of Preparation (NOP), the Scoping Meeting, and release of the Draft EIR. Following the Kickoff Meeting, LSA will provide a summary memorandum to the City. Deliverable: • Kick-off Meeting Summary Memorandum (Adobe Portable Document Format [PDF]) TASK 2: NOTICE OF PREPARATION AND SCOPING MEETING 2.1: Notice of Preparation LSA will prepare a draft NOP and Notice of Completion (NOC) in accordance with the requirements of CEQA. Project information will include all available details of the proposed Project. Following review of the NOP and NOC by City staff, LSA will prepare a final NOP for distribution by City staff. LSA will be responsible for submitting the NOP and NOC to the State Clearinghouse. City staff will be responsible for all local notices, including newspaper and, Planning Commission and City Council noticing. 2.2: Scoping Meeting LSA will participate in a public EIR scoping meeting. LSA will develop materials, including handouts that may include an overview of the objectives of CEQA, the EIR process and schedule, and the topics to be addressed in the EIR. It is assumed that LSA will make a short presentation at the scoping meeting that outlines the proposed Project’s environmental review requirements and process. LSA will provide to the City a written summary outlining the key issues and topics related to the environmental review. The City will be responsible for meeting logistics, such as location, time, day, and refreshments (if any). Following the 30-day comment period on the NOP, LSA will review all comments, recommend any needed changes to the proposed scope of work, and ensure that all submitted concerns are adequately covered by the EIR. 2.3: Scope of Work Refinement It may be necessary to refine the work program in accordance with comments received on the NOP. Upon receipt and review of all of the comments on the NOP, and taking into consideration comments heard at the scoping meeting, LSA will work with City staff to refine the scope of work and budget, if necessary, to address any environmental issues that are not yet adequately addressed in this work program. Deliverables: • Draft NOP (MS Word format and PDF) • Final NOP (MS Word format and PDF) • Draft NOC (MS Word format) • Scoping Meeting Minutes Memorandum • State Clearinghouse submittal • Scoping Meeting PowerPoint Presentation (PowerPoint format) 6/7/23 3 TASK 3: PROJECT DESCRIPTION AND ALTERNATIVES LSA will work closely with City staff to develop a Project Description for the EIR, as described below. 3.1: Project Description LSA will prepare a Project Description that details the purpose, phasing, and physical elements of the proposed Project. The Project Description will include a map showing the locations of project components, as described by the VMT Mitigation Program and a general description of the proposed Project’s technical and environmental characteristics. LSA will work closely with the City to ensure that the Project Description provides a level of detail appropriate to describe the proposed Project. As part of the Project Description, LSA will work with the City to prepare a list of project objectives consistent with the City’s goals for the proposed Project. The Project Description will also include a statement briefly describing the intended uses of the EIR, including a list of agencies expected to use the EIR, a list of permits and other approvals required to implement the proposed Project, and a list of related environmental review and consultation steps required by federal, State, or local laws, regulations, and policies. LSA will submit a draft of the Project Description to the City for review and acceptance before the LSA Team begins conducting any impact analyses. Deliverables: • Draft Project Description (MS Word format and PDF) • Final Project Description (MS Word format and PDF) TASK 4: ADMINISTRATIVE DRAFT ENVIRONMENTAL IMPACT REPORT Consistent with Appendix G of the CEQA Guidelines, LSA will conduct an analysis of the proposed Project’s potential environmental impacts in the following resources topic areas: • Aesthetics • Land Use and Planning • Agriculture and Forestry Resources • Mineral Resources • Air Quality • Noise • Biological Resources • Population and Housing • Cultural Resources • Public Services • Energy • Recreation • Geology and Soils • Transportation • GHG Emissions • Tribal Cultural Resources • Hazards and Hazardous Materials • Utilities and Service Systems • Hydrology and Water Quality • Wildfire Analysis included in the General Plan PEIR will be incorporated into the sections of applicable resource topic areas. The setting section for each topic will describe the current conditions, which form the baseline for the analysis. Each impact analysis will evaluate the potential environmental effects resulting from implementation proposed Project, and feasible mitigation measures will be identified as necessary. Each topical section will also include a discussion of cumulative impacts. The analysis of cumulative effects will address the potential impacts associated with the proposed Project in conjunction with 6/7/23 4 other projects that are under construction, approved, or reasonably foreseeable. The preferred methodology for conducting the cumulative impacts analysis will be developed and agreed upon during the early stages of the EIR preparation. The EIR will cover the topics listed above, and the following key topic areas will include detailed technical analysis. Alternatives Development The LSA Team will identify and evaluate up to three alternatives to the proposed Project, one of which will be the CEQA-required No Project Alternative. LSA will work with City staff to develop the project alternatives that would reduce potential environmental impacts. According to the CEQA Guidelines, alternatives can be evaluated in less detail than the proposed Project, and the discussion for each issue topic will be of sufficient detail to evaluate the benefits and drawbacks of each alternative, and to provide some qualitative conclusions regarding the alternatives. A summary table will be included in this section that identifies the level of significance of each environmental topic for each alternative as compared to implementation of the proposed Project. Based on this analysis, the Environmentally Superior Alternative will be identified (as required by CEQA). Deliverable: • Administrative Draft EIR (MS Word format and PDF) TASK 5: SCREENCHECK DRAFT ENVIRONMENTAL IMPACT REPORT Following receipt of one set of consolidated and reconciled comments from the City on the Administrative Draft EIR, LSA will amend the Administrative Draft EIR and prepare a Screencheck Draft EIR to be reviewed by City staff. One digital version (MS Word format and PDF) of the Screencheck Draft will be provided. A PDF compare version in underline and strikeout will also be provided for review by the City to verify that all requested changes have been made and all appendix materials, references, and final graphics are acceptable. LSA will also provide one printed copy of the Screencheck Draft EIR to the City to review. Deliverable: • Screencheck Draft EIR (MS Word format and PDF) 6/7/23 5 TASK 6: PUBLIC REVIEW DRAFT ENVIRONMENTAL IMPACT REPORT Following receipt of one set of consolidated and reconciled comments from the City on the Screencheck Draft EIR, LSA will prepare a Public Review Draft EIR. LSA assumes that comments on the Screencheck Draft EIR will be limited mostly to clarifications, spelling, and other editorial comments, and no major changes to the substantive details of the proposed Project or analysis would occur during this task. LSA will prepare a draft Notice of Availability (NOA). Project information will include all available details of the proposed Project. Following review of the NOA by City staff, LSA will prepare a final NOA for distribution by City staff. LSA will be responsible for submitting the Draft EIR and NOA to the State Clearinghouse. City staff will be responsible for all local notices, including newspaper submission and noticing for Planning Commission and City Council. Deliverables: • Public Review Draft EIR (MS Word format and PDF, 20 printed copies; technical appendices to be included on CD or flash drive attached to each printed copy) • State Clearinghouse submittal including NOC (PDF) • Draft Notice of Availability (NOA) (MS Word format and PDF) • Final NOA (MS Word format and PDF) TASK 7: FINAL ENVIRONMENTAL IMPACT REPORT AND MITIGATION MONITORING AND REPORTING PROGRAM Following the CEQA-required public review period of the Public Review Draft EIR, LSA will prepare the Final EIR and Mitigation Monitoring and Reporting Program (MMRP), as described below. 7.1: Final Environmental Impact Report 7.1.1: Administrative Draft Final Environmental Impact Report Following the completion of the 45-day public review period of the Public Review Draft EIR, the LSA Team will formulate responses to written comments from the public and public agencies on the Public Draft EIR. The Administrative Draft Final EIR will include: (1) a list of persons, organizations, and public agencies commenting on the Draft EIR; (2) copies of written comments received; (3) responses to environmental comments raised in the review process; and (4) any necessary text, table, or figure changes as an Errata to the Draft EIR. LSA will discuss the best approach to the responses document with the City following the close of the comment period. Our budget estimate shows the level of professional effort assumed for this task, considering the potential interest that the public might have in the Public Review Draft EIR. Should an unexpectedly large volume of comments be submitted (e.g., an organized letter-writing campaign by project opponents or a substantial package of comments by a law firm representing labor union interests), an adjustment in the budget (and/or use of contingency funds) to cover work beyond the assumed level would be needed. LSA will submit one digital version (in MS Word format and PDF) of the Administrative Draft Final EIR for City review. 7.1.2: Screencheck Draft Final Environmental Impact Report 6/7/23 6 After review by City staff and transmittal of suggested revisions, LSA will amend the Administrative Final EIR and prepare a screencheck version for final review by City staff. One digital version (MS Word format and PDF) of the Screencheck Draft will be provided. A PDF compare version in underline and strikeout will also be provided for review by the City to verify that all requested changes have been made. LSA will also provide one printed copy of each Screencheck Draft Final EIR to the City to review. 7.1.3: Final Environmental Impact Report After review by City staff and transmittal of suggested revisions, LSA will amend the Screencheck Draft Final EIR and prepare a final version. LSA will produce up to 20 bound copies. Digital versions will also be prepared in PDF and will be distributed to the City for website posting. It is assumed that the City will be responsible for distribution of the Final EIR to the public and commenting agencies a minimum of 10 days prior to the final public hearing on the EIR. LSA will also provide any additional reference materials in PDF and update the Administrative Record as needed. 7.2: Mitigation Monitoring and Reporting Program LSA will a prepare an MMRP, which will identify responsibility for implementing and monitoring each mitigation measure, along with monitoring triggers and reporting frequency, subject to approval by City staff. Deliverables: • Administrative Draft Final EIR (MS Word format and PDF) • Screencheck Final EIR (MS Word format and PDF) • Final EIR (MS Word format and PDF, 20 printed copies; appendices to be included on CD or flash drive attached to each printed copy) • Administrative Draft MMRP (MS Word format and PDF) • Screencheck Draft MMRP (MS Word format and PDF) • Final MMRP (MS Word format and PDF) TASK 8: STATEMENT OF OVERRIDING CONSIDERATIONS AND FINDINGS OF FACT In compliance with CEQA, and based on an existing City template, LSA will prepare a Statement of Overriding Considerations (SOC) and Findings of Fact, as necessary. Due to specific City requirements, this task assumes preparation of an Administrative Draft document, and any refinements will be completed by City staff. Deliverable: • Administrative Draft CEQA Findings of Fact and Statement of Overriding Considerations (MS Word format) TASK 9: PUBLIC HEARINGS LSA will attend one Planning Commission hearing and one City Council hearing. Prior to each hearing, LSA will work with City staff to prepare a PowerPoint presentation related to the CEQA portion of the proposed Project. During each hearing, LSA will assist the City in addressing CEQA- related questions or comments as they are received. 6/7/23 7 TASK 10: PROJECT MANAGEMENT AND MEETINGS Ashley Davis and Kyle Simpson will undertake a variety of general project management tasks throughout the process of preparing the EIR and presenting it to decision-makers. Ms. Davis will provide input on scope, budget, and scheduling of the project and quality assurance for all work products. She will review all in-house prepared text, tables, and graphics before these materials are presented to the City as administrative review documents. She will be available for consultation on CEQA procedural matters as well as application of the CEQA Guidelines to this project. Mr. Simpson will be in charge of the day-to-day activities associated with the proposed Project. Project management tasks include regular client contact; oversight of team members; schedule coordination; contract negotiation and management; and development of products. As Project Manager, Mr. Simpson will attend all meetings and maintain a project schedule. He will monitor the project budget in light of progress in the project schedule and will communicate any potential deviations with the City in a timely manner. He will also provide direction to all team members that will ensure an internally consistent, coherent document. Ms. Davis, Mr. Simpson, and LSA staff, as appropriate, will be available to meet with the project team to gather information, review progress, discuss project alternatives, review preliminary findings, discuss staff comments, and offer input into any discussions on project modifications. The proposed cost estimate includes attendance by both Ms. Davis (virtually) and Mr. Simpson (in- person) at the project start-up meeting and the NOP scoping meeting(s) as detailed under Task 1. In addition, LSA has budgeted (under this task) for attendance at up to three in-person or teleconference team meetings with the City, the agendas and issues to be determined. In addition, this scope assumes bi-weekly check-in calls during heavy work periods in order to keep the City updated on progress and to resolve any issues that may be identified during LSA’s analysis. SCHEDULE The work schedule for preparation and completion of the EIR is included as Table 1. LSA expects that this schedule could be adjusted to meet the environmental review objectives of the City, and specific dates will be assigned to the schedule following authorization to proceed. COST ESTIMATE For completion of the proposed scope of services set forth in this scope of work, LSA has provided a cost estimate that details tasks by assigned personnel (see Table 2, attached). The budget for preparing the EIR is $137,795. In addition, LSA has also included an approximate 10 percent contingency amount of $13,800, which would not be used without written authorization from the City. The contingency budget would be used to address any unforeseen, out-of-scope items. The estimated cost of the LSA team’s labor and direct expenses, including the contingency, is $151,595. 6/7/23 8 Table 1: Estimated Schedule Milestone Responsible Party Duration1 (Weeks) Cumulative Weeks Authorization to Proceed City – – Project Start-Up Meeting Project Applicant/ City/LSA 1 1 Draft Project Description1 LSA 1 2 Review of Draft Project Description Project Applicant/ City 1 3 Prepare Draft NOP LSA 1 4 Review Draft NOP City 1 5 Prepare/Distribute Public Review NOP LSA/City 1 6 30-Day Public Scoping Period – 4 10 Public Scoping Meeting LSA/City - - Prepare Administrative Draft EIR LSA 4 14 Review Administrative Draft Focused EIR City 3 17 Prepare Screencheck Draft Focused EIR LSA 2 19 Review Screencheck Draft Focused EIR City 2 21 Prepare Public Review Draft Focused EIR LSA 1 22 45-Day Public Comment Period – 6 28 Prepare Administrative Draft Final EIR LSA 2 30 Review Administrative Draft Final EIR City 2 32 Prepare Screencheck Draft Final EIR and Draft MMRP LSA 1 33 Review Screencheck Draft Final EIR and Draft MMRP City 1 34 Prepare Public Review Final EIR and Final MMRP LSA 1 35 EIR Certification Hearing(s) City >10 days 36 1 Assumes that all requested project information and materials received within 1 day of start-up meeting. We appreciate the opportunity to provide this proposal and look forward to working with you on this project. Please feel free to contact Kyle at (559) 490-1212 or kyle.simpson@lsa.net if you have any questions and/or require additional information. Sincerely, LSA Associates, Inc. Ashley Davis Principal Kyle Simpson Principal/Project Manager Attachment: • Table 2: Cost Estimate Table 2: Cost Estimate  LABOR COSTS  Principal‐in‐ Charge  (Davis)  Project Manager  (Simpson)  Senior Planner  (Cunningham)  Environmental  Planner  (Granda  Bustamante) GIS Document Management/ Graphics/ Production Hourly Rate: $295 $210 $180 $120 $160 $135 Task 1.  Project Initiation 1.1 Project Initiation 22 2 1,250$            2202001,250$            2.1 Notice of Preparation 12621,705$            2.2 Scoping Meeting 14 4 1,615$            2.3 Scope of Work Refinement 24 1,430$            4 10 0 10 0 2 4,750$            3.1 Project Description 26 10 43,590$            26010043,590$            4.1 Administrative Draft EIR 20 91 70 264 8 40 75,970$          20 91 70 264 8 40 75,970$          5.1 Screencheck Draft EIR 420 28 81411,910$          Subtotal for Task 5 4 20 0 28 8 14 11,910$          6.1 Public Review Draft EIR 26 108146,220$            Subtotal for Task 6 2 6 0 10 8 14 6,220$            7.1 Final EIR 616 30 49,270$            7.1.1 Admin Draft FEIR 414 30 7,720$            7.1.2 Screencheck Draft FEIR 212 20 5,510$            7.1.3 Public Review FEIR 28 10 3,470$            7.2 Mitigation Monitoring and Reporting Program 24 6 2,150$            8 20 0 36 0 4 11,420$          Task 8.  Statement of Overriding Considerations and Findings of Fact 8.1 Statement of Overriding Considerations and Findings of Fact 44 24 65,710$            44024065,710$            Task 9.  Public Hearings 9.1 Public Hearings 6 8 3,450$            6800003,450$            Task 10.  Project Management and Meetings 10.1 Project Management and Meetings 12 26 9,000$            122600009,000$            64 193 70 384 24 84 133,270$        DIRECT COSTS 500$                825$                3,200$            4,525$            TOTAL LSA TEAM BUDGET 137,795$        CONTINGENCY 13,800$          151,595$         LSA Total Subtotal for Task 1 Task 5.  Screencheck Draft EIR Task 7.  Final EIR/MMRP Subtotal for Task 4   TOTAL LABOR Subtotal for Task 8 Subtotal for Task 10 Subtotal for Task 7   TOTAL LSA TEAM BUDGET WITH CONTINGENCY (10 PERCENT) Contingency (10 Percent) Subtotal for Task 9    3.  Printing Allowance (40 copies, $80 per copy) Task 3.  Project Description and Alternatives Subtotal for Task 3 Task 2.  Notice of Preparation and Scoping Meeting Task 4. Administrative Draft EIR Task 6.  Public Review Draft EIR   TOTAL LSA TEAM BUDGET WITHOUT CONTINGENCY   TOTAL DIRECT COSTS Subtotal for Task 2    1.  Travel, Deliveries, Communication     2.  Maps; Plans; Reports; Database Searches 6/7/23 10 This page intentionally left blank. City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-942 Agenda Date:7/20/2023 Agenda #: 1.-N. REPORT TO THE CITY COUNCIL FROM:JENNIFER CLARK, Director Planning and Development Department BY:SOPHIA PAGOULATOS, Planning Manager Planning and Development Department SUBJECT Actions pertaining to the Climate Adaptation and Environmental Justice Planning: 1. ***RESOLUTION Adopt the 3 rd Amendment to the Annual Appropriation Resolution No. 2023- 185 to Appropriate $650,000 from unspent FY 2023 General Fund Appropriations for General Plan Climate Adaptation and Environmental Justice Planning Consultant Services (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) 2. Approve a consultant services agreement with Dudek for professional services related to Climate Adaptation and Environmental Justice Planning in the amount of $650,000. RECOMMENDATION Staff recommends City Council authorize the City Manager or designee to sign the consultant services agreement with Dudek for professional services related to the Climate Adaptation and Environmental Justice Planning EXECUTIVE SUMMARY The City Council approved budget motions in the previous fiscal year in the amount of $650,000 for climate adaptation and environmental justice planning in order to update the General Plan. The procurement process was not completed until the current fiscal year. This report summarizes the consultant selection process and general scope and terms of the agreement. BACKGROUND Since the adoption of the Fresno General Plan in 2014, various state laws have been enacted that require general plan updates. Among those are SB 379, which requires climate adaptation planning for safety elements, and SB 1000, which requires environmental justice planning to be incorporated either as a new separate general plan element or integrated across all general plan elements. There is overlap in these planning areas, so a combined scope of services was developed to procure a City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 TM/AP 6-1 GB VOTED NO R. 2023-206 File #:ID 23-942 Agenda Date:7/20/2023 Agenda #: 1.-N. consultant that has expertise in both areas. The City conducted a Request for Qualifications process in which the RFQ was posted on Planet Bids,a notice was published in the Business Journal,and the city’s standard consultant distribution process was used.Seven Statements of Qualifications were received.An interdepartmental staff committee reviewed and scored the proposals and interviewed the top two firms.Dudek was determined to be the most qualified firm based on their experience completing combined climate adaptation and environmental justice planning .work in several California cities,including Rialto, Indio,Bakersfield,Highland and Yolo County.In addition,they have urban forestry expertise,which is an important climate adaptation tie-in,and they are currently under contract with the City for an Urban Forestry Management Plan.Finally,their depth in overall planning experience is an asset,as Dudek brings expertise in general plan updates,housing elements,and the California Environmental Quality Act. They also scored well in on-time performance. Their scope includes outreach,vulnerability assessments for both climate adaptation and environmental justice,a capability assessment,which analyzes the city’s existing policies and organizational structure in order to ensure efficient implementation,climate adaptation and environmental justice plan reports,and a climate action assessment of the City’s 2021 Climate Action Plan. Details are included in the attached contract and scope. The target completion date shown in the schedule is December 2024,however the term of the contract is June 30,2025,to allow opportunity for additional assistance as the City integrates the results of their work into a general plan update. ENVIRONMENTAL FINDINGS N/A LOCAL PREFERENCE Dudek has 12 offices in California,with their Bakersfield location being the closest to Fresno.While local community organizations may be subcontracted to assist with outreach,the firm itself is not local per the requirements of FMC Section 4-109. FISCAL IMPACT Funding source, an AAR is attached. ATTACHMENTS: Exhibit A - Consultant Services Agreement Exhibit B - Annual Appropriation Resolution City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ ALL-B Generic CSA Not to Exceed (12-2022) Page 1 of 12 AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANT SERVICES THIS AGREEMENT (Agreement) is made and entered into, effective on _______________________, by and between the CITY OF FRESNO, a California municipal corporation (City), and DUDEK (Consultant). RECITALS WHEREAS, the City desires to obtain professional outreach, vulnerability assessments for both climate adaptation and environmental justice, a capability assessment, which analyzes the City’s existing policies and organizational structure in order to ensure efficient implementation, climate adaptation and environmental justice plan reports, and a climate action assessment of the City’s 2021 Climate Action Plan. Services for Climate Adaptation and Environmental Justice Plan (Project); and WHEREAS, the Consultant is engaged in the business of furnishing services as Climate Adaptation and Environmental Justice Planning and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, the Consultant acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and WHEREAS, this Agreement will be administered for the City by its Planning Director (Administrator) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and premises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. The Consultant shall perform to the satisfaction of the City the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above (Effective Date) and shall continue in full force and effect through June 30, 2025, subject to any earlier termination in accordance with this Agreement. The services of the Consultant as described in Exhibit A are to commence upon the Effective Date and shall be completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed prior to expiration of this Agreement and in accordance with any performance schedule set forth in Exhibit A. 3. Compensation. (a) The Consultant’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall not exceed 7/3/2023 DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 2 of 12 $650,000, paid on the basis of the rates set forth in the schedule of fees and expenses contained in Exhibit A. (b) Detailed statements shall be rendered monthly for services performed in the preceding month and will be payable in the normal course of City business. The City shall not be obligated to reimburse any expense for which it has not received a detailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. City agrees to pay Consultant within thirty (30) days of invoice receipt. (c) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to the Consultant’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. The Consultant shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. 4. Termination, Remedies, and Force Majeure. (a) This Agreement shall terminate without any liability of the City to the Consultant upon the earlier of: (i) the Consultant’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the Consultant; (ii) seven calendar days prior written notice with or without cause by the City to the Consultant; (iii) the City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, the Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the City any and all unearned payments and all properties and materials in the possession of the Consultant that are owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid compensation for services satisfactorily performed prior to the effective date of termination. The Consultant shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of the Consultant to satisfactorily perform in accordance with the terms of this Agreement, the City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the City’s damages caused by such failure. In no event shall any payment by the City pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement which may then exist on the part of the Consultant, nor shall such payment impair or prejudice any remedy available to the City with respect to the breach. DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 3 of 12 (d) Upon any breach of this Agreement by the Consultant, the City may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that the City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) The Consultant shall provide the City with adequate written assurances of future performance, upon Administrator’s request, in the event the Consultant fails to comply with any terms or conditions of this Agreement. (f) The Consultant shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Consultant shall notify Administrator in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Administrator of the cessation of such occurrence. 5. Confidential Information and Ownership of Documents. (a) Any reports, information, or other data prepared or assembled by the Consultant pursuant to this Agreement shall not be made available to any individual or organization by the Consultant without the prior written approval of the Administrator. During the term of this Agreement, and thereafter, the Consultant shall not, without the prior written consent of the City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of the City, including but not limited to business plans, marketing plans, financial information, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the City. (b) Any and all writings and documents prepared or provided by the Consultant pursuant to this Agreement are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement. The Consultant shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 4 of 12 (c) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as the Consultant represents to the City that the Consultant and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, the City relies upon the skill of the Consultant and any subcontractors to do and perform such services in a skillful manner and the Consultant agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by the City shall not operate as a release of the Consultant or any subcontractors from said professional standards. 7. Indemnification. To the furthest extent allowed by law, the Consultant shall indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents, and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fee, litigation expenses, and costs to enforce this agreement) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of the Consultant, its principals, officers, employees, agents, or volunteers in the performance of this Agreement. If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor to indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, the Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by the City’s Risk Manager or designee at any time and in his/her sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to the City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 5 of 12 (b) If at any time during the life of the Agreement or any extension, the Consultant or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to the Consultant shall be withheld until notice is received by the City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to the City. Any failure to maintain the required insurance shall be sufficient cause for the City to terminate this Agreement. No action taken by the City pursuant to this section shall in any way relieve the Consultant of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by the City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish the liability of the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify the City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers, agents, employees, persons under the supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with the Consultant and the City prior to the commencement of any services by the subcontractor. The Consultant and any subcontractor/sub- consultant shall establish additional insured status for the City, its officers, officials, employees, agents, and volunteers by using Insurance Service Office (ISO) form CG 20 26 04 13 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 26 04 13. 9. Conflict of Interest and Non-Solicitation. (a) Prior to the City’s execution of this Agreement, the Consultant shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation and duty to immediately notify the City in writing of any change to the information provided by the Consultant in such statement. DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 6 of 12 (b) The Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state, and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.). At any time, upon written request of the City, the Consultant shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, the Consultant and the respective subcontractor(s) are in full compliance with all laws and regulations. The Consultant shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, the Consultant shall immediately notify the City of these facts in writing. (c) In performing the work or services to be provided hereunder, the Consultant shall not employ or retain the services of any person while such person either is employed by the City or is a member of any City council, commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) The Consultant represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit, or procure this Agreement or any rights/benefits hereunder. (e) Neither the Consultant, nor any of the Consultant’s subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project unless fully disclosed to and approved by the City Manager, in advance and in writing. The Consultant and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. Notwithstanding any approval given by the City Manager under this provision, the Consultant shall remain responsible for complying with Section 9(b), above. (f) If the Consultant should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, the Consultant shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (g) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event the Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 7 of 12 incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall: (a) Immediately establish and maintain a viable and ongoing recycling program, approved by the City’s Solid Waste Management Division, for each office and facility. Literature describing the City recycling programs is available from the City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (b) Immediately contact the City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of the City’s Solid Waste Management Division the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Administrator or designee. (b) Records of the Consultant’s expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to the City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of the Consultant pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to the City until such action is resolved, or until the end of said time period whichever shall later occur. If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by the City, the Consultant shall have provided evidence to the City that the Consultant is licensed to perform the services called for by this Agreement (or that no license is required). If the Consultant should subcontract all or any portion of the work or services to be performed under this Agreement, the Consultant shall require each subcontractor to provide evidence to the City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 8 of 12 12. Nondiscrimination. To the extent required by controlling federal, state and local law, the Consultant shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, the Consultant agrees as follows: (a) The Consultant will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) The Consultant will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The Consultant shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to the Consultant’s employment practices including, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) The Consultant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of the Consultant’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 9 of 12 (e) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, the Consultant is acting solely as an independent contractor. Neither the Consultant, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of the City for any purpose. The City shall have no right to control or supervise or direct the manner or method by which the Consultant shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify that the Consultant is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between the Consultant and the City. The Consultant shall have no authority to bind the City absent the City’s express written consent. Except to the extent otherwise provided in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, the Consultant and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to the City employees. The Consultant shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, the Consultant shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to employment and tax withholding for and payment of the Consultant’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in the City employment benefits, entitlements, programs and/or funds offered employees of the City whether arising by reason of any common law, de facto, leased, or co- employee rights or other theory. It is acknowledged that during the term of this Agreement, the Consultant may be providing services to others unrelated to the City or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 10 of 12 notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 16. Assignment. (a) This Agreement is personal to the Consultant and there shall be no assignment by the Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by the Consultant, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) The Consultant hereby agrees not to assign the payment of any monies due the Consultant from the City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all monies due the Consultant directly to the Consultant. 17. Compliance With Law. In providing the services required under this Agreement, the Consultant shall at all times comply with all applicable laws of the United States, the State of California and the City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 11 of 12 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both the City and the Consultant. 29. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. [SIGNATURES FOLLOW ON THE NEXT PAGE.] DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 12 of 12 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Jennifer K. Clark Director, Planning & Development APPROVED AS TO FORM: CITY ATTORNEY’S OFFICE By: Senior Deputy City Attorney Date ATTEST: TODD STERMER, CMC City Clerk By: Deputy Addresses: CITY: City of Fresno Attention: Dalton Bennett Project Administrator 2600 Fresno St, Suite 3065 Fresno, CA 93721 Phone: (559) 621-8039 E-mail: Dalton.Bennett@fresno.gov DUDEK, By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Any Applicable Professional License: Number: Name: Date of Issuance: CONSULTANT: Dudek Attention: Rose Newberry Project Manager 605 NE 21st Avenue, Suite 200 Portland, OR 97232 Phone: (971) 930-1715 E-mail: rnewberry@dudek.com Attachments: 1. Exhibit A - Scope of Services 2. Exhibit B - Insurance Requirements 3. Exhibit C - Conflict of Interest Disclosure Form DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 President and Chief Executive Officer 7/5/2023 Joseph Monaco General Counsel & Corporate Secretary Amy Paul 7/5/20237/5/2023 7/5/2023 ALL-B Generic CSA Not to Exceed (12-2022) Page 13 of 21 EXHIBIT A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (City) and Dudek (Consultant) Climate Adaptation Plan and Environment Justice See attached Exhibit A - Scope of work DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 14 of 21 SCHEDULE OF FEES AND EXPENSES See attached Exhibit D – Table 1: Budget and Table 2: Schedule DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 15 of 21 Exhibit B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (“CITY”) and Dudek (“CONSULTANT”) Climate Adaptation and Environmental Justice Planning MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to CONSULTANT’S profession. MINIMUM LIMITS OF INSURANCE CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 16 of 21 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event CONSULTANT purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers. DEDUCTIBLES OR SELF-INSURED RETENTIONS CONSULTANT shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and CONSULTANT shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the CITY’S Risk Manager or his/her designee. At the option of the CITY’S Risk Manager or his/her designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects CITY, its officers, officials, employees, agents and volunteers; or (ii) CONSULTANT shall provide a financial guarantee, satisfactory to CITY’S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall CITY be responsible for the payment of any deductibles or self- insured retentions. DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 17 of 21 OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. CITY, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. CONSULTANT shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 2. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, CONSULTANT’S insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, agents and volunteers shall be excess of CONSULTANT’S insurance and shall not contribute with it. CONSULTANT shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: CONSULTANT and its insurer shall waive any right of subrogation against CITY, its officers, officials, employees, agents and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims-made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by CONSULTANT. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims- made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by CONSULTANT, CONSULTANT must purchase “extended reporting” coverage for a minimum of five (5) years DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 18 of 21 completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to CITY for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to CITY. CONSULTANT is also responsible for providing written notice to the CITY under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, CONSULTANT shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, CONSULTANT shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by CONSULTANT shall not be deemed to release or diminish the liability of CONSULTANT, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONSULTANT, its principals, officers, agents, employees, persons under the supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. VERIFICATION OF COVERAGE CONSULTANT shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY’S Risk Manager or his/her designee prior to CITY’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, CONSULTANT shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 19 of 21 SUBCONTRACTORS If CONSULTANT subcontracts any or all of the services to be performed under this Agreement, CONSULTANT shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate side agreement with the City to provide required indemnification and insurance protection. Any required side agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee. If no side agreement is required, CONSULTANT shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and CONSULTANT shall ensure that CITY, its officers, officials, employees, agents, and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with CONSULTANT, and CITY, prior to commencement of any work by the subcontractor. DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 ALL-B Generic CSA Not to Exceed (12-2022) Page 20 of 21 EXHIBIT C DISCLOSURE OF CONFLICT OF INTEREST Climate Adaptation and Environmental Justice Planning YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature Date (Name) (Company) (Address) Additional page(s) attached. (City, State Zip) DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 X 605 Third Street X X Dudek X Encinitas, CA 92024 7/5/2023 X X Currently we have an as needed contract with the County of Fresno Joseph Monaco ATTACHMENT 1 STATEMENT OF ACCEPTANCE OF THE INDEMNIFICATION AND INSURANCE REQUIREMENTS REQUEST FOR QUALIFICATIONS FOR CONSULTANT SERVICES TO PROVIDE CLIMATE ADAPTATION AND ENVIRONMENTAL JUSTICE PLANNING SERVICES BID FILE NO. 12302445 The Proposer shall sign below that the Proposer accepts in whole the Indemnification and Insurance Requirements set forth in these Specifications. If the Proposer takes exception to some portions, those portions shall be listed here below and the Proposer shall sign that the Proposer accepts all portions of the requirements not listed. Note: Any exceptions may render the proposal non-responsive. [ ] ACCEPT [ ] DO NOT ACCEPT If "DO NOT ACCEPT" is checked, please list exceptions: Signature of Authorized Person Type or Print Name of Authorized Perso n DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 7/5/2023 X Joseph Monaco Proposal Title A-1 Task 1. Project Management Task 1.1: Project Launch and Administration At the City’s direction, the Dudek team will participate in a virtual project kickoff meeting with City staff and agency partners to accomplish the following:  Meet the key team members, clarify roles, and verify that team members have a common understanding of the project and overall approach to the work program and deliverables.  Discuss and refine our scope of work and schedule, including our community engagement framework and strategy.  Collect data and establish protocols for communication and data transfer throughout the work effort.  Work collaboratively to discuss potential project pitfalls and issues and to identify upfront strategies to address those issues.  Share aspirations and establish relationships that will last through the life of the project. Following the meeting, Dudek will send a kickoff meeting summary along with a data needs request. Dudek will set up recurring bi-weekly 30-minute check-in meetings with City staff and up to two Dudek staff. This scope assumes an 18-month schedule, and therefore up to 72 hours of meeting time. Dudek and the City will work collaboratively to discuss project management software and document sharing. Deliverables  Kickoff meeting agenda, attendance, meeting summary and data needs request.  Collaborative project management and document sharing set up  Bi-weekly check in meetings through the life of the project, up to 72 hours of check in meeting time. Assumptions  City staff will provide a list of City staff, their contact information, and their role on the project  City staff will respond to data needs request. Task 1.2: Critical Path Schedule Dudek will provide a critical path schedule updated monthly. This will include data transfers, City review periods, public outreach, and Dudek deliverables. Deliverables  Project schedule updated monthly, if needed EXHIBIT A DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Proposal Title A-2 Task 1.3: Invoicing Dudek will provide The City with monthly billing invoices including progress reports, billings to date, and amount invoiced this period. Deliverables  Monthly invoicing including progress report Task 2. Public Outreach 1 Task 2.1 Community Workshops Dudek will prepare materials for workshops (posters, presentation decks), as well as prepare/distribute relevant materials to advertise workshops. Dudek will assist with scheduling and coordinating logistics for workshops. One Dudek staff member and one Excel staff member will attend all three in-person workshops. Dudek can present at workshops (should the City decide that is most appropriate), and/or provide logistics support (set up tables/chairs, welcome attendees, distribute surveys, etc.) during workshops. Dudek will coordinate translation and interpretation services in Spanish, Punjabi, and Hmong. Excel will provide live translation and interpretation services. Deliverables  Materials for three in person workshops  Attendance at three in person workshops Role of City Staff  Identify appropriate locations for workshops  Attend events and answer non-technical questions Assumptions  One Dudek and one Excel staff member will attend Task 2.2 Tabling Events Dudek will determine appropriate tabling events for outreach. Dudek will schedule and coordinate logistics for tabling events and ensure appropriate materials/staff are available. One Dudek staff member and one Excel staff member will attend each event. Dudek will coordinate translation and interpretation services in Spanish, Punjabi, and Hmong. Excel will provide live translation and interpretation services. Deliverables 1 Dudek is reserving $46,470 in budget for use by Community-Based Organizations pertaining to outreach activities related to the scope and purpose of this project, likely as a part of Tasks 2.1 and 2.2. Dudek will work with the City to ensure that contracting and services meet the needs of City staff and community. Should the City decide that these funds would be better used elsewhere on this project, these funds may be available as contingency. DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Proposal Title A-3  Materials for six tabling events Role of City Staff  None Assumptions  One Dudek and one Excel staff member will attend Task 2.3 Public Presentations Dudek will work with City staff to coordinate presentations to relevant Boards/Chambers. Dudek assumes presentations will be needed for two (2) Planning Commission Meetings and two (2) City Council Meetings. It is assumed that in-person attendance will be utilized for two of these meetings, and virtual attendance will be utilized for the remaining two meetings. Beyond the allotted Planning Commission and City Council meeting presentations, Dudek will prepare slides for Fresno staff to present. Deliverables  Materials and talking points for five presentations  Presentation at 2 Planning Commission Meetings (1 in-person, 1 virtual) and 2 City Council Meetings (1 in-person, 1 virtual) Role of City Staff  Presentations to relevant boards and commissions Assumptions  Dudek staff in-person attendance for 2 meetings (1 Planning Commission and 1 City Council)  Dudek staff virtual attendance for 2 meetings (1 Planning Commission and 1 City Council)  No Dudek or Excel staff attendance for any other presentations Task 2.4 Marketing Materials Generation Dudek’s in-house creative team will create customized presentation materials, handouts (stickers, etc.), graphics, and social media content. Dudek will ensure that all materials are available in multiple languages to maximize engagement with underrepresented groups. Dudek can provide guidance regarding material distribution and advertising. Deliverables  Array of social media posts suitable for multiple platforms  Stickers, informational handouts, QR codes for surveys Role of City Staff  Distribute materials when tabling, attending meetings, and at other relevant locations.  Provide with guidance and logins for social media posting DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Proposal Title A-4 Task 2.5 Surveys Dudek will design two surveys: one preliminary, short survey for tabling events, and one in-depth survey for workshops. Survey results will be analyzed and communicated to the City. QR codes for surveys will be included on materials. Results will be used to inform future outreach and engagement efforts, as well as CAP/EJ project development/implementation. Dudek will coordinate translation services in Spanish, Punjabi, and Hmong. Excel will provide translation services. Deliverables Two surveys in English with one round of consolidated comments (two drafts) One final survey in English, Spanish, Punjabi, and Hmong Role of City Staff Prepare consolidated review (two rounds) from relevant staff Assumptions The survey will be completed online any paper surveys will be inputted by the City or CBO partner under their scope and budget, Task 3. Vulnerability Assessment Task 3.1 Climate Adaptation TASK 3.1.1: RISK IDENTIFICATION Dudek will perform a risk assessment in accordance with the guidance outlined in the California Adaptation Planning Guide and the 2017 General Plan Guidelines. This will include gathering data on primary climate change impacts from CalAdapt, California’s Fourth Climate Change Assessment Regional Report, and CalFire. For extreme heat and air pollution, Dudek will utilize data from the Urban Forestry Master Plan. This data will be supplemented by information from City staff and public engagement, Dudek will assess each impact on four key elements: magnitude, timing, spatial extent, and level of certainty of impact. Deliverables Maps in Adobe Illustrator and ArcGIS shapefiles Role of City Staff GIS shapefiles of City Council district boundaries, and other local spatial data as available Assumptions Dudek will analyze air pollution, extreme heat, wildfire, and flooding TASK 3.1.2: SENSITIVE POPULATIONS Dudek will identify sensitive populations as defined by SB 1000. Dudek will use CalEnviroScreen to identify vulnerable Census Tracts and the specific community stressors those communities face. This will include an DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Proposal Title A-5 analysis of pollution burdens and community characteristics that predispose the community to disproportionate climate change impacts. Dudek will focus on the existing air quality, health impacts, and linguistic isolation. Additionally, Dudek will use the Healthy Places Index to identify other vulnerabilities, such as access to automobiles and tree cover to provide a full assessment of the communities and their specific vulnerabilities to climate change. This will include findings that summarize the conditions for each council district. Deliverables Maps in Adobe Illustrator and ArcGIS shapefiles Role of City Staff None Assumptions None TASK 3.1.3: COMMUNITY INFRASTRUCTURE Dudek will work with City staff to generate a list of emergency response facilities, critical facilities, and non-critical public infrastructure. Dudek will assess how an asset is used in the four phases of hazard planning (mitigation, preparation, response, and recovery) and if the asset is located in an area or faces difficulty in performing its essential functions. Deliverables Maps in Adobe Illustrator and ArcGIS shapefiles Role of City Staff Provide community facilities (such as fire stations, police stations, hospitals, schools, etc.) in shapefiles or other spatial data file format, or a list in Microsoft Excel with addresses. Assumptions None TASK 3.1.4: FINDINGS Dudek will utilize the hazard and population data to generate a vulnerability assessment. For each hazard Dudek will explain the hazard risk, sensitive populations, and community infrastructure and potential threats and opportunities for each council district, or other appropriate geographical unit. Dudek will prepare maps for each hazard at the council district scale, or other appropriate geographical unit, illustrating these risks. Deliverables Vulnerability Assessment, including maps from Tasks 3.1.1 through 3.1.3 in Microsoft Word (up to three drafts) Responses to two rounds of consolidated comments from City and Agency Staff Document sharing portal as needed Role of City Staff Prepare consolidated review (two rounds) from relevant staff DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Proposal Title A-6 Assumptions Two rounds of consolidated comments The chosen geographic unit will not exceed 15 areas total Task 3.2 Environmental Justice TASK 3.2.1: EXISTING CONDITIONS Dudek will map and analyze each SB 1000 pillar of environmental justice (EJ) including pollution 2, community facilities,3 food access, safe and sanitary homes, and physical activity. Each council district (or other appropriate geographical unit) map will include Census Tracts scoring above 75% along side the “data for consideration” listed in the 2020 OPR Environmental Justice Element Guidelines as available. Dudek will summarize the existing conditions for each council district (or other appropriate geographical unit), supplemented by public outreach data. Deliverables Maps in Adobe Illustrator and ArcGIS shapefiles Role of City Staff Provide a list of grocery stores, community gardens, and other fresh food assets in Microsoft Excel with addresses. GIS shapefiles of parks, public facilities, and any active transportation data available. Assumptions None TASK 3.2.2: SENSITIVE POPULATIONS Dudek will build upon Task 3.1.2 and explore how the sensitive populations in each council district (or other appropriate geographical unit) may be especially vulnerable to certain issues given the physical condition described in Task 3.2.1. For example, the compounding effects of communities with low access to automobiles and limited food options within safe walking or biking distance. Deliverables Maps in Adobe Illustrator and ArcGIS shapefiles Role of City Staff None Assumptions None 2 Air Pollution will also be included in the Task 3.1.1, and will be integrated into this report 3 This will be partially addressed in Task 3.1.1 and expanded here DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Proposal Title A-7 TASK 3.1.3: FINDINGS Dudek will utilize the existing conditions and sensitive populations data to create an EJ Element Background Report. For each SB 1000 pillar, Dudek will explain the role of the built environment, population characteristics, and compound health risks. Dudek will identify key gaps and opportunities. Deliverables Environmental Justice Background Report, including maps from Tasks 3.1.1 through 3.1.3 in Microsoft Word (up to three drafts) Responses to two rounds of consolidated comments from City and Agency Staff Document sharing portal as needed Role of City Staff Prepare consolidated review (two rounds) from relevant staff Assumptions Up to two rounds of review Task 4. Capability Assessment Task 4.1: Plan Review Dudek will create an AirTable database that will be used to categorize each policy from the following existing planning documents: General Plan, Housing Element, Fresno County Multi-Jurisdictional Hazard Mitigation Plan, The Fulton Corridor Specific Plan, Southwest Fresno Specific Plan, Central SE Specific Plan, South Central Specific Plan, and The Downtown Neighborhoods Community Plan. . This database will include the following: •policy text, the text of the policy as written in the plan •plan, the plan the policy lives in •hazards, relevant climate hazards the policy addresses (as applicable) •phase of hazard planning, mitigation, preparation, response, or recovery (as applicable). •geographies, specific locations or zones mentioned in a policy such as “downtown”, “disadvantaged” “communities”, “flood hazard areas”, etc. (as applicable_ •environmental justice components, the SB 1000 pillar the policy relates to (as applicable). •policy tools, the permit or process that will enforce or trigger the policy Dudek will prepare a summary statistics and include a narrative in Task 4.3. DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Proposal Title A-8 Deliverables Completed policy tool in AirTable with one round of City comments Final policy tool assessment in Microsoft Excel Plan summary statics Role of City Staff Provide GIS data for each geographic boundary used in policy Provide the relevant plans in Microsoft Word, with policies compiled into a list or table as possible Provide one round of City review Assumptions Dudek will review the current General Plan, Climate Action Plan, Housing Element, Multi-Jurisdictional Hazard Mitigation Plan, The Fulton Corridor Specific Plan, Southwest Fresno Specific Plan, Central SE Specific Plan, South Central Specific Plan, and The Downtown Neighborhoods Community Plan Task 4.2: Staff and Agency Interviews Dudek will conduct up to 20 staff and partner agency virtual interviews. Dudek will schedule these meetings, and prepare interview questions based on previous tasks and our professional experience. The purpose of these interviews will be to assess how well existing plans and programs are working and consider opportunities to pursue in the CAP and EJ Element. These interviews will also include questions around how disadvantaged or otherwise marginalized communities are included in City processes. Dudek will summarize these results for inclusion in the capability assessment. Deliverables Staff and partner agency agendas and notes for up to 20 interviews Role of City Staff Provide list of relevant staff and agency comments Assumptions Staff and partner agency interviews will last up to 1 hour Task 4.3: Capability Assessment and Findings Dudek will prepare a Capability Assessment, which is a summary of findings from the above tasks that include how well each SB 1000 pillar is addressed. The Capability Assessment will include two sections: (1) Climate Considerations and (2) Environmental Justice. The Climate Considerations portion will weigh the weight of the risk, sensitivity, and capacity to each hazard. For each hazard, Dudek will outline the key opportunities and threats, and how these may vary between council districts (or other appropriate geographical unit). Dudek will prepare a community capability matrix for each council district (or other appropriate geographical unit) that plot the risk as illustrated in the vulnerability assessment and the community capacity. This will provide a ranking of each hazard (urgent, important, or marginal) for each council district or other appropriate geographical unit. The EJ portion findings will give weight to the prevalence and sensitivity to each EJ pillar. For each EJ pillar, Dudek will outline the key opportunities and threats, and how these may vary between geographies. Dudek will prepare a DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Proposal Title A-9 community capability matrix for each geographical unit that plot the risk as illustrated in the vulnerability assessment and the community capacity. This will provide a ranking of each pillar (urgent, important, or marginal) for each geographical unit. This EJ portion of the Capability Assessment will serve as a foundation for Task 6, EJ Element. Deliverables Capability Assessment in Microsoft Word (up to three drafts) Responses to two rounds of consolidated comments from City and Agency Staff Role of City Staff Prepare consolidated review from relevant staff Assumptions Up to two rounds of consolidated City review Task 5. Climate Adaptation Plan Task 5.1: Climate Adaptation/Resiliency Goals and Objectives Dudek will utilize the data gathered in previous tasks to generate a set of goals that meet the needs of the community and are based in the findings of previous tasks. Dudek will provide details on how these goals were generated from public feedback From these goals, Dudek will create measurable objectives. Deliverables Goals and Objectives in AirTable (up to two drafts) Responses to one round of consolidated comments from City and Agency Staff Document sharing portal as needed Role of City Staff Prepare consolidated review (one round) from relevant staff Assumptions One rounds of consolidated comments Task 5.2: Climate Adaptation/Resiliency Policies Dudek will generate adaptation and resiliency implementation strategies with the following components: •Relevant hazards: a list of all the climate change hazards a policy will address •Priority communities: places where this implementation strategy should be solely implemented or prioritized. These geographic boundaries will match those identified in Task 3 •Responsible party: the City department responsible for implementation DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Proposal Title A-10 •Planning tools: which City processes will implement the policy (e,g, municipal code changes affecting new development, retrofit programs, city facilities upgrades). •Target metrics: measures illustrating success and how they can be measured (e.g. number buildings with cool roofs, existing buildings with retrofits, energy use City-wide) These measures will be within the City’s control and measured by the City •Future tracking: changes to policy or the physical or legislative environment that should be periodically reviewed to evaluate the continued relevance of a strategy (e.g. California Building Code, number of extreme heat days) •Cost: ordinal ranking of anticipated cost to he City and or residents •Timeline: ordinal ranking of when strategies should be implemented Deliverables •Goals and Objectives in AirTable and Microsoft Excel (up to two drafts) •Responses to one round of consolidated comments from City and Agency Staff •Document sharing portal as needed Role of City Staff •Prepare consolidated review (one round) from relevant staff Assumptions •One round of consolidated comments Task 5.3: Climate Adaptation Monitoring Strategy Dudek will create an Adaptation Monitoring Plan for each relevant City department. This will include a Microsoft Excel Sheet with each datapoint that department is tracking, the relevant policies, as well as instructions on how to measure and track each strategy in the Excel sheet. This will be informed by how often the relevant data is updated and which planning processes each policy informs. Dudek will work with each department to customize this strategy. Deliverables •Monitoring strategies for (e.g. Economic Development, Planning and Development, Public Utilities, and Public Works, and the Emergency Preparedness Office) •Responses to one round of consolidated comments from City and Agency Staff •Document sharing portal as needed Role of City Staff •Provide Dudek with a list of relevant data that the department already tracks •Prepare consolidated review (one round) from relevant staff Assumptions •One round of consolidated comments DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Proposal Title A-11 Task 5.4: Public and Final Drafts Dudek will use the above tasks to create a draft Climate Adaptation Plan. Dudek will work with the City’s graphic designer to generate a style guide for the Plan. Dudek will provide one InDesign template for review and a Final Climate Adaptation Plan. Deliverables Draft Climate Adaptation Plan in Microsoft Word (up to two drafts) Draft Climate Adaptation Plan InDesign template and logo Responses to two rounds of consolidated comments Final Climate Adaptation Plan in InDesign Role of City Staff Prepare style guide Assumptions Up to two rounds of consolidated review Task 6: EJ Element Task 6.1: EJ Goals and Objectives Dudek will create goals and objectives based on the work in previous tasks. For each goal, Dudek will identify the most relevant General Plan Element for its inclusion. Dudek will note where these goals are likely applicable City wide, and where there is a specific EJ consideration. This will help City staff in its iconography of the full General Plan and clearly identifying the EJ related policies and integration. Task 6.2: EJ Policy Menu Dudek will generate EJ policies strategies with the following components: •Relevant EJ Pillars: a list of all the EJ pillars the policy will address •Priority communities: places where this implementation strategy should be solely implemented or prioritized. These geographic boundaries will match those identified in Task 3 •Responsible party: the City department responsible for implementation •Planning tools: which City processes will implement the policy (e,g, municipal code changes affecting new development, retrofit programs, city facilities upgrades). •Target metrics: measures illustrating success and how they can be measured (e.g. number buildings with cool roofs, existing buildings with retrofits, energy use City-wide) These measures will be within the City’s control and measured by the City •Future tracking: changes to policy or the physical or legislative environment that should be periodically reviewed to evaluate the continued relevance of a strategy (e.g. California Building Code, number of extreme heat days) DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Proposal Title A-12 •Cost: ordinal ranking of anticipated cost the City and or residents •Timeline: ordinal ranking of when strategies should be implemented Task 6.3: EJ Background Report Dudek will use the above tasks to create a draft EJ background report. Dudek will work with the City’s graphic designer to generate a style guide for the Plan. Dudek will provide one InDesign template for review and a Final EJ Background Report. Deliverables Draft EJ Background Report in Microsoft Word (up to two drafts) Draft EJ Background Report InDesign template and logo Responses to two rounds of consolidated comments Final EJ Background Report in InDesign Role of City Staff Prepare style guide Assumptions •Up to two rounds of consolidated review Task 7: Climate Action Assessment Dudek will assess the 2021 CAP, and prepare a memorandum outlining any necessary updates to the CAP to remain CEQA qualified after the Housing and Land Use Elements are updated. Dudek will outline the legal requirements and calculations required to remain CEQA qualified. Deliverables Climate Action Assessment Memorandum Role of City Staff Provide CAP land use assumptions and anticipated changes Assumptions •The City intends on remaining CAP qualified until 2030 •Dudek staff will provide a high-level assessment and provide no calculations DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 P223449 (Climate Adaptation Environmental Justi) - May 23 P223449 (Climate Adaptation & Environmental Justi) - May 23 DUDEK FEE ESTIMATE 05/15/2023 Project Team Role:Specialist V Specialist I Analyst II Analyst I Specialist III Senior Specialist III Technical Editor ll Project Director/Environ mental Specialist II Specialist I Creative Services III Creative Services IV Creative Services II Publications Specialist ll for written materials, tabling events, and workshops. Team Member:Rose Newberry Henry Eckold Grant Sles Ryan Trelstad Abby Beissinger Elena Nuno Hannah Wertheimer- Roberts Jane Gray Maryse Suppiger Madelyn Murray Karen Castaneda Raoul Ranoa Ben DiAnna Publications Specialist ll Excel Billable Rate:$185.00 $145.00 $105.00 $95.00 $165.00 $225.00 $135.00 $265.00 $155.00 $145.00 $150.00 $165.00 $135.00 $105.00 Fee Task 1 Project Management 1.1 Project Launch and Administration 120 144 264 $43,080.00 $43,080.00 1.2 Critical Path Schedule 36 52 88 $14,200.00 $14,200.00 1.3 Invoicing 18 26 44 $7,100.00 $7,100.00 Subtotal Task 1 174 222 396 $64,380.00 $64,380.00 Task 2 Public Outreach 2.1 Community Workshops 20 88 20 16 16 20 8 188 $30,420.00 $13,800.00 $44,220.00 2.2 Tabling Events 20 68 68 24 8 20 8 216 $34,160.00 $34,160.00 2.3 Public Presentations 10 16 22 22 10 80 $14,190.00 $1,840.00 $16,030.00 2.4 Marketing Materials Generation 8 12 12 36 16 62 8 154 $22,970.00 $22,970.00 2.5 Surveys 16 20 24 60 $10,820.00 $10,820.00 Subtotal Task 2 10 80 210 146 86 40 102 24 698 $112,560.00 $1,840.00 $128,200.00 Task 3 Vulnerability Assessment 3.1 Climate Adaptation 3.1.1 Risk Identification 8 24 36 8 76 $9,700.00 $9,700.00 3.1.2 Sensitive Populations 8 24 34 8 74 $9,510.00 $9,510.00 3.1.3 Community Infrastructure 8 16 20 18 62 $8,670.00 $8,670.00 3.1.4 Findings 8 14 20 8 50 $6,730.00 $6,730.00 3.2 Environmental Justice 3.2.1 Existing Conditions 8 18 34 8 68 $8,980.00 $8,980.00 3.2.2 Sensitive Populations 8 18 36 8 70 $9,190.00 $9,190.00 3.2.3 Findings 8 16 30 54 $6,950.00 $6,950.00 Subtotal Task 3 56 130 100 110 58 454 $59,730.00 $59,730.00 Task 4 Capability Assessment 4.1 Plan Review 40 80 100 120 340 $40,900.00 $40,900.00 4.2 Staff and Agency Interviews 40 120 40 40 240 $32,800.00 $32,800.00 4.3 Capability Assessment and Findings 30 40 80 80 230 $27,350.00 $27,350.00 Subtotal Task 4 110 240 220 240 810 $101,050.00 $101,050.00 Task 5 Climate Adaptation Plan 5.1 Climate Adaptation/Resiliency Goals and Objectives 20 80 100 100 300 $35,300.00 $35,300.00 5.2 Climate Adaptation/Resiliency Policies 20 80 100 100 300 $35,300.00 $35,300.00 5.3 Climate Adaptation Monitoring Strategy 40 100 40 40 220 $29,900.00 $29,900.00 5.4 Public and Final Drafts 20 20 40 40 100 100 320 $43,100.00 $43,100.00 Subtotal Task 5 100 280 280 280 100 100 1140 $143,600.00 $143,600.00 Task 6 EJ Element 6.1 EJ Goals and Objectives 16 40 90 20 8 174 $21,430.00 $21,430.00 6.2 EJ Policy Menu 16 60 140 20 8 244 $29,580.00 $29,580.00 6.3 EJ Background Report 40 60 80 20 8 80 80 368 $50,520.00 $50,520.00 Subtotal Task 6 72 160 310 60 24 80 80 786 $101,530.00 $101,530.00 Task 7 Climate Action Assessment 20 4 24 $5,040.00 $5,040.00 Total Hours 522 1032 910 690 82 20 184 80 210 146 266 40 102 24 4308 Total $96,570.00 $149,640.00 $95,550.00 $65,550.00 $13,530.00 $4,500.00 $24,840.00 $21,200.00 $32,550.00 $21,170.00 $39,900.00 $6,600.00 $13,770.00 $2,520.00 $587,890.00 $13,800.00 $1,840.00 $603,530.00 Percent of Hours (Base)12%24%21%16%2%0%4%2%5%3%6%1%2%1% TOTAL FEE Dudek Labor Hours and Rates Subconsultant Fees TOTAL DUDEK HOURS DUDEK LABOR COSTS OTHER DIRECT COSTS Dudek Project Budget Created 6/7/20239:57 AM Page 1 of 2 EXHIBIT D DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 P223449 (Climate Adaptation Environmental Justi) - May 23 Subconsultant Costs Task Sub. Name Description of Services Hours Cost 2.1 - Community Workshops Excel Translation services for written materials, tabling events, and workshops.0 $13,800.00 Hotel Costs Task Item Description Number of Rooms Number of Nights Hotel Rate Cost 2.3 - Public Presentations Hotel 2 2 $172.50 $690.00 Per Diem Costs Task Item Description Number of People Number of Days Per Diem Rate Cost 2.3 - Public Presentations Per Diem 2 2 $51.75 $207.00 Other Direct Costs Task Item Description Number of Units Unit Cost Cost 2.3 - Public Presentations Flight 2 $299.00 $598.00 2.3 - Public Presentations Rental Car 2 $172.50 $345.00 Dudek Project Budget Created 6/7/20239:57 AM Page 2 of 2 EXHIBIT D DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Task Subtask Subtask 2 Title Start Date End Date Total Days Total Weeks 7/1/2023 12/31/2024 549 78 1.1 7/1/2023 12/31/2024 549 78 1.2 7/1/2023 7/15/2023 14 2 1.3 7/1/2023 12/31/2024 549 78 7/1/2023 5/1/2024 305 44 0 0 0 0 0 0 7/1/2023 2/1/2024 215 31 7/1/2023 2/1/2024 215 31 3.1.1 Risk Identification 7/1/2023 9/15/2023 76 11 3.1.2 Sensitive Populations 7/1/2023 12/1/2023 153 22 3.1.3 Community Infrastructure 7/1/2023 12/15/2023 167 24 3.1.4 Findings 12/1/2023 2/1/2024 62 9 7/1/2023 2/1/2024 215 31 3.2.1 Existing Conditions 7/1/2023 9/15/2023 76 11 3.2.2 Sensitive Populations 7/1/2023 12/1/2023 153 22 3.2.3 Findings 12/1/2023 2/1/2024 62 9 7/15/2023 2/1/2024 201 29 4.1 7/15/2023 9/30/2023 77 11 4.2 9/15/2023 12/15/2023 91 13 4.3 12/15/2023 2/1/2024 48 7 2/1/2024 12/31/2024 334 48 5.1 2/1/2024 5/15/2024 104 15 5.2 3/1/2024 6/1/2024 92 13 5.3 6/1/2024 7/1/2024 30 4 5.4 6/1/2024 12/31/2024 213 30 2/1/2024 12/31/2024 334 48 6.1 2/1/2024 5/15/2024 104 15 6.2 3/1/2024 6/1/2024 92 13 6.3 3/1/2024 12/31/2024 305 44 3.1 Vulnerability Assessment Climate Adaptation 1 Invoicing Critical Path Schedule Project Launch and Administration Project Management 5 4 Capability Assesment Plan Review Staff and Agency Interviews Environmental Justice Findings Schedule EJ Goals and Objectives EJ Policy Menu EJ Background Report Climate Adaptation Plan Public Outreach 2 Climate Adaptation /Resiliency Goals and Objectives Climate Adaptation/Resiliency Policies and Strategies Climate Adaptation Monitoring Strategy Public and Final Drafts EJ Element Environmental Justice 3 3.2 6 EXHIBIT E DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Secretary’s Certificate The undersigned, Amy M. Paul, hereby certifies that she is the duly elected and acting Secretary of Dudek, a California corporation (the “Company”), and that, as such, she is duly authorized to execute and deliver this Secretary’s Certificate on behalf of the Company. She hereby further certifies on behalf of the Company that: Each of the persons named below is a duly elected, qualified and acting officer of the Company holding the office or offices set forth opposite his or her name, and each of the persons named below is authorized to execute and deliver on behalf of the Company, each document to which it is a party and all other agreements, documents and certificates to be delivered by the Company pursuant thereto. Name Office Joe Monaco President and Chief Executive Officer Eric Wilson Executive Vice President, Environmental Robert Ohlund Vice President, Engineering Amy Paul Secretary/General Counsel Emily Hart Assistant Secretary/Marketing Director Brian Nordmann Chief Information Officer IN WITNESS WHEREOF, the undersigned has executed this Secretary’s Certificate on behalf of the Company as of this 3rd day of January 2023. DUDEK By:______________________________ Amy M. Paul Secretary DocuSign Envelope ID: E54A8EF7-C0DA-425A-8D05-E608C69D9F12 Date Adopted: 1 of 2 Date Approved: Effective Date: Resolution No. RESOLUTION NO. ___________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO ADOPTING THE 3rd AMENDMENT TO THE ANNUAL APPROPRIATION RESOLUTION NO. 2023-185 TO APPROPRIATE $650,000 FROM UNSPENT FY 2023 GENERAL FUND APPROPRIATIONS FOR GENERAL PLAN CLIMATE ADAPTATION AND ENVIRONMENTAL JUSTICE PLANNING CONSULANT SERVICES BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FRESNO: THAT PART III of the Annual Appropriation Resolution No. 2023-185 be and is hereby amended as follows: Increase/(Decrease) TO: PLANNING AND DEVELOPMENT DEPARTMENT General Fund $ 650,000 THAT account titles and numbers requiring adjustment by this Resolution are as follows: General Fund Revenues: Account String: 1000-1001-1100-071-430101-11-1-0000-0000- $ 650,000 Total Revenues $ 650,000 Appropriations: Account String: 1000-1001-1903-441-653302-19-6-0000-0000- $ 650,000 Total Appropriations $ 650,000 THAT the purpose is to appropriate $650,000 from unspent General Fund FY 2023 appropriations for General Plan Climate Adaptation and Environmental Justice Planning consultant services. 2 of 2 CLERK’S CERTIFICATION STATE OF CALIFORNIA} COUNTY OF FRESNO } ss. CITY OF FRESNO } I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing Resolution was adopted by the Council of the City of Fresno, California, at a regular meeting thereof, held on the Day of , 2023 AYES: NOES: ABSENT: ABSTAIN: Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Veto: , 2023 TODD STERMER, CMC City Clerk BY: ____________________________ Deputy City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1093 Agenda Date:7/20/2023 Agenda #: 1.-O. REPORT TO THE CITY COUNCIL FROM:JENNIFER CLARK, Director Planning and Development Department THROUGH:DALTON BENNETT, Project Administrator Planning and Development Department BY:NADIA SALINAS, Project Manager Planning and Development Department SUBJECT Accept a $300,000 contribution to the Community Benefits Fund from Lone Oak Fresno, LLC, for a project located at 791 and 998 East North Avenue, Fresno, APN 329-090-16 and 329-090-17. RECOMMENDATION Staff recommends approval. EXECUTIVE SUMMARY On March 30, 2023, the City Council approved Development Permit Application No. P22-00565 for authorizing the construction of a ±206,881 square-foot warehouse facility. Subsequent to the approval the project proponent entered into a separate agreement to contribute $300,000 into a community benefits fund for the purpose of impact mitigation. The funds are directed to be held and distributed under the Community Benefits Fund program guidelines as adopted by the City Council on February 9, 2023. Action by City Council will allow the City to accept and distribute the $300,000 related to Development Permit P22-00565. BACKGROUND On October 8, 2022, the Fresno Planning and Development Director approved entitlements for the Project, including without limitation the adoption of an Environmental Assessment and the approval of a Development permit P22-00565. The action was appealed to the Planning Commission which upheld the Director’s decision on February 1, 2023. The action was appealed to the City Council. On March 30, 2023, the City Council approved Development Permit Application No. P22-00565 for authorizing the construction of a ±206,881 square-foot warehouse facility. Subsequent to the City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1093 Agenda Date:7/20/2023 Agenda #: 1.-O. authorizing the construction of a ±206,881 square-foot warehouse facility.Subsequent to the approval the project proponent entered into a separate agreement to contribute $300,000 into a community benefits fund for the purpose of impact mitigation.The funds are directed to be held and distributed under the Community Benefits Fund program guidelines as adopted by the City Council on February 9, 2023. ENVIRONMENTAL FINDINGS This approval is not a project for the purposes of CEQA Guidelines Section 15378. LOCAL PREFERENCE Not applicable FISCAL IMPACT Funding source is solely from the developer deposit established in the settlement agreement and does not impact the General Fund. City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1061 Agenda Date:7/20/2023 Agenda #:1.-P. REPORT TO THE CITY COUNCIL FROM:PACO BALDERRAMA, Chief of Police Police Department BY:TOM ROWE, Captain Police Community Relations-SRO, Support Division SUBJECT Approve a second amendment to the agreement with Fresno Unified School District (FUSD) for Student Resource Officers (SROs) at school sites, to provide an additional sergeant at FUSD school sites. This amendment provides for reimbursement in the amount of $117,513 from FUSD. RECOMMENDATION Staff recommends Council authorize and approve a second amendment to an agreement with FUSD for SROs at school sites to add an additional sergeant to FUSD school sites, and authorize the Chief of Police, or designee, to sign the amendment and all related documents on behalf of the City of Fresno. EXECUTIVE SUMMARY Council approval is being sought to authorize the City of Fresno Chief of Police, or designee, to execute a contract amendment with FUSD allowing for the police department to obtain partial reimbursement for one sergeant to supervise officers assigned to district schools as SROs. The terms of the contract reimburse 50% of the sergeant’s wages. Assigned vehicles are reimbursed at 100%. BACKGROUND This amendment follows negotiations between FUSD and the City of Fresno for a contract amendment that will provide the additional SRO sergeant. Currently, the department has 33 SROs assigned to the school sites operated by Fresno Unified School District, Central Unified School District, Sanger Unified School District with one pending at the Fresno County Office of Education. The unit is presently supervised by 2 sergeants which creates a span of control which is considered too large. Adding the additional sergeant brings the span of control down to a more appropriate and manageable level. The primary duties of this sergeant will be to supervise student resource officers. City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1061 Agenda Date:7/20/2023 Agenda #:1.-P. This contract amendment provides reimbursement for 50 percent of the additional sergeant position along with a vehicle in the amount of $117,513.Currently,we are in negotiations with the Fresno County Superintendent of Schools to provide an additional 15 percent reimbursement for this sergeant position.(That contract is tentatively set to go before council in August).The remaining funding for this position (35%)will be requested from the Central Unified School District in 2024 when that contract re-opens. The contract amendment represents the best interests of the City of Fresno,the Fresno Unified School District as well as the students and staff of schools being served. ENVIRONMENTAL FINDINGS Pursuant to California Environmental Quality Act (CEQA)Guidelines Section 15378,this item is not a project for the purposes of CEQA. LOCAL PREFERENCE Local preference is not applicable because this is a contract amendment. FISCAL IMPACT There is no fiscal impact to the department as the Fresno Unified School District will be reimbursing the department for personnel and vehicles assigned to the school sites. Attachment: Contract Amendment City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ 1 005801.00001 41601422.1 SECOND AMENDMENT TO AGREEMENT BETWEEN THE CITY OF FRESNO, CALIFORNIA AND FRESNO UNIFIED SCHOOL DISTRICT This Second Amendment (Amendment) is made and entered into effective August 1, 2023, between the City of Fresno, a California municipal corporation (City) and the Fresno Unified School District, a local agency (District). The City and the District are collectively referred as the Parties in this Amendment. WHEREAS, on July 1, 2021, the City and District entered into a three-year Agreement (Agreement) whereby the City agreed to provide Fresno Police Department (FPD) Student Resource Officers (SROs) at District high schools. WHEREAS, the Parties now desire to amend the Agreement to add one sergeant to be assigned to provide supervision for SROs assigned to Fresno Unified School sites as this is beneficial to the District, Students, Staff and City to assist the District in providing its pupils with a campus which is safe, secure, and peaceful; and WHEREAS, the additional sergeant at District school sites is intended by the Parties to be assigned on an on-going basis as FPD staffing and District funding allow, with the goal of having an appropriate level of supervision for all SROs by the start of the 2023-2024 school year; and WHEREAS, the District desires to continue to contribute funds to the City to partially-offset City’s operational costs covered by the General Fund. NOW THEREFORE, the Parties agree the Agreement be amended as follows: 1. Each and all of the foregoing recitals of background facts are incorporated herein by this reference as though set forth herein verbatim. 2. The City will provide one additional sergeant to provide supervision to SROs and perform law enforcement services at District school sites beginning August 1, 2023 and continuing until termination of the Agreement. 3. District shall pay to City the additional annual cost of $117,513 for the services contemplated in Section 2, above, and as further detailed in Exhibit D which is attached hereto and incorporated herein by reference. 4. Any additional SROs or sergeants requested by the District in order to further the goal of having one SRO at each District high school and middle school along with an appropriate level of direct supervision of the SROs will be subject to FPD officer availability and shall be requested in writing no less than one month prior to SRO installation in a particular school. All additional SROs or sergeants requested by the District will be billed at the rates set forth in Exhibit D. 5. Except as otherwise provided herein, the Agreement remains in full force 2 005801.00001 41601422.1 and effect. IN WITNESS WHEROF, the Parties have executed this Amendment in Fresno County, California as of the day and year first hereinabove written. CITY OF FRESNO, a California municipal FRESNO UNIFIED SCHOOL DISTRICT, Corporation a local agency By: _________________________ By: _________________________ Paco Balderrama Patrick Jensen Chief of Police Interim Chief Financial Officer Fresno Police Department Fresno Unified School District APPROVED AS TO FORM: APPROVED AS TO FORM: By: _________________________ By:____________________________ Jamie Kalebjian Stacey Sandoval Deputy City Attorney Executive Director, Risk Management ATTEST: City Clerk Todd Stermer By:_________________________ Deputy Addresses CITY: DISTRICT: Fresno Police Department Fresno Unified School District Attention: Support Division Attention: P.O. Box 1271 Chief Financial Officer 2323 Mariposa Mall 2309 Tulare Street Fresno, CA 93715-1271 Fresno, CA 93721 Attachments: Exhibit D – Updated Cost Breakdown of Police Services 3 005801.00001 41601422.1 *EXHIBIT D* Cost Breakdown of Police Services to the Fresno Unified School District (Effective July 1, 2023 - June 30, 2024) FY24 SRO Sergeant Costs Last Name First Name Rank School Annual Salary & Fringe %Allocated To FUSD Annualized StraightTime Cost to FUSD Optional OT Rate** Sgt. N/A $212,727 50% $106,363 $93.01 TOTAL $106,363 The above schedule provides the total salary and fringe for each Student Resource Officer assigned to the Fresno Unified School District (FUSD) for Fiscal Year 2024. The amount to be paid by FUSD is based on a percentage of salary and fringe stated for each officer and the annualized straight time costs for a total of $106,363. Also noted is the optional overtime rate for each officer. The total overtime charges to FUSD will be based on the actual number of hours each officer is utilized. Patrol vehicle lease cost is $10,800 per year, per vehicle. Total charges for one vehicles is $10,800. Total Salary Costs for Period $106,363 Total Vehicle Costs for Period $ 10,800 Administrative Fee $ 350 Total Cost for Fresno Unified School District $117,513 *** *Includes salary and all applicable benefits (including, without limitation, Medicare, Health and Welfare, uniform, pension, workers compensation premium and POST Certificate Pay that are actually provided during the respective year of this Agreement.) **Includes salary and Medicare *** The respective officer and sergeant costs shall be determined by the Fresno Police Department and shall be based upon the straight-time hourly wage rate, overtime hourly rate and vehicle operations and maintenance cost in effect July 1 for the respective year. The Administrative Fee shall remain $350 for each year. The Fresno Police Department will notify Fresno Unified School District, in writing, of its annual salary and fringe benefits by May 31st before the respective year. City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-744 Agenda Date:7/20/2023 Agenda #: 1.-Q. REPORT TO THE CITY COUNCIL FROM:PACO BALDERRAMA Chief of Police Police Department BY:JOE R. ALVAREZ, Acting Deputy Chief Administrative Division SUBJECT Actions pertaining to the 2022 Edward Byrne Memorial Justice Assistance Grant (JAG) Program: 1. Authorize the Chief of Police to accept $325,212 in total grant funding for the 2022 JAG Program from the U.S. Department of Justice, Bureau of Justice Assistance for the City and County of Fresno 2. Authorize the Chief of Police to execute all related documents for the acceptance, modification, extension and administration of 2022 JAG Program 3. Authorize the Chief of Police to execute an agreement between the City of Fresno and the County of Fresno regarding the 2022 JAG Program RECOMMENDATION Staff recommends that Council authorize the Chief of Police to accept $325,212 in total grant funding for the 2022 JAG Program for the City and County of Fresno; authorize the Chief of Police to sign all applicable and related documents for the acceptance, modification, extension and administration of 2022 JAG Program; authorize the Chief of Police to enter into a related agreement between the City and County of Fresno funding for this grant has been budgeted into the FY 24 Police Department adopted budget. EXECUTIVE SUMMARY This agreement is the result of an award for the joint application of the City of Fresno and the County of Fresno, with City of Fresno acting as the fiscal agent, to administer the 2022 JAG Program funding. The City of Fresno’s allocation is $229,282 and the remaining allocation of $95,930 is for the County of Fresno, for a total grant allocation of $325,212. The agreement between the City and County of Fresno is required by the U.S. Department of Justice and is a condition for this funding. BACKGROUND The JAG award formula is a minimum base allocation with the remaining amount determined on population, Part 1 violent crime statistics, and a direct allocation to units of local government. The City of Fresno agrees to act as the fiscal agent for the JAG formula funding in the county. The joint City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MK/NE 7-0 File #:ID 23-744 Agenda Date:7/20/2023 Agenda #: 1.-Q. application specified the award amount for distribution to each unit of local government. The 2022 JAG Program has allocated $325,212 for the Fresno County area.Based on the grant guidelines formula,the City of Fresno will receive $229,282,and the County of Fresno will receive $95,930.These funds will assist in the acquisition of equipment,operational needs and supplies, and essential support services for each agency in accordance with grant guidelines outlined by the U.S. Department of Justice, Bureau of Justice Assistance. The proposed spending plan required during the application process is based on priority needs that are not included in the FY 2024 budget.The proposed items will allow the Fresno Police Department to maintain control and reduce crime through the acquisition of necessary tactical equipment,officer safety equipment,and special unit operational needs.JAG funds are requested to provide for priority needs such as Skywatch operations and maintenance,ammunition,safety equipment for special units,including but not limited to K-9,SWAT,and Traffic.These costs are essential to the department and will not be met through local general funds. ENVIRONMENTAL FINDINGS This is not a “project” for the purposes of the California Environmental Quality Act (CEQA), pursuant to CEQA Guidelines Section 15378. LOCAL PREFERENCE Local preference was not considered because this does not include a bid or award of a construction or service contract. FISCAL IMPACT There is no fiscal impact to the General Fund and there is no match requirement under this grant program,however if unfunded,these essential tools and necessary equipment would have to come from the general fund,creating a negative fiscal impact.Funding for this grant is budgeted in FY 2024.All funds are received in advance and deposited into an interest-bearing account.All interest earned is to be used to support the same objectives of the grant’s approved spending plan. Attachment:Grant Award Agreement with The County of Fresno City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1074 Agenda Date:7/20/2023 Agenda #: 1.-R. REPORT TO THE CITY COUNCIL FROM:BROCK D. BUCHE, PE, PLS, Director Department of Public Utilities BY:JESUS A. GONZALEZ, PE, Assistant Director Department of Public Utilities - Utilities Planning & Engineering SAMUEL NADORES, Professional Engineer Department of Public Utilities - Utilities Planning & Engineering SUBJECT Approve a consultant services agreement with Tetra Tech BAS, Inc., for an amount not to exceed $363,700, to conduct a composting facility feasibility study for the Fresno-Clovis Regional Wastewater Reclamation Facility (Council District 3). RECOMMENDATION Staff recommends City Council approve a consultant services agreement with Tetra Tech BAS, Inc., for an amount not to exceed $363,700, inclusive of a $33,100 contingency, for a Composting Facility Feasibility Study at the Fresno-Clovis Regional Wastewater Reclamation Facility (Project); and authorize the Director of Public Utilities, or designee, to sign the agreement on behalf of the City of Fresno (City). EXECUTIVE SUMMARY Biosolids generated at the Fresno-Clovis Regional Wastewater Reclamation Facility (RWRF) are currently hauled offsite by a third-party, which has been increasingly expensive and presents long- term logistical concerns. The Wastewater Management Division (WMD) is seeking the services of Tetra Tech BAS, Inc., (Tetra Tech), to conduct a composting facility feasibility study for the RWRF, which would include evaluation of potential options with associated costs for an on-site composting facility that would process biosolids generated at the RWRF. BACKGROUND The RWRF is a biological, secondary level treatment facility, treating approximately 60 million gallons per day of wastewater, resulting in over 250 wet tons of Class B biosolids. The facility also receives Anaerobically Digestible Material such as fats, oils, and grease and a variety of food waste from City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 TABLED TO AUGUST 10, 2023 File #:ID 23-1074 Agenda Date:7/20/2023 Agenda #: 1.-R. processing plants, commercial kitchens, and industrial plants for co-digestion. All biosolids are currently taken offsite by a third-party hauler to different venues for reuse,including direct land application,composting,and mine remediation.This practice has been relatively costly for the WMD.Additionally,logistical issues with haulers for keeping up with the increased biosolids production and the RWRF’s limited capacity to store biosolids onsite has also been an increasing concern. The feasibility study will evaluate having an onsite composting facility that will process the biosolids, Tetra Tech will review current and anticipated future regulations for its impact on the City’s current biosolids management practices. In accordance with Fresno Municipal Code Chapter 4,Article 1,and Administrative Order 6-19,the Department of Public Utilities conducted a competitive process for selecting a consultant to provide the requested professional services for this Project.On March 10,2023,a Request for Proposals was published in the Business Journal and posted on the City’s Planet Bids website.On April 20, 2023,four sealed proposals were received.A selection committee,consisting of representatives from WMD,the Solid Waste Management Division,and the Utilities Planning and Engineering Division evaluated the proposals.Upon review of the qualifications for meeting the various criteria and analysis of the proposed fee,Tetra Tech was ultimately selected based on having met the criteria of the evaluation.Staff recommends City Council approve a consultant services agreement with Tetra Tech for a total amount not to exceed $363,700,which includes a contingency amount of $33,100. Funding for this Project is included in the Fiscal Year 2024 Wastewater Enterprise Fund. A standardized consultant service agreement has been approved as to form by the City Attorney’s Office and has been used in accordance with Administrative Order 4-4.The consultant’s Certificates of Insurance has been approved by the City’s Risk Management Division.Upon approval by the City Council,the consultant service agreement will be executed by the Director of Public Utilities,or designee. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act (CEQA)Guidelines Section 15378, the award of this Consultant Services Agreement is not a “project” for the purposes of CEQA. LOCAL PREFERENCE Local preference was not implemented per Fresno Municipal Code Section 4-109(b)(3),as staff believes there are less than three local firms providing the specific consulting service within the area of expertise for the subject matter of work. FISCAL IMPACT There is no impact to the General Fund.This Project is located within Council District 3.Funding for this Project is included in the Fiscal Year 2024 Wastewater Enterprise Fund. City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1074 Agenda Date:7/20/2023 Agenda #: 1.-R. Attachments: Attachment 1 - Consultant Services Agreement Attachment 2 - Vicinity Map City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -1- AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANT SERVICES THIS AGREEMENT (Agreement) is made and entered into effective ________________________, by and between the CITY OF FRESNO, a California municipal corporation (City), and TETRA TECH BAS, INCORPORATED, a California corporation (Consultant). RECITALS WHEREAS, the City desires to obtain professional engineering services for Feasibility Study for a Composting Facility at the Fresno-Clovis Regional Wastewater Reclamation Facility (Project); and WHEREAS, the Consultant is engaged in the business of furnishing services as a Professional Engineer and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, the Consultant acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6- 19; and WHEREAS, this Agreement will be administered for the City by its Director of Public Utilities (Director) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. The Consultant shall perform to the satisfaction of the City the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above and shall continue in full force and effect through the earlier of complete rendition of the services hereunder or December 31, 2024, subject to any earlier termination in accordance with this Agreement. The services of the Consultant as described in Exhibit A are to commence upon the City’s issuance of a written “Notice to Proceed.” Work shall be undertaken and completed in a sequence assuring expeditious completion. 3. Compensation. (a) The Consultant’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee not to exceed Three Hundred Thirty Thousand Six Hundred Dollars ($330,600), paid on a time and materials basis in accordance with the schedule of fees contained in Exhibit A, and a contingency amount not to exceed Thirty Three Thousand One Hundred Dollars ($33,100) for any additional work rendered pursuant to Subsection (c) below and authorized in writing by the Director. DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -2- (b) Detailed statements shall be rendered monthly and will be payable in the normal course of City business. The City shall not be obligated to reimburse any expense for which it has not received a detailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. (c) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to the Consultant’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. The Consultant shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. 4. Termination, Remedies, and Force Majeure. (a) This Agreement shall terminate without any liability of the City to the Consultant upon the earlier of: (i) the Consultant’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the Consultant; (ii) seven calendar days prior written notice with or without cause by the City to the Consultant; (iii) the City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, the Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the City any and all unearned payments and all properties and materials in the possession of the Consultant that are owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid compensation for services satisfactorily performed prior to the effective date of termination. The Consultant shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of the Consultant to satisfactorily perform in accordance with the terms of this Agreement, the City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the City’s damages caused by such failure. In no event shall any payment by the City pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement which may then exist on the part of the Consultant, nor shall such payment impair or prejudice any remedy available to the City with respect to the breach. (d) Upon any breach of this Agreement by the Consultant, the City may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that the City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) The Consultant shall provide the City with adequate written assurances of future performance, upon Director’s request, in the event the Consultant fails to comply with any terms or conditions of this Agreement. DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -3- (f) The Consultant shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Consultant shall notify Director in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Director of the cessation of such occurrence. 5. Confidential Information, Ownership of Documents and Copyright License. (a) Any reports, information, or other data prepared or assembled by the Consultant pursuant to this Agreement shall not be made available to any individual or organization by the Consultant without the prior written approval of the City. During the term of this Agreement, and thereafter, the Consultant shall not, without the prior written consent of the City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of the City, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the City. (b) Any and all original sketches, pencil tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by the Consultant pursuant to this Agreement are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement or default by the Consultant. The Consultant grants the City a copyright license to use such drawings and writings. The Consultant shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. The City may modify the design including any drawings or writings. Any use by the City of the aforesaid sketches, tracings, plans, computations, specifications, computer disk files, writings and other documents in completed form as to other projects or extensions of this Project, or in uncompleted form, without specific written verification by the Consultant will be at the City’s sole risk and without liability or legal exposure to the Consultant. The Consultant may keep a copy of all drawings and specifications for its sole and exclusive use. (c) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as the Consultant represents to the City that the Consultant and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, the City relies upon the skill of the DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -4- Consultant and any subcontractors to do and perform such services in a skillful manner and the Consultant agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by the City shall not operate as a release of the Consultant or any subcontractors from said professional standards. 7. Indemnification. To the furthest extent allowed by law, including California Civil Code section 2782.8, Consultant shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees, litigation expenses and cost to enforce this agreement) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, the Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by the City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to the City, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, the Consultant or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to the Consultant shall be withheld until notice is received by the City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to the City. Any failure to maintain the required insurance shall be sufficient cause for the City to terminate this Agreement. No action taken by the City pursuant to this section shall in any way relieve the Consultant of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by the City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -5- (c) The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish the liability of the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify the City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers, agents, employees, persons under the supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with the Consultant and the City prior to the commencement of any services by the subcontractor. The Consultant and any subcontractor/sub- consultant shall establish additional insured status for the City, its officers, officials, employees, agents and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 9. Conflict of Interest and Non-Solicitation. (a) Prior to the City’s execution of this Agreement, the Consultant shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation and duty to immediately notify the City in writing of any change to the information provided by the Consultant in such statement. (b) The Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written request of the City, the Consultant shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, the Consultant and the respective subcontractor(s) are in full compliance with all laws and regulations. The Consultant shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, the Consultant shall immediately notify the City of these facts in writing. (c) In performing the work or services to be provided hereunder, the Consultant shall not employ or retain the services of any person while such person either DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -6- is employed by the City or is a member of any City council, commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) The Consultant represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this Agreement or any rights/benefits hereunder. (e) Neither the Consultant, nor any of the Consultant’s subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project. The Consultant and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. (f) If the Consultant should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, the Consultant shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (g) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event the Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall: (a) Immediately establish and maintain a viable and ongoing recycling program, approved by the City’s Solid Waste Management Division, for each office and facility. Literature describing the City recycling programs is available from the City’s Solid Waste Management Division and by calling the City of Fresno Recycling Hotline at (559) 621-1111. (b) Immediately contact the City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of the City’s Solid Waste Management Division the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or designee. (b) Records of the Consultant’s expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to the City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of the Consultant pertaining to the Project shall be available for the purpose of making audits, DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -7- examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to the City until such action is resolved, or until the end of said time period whichever shall later occur. If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by the City, the Consultant shall have provided evidence to the City that the Consultant is licensed to perform the services called for by this Agreement (or that no license is required). If the Consultant should subcontract all or any portion of the work or services to be performed under this Agreement, the Consultant shall require each subcontractor to provide evidence to the City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. 12. Nondiscrimination. To the extent required by controlling federal, state and local law, the Consultant shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, the Consultant agrees as follows: (a) The Consultant will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) The Consultant will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The Consultant shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to the Consultant’s employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant in pursuit hereof, state that all DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -8- qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) The Consultant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of the Consultant’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, the Consultant is acting solely as an independent contractor. Neither the Consultant, nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of the City for any purpose. The City shall have no right to control or supervise or direct the manner or method by which the Consultant shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify that the Consultant is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between the Consultant and the City. The Consultant shall have no authority to bind the City absent the City’s express written consent. Except to the extent otherwise provided in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, the Consultant and its officers, agents and employees shall have absolutely no right to employment rights and benefits available to City employees. The Consultant shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, the Consultant shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to employment and tax withholding for and payment of the Consultant’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in the City employment benefits, entitlements, programs and/or funds offered employees of the City whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, the Consultant may be providing services to others unrelated to the City or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -9- receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 16. Assignment. (a) This Agreement is personal to the Consultant and there shall be no assignment by the Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by the Consultant, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) The Consultant hereby agrees not to assign the payment of any monies due the Consultant from the City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all monies due the Consultant directly to the Consultant. 17. Compliance With Law. In providing the services required under this Agreement, the Consultant shall at all times comply with all applicable laws of the United States, the State of California and the City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -10- 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any exhibit or attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both the City and the Consultant. 29. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. [Signatures follow on the next page.] DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -11- IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Brock D. Buche, PE, PLS, Director Department of Public Utilities ATTEST: TODD STERMER, CMC City Clerk By: Deputy No signature of City Attorney required. Standard Document #DPU-S Eng. CSA, Short Form T&M - Contingency (05-2023) has been used without modification, as certified by the undersigned. By: Samuel Nadores Professional Engineer Department of Public Utilities REVIEWED BY: Jesus A Gonzalez, PE Assistant Director Department of Public Utilities Addresses: CITY: City of Fresno Attention: Samuel Nadores, PE 1626 E Street Fresno, CA 93706 Phone: (559) 621-1602 Facsimile (559) [#] E-mail: Samuel.Nadores@fresno.gov TETRA TECH BAS INCPORPORATED, a California corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Any Applicable Professional License: Number: Name: Date of Issuance: CONSULTANT: Tetra Tech BAS, Inc. Attention: Christine Arbogast, PE 21700 Copley Drive, Suite 200 Diamond Bar, CA 91765 Phone: (909)655-3224 Facsimile” [area code and #] E-mail Christine.Arbogast@tetratech.com DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 6/9/2023 President, Tetra Tech BAS Christine Arbogast 8/21/87 42578 6/21/2023 Christine Marie Arbogast Jeffrey M. Williams Vice President, Chief Financial Officer 6/21/2023 6/21/2023 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -12- Attachments: 1. Exhibit A - Scope of Services 2. Exhibit B - Insurance Requirements 3. Exhibit C - Conflict of Interest Disclosure Form DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 1 of 7 EXHIBIT A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (City) and Tetra Tech BAS, Inc. (Consultant) Feasibility Study for a Composting Facility at the Fresno-Clovis Regional Wastewater Reclamation Facility GENERAL SCOPE OF SERVICES The Consultant shall provide all labor, materials, equipment, and incidentals required to complete the work. Consulting services shall encompass, but are not limited to, the following: PART 1 – PROJECT MANAGEMENT Consultant will lead a kickoff meeting with the City project team including wastewater and solid waste staff. The purpose of the meeting will be to discuss the City’s overall objectives, review the scope of services and overall approach, finalize the project schedule, establish lines of communications and responsibility, establish data needs, and coordinate project activities. Additional project management activities will include the following:  Project kickoff meeting.  Participation in update meetings including preparation of agendas and minutes.  Preparation of detailed monthly billing (assumes a 12 month schedule).  Coordination/liaison with affected agencies, districts, and stakeholders. PART 2 – INFORMATION GATHERING Consultant will coordinate with the City in obtaining requested data and background information. A review of current facilities, programs, and practices will be conducted to establish a baseline understanding of current biosolids and organic waste management system, practices, labor burden, and operational costs. This includes costs for hauling and various end markets. Part 2 of this project will specifically involve collection and review of relevant data concerning waste volumes and characteristics, current biosolids and organic waste disposal operations, processing methods, projected organics demand (from SB 876 and 1383 reporting or other), and costs (operational/disposal). Consultant will identify composting facility project requirements, including but not limited to operating requirements, system capacity, processing time and labor requirements, including any constraints or limitations to achieving the requirements. In addition, all facility and master planning documentation for the RWRF will be collected to establish an overall understanding of the composting facilities with consideration of other RWRF site development priorities as well as overall alignment with previous capacity and population growth forecasts. Where available, Consultant will review feedstock quality with respect to presence of DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 2 of 7 metals, pesticides, organic compounds, and contaminants of emerging concern, specifically PFAS, to identify potential limitations on the application of finished product. If not available, Consultant can apply representative published values Part 2 will also include a review of the mission, values, and sustainability goals for the region and participating agencies. PART 3 – PRELIMINARY FEASIBILITY ASSESSMENT In Part 3 of this project, Consultant will estimate future weight and volume of biosolids, green waste, and other organic materials to be processed by the composting facility (with associated levels of risk or uncertainty) based on projected increases from existing operations (data to be provided by the City). This analysis will include a review of the quality of the biosolids and organic waste proposed for processing based on data provided by the City. Consultant envisions “workshopping” with RWRF staff to confirm the most suitable area for a composting facility within the site limits identified by RWRF in Attachment 1 of the RFQ including the potential need for additional adjacent area to support the operations. The evaluation will consider accommodation of up to three (3) technology types for composting. This scope assumption is based on the three most common types of composting operations, windrow, covered aerated static piles and in vessel (i.e., within building). As necessary. this assumption can be revaluated with the City upon refinement of the project approach. Preliminary considerations for evaluating suitability include:  Area requirements of facilities and fit with future space requirements of RWRF  Access considerations for ingress and egress, including site traffic routing  Material handling, logistics, operational complexity  Existing land-use and permitting constraints and approval considerations  Potential for odor issues based on proximity  Potential for leachate of contact water run-off, groundwater infiltration, and fit with stormwater controls. Other considerations Consultant proposes to be evaluated early on in Task 3 include product marketability (and fit with regional markets) and risk resilience (risk register and mitigation strategies) which were identified in Task 4 of the RFQ. Those evaluations, including associated fee estimates, are currently included in Part 4 pursuant to the RFQ. Consultant’s evaluation of up to three potential technologies to be employed at the composting facility,will include an assessment of the differences of the composting technologies and applicability to biosolids and green waste feedstock, identification of the overall costs and benefits of each technology/approach, and processing considerations such as processing duration, space considerations, odor management, leachate management, technology maturity (history of technology success in California), regulatory requirements, and operational PAGE 8 complexity. This evaluation will also consider economics (unit cost per ton); capital costs and operating costs based on readily available information. DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 3 of 7 Consultant will present the results of the technology review through a virtual meeting with the City. Based on feedback from the City, a preferred technology(ies) will be selected for the biosolids and green waste composting operations so that a conceptual site layout for the area found suitable for the proposed facility can be undertaken. Consultant will prepare a conceptual design and high-level cost estimate for the selected technology(ies). Operating costs will take into consideration labor requirements, utility requirements and end-product markets (potential compost sales). Potential grants or funding support will be examined and how those funding opportunities could affect the economics of facility development. The conceptual design will help determine the space requirements and confirm whether the proposed area for the facility has sufficient space. Using a debt financing approach for the capital cost and labor and utility rates for the operating costs, Consultant can calculate the unit processing costs for the technologies. A cost/benefit analysis comparing the proposed composting facility to current practices will be performed. Items to be considered include financial analysis of cost per ton for processing and return of investment compared to current hauling costs, and financial analysis on capital investment versus operating cost. The cost benefit analysis will include a sensitivity analysis to understand the lifecycle cost vulnerability to uncertainty in factors such as operating costs, energy, new regulatory requirements, and market value of compost. Consultant will review and evaluate federal and state legislation and policies related to the implementation of the composting facility options being evaluated and their relative impacts. Items to consider include the following: CEQA and other required environmental clearances; impacts of wastewater solids, solid waste management, and organics waste management regulations. Other regulatory guidelines to be evaluated include South San Joaquin Valley Air Pollution Control District regulations, and Central Valley Regional Quality Control Board requirements. A summary report will be prepared for Part 3 task findings with recommendations on the most suitable area/site for the composting facility and preferred technology (or technologies) for composting biosolids and green waste. A virtual meeting will be held after submittal of the Draft Preliminary Feasibility Assessment Report to discuss findings and recommendations and to obtain input from the City to finalize the report. Deliverables:  Draft Preliminary Feasibility Assessment Report for City Review.  Agenda and minutes for meeting to discuss any City comments and receive City staff input on preferred facility area/site and technology (or technologies).  Final Preliminary Feasibility Assessment Report incorporating City input. PART 4 – CONCEPTUAL SITE PLAN DEVELOPMENT AND FINAL FEASIBILITY DETERMINATION Once the preferred composting facility area/site and technology (or technologies) have been identified in Part 3, Consultant will prepare a conceptual site plan and Final Feasibility Assessment for submission to the City. The Final Feasibility Study will include DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 4 of 7 the following assessments. Conceptual Site Plan: A desktop geotechnical study will be conducted to provide geotechnical design parameters for a conceptual plan layout. . The desktop geotechnical study will review available published data (e.g., CGS/USGS, SCEC, Geotracker, USDA, CalRecycle) and RWRF in-house information to evaluate geotechnical constraints for the proposed composting facility. It will focus on assessment of seismic hazards, expansive/collapsive and other problematic soils, and groundwater conditions. The desktop study is expected to provide preliminary qualitative grading and foundation recommendations. Based on our cursory evaluation of the site, the geotechnical conditions are expected to be principally favorable, although future field investigation will be required to confirm the conditions and develop specific quantitative geotechnical design parameters for a final facility design. Following completion of the desktop geotechnical desktop study, Consultant will develop a refined conceptual site plan that identifies specific recommendations relative to processing areas, structures, site use, internal roadways, stormwater management features, vehicular controls, site utility needs, scale location, equipment recommendations, and landscape features. Treatment Needs and Marketability: Consultant will identify any pre- or post-treatment needs to generate output material of sufficient quality, as well as which materials could not or should not be processed at the composting facility and the cost implications for hauling offsite. Consultant proposes to evaluate limitations to finished product use due to the presence of contaminants such as metals, organic compounds, or contaminants of emerging concern, specifically PFAS, to identify potential limitations on the application of finished product that may leach when applied in environmentally sensitive areas or watersheds. For the evaluation Consultant can rely upon data provide by the City or assist with the development of a sampling and analytical program to determine the presence and levels of contaminants. If not available, Consultant can apply representative published values. Consultant will provide a supplementary budget for implementing such a program if requested by the City. Recommendations on the marketability of available solid materials will be provided, including a cost benefit analysis related to the generation of marketable solids. System Redundancy and Associated Costs: Consultant will evaluate risk resilience and system redundancy to ensure biosolids management without interruption due to system malfunction, loss of electric power or other low probability/high consequence events. Costs associated with system redundance will also be estimated. Refined Costing: Consultant will refine the cost/benefit analysis performed in Part 3. System redundancy and associated costs will be evaluated to ensure that biosolids can be managed without any interruption due to system malfunction, loss of electric power, or other low probability/high consequence events. Sustainability Assessment: Consultant will investigate other benefits that support the City’s sustainability goals. This will include the amount of material diverted from landfills, DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 5 of 7 greenhouse gas emissions reductions, and potential nutrient recovery. Operations Options Evaluation: The Consultant will evaluate options for City operations of the composting facility including 1) City operated, 2) City operated in partnership with a third party and 3) Third party operated. Pros and cons will be developed for each operations option and the team will work with City staff to discuss each and identify which models make the most sense for the City. This assessment will be provided in an easy- to-read matrix form to facilitate internal discussions and option comparisons. Reporting: A Summary Report will be prepared, containing the final feasibility determination and conceptual site plan. This will be presented to the City project team in draft form, prior to the preparation of a final report. Deliverables:  Four (4) hard copies and one (1) digital copy (PDF and MS Word) of Draft Feasibility Study and Conceptual Site Plan for City review.  Agenda and minutes for meeting to discuss any City comments and receive City staff input.  Four (4) hard copies and one (1) digital copy (PDF and MS Word) Copies of Final Feasibility Study and Conceptual Site Plan. The City may elect to further expand the scope of services or add new scope of service tasks, should such services provide a benefit in meeting the City’s ultimate goals and objectives for the projects. Examples of such expansion may include, but not be limited to, additional work related to efforts needed to complete the Scope of Work not expressly written. Such scope of service expansion will be subject to City and Consultant negotiating a mutually agreeable scope and fee, and approval by the City Council, if required. DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 6 of 7 SCHEDULE OF FEES PERSONNEL RATE PERSONNEL RATE Administrative Assistant $96 Staff Env. Specialist/Scientist I $107 Project Clerk $85 Staff Env. Specialist/Scientist II $119 Project Data Analyst $78 Project Env. Specialist/Scientist I $130 Office Services Clerk $96 Project Env. Specialist/Scientist II $149 Project Coordinator $143 Project Env. Specialist/Scientist III $163 Senior Project Coordinator $164 Senior Env. Specialist/Scientist I $172 CAD Tech I $89 Senior Env. Specialist/Scientist II $181 CAD Tech II $103 Senior Env. Specialist/Scientist III $193 CAD Tech III $123 Staff Planner/Permitter I $71 CAD Tech IV $141 Staff Planner/Permitter II $89 Designer I $159 Staff Planner/Permitter III $96 Designer II $172 Project Planner/Permitter I $111 Designer III $191 Project Planner/Permitter II $123 Designer IV $207 Project Planner/Permitter III $134 Staff Engineer I $120 Project Planner/Permitter IV $144 Staff Engineer II $130 Senior Planner/Permitter I $156 Staff Engineer III $141 Senior Planner/Permitter II $169 Project Engineer I $151 Senior Planner/Permitter III $181 Project Engineer II $162 Senior Planner/Permitter IV $200 Project Engineer III $172 Principal Planner/Permitter $276 Senior Engineer I $182 Architect I $130 Senior Engineer II $193 Architect II $156 Senior Engineer III $203 Architect III $182 Supervising Engineer I $214 Architect IV $208 Supervising Engineer II $224 Staff Geologist I $120 Supervising Engineer III $234 Staff Geologist II $130 Division Engineer I $255 Staff Geologist III $141 Division Engineer II $266 Project Geologist I $151 Principal Engineer $291 Project Geologist II $162 Principal $312 Project Geologist III $172 Senior Principal $328 Senior Geologist I $182 Project Manager $170 Senior Geologist II $193 Project Manager I $181 Senior Geologist III $203 Project Manager II $207 Supervising Geologist I $214 Project Manager III $219 Supervising Geologist II $224 Project Manager IV $229 Supervising Geologist III $234 Project Manager V $240 Principal Geotechnical Eng/Geologist $245 Senior Project Manager $250 Principal Geotechnical Eng $271 Program Director $297 Soils/Asphalt/Field Technician $108 Project Advisor* $175-$350 Soils/Asphalt/Field Tech - Prev Wage $137 Construction Supervisor I $172 Technician $58 Construction Supervisor II $182 Technician I $87 Construction Supervisor III $193 Technician II $101 DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 7 of 7 Construction Manager I $203 Senior Technician I $113 Construction Manager II $219 Senior Technician II $134 Senior Construction Manager $255 Senior Technician III $147 Principal Construction Manager $280 Chief Technician $166 Chief of Survey Parties $191 2-Man Survey Party $341 1-Man Survey Party with GPS $230 IN-HOUSE EXPENSES OTHER EXPENSES 5% of Total Personnel Fees Company and Survey Vehicles $16/hour Personal Vehicle $0.65/mile Other Out-of-Pocket Cost + 15% Expenses/Supplies/Travel Company Vehicle $0.75/mile Consultants/Outside/ Cost + 15% Construction Services Per Diem for Living Expenses Federal +15% Equipment Rental Rates as provided in the Proposal. . DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 1 of 4 EXHIBIT B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (City) and Tetra Tech BAS, Inc. (Consultant) Feasibility Study for a Composting Facility at the Fresno-Clovis Regional Wastewater Reclamation Facility MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to Consultant’s profession. MINIMUM LIMITS OF INSURANCE Consultant, or any party the CONSULTANT subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to City, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 2 of 4 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS Consultant shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Consultant shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its officers, officials, employees, agents and volunteers; or (ii) Consultant shall provide a financial guarantee, satisfactory to City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. City, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. Consultant shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed manuscript insurance company endorsement providing DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 3 of 4 additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 2. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, Consultant’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents and volunteers shall be excess of Consultant’s insurance and shall not contribute with it. Consultant shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: Consultant and its insurer shall waive any right of subrogation against City, its officers, officials, employees, agents and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims- made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by Consultant. 2. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five-year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by Consultant, Consultant must purchase “extended reporting” coverage for a minimum of five years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to City for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after 30 calendar days written notice by certified mail, return receipt requested, has been given to City. Consultant is also responsible for providing written notice to the City under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Consultant shall furnish DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 4 of 4 City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for City, Consultant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than 15 calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by Consultant shall not be deemed to release or diminish the liability of Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Consultant, its principals, officers, agents, employees, persons under the supervision of Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. VERIFICATION OF COVERAGE Consultant shall furnish City with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to City’s execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of City, Consultant shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. SUBCONTRACTORS - If Consultant subcontracts any or all of the services to be performed under this Agreement, Consultant shall require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a separate side agreement with the City to provide required indemnification and insurance protection. Any required side agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by City Risk Manager or designee. If no side agreement is required, Consultant shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and Consultant shall ensure that City, its officers, officials, employees, agents, and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with Consultant, and City, prior to commencement of any work by the subcontractor. DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 EXHIBIT C DISCLOSURE OF CONFLICT OF INTEREST Feasibility Study for a Composting Facility at the Fresno-Clovis Regional Wastewater Reclamation Facility YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature Date (Name) (Company) (Address) • Additional page(s) attached. (City, State Zip) DocuSign Envelope ID: 3FED5366-4CD5-46E4-A9DE-6E661FC456F6 Tetra Tech BAS, Inc. X 21700 Copley Drive Christine Arbogast X X X X Diamond Bar, CA, 91765 No conflicts of interest. X 6/21/2023 Jensen Ave North Ave City of Fresno Department of Public Utilities Feasibility Study for a Composting Facility at the Fresno-Clovis Regional Wastewater Reclamation Facility (RWRF) Vicinity Map 0 500 1,000250 Feet ¯ Proposed Composting Facility Site Fresno-Clovis Regional Wastewater Reclamation Facility (RWRF) 5607 W Jensen Ave City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1084 Agenda Date:7/20/2023 Agenda #: 1.-S. REPORT TO THE CITY COUNCIL FROM:BROCK D. BUCHE, PE, PLS, Director Department of Public Utilities BY:MARTIN WENDELS, Project Manager Department of Public Utilities - Water Division SUBJECT Reject all bids for the Requirements Contract for meter boxes, lids, and related parts (Bid File 9665) (Citywide) RECOMMENDATION Staff recommends that Council reject all bids for the Requirements Contract for meter boxes, lids, and related parts (Bid File 9665). EXECUTIVE SUMMARY The Department of Public Utilities - Water Division, seeks to reject the sole bid proposal for the Requirements Contract for Meter Boxes. The sole proposal received in the amount of $519,324.65 by Pace Supply, Corp. (Pace) was determined to be in excess of the current contract by more than 200 percent. The current contract is with Pace and has two one-year extensions remaining. BACKGROUND The City of Fresno has utilized Badger meter products since the inception of the automatic water meter reading program which was completed at the end of 2012. Upgrades to water meter and transmitter technology have occurred which have resulted in a need for meter boxes and lids to change as well. The current meter box and lid configuration do not accommodate the newest transmitter technology and require retrofitting in order to allow acceptable fit and signal transmission. In an effort to minimize retrofitting costs and expedite the installation process, Water Division staff revised the meter box specifications to match the current transmitter technology needs and advertised an updated requirements contract. On August 31, 2022, four (4) Building Exchanges were provided with updated specifications and a Notice Inviting Bids for a Requirements Contract for Meter Boxes (BF 9665). Six (6) specifications were distributed to prospective bidders. On October 25, 2022, a total of one (1) bid was received and opened. Pace was determined to be the sole responsible and responsive bidder. The sole bidder City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1084 Agenda Date:7/20/2023 Agenda #: 1.-S. opened.Pace was determined to be the sole responsible and responsive bidder.The sole bidder proposed a new contract value that exceeded their current contract by over 200 percent.After considerations were made with respect to the methods and costs needed to retrofit the current meter box and lid, it was determined that the proposed contract could not be justified. The Department of General Services -Purchasing Division has engaged with Pace and has implemented the first of two remaining one-year extensions of the current requirements contract which will allow an uninterrupted supply of meter boxes and lids.Water Division staff will continue to retrofit the current design to accommodate the updated technology until the end of the requirements contract cycle. Staff recommends that Council reject all bids. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378,the rejection of all bids does not qualify as a “project”. LOCAL PREFERENCE Local preference is not applicable as this action is not an award of a contract. FISCAL IMPACT The rejection of all bids has no financial impact on the General Fund or the Water Division Enterprise Fund. Attachment:Bid Evaluation BF9665 Meter Boxes City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1085 Agenda Date:7/20/2023 Agenda #:1.-T. REPORT TO THE CITY COUNCIL FROM:BROCK D. BUCHE, PE, PLS, Director Department of Public Utilities BY:JESUS A. GONZALEZ, PE, Assistant Director Department of Public Utilities - Utilities Planning & Engineering PATRICIA DIEP, Supervising Engineering Technician Department of Public Utilities - Utilities Planning & Engineering SUBJECT Approve the Second Amendment to the consultant services agreement with SEAM Group, LLC, to extend the term of the contract to December 31, 2024, for the previously approved contract in the amount of $387,200, for the Occupational Safety and Health Administration Compliant Lockout- Tagout Program at the Fresno-Clovis Regional Wastewater Reclamation Facility (Council District 3). RECOMMENDATIONS Staff recommends City Council approve the Second Amendment to the consultant services agreement with SEAM Group, LLC (Consultant), to extend the Agreement term from August 30, 2023 to December 31, 2024, for the Occupational Safety and Health Administration (OSHA) Compliant Lockout-Tagout Program at the Fresno-Clovis Regional Wastewater Reclamation Facility (Wastewater Facility); and authorize the Director of Public Utilities, or designee, to sign the Second Amendment on behalf of the City of Fresno (City). EXECUTIVE SUMMARY On March 10, 2022, the City entered into an Agreement with the Consultant to develop an updated OSHA Compliant Lockout-Tagout Program for electrical and mechanical equipment at the Wastewater Facility. The Agreement is set to expire on August 30, 2023, however additional time is needed for the Consultant to perform a one-year audit of the OSHA Compliant Lockout-Tagout Program. BACKGROUND The Wastewater Management Division (WMD) is updating the existing lockout-tagout program based on changes to OSHA regulations, addition of new mechanical equipment, and modifications to existing equipment since its last implementation. The current equipment inventory for the Division exceeds 7,500 individual pieces. The current program underway is updating procedures for de- energizing equipment, thereby making them inoperable and allowing for necessary inspections, City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1085 Agenda Date:7/20/2023 Agenda #:1.-T. energizing equipment,thereby making them inoperable and allowing for necessary inspections, repairs,and/or replacements in a safe environment.Additionally,the program provides training for Wastewater Facility personnel to become self-sufficient in implementing the program for future equipment,and a one-year audit of the program to confirm that existing lockout/tagout procedures are still adequate and accurate.The program is necessary to meet OSHA regulations and safeguard the physical well-being of personnel. On March 10,2022,the City entered into an Agreement with the Consultant to develop a Wastewater Facility lockout-tagout program for meeting OSHA regulations.The first amendment to the Agreement was executed on September 30,2022,and expanded the scope of services to include additional customized lockout-tagout entry control procedures. The Second Amendment is required to extend the term of the Agreement from August 30,2023,to December 31,2024.The term extension is necessary to allow the Consultant to perform a one-year audit of the program.This increased duration will allow for Wastewater personnel to implement the program one year after which time the Consultant will return to the Wastewater Facility for performing an audit of the implementation and obtaining feedback on necessary revisions.Additional funds are not required. The City Attorney’s Office has reviewed the Second Amendment and approved as to form.Upon approval by the City Council,the Second Agreement will be executed by the Director of Public Utilities, or his designee. ENVIRONMENTAL FINDINGS Pursuant to California Environmental Quality Act (CEQA)Guidelines Section 15378,this is not a “project” for the purpose of CEQA. LOCAL PREFERENCE Local preference does not apply to this action because this is an amendment to an existing agreement. FISCAL IMPACT There is no impact to the General Fund.Funding for this Project was previously encumbered within the Wastewater Management Division’s Fiscal Year 2023 Sewer Enterprise Fund.The Project is located in Council District 3. Attachments: Attachment 1 - Second Amendment to the Agreement Attachment 2 - First Amendment to the Agreement Attachment 3 - Consultant Services Agreement City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ 1 SECOND AMENDMENT TO AGREEMENT THIS SECOND AMENDMENT TO AGREEMENT (Amendment) made and entered into effective the ______ day of _______________, 2023, (Effective Date) amends the Agreement heretofore entered into between the CITY OF FRESNO, a California municipal corporation (City), and SEAM Group, LLC, a Delaware corporation (Consultant). RECITALS WHEREAS, the City and the Consultant entered into an agreement on March 10, 2022, (Agreement) to provide consulting services for OSHA Compliant Lockout-Tagout Program (Project) for a total fee not to exceed $217,200 and a contingency amount not to exceed $20,000; for a total contract price of $237,200; and WHEREAS, the Agreement is effective in full force through the earlier of complete rendition of the services or August 30, 2023; and WHEREAS, the First Amendment to the Agreement was executed on September 30, 2022 and increased the Consultant’s compensation by $150,000, resulting in a total fee not to exceed $387,200; and WHEREAS, the Agreement shall remain in full force and effect through the earlier of complete rendition of the services or August 30, 2023; and WHEREAS, during review of the scope of services it was determined that additional time is needed for the Consultant to return and perform the one year audit review of the OSHA Compliant Lockout-Tagout program; and WHEREAS, the City and the Consultant desire to extend the Agreement to December 31, 2024, to complete the Project; and WHEREAS, with entry into this Agreement, the Consultant agrees the Consultant has no claim, demand, or dispute against the City. AGREEMENT NOW, THEREFORE, the Parties agree that the aforesaid Agreement be amended as follows: 1. Section 2 of the Agreement is amended in its entirety to read as follows: “2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above and shall continue in full force and effect through the earlier of complete rendition of the services hereunder or December 31, 2024, subject to any earlier termination in accordance with this Agreement. The services of CONSULTANT as described in Exhibit A are to commence upon CITY’S issuance of a written “Notice to Proceed.” Work shall be undertaken and completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed within 1,027 consecutive calendar days from such authorization to proceed.” DocuSign Envelope ID: AEEF368E-CAFB-4ECD-A3CA-C8B4D2239F7A 2 2. Except as otherwise provided herein, the Agreement entered into by the City and the Consultant dated March 10, 2022, amended on September 30, 2022, remains in full force and effect. IN WITNESS WHEREOF, the parties have executed this Amendment at Fresno, California, the day and year first above written. CITY OF FRESNO, A municipal corporation By: Brock D. Buche, PE, PLS Director of Public Utilities APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Jennifer M. Quintanilla Date Senior Deputy City Attorney ATTEST: TODD STERMER, CMC CITY Clerk By: Deputy Date SEAM Group, LLC, A Delaware Corporation By: Name: Title: (If corporation or LLC, Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC, CFO, Treasurer, Secretary or Assistant Secretary) Addresses: CITY: City of Fresno Attention: Patricia Diep Supervising Engineering Technician 1626 E Street Fresno, CA 93706 Phone: (559) 621-1609 FAX: (559) 498-4126 CONSULTANT: SEAM Group, LLC. Attention: Jay Smith Director 21111 Chagrin Blvd., Suite 100 Beachwood, OH 44122 Phone: (812) 699-2461 FAX: DocuSign Envelope ID: AEEF368E-CAFB-4ECD-A3CA-C8B4D2239F7A 6/28/2023 VP of Sales Simon Boyce CFO Ross Fuller 6/29/2023 6/30/2023 City Clerk 1 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT (Amendment) made and entered into effect the ______ day of _______________, 2022, (Effective Date) amends the Agreement heretofore entered into between the CITY OF FRESNO, a California municipal corporation (City), and SEAM Group, LLC., a Delaware corporation (Consultant). RECITALS WHEREAS, the City and the Consultant entered into an agreement on March 10, 2022, (Agreement) to provide consulting services for OSHA Compliant Lockout-Tagout Program (Project) for a total fee not to exceed $217,200 and a contingency amount not to exceed $20,000; for a total contract price of $237,200; and WHEREAS, following field verification of assets and energy isolation points at the Fresno-Clovis Regional Wastewater Reclamation Facility, the number of Customized Lockout-Tagout Entry Control Procedures (ECP) as required by OSHA regulations has increased; and WHEREAS, due to the need for the additional ECPs, the Parties desire to increase the compensation by $150,000, resulting in a total Consultant fee not to exceed $387,200; and WHEREAS, with entry into this Agreement, the Consultant agrees the Consultant has no claim, demand, or dispute against the City. AGREEMENT NOW, THEREFORE, the Parties agree that the aforesaid Agreement be amended as follows: 1. Compensation: Section 3(a) of the Agreement shall be replaced, in its entirety, by the following: “(a) Consultant’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee not to exceed Three Hundred Sixty Seven Thousand Two Hundred Dollars ($367,200), paid on a time and materials basis in accordance with the schedule of fees contained in Exhibit A, and a contingency amount not to exceed Twenty Thousand Dollars ($20,000) for any additional work rendered pursuant to Subsection (c) below and authorized in writing by the Director.” 2. Except as otherwise provided herein, the Agreement entered into by the City and the Consultant on March 11, 2022, remains in full force and effect. [Signatures appear on the next page.] DocuSign Envelope ID: 4B7C60C9-42AF-400E-ABFF-978BBE50D53C September30th 2 IN WITNESS WHEREOF, the parties have executed this Amendment at Fresno, California, the day and year first above written. CITY OF FRESNO, A municipal corporation By: Brock D. Buche, PE, PLS Director of Public Utilities APPROVED AS TO FORM: RINA M. GONZALES Interim City Attorney By: Angela M. Karst Date Deputy City Attorney ATTEST: TODD STERMER, CMC CITY Clerk By: Date SEAM Group, LLC., A Delaware Corporation By: Name: Title: (If corporation or LLC, Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC, CFO, Treasurer, Secretary or Assistant Secretary) Addresses: CITY: City of Fresno Attention: Patricia Diep Supervising Engineering Technician 1626 E Street Fresno, CA 93706 Phone: (559) 621-1609 FAX: (559) 498-4126 CONSULTANT: SEAM Group, LLC. Attention: Jay Smith Director 21111 Chagrin Blvd., Suite 100 Beachwood, OH 44122 Phone: (812) 699-2461 FAX: DocuSign Envelope ID: 4B7C60C9-42AF-400E-ABFF-978BBE50D53C VP of Sales Simon Boyce 8/1/2022 Vijay Sood 8/1/2022 CFO 8/1/2022 9/30/2022 9/30/2022 Tina M Your -1- AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANT SERVICES THIS AGREEMENT is made and entered into effective the day of March, 2022, by and between the CITY OF FRESNO, a California municipal corporation (hereinafter referred to as "CITY"), and SEAM Group, LLC, a Delaware corporation, (hereinafter referred to as "CONSULTANT"). RECITALS WHEREAS, CITY desires to obtain professional consulting services for OSHA Compliant Lockout-Tagout Program, hereinafter referred to as the “Project;” and WHEREAS, CONSULTANT is engaged in the business of furnishing services as a Safety Compliance Consultant and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, CONSULTANT acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and WHEREAS, this Agreement will be administered for CITY by its Director of Public Utilities (hereinafter referred to as "Director") or his/her designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1.Scope of Services. CONSULTANT shall perform to the satisfaction of CITY the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2.Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above and shall continue in full force and effect through the earlier of complete rendition of the services hereunder or August 30, 2023, subject to any earlier termination in accordance with this Agreement. The services of CONSULTANT as described in Exhibit A are to commence upon CITY’S issuance of a written “Notice to Proceed.” Work shall be undertaken and completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed within 550 consecutive calendar days from such authorization to proceed. 3. Compensation. (a) CONSULTANT’S sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee not to exceed Two Hundred Seventeen Thousand Two Hundred Dollars ($217,200.00), paid on a time and materials basis in accordance with the schedule of fees contained in Exhibit A, and a contingency amount not to exceed Twenty Thousand Dollars ($20,000) for any additional work rendered pursuant to Subsection (c) below and authorized in writing by the Director. (b) Detailed statements shall be rendered monthly and will be payable in the normal course of CITY business. CITY shall not be obligated to reimburse any expense for which DPU-S 8.3 /03-24-14 DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD 10th DPU-S 8.3 /03-24-14 -2- it has not received a detailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. (c) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to CONSULTANT’S compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. CONSULTANT shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. 4. Termination, Remedies and Force Majeure. (a) This Agreement shall terminate without any liability of CITY to CONSULTANT upon the earlier of: (i) CONSULTANT’S filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against CONSULTANT; (ii) 7 calendar days prior written notice with or without cause by CITY to CONSULTANT; (iii) CITY’S non-appropriation of funds sufficient to meet its obligations hereunder during any CITY fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, CONSULTANT shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to CITY any and all unearned payments and all properties and materials in the possession of CONSULTANT that are owned by CITY. Subject to the terms of this Agreement, CONSULTANT shall be paid compensation for services satisfactorily performed prior to the effective date of termination. CONSULTANT shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of CONSULTANT to satisfactorily perform in accordance with the terms of this Agreement, CITY may withhold an amount that would otherwise be payable as an offset to, but not in excess of, CITY’S damages caused by such failure. In no event shall any payment by CITY pursuant to this Agreement constitute a waiver by CITY of any breach of this Agreement which may then exist on the part of CONSULTANT, nor shall such payment impair or prejudice any remedy available to CITY with respect to the breach. (d) Upon any breach of this Agreement by CONSULTANT, CITY may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that CITY improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) CONSULTANT shall provide CITY with adequate written assurances of future performance, upon Director’s request, in the event CONSULTANT fails to comply with any terms or conditions of this Agreement. (f) CONSULTANT shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of CONSULTANT and without its fault or negligence such as, acts of God or the public enemy, acts of CITY in its contractual capacity, DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD DPU-S 8.3 /03-24-14 -3- fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. CONSULTANT shall notify Director in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Director of the cessation of such occurrence. 5. Confidential Information, Ownership of Documents and Copyright License. (a) Any reports, information, or other data prepared or assembled by CONSULTANT pursuant to this Agreement shall not be made available to any individual or organization by CONSULTANT without the prior written approval of CITY. During the term of this Agreement, and thereafter, CONSULTANT shall not, without the prior written consent of CITY, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of CITY, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in CITY. (b) Any and all original sketches, pencil tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by CONSULTANT pursuant to this Agreement are the property of CITY at the time of preparation and shall be turned over to CITY upon expiration or termination of the Agreement or default by CONSULTANT. CONSULTANT grants CITY a copyright license to use such drawings and writings. CONSULTANT shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. CITY may modify the design including any drawings or writings. Any use by CITY of the aforesaid sketches, tracings, plans, computations, specifications, computer disk files, writings and other documents in completed form as to other projects or extensions of this Project, or in uncompleted form, without specific written verification by CONSULTANT will be at CITY’S sole risk and without liability or legal exposure to CONSULTANT. CONSULTANT may keep a copy of all drawings and specifications for its sole and exclusive use. (c) If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as CONSULTANT represents to CITY that CONSULTANT and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, CITY relies upon the skill of CONSULTANT and any subcontractors to do and perform such services in a skillful manner and CONSULTANT agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by CITY shall not operate as a release of CONSULTANT or any subcontractors from said professional standards. DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD DPU-S 8.3 /03-24-14 -4- 7. Indemnification. To the furthest extent allowed by law, CONSULTANT shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of CONSULTANT, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, CONSULTANT shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, CONSULTANT or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to CONSULTANT shall be withheld until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve CONSULTANT of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by CONSULTANT shall not be deemed to release or diminish the liability of CONSULTANT, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONSULTANT, its principals, officers, agents, employees, persons under the supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD DPU-S 8.3 /03-24-14 -5- (d) If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with CONSULTANT and CITY prior to the commencement of any services by the subcontractor. CONSULTANT and any subcontractor/sub-consultant shall establish additional insured status for CITY, its officers, officials, employees, agents and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 9. Conflict of Interest and Non-Solicitation. (a) Prior to CITY’S execution of this Agreement, CONSULTANT shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, CONSULTANT shall have the obligation and duty to immediately notify CITY in writing of any change to the information provided by CONSULTANT in such statement. (b) CONSULTANT shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written request of CITY, CONSULTANT shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, CONSULTANT and the respective subcontractor(s) are in full compliance with all laws and regulations. CONSULTANT shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, CONSULTANT shall immediately notify CITY of these facts in writing. (c) In performing the work or services to be provided hereunder, CONSULTANT shall not employ or retain the services of any person while such person either is employed by CITY or is a member of any CITY council, commission, board, committee, or similar CITY body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) CONSULTANT represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this Agreement or any rights/benefits hereunder. (e) Neither CONSULTANT, nor any of CONSULTANT’S subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project. CONSULTANT and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD DPU-S 8.3 /03-24-14 -6- with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. (f) If CONSULTANT should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, CONSULTANT shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (g) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event CONSULTANT maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, CONSULTANT at its sole cost and expense shall: (i) Immediately establish and maintain a viable and ongoing recycling program, approved by CITY’S Solid Waste Management Division, for each office and facility. Literature describing CITY recycling programs is available from CITY’S Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (ii) Immediately contact CITY’S Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (iii) Cooperate with and demonstrate to the satisfaction of CITY’S Solid Waste Management Division the establishment of the recycling program in paragraph (i) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of CITY within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or his/her designee. (b) Records of CONSULTANT’S expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to CITY or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of CONSULTANT pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to CITY until such action is resolved, or until the end of said time period whichever shall later occur. If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by CITY, CONSULTANT shall have provided evidence to CITY that CONSULTANT is licensed to perform the services called for by this Agreement (or that no license is required). If CONSULTANT should subcontract all or any portion of the work or services to be performed under this Agreement, CONSULTANT shall DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD DPU-S 8.3 /03-24-14 -7- require each subcontractor to provide evidence to CITY that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. 12. Nondiscrimination. To the extent required by controlling federal, state and local law, CONSULTANT shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, CONSULTANT agrees as follows: (a) CONSULTANT will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) CONSULTANT will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. CONSULTANT shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to CONSULTANT’S employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. CONSULTANT agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) CONSULTANT will, in all solicitations or advertisements for employees placed by or on behalf of CONSULTANT in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) CONSULTANT will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of CONSULTANT’S commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall cause each subcontractor to also comply with the requirements of this Section 12. DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD DPU-S 8.3 /03-24-14 -8- 13. Independent Contractor. (a) In the furnishing of the services provided for herein, CONSULTANT is acting solely as an independent contractor. Neither CONSULTANT, nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of CITY for any purpose. CITY shall have no right to control or supervise or direct the manner or method by which CONSULTANT shall perform its work and functions. However, CITY shall retain the right to administer this Agreement so as to verify that CONSULTANT is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between CONSULTANT and CITY. CONSULTANT shall have no authority to bind CITY absent CITY’S express written consent. Except to the extent otherwise provided in this Agreement, CONSULTANT shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, CONSULTANT and its officers, agents and employees shall have absolutely no right to employment rights and benefits available to CITY employees. CONSULTANT shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, CONSULTANT shall be solely responsible, indemnify, defend and save CITY harmless from all matters relating to employment and tax withholding for and payment of CONSULTANT'S employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in CITY employment benefits, entitlements, programs and/or funds offered employees of CITY whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, CONSULTANT may be providing services to others unrelated to CITY or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives. DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD DPU-S 8.3 /03-24-14 -9- 16. Assignment. (a) This Agreement is personal to CONSULTANT and there shall be no assignment by CONSULTANT of its rights or obligations under this Agreement without the prior written approval of the City Manager or his/her designee. Any attempted assignment by CONSULTANT, its successors or assigns, shall be null and void unless approved in writing by the City Manager or his/her designee. (b) CONSULTANT hereby agrees not to assign the payment of any monies due CONSULTANT from CITY under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). CITY retains the right to pay any and all monies due CONSULTANT directly to CONSULTANT. 17. Compliance With Law. In providing the services required under this Agreement, CONSULTANT shall at all times comply with all applicable laws of the United States, the State of California and CITY, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD DPU-S 8.3 /03-24-14 -10- 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both CITY and CONSULTANT. / / / / / / / / / DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD DPU-S 8.3 /03-24-14 -11- IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Brock D. Buche, PE, PLS, Interim Director of Public Utilities Department of Public Utilities ATTEST: TODD STERMER, CMC, MMC City Clerk By: Deputy No signature of City Attorney required. Standard Document #DPU-S 8.3 has been used without modification, as certified by the undersigned. By: Patricia Diep Supervising Engineering Technician Department of Public Utilities REVIEWED BY: Jesus A. Gonzalez, Public Utilities Manager Department of Public Utilities Addresses: CITY: City of Fresno Attention: Patricia Diep, Supervising Engineering Technician 2101 G Street, Building A Fresno, CA 93706 Phone: (559) 621-1609 FAX: (559) 498-4126 SEAM Group, LLC, a Delaware corporation By: Name: Title: (if corporation or LLC, Board Chair, Pres. or Vice Pres.) By: Name: Title: (if corporation or LLC, CFO, Treasurer, Secretary or Assistant Secretary) Any Applicable Professional License: Number: Name: Date of Issuance: CONSULTANT: SEAM Group, LLC Attention: Jay Smith, Director 21111 Chagrin Blvd., Suite 100 Beachwood,OH 44122 Phone: (812) 699-2461 FAX: Attachments: 1. Exhibit A - Scope of Services 2.Exhibit B - Insurance Requirements 3.Exhibit C - Conflict of Interest Disclosure Form DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD 2/17/2022 Simon Boyce 2/17/2022 VP of Sales CFO 2/23/2022 Vijay Sood 2/23/2022 3/23/2022 Bernard Canez 4/19/2022 DPU-S 8.3 /03-24-14 Page 1 of 4 Exhibit A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (“City”) and SEAM Group, LLC (“Consultant”) OSHA Compliant Lockout-Tagout Program PROJECT TITLE Phase 1 – Program Research: Our staff will work with the Health & Safety and Maintenance Departments to assess the current Lockout-Tagout policy to assess compliance, recommend revisions as deemed necessary, and to develop equipment specific Lockout-Tagout procedures. During this time SEAM Group, LLC will solidify the project schedule and affirm each phase with the City of Fresno. The scope are as follows: 1.Coordinate with Division personnel in reviewing all O&M manuals, equipment electrical diagrams, and in obtaining an understanding of operations impacts. 2.Field verification of assets and identification of energy isolation points for each individual asset. Conduct field and document reviews for an understanding of existing system conditions will take approximately 20 days on site. 3.Evaluate existing Lockout-Tagout procedures, make interim recommendations to address needs during project implementation. Phase 2 – Design Program: A Customized Lockout-Tagout Energy Control Procedure (ECP) will include customization items which shall include the company logo, site, location, equipment information (as provided), and other information specific to the site which shall take approximately 3 weeks. The scope are as follows: 1. Prepare equipment list of single source Lockout-Tagout with a project estimated of 400 plans. 2. Prepare equipment list of multiple source Lockout-Tagout with a project estimate of 800 plans. Phase 3 – Field Labeling: In conjunction with the customized Lockout-Tagout Energy Control Procedure (ECP) during this phase of work, the asset information will be uploaded to ViewPoint, which will be utilized to access the Lockout-Tagout ECPs once completed. The scope are as follows: 1. Prepare/install equipment specific Lockout-Tagout labeling to assets as appropriate, Project Manager will have final determination. Labels must withstand outdoor exposure and must withstand environments typical of a wastewater facility. DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD DPU-S 8.3 /03-24-14 Page 2 of 4 Phase 4 – Program Document: The field Health & Safety professionals will collect data needed to create equipment specific Lockout-Tagout ECPs using our customized Lockout-Tagout software, Viewpoint and ViewPoint On-Demand® which combines the simplicity of management with the reliability of mobile communication. The scope are as follows: 1. Program is to include any requisite software and templates to make future additions or adjustments. a. No additional expenses associated with software, ViewPoint b. ViewPoint must meet City ISD requirements c. ViewPoint On-Demand Mobile options are provided d. Tracking method of where Lockout-Tagout applied is included 2. Program is to include one set of hardcopy versions of all associated Lockout-Tagout procedures for each of the following sites including remote pumping stations (supplied in 3 ring binder) a. Regional Wastewater Reclamation Facility b. North Fresno Wastewater Reclamation Facility c. Landfill Park d. Collection lift stations (17 stations) 3. Program is to include a PDF version of all procedures for attachment to the Divisions Electronic Information Management System, Computer Maintenance Management System or other system as desired by the Division (supplied via thumb drive of suitable size). Phase 5 – Review/Training: Electronic Lockout-Tagout ECPs will be available for each piece of equipment assessed. Each ECP will need to be approved prior to finalizing the approved ECPs. In addition to supplying electronic versions of the Lockout-Tagout ECPs for each piece of machinery assessed, energy isolation tags for each energy isolation point associated with the Lockout-Tagout ECPs will be provided. The scope are as follows: 1. All procedures to be reviewed by Division personnel and approved by PM for final acceptance. 2. One program training session for administrative personnel on procedures modifications and creation. a. Up to six personnel b. Session to be recorded, virtual format acceptable DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD DPU-S 8.3 /03-24-14 Page 3 of 4 3. One training session for field personnel on precedures usage a. Up to six personnel b. Session to be recorded, virtual format acceptable 4. A one-year review of program a. Approximately one year from notice of completiion DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD DPU-S 8.3 /03-24-14 Page 4 of 4 SCHEDULE OF FEES Classification Full Day Rate Hourly Rate Senior Engineer (PE) $2,100 $252.5 Project Engineer $1,560 $195 Jr. Engineer $1,200 $150 Engineering Support $800 $100 LOTO Field Analyst $2,100 $262.50 Senior Project Manager $135 Project Manager $115 Project Administrator $95 Travel Expenses $450 per day DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD Page 1 of 4 2/2/2018 Exhibit B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (“CITY”) and SEAM Group, LLC (“CONSULTANT”) OSHA Compliant Lockout-Tagout Program PROJECT TITLE MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). If personal automobile coverage is used, the CITY, its officers, officials, employees, agents, and volunteers are to be listed as additional insureds. 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to CONSULTANT’s profession. MINIMUM LIMITS OF INSURANCE CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD Page 2 of 4 2/2/2018 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event CONSULTANT purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents, and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS CONSULTANT shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and CONSULTANT shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the CITY’s Risk Manager or designee. At the option of the CITY’s Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects CITY, its officers, officials, employees, agents, and volunteers; or (ii) CONSULTANT shall provide a financial guarantee, satisfactory to CITY’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall CITY be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. CITY, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds. CONSULTANT shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD Page 3 of 4 2/2/2018 2. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, officials, employees, agents, and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, CONSULTANT’s insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, employees, agents, and volunteers. Any insurance or self- insurance maintained by the CITY, its officers, officials, employees, agents, and volunteers shall be excess of CONSULTANT’s insurance and shall not contribute with it. CONSULTANT shall establish primary and non- contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: CONSULTANT and its insurer shall waive any right of subrogation against CITY, its officers, officials, employees, agents, and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims- made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by CONSULTANT. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by CONSULTANT, CONSULTANT must purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to CITY for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to CITY. CONSULTANT is also responsible for providing written notice to the CITY under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, CONSULTANT shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, CONSULTANT shall provide a new certificate, and applicable endorsements, evidencing DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD Page 4 of 4 2/2/2018 renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by CONSULTANT shall not be deemed to release or diminish the liability of CONSULTANT, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONSULTANT, its principals, officers, agents, employees, persons under the supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. SUBCONTRACTORS - If CONSULTANT subcontracts any or all of the services to be performed under this Agreement, CONSULTANT shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee. If no Side Agreement is required, CONSULTANT will be solely responsible for ensuring that it’s subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry. VERIFICATION OF COVERAGE CONSULTANT shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY’S Risk Manager or his/her designee prior to CITY’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, CONSULTANT shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD Exhibit C DISCLOSURE OF CONFLICT OF INTEREST OSHA Compliant Lockout-Tagout Program PROJECT TITLE YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature Date (name) (company) (address) Additional page(s) attached. (city state zip) DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD X X X SEAM GROUP X CLEVELAND, OHIO 44022 2/17/2022 X Simon Boyce SIMON BOYCE X No comments CERTIFICATION FOR THE CITY OF FRESNO I, Dana Wobser, certify that I am the Vice President of Human Resources of SEAM Group LLC; that Vijay Sood who signed this Agreement on behalf of SEAM Group LLC , is the Chief Financial Officer of SEAM Group LLC; that said Agreement is within the scope of its organizational powers and was duly signed for and on behalf of SEAM Group LLC by authority of its governing body, as evidenced by the attached true and correct copy of the SEAM Group LLC Written Action by Sole Member Without a Meeting dated July 27, 2020 which has not been modified and is in full force and effect. By: ___________________ Name: _Dana Wobser_____ Title: Vice President of Human Resources Date: _02/17/2022________ DocuSign Envelope ID: 60F23EB4-8BB7-40EF-8B67-35E8A48E00DD City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1086 Agenda Date:7/20/2023 Agenda #: 1.-U. REPORT TO THE CITY COUNCIL FROM:BROCK D. BUCHE, PE, PLS, Director Department of Public Utilities BY:JESUS A. GONZALEZ, PE, Assistant Director Department of Public Utilities - Utilities Planning & Engineering SAMUEL NADORES, Professional Engineer Department of Public Utilities - Utilities Planning & Engineering SUBJECT Approve a consultant services agreement with Haley & Aldrich Incorporated, for an amount not to exceed $318,500, to provide a forensic investigation of structural components at the Northeast Surface Water Treatment Facility’s ozone contact basin and filter gallery (Council District 6). RECOMMENDATION Staff recommends that City Council approve a consultant services agreement with Haley & Aldrich Incorporated (Haley & Aldrich), for an amount not to exceed $318,500, inclusive of a $29,000 contingency, to provide professional engineering services for a forensic investigation of structural components at the Northeast Surface Water Treatment Facility’s ozone contact basin and filter gallery (Project); and authorize the Director of Public Utilities, or designee, to sign the agreement on behalf of the City of Fresno (City). EXECUTIVE SUMMARY Department of Public Utilities (DPU) staff have identified structural deterioration, including cracks and moisture weeping, at various locations of the ozone basin and filter gallery tunnel at the Northeast Surface Water Treatment Facility (NESWTF). A forensic investigation by Haley & Aldrich is necessary to identify and assess the cause and extent of the structural deterioration. The Project consists of preparation of a report with recommendations for corrective measures to minimize impacts to continuous NESWTF operations, preparation of construction documents for the selected corrective measures, and support during bidding and construction. BACKGROUND The NESWTF has been in service since July of 2004. Over the last several years, cracks and moisture weeping in the ozone basin and filters gallery have resulted in active leaks on the concrete City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1086 Agenda Date:7/20/2023 Agenda #: 1.-U. moisture weeping in the ozone basin and filters gallery have resulted in active leaks on the concrete walls of the basin and drips from the tunnel of the filters gallery.The DPU is seeking a qualified consultant to identify the cause of the cracking and detail corrective measures,including the preparation of construction documents for a contractor to make necessary repairs. In accordance with Fresno Municipal Code Chapter 4,Article 1,and Administrative Order 6-19,the DPU conducted a competitive process for selecting a consultant to provide the requested professional services for this Project.On March 1,2023,a Request for Proposal was published in the Business Journal and posted on the City’s Planet Bids website.On April 4,2023,one sealed proposal was received.A selection committee,consisting of representatives from the DPU Water Division and Utilities Planning &Engineering Division evaluated the proposal.Upon review of the qualifications for meeting the various criteria and analysis of the proposed fee,Haley &Aldrich,was ultimately selected based on having met the criteria of the evaluation at a fee rate acceptable to the DPU.Staff recommends City Council approve a consultant services agreement with Haley &Aldrich, Inc.,for a total amount not to exceed $318,500,inclusive of a $29,000 contingency.Funding for this Project is included in the Fiscal Year 2024 Water Enterprise Fund. A standardized consultant service agreement has been approved as to form by the City Attorney’s Office and has been used in accordance with Administrative Order 4-4.The consultant’s Certificates of Insurance have been approved by the City’s Risk Management Division.Upon approval by the City Council,the consultant service agreement will be executed by the Director of Public Utilities,or designee. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act (CEQA)Guidelines Section 15378,the award of this consultant services agreement to provide design services does not qualify as a “project” for the purposes of CEQA. LOCAL PREFERENCE Local preference was not implemented as the sole proposer is not a local firm. FISCAL IMPACT There is no impact to the General Fund.Funding for this Project is included in the Fiscal Year 2024 Water Enterprise Fund. The Project is located is Council District 6. Attachments: Attachment 1 - Consultant Services Agreement Attachment 2 - Vicinity Map City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -1- AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANT SERVICES THIS AGREEMENT (Agreement) is made and entered into effective ________________________, by and between the CITY OF FRESNO, a California municipal corporation (City), and Haley & Aldrich Incorporated, a Delaware corporation (Consultant). RECITALS WHEREAS, the City desires to obtain professional engineering services for Forensic Investigation of Structural Components at the City of Fresno’s Northeast Surface Water Treatment Facility Ozone Contact Basin and Filter Gallery (Project); and WHEREAS, the Consultant is engaged in the business of furnishing services as a Professional Engineer and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, the Consultant acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6- 19; and WHEREAS, this Agreement will be administered for the City by its Director of Public Utilities (Director) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. The Consultant shall perform to the satisfaction of the City the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above and shall continue in full force and effect through the earlier of complete rendition of the services hereunder or June 30, 2025, subject to any earlier termination in accordance with this Agreement. The services of the Consultant as described in Exhibit A are to commence upon the City’s issuance of a written “Notice to Proceed.” Work shall be undertaken and completed in a sequence assuring expeditious completion. 3. Compensation. (a) The Consultant’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee not to exceed Two Hundred Eighty Nine Thousand Five Hundred Dollars ($289,500), paid on a time and materials basis in accordance with the schedule of fees contained in Exhibit A, and a contingency amount not to exceed Twenty Nine Thousand Dollars ($29,000) for any additional work rendered pursuant to Subsection (c) below and authorized in writing by the Director. DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -2- (b) Detailed statements shall be rendered monthly and will be payable in the normal course of City business. The City shall not be obligated to reimburse any expense for which it has not received a detailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. (c) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to the Consultant’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. The Consultant shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. 4. Termination, Remedies, and Force Majeure. (a) This Agreement shall terminate without any liability of the City to the Consultant upon the earlier of: (i) the Consultant’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the Consultant; (ii) seven calendar days prior written notice with or without cause by the City to the Consultant; (iii) the City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, the Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the City any and all unearned payments and all properties and materials in the possession of the Consultant that are owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid compensation for services satisfactorily performed prior to the effective date of termination. The Consultant shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of the Consultant to satisfactorily perform in accordance with the terms of this Agreement, the City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the City’s damages caused by such failure. In no event shall any payment by the City pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement which may then exist on the part of the Consultant, nor shall such payment impair or prejudice any remedy available to the City with respect to the breach. (d) Upon any breach of this Agreement by the Consultant, the City may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that the City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) The Consultant shall provide the City with adequate written assurances of future performance, upon Director’s request, in the event the Consultant fails to comply with any terms or conditions of this Agreement. DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -3- (f) The Consultant shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Consultant shall notify Director in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Director of the cessation of such occurrence. 5. Confidential Information, Ownership of Documents and Copyright License. (a) Any reports, information, or other data prepared or assembled by the Consultant pursuant to this Agreement shall not be made available to any individual or organization by the Consultant without the prior written approval of the City. During the term of this Agreement, and thereafter, the Consultant shall not, without the prior written consent of the City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of the City, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the City. (b) Any and all original sketches, pencil tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by the Consultant pursuant to this Agreement are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement or default by the Consultant. The Consultant grants the City a copyright license to use such drawings and writings. The Consultant shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. The City may modify the design including any drawings or writings. Any use by the City of the aforesaid sketches, tracings, plans, computations, specifications, computer disk files, writings and other documents in completed form as to other projects or extensions of this Project, or in uncompleted form, without specific written verification by the Consultant will be at the City’s sole risk and without liability or legal exposure to the Consultant. The Consultant may keep a copy of all drawings and specifications for its sole and exclusive use. (c) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as the Consultant represents to the City that the Consultant and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, the City relies upon the skill of the DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -4- Consultant and any subcontractors to do and perform such services in a skillful manner and the Consultant agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by the City shall not operate as a release of the Consultant or any subcontractors from said professional standards. 7. Indemnification. To the furthest extent allowed by law, including California Civil Code section 2782.8, Consultant shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees, litigation expenses and cost to enforce this agreement) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, the Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by the City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. (b) If at any time during the life of the Agreement or any extension, the Consultant or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to the Consultant shall be withheld until notice is received by the City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to the City. Any failure to maintain the required insurance shall be sufficient cause for the City to terminate this Agreement. No action taken by the City pursuant to this section shall in any way relieve the Consultant of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by the City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish the liability of the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify the City DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -5- shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers, agents, employees, persons under the supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with the Consultant and the City prior to the commencement of any services by the subcontractor. The Consultant and any subcontractor/sub- consultant shall establish additional insured status for the City, its officers, officials, employees, agents and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 9. Conflict of Interest and Non-Solicitation. (a) Prior to the City’s execution of this Agreement, the Consultant shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation and duty to immediately notify the City in writing of any change to the information provided by the Consultant in such statement. (b) The Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written request of the City, the Consultant shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, the Consultant and the respective subcontractor(s) are in full compliance with all laws and regulations. The Consultant shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, the Consultant shall immediately notify the City of these facts in writing. (c) In performing the work or services to be provided hereunder, the Consultant shall not employ or retain the services of any person while such person either is employed by the City or is a member of any City council, commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -6- (d) The Consultant represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this Agreement or any rights/benefits hereunder. (e) Neither the Consultant, nor any of the Consultant’s subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project. The Consultant and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. (f) If the Consultant should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, the Consultant shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (g) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event the Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall: (a) Immediately establish and maintain a viable and ongoing recycling program, approved by the City’s Solid Waste Management Division, for each office and facility. Literature describing the City recycling programs is available from the City’s Solid Waste Management Division and by calling the City of Fresno Recycling Hotline at (559) 621-1111. (b) Immediately contact the City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of the City’s Solid Waste Management Division the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or designee. (b) Records of the Consultant’s expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to the City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of the Consultant pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to the City until such action is DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -7- resolved, or until the end of said time period whichever shall later occur. If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by the City, the Consultant shall have provided evidence to the City that the Consultant is licensed to perform the services called for by this Agreement (or that no license is required). If the Consultant should subcontract all or any portion of the work or services to be performed under this Agreement, the Consultant shall require each subcontractor to provide evidence to the City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. 12. Nondiscrimination. To the extent required by controlling federal, state and local law, the Consultant shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, the Consultant agrees as follows: (a) The Consultant will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) The Consultant will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The Consultant shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to the Consultant’s employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -8- disabled veteran or veteran of the Vietnam era. (d) The Consultant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of the Consultant’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, the Consultant is acting solely as an independent contractor. Neither the Consultant, nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of the City for any purpose. The City shall have no right to control or supervise or direct the manner or method by which the Consultant shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify that the Consultant is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between the Consultant and the City. The Consultant shall have no authority to bind the City absent the City’s express written consent. Except to the extent otherwise provided in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, the Consultant and its officers, agents and employees shall have absolutely no right to employment rights and benefits available to City employees. The Consultant shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, the Consultant shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to employment and tax withholding for and payment of the Consultant’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in the City employment benefits, entitlements, programs and/or funds offered employees of the City whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, the Consultant may be providing services to others unrelated to the City or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -9- parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 16. Assignment. (a) This Agreement is personal to the Consultant and there shall be no assignment by the Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by the Consultant, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) The Consultant hereby agrees not to assign the payment of any monies due the Consultant from the City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all monies due the Consultant directly to the Consultant. 17. Compliance With Law. In providing the services required under this Agreement, the Consultant shall at all times comply with all applicable laws of the United States, the State of California and the City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -10- by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any exhibit or attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both the City and the Consultant. 29. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. [Signatures follow on the next page.] DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -11- IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Brock D. Buche, PE, PLS, Director Department of Public Utilities ATTEST: TODD STERMER, CMC City Clerk By: Deputy No signature of City Attorney required. Standard Document #DPU-S Eng. CSA, Short Form T&M - Contingency (05-2023) has been used without modification, as certified by the undersigned. By: Samuel Nadores, Professional Engineer Department of Public Utilities REVIEWED BY: Jesus A. Gonzalez, PE Assistant Director Department of Public Utilities Addresses: CITY: City of Fresno Attention: Samuel Nadores, PE 1626 E Street Fresno, CA 93706 Phone: (559) 621-1602 Facsimile (559) [#] E-mail: Samuel.Nadores@fresno.gov HALEY & ALDRICH INCORPORATED, a Delaware corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Any Applicable Professional License: Number: Name: Date of Issuance: CONSULTANT: Haley & Aldrich Incorporated. Attention: Gary Mochizuki, PE, SE Principal Engineer 785 Ygnacio Valley Road Walnut Creek, CA 94596 Phone: (925)949-1032 Facsimile” [area code and #] E-mail gmochizuki@haleyaldrich.com DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E 6/20/2023 Philip J. Lagas 6/20/2023 Executive Vice President General Counsel Patricia McKee 6/28/2023 August 1, 1986 Phillip Orson Gregory C 40728 6/29/2023 DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) -12- Attachments: 1. Exhibit A - Scope of Services 2. Exhibit B - Insurance Requirements 3. Exhibit C - Conflict of Interest Disclosure Form DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 1 of 7 EXHIBIT A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (City) and Haley & Aldrich Incorporated (Consultant) Forensic Investigation of Structural Components at the City of Fresno’s NESWTF Ozone Contact Basin and Filter Gallery GENERAL SCOPE OF SERVICES Generally, the consultant will evaluate the extent of degradation and potential adverse impacts on the structural integrity along sections of the ozone contact basin and filters gallery tunnel. The consultant shall then submit a report of findings and provide recommendations of preventative maintenance and/or corrective measures that also minimize disruption to continued facility operations. More specifically, the Consultant shall provide all labor, materials, equipment, and incidentals required to complete the following tasks that include, but are not limited to: TASK 1 PROJECT MANAGEMENT AND ADMINISTRATION Consultant will control the budget and schedule by reviewing each task's status and the overall Project every two weeks and comparing to the level of effort to complete the task. If the scope of services remains unchanged, but the tasks require more hours than anticipated, Consultant will not charge for the additional hours. If the scope of services does need to change for a legitimate reason, then Consultant will immediately meet with the City's project manager to determine how to proceed. Consultant will evaluate the project schedule concurrently with the budget. Consultant will compare actual progress with the original baseline schedule, present status updates to the City, and make adjustments to keep the Project on schedule. The individual task leaders, and Lead Reviewer, will complete quality reviews of all deliverables and supporting documents. The documents will be re-reviewed and verified after changes are made. Each month, Consultant will prepare a progress report and present each invoice. The report will include budget and schedule status and document progress made over the prior month, ongoing/upcoming tasks, the status of near-term deliverables and milestones, identified significant technical issues and proposed resolutions and actions, scope, budget, and schedule issues, and proposed resolutions/actions. An initial project schedule that identifies timelines related to all consultant efforts and services throughout the project's life has been prepared and will be updated and maintained as the project progresses. Consultant will schedule and conduct a Project Kick-off meeting which will include review of project objectives, scope of work, approach, schedule, and development of coordination procedures. DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 2 of 7 An initial list of information to be provided by the City that is needed to perform the work has been developed and will be updated during the project. Detailed billing will be prepared and sent to the City on a monthly basis. TASK 2 STRUCTURAL ASSESSMENT AND CONDITIONS SURVEY DOCUMENTS REQUESTED FROM THE CITY Prior to the initial field visit, Consultant will work with the City to obtain the CAD version of the as-built drawings of the structures, if they are available. If the CADD version of the record drawings are not available, a pdf version of the drawings will be required prior to the site reconnaissance. SITE RECONNAISSANCE AND MAPPING Acquire data to provide the basis for analysis and design. This data will come in the form of oral and written communications with the City, and site-specific field mapping. STRUCTURAL ASSESSMENT AND CONDITIONS SURVEY Preparation: 1. Document Review: Review the drawings and existing documentation for the facilities to determine the requirements for the field assessment, such as determining the access locations, staging of safety equipment, and testing locations. 2. Equipment: Prepare equipment, including gas meters, ventilation equipment, davit assembly, mechanical winch, fall arrest, ladder, and testing equipment for the field assessment. 3. Safety Work Plan: Submit a safety work plan prior to the field assessment. The safety work plan will document the condition assessment approach, confined space entry approach, identify possible hazards, and provide rescue procedures for confined space entry. The safety work plan will include training certifications for staff that will conduct the assessment. A draft electronic copy of the safety work plan will be submitted for review. Comments will be incorporated, and a final electronic copy of the safety work plan will be provided. Condition Assessment: Consultant will provide a 3-person confined space entry and rescue trained team to conduct confined space entry assessments in the basins. It is anticipated that the assessments will take three (3) days and three (3) separate mobilizations to complete. It is assumed that two (2) filtration chambers will be isolated, cleaned, and dewatered by others for assessment for each mobilization and that the ozone contractor will also be isolated, cleaned, and dewatered for one (1) of the mobilizations. The following assessment methods will be employed: 1. Confined space entry assessment of each filtration chamber and ozone contactor basin. No scaffolding will be used to reach elevated portions of the structures. DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 3 of 7 2. Visual assessment and digital photographs of structural and corrosion observations of the concrete and metal surfaces. Visually assess the coatings on the structure by noting defect areas and severity in accordance with ASTM D610. The general location and size of defects that may or may not require repair will be annotated on a schematic relative to notable features or cardinal directions. 3. Thickness measurement of concrete protecting reinforcing steel and spacing measurement of reinforcing steel using surface penetrating radar (ASTM D4748). Scans will be performed on four (4) accessible concrete surfaces in each filtration chamber, ozone contractor basin, and filter gallery. 4. Delamination survey on accessible concrete from the floor by striking a hammer on the surface of the concrete. Delaminated areas will be marked with chalk for documentation and reporting. 5. In-situ concrete surface pH and penetration depth to sound concrete at one (1) location in each filtration chamber and ozone contractor. Tests will not be performed on areas with intact liner. 6. Half-cell potential testing (ASTM C876) at one (1) location to evaluate reinforcing steel corrosion in each filtration basin, ozone contactor, and filter gallery. Tests will not be performed on areas with intact liner. 7. On each day of assessment, obtain two (2) pairs of 3-inch diameter by 6-inch-deep concrete cores (from two (2) representative locations) for laboratory analysis. Core locations will be selected in the field based on visual assessment and non-destructive testing. A total of six (6) pairs of cores will be obtained over the course of three (3) days. Concrete coring will be performed on the lower wall, as accessible from an access point. Cores will not be drilled through intact lining. Core holes will be repaired using a hand- applied, quick-setting repair mortar such as SikaQuick VOH or similar. Laboratory analysis will be as follows: • Visual and macro evaluation of each core. • Compressive strength testing per ASTM C42 on six (6) cores. • Incremental chloride testing per ASTM C1218 on six (6) cores (four half-inch increments). • Incremental pH testing on six (6) cores (four half-inch increments). • Macro-section and phenolphthalein indicator testing on six (6) cores (carbonation). Assumptions The following is a list of additional assumptions used to develop the scope of work for Task 2: ▪ The filtration basins and ozone contactor will be shut-down, isolated, cleaned, and dewatered by others prior to Consultant's arrival to the site. ▪ At least two filtration chambers can be taken offline for each mobilization. ▪ The ozone contactor will also be taken offline for one of the mobilizations. ▪ All project labor subject to prevailing wage requirements will incur a 25% markup on the DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 4 of 7 associated labor fee. This markup covers the higher base hourly labor rates associated with prevailing wage rates, additional overtime requirements, and Department of Industrial Relations reporting requirements. Exclusions and Limitations The following items, unless otherwise indicated, are not included in the scope of work: ▪ Supplied Air during the confined space entries ▪ Shutdown, dewatering, and cleaning of structures ▪ Structure access such as scaffolding, aerial/scissor lifts, and cranes TASK 3 ASSESSMENT TECHNICAL MEMORANDUM Based on the structural assessment and conditions survey a technical memorandum will be prepared. The report will include photographs of the existing conditions, data tables, and graphical and illustrative figures, as required, to present the information gathered during this assessment. A summary of the materials testing and analytical methodologies used to determine the causes and extent of structural deterioration will be included. The locations and severity of defects will be noted, and the current condition of the structure regarding its state of degradation will be described. Recommendations for rehabilitation or repair including any project alternative solutions and proposed phasing of work, will be presented in the report, along with the associated opinion of probable costs. Deliverables: A Draft Forensic Assessment Technical Memorandum will be submitted for review by the City. (Four (4) hard copies; One (1) electronic copy each PDF & MS Word). Consultant will schedule and conduct a review meeting to discuss the draft of the Forensic Assessment Technical Memorandum and the City’s review comments. Based on the meeting, the Final Technical Memorandum will be prepared and sent to the City. Deliverables: The Final Assessment Technical Memorandum will be submitted for review by the City. (Four (4) hard copies; One (1) electronic copy each PDF & MS Word). Consultant will then schedule and conduct a meeting with City to discuss the Final Technical Memorandum. The intent of the meeting will be to reach agreement on general design concepts and to establish the plan sheet list and a table of contents for project technical specifications. TASK 4 CONSTRUCTION DOCUMENTS Following the meeting with the City on the Final Technical Memorandum, Consultant will prepare the construction document consisting of plans, specifications, and an engineer’s opinion of probable cost. Until the extent of damages and the required repairs are known, the number of drawings is uncertain. However, it is anticipated that the drawings may be as follows: DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 5 of 7 ID Description Dwg Scale No of Dwg G1 Title Sheet Layout, Key Map NTS 1 G2 General Notes NTS 1 A1 Site Access and Staging 1" = 400' 2 S0 Structural Notes 2 S1 Plans 1" = 8’ 3 S2 Elevations 1’=8” 3 S3 Structural Sections 1”=8’ 3 S4 Structural Details 1" = 1' 3 Preliminary PS&E Drawing Totals 18 Consultant will develop plans using AutoCAD Civil 3D 2021 and provide them as full-size (22x34 inch) and half-size (11x17 inch) PDF files. Specifications will be developed using the City’s format and will be provided in both Word and PDF formats. An engineer’s estimate will be provided in PDF format. Consultant will: a. Prepare 60% design and specification submittals. This submittal will include an updated opinion of probable cost and a draft basis of design memorandum. b. Schedule and conduct a review meeting to discuss 60% Plans, Specifications and City review comments. c. Address (60%) Submittal review comments. d. Prepare and provide 90% design and specification submittals. This submittal will include an updated opinion of probable cost and final Basis of Design Memorandum. e. Submit 100% project plans and specifications documents for competitive bidding upon final review and acceptance by City. Consultant will provide California licensed professional engineer signed and sealed detailed construction plans and technical specifications, and updated opinion of probable cost. Deliverables: (1) Draft (90%) Construction Plans and Specifications for review by City. (Four (4) – half sized plan sets -11x17; four (4) specification sets, 8-1/2x 11, including one (1) electronic set each in Word, PDF & AUTOCAD). (2) Final signed and stamped 100% (Bid Set) Construction Plans and Technical Specifications for use in the solicitation of competitive construction bids. (Four (4) – full sized plans and specs; w/ one (1) electronic copy each; Word, PDF & AUTOCAD) TASK 5 SERVICES DURING CONSTRUCTION During the construction process, Consultant will assist the City to have the project completed on time and under budget. To achieve this, Consultanth will: DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 6 of 7 a. Attend pre-bid/pre-construction meetings. b. Provide assistance to the City staff during construction by responding to contractor requests for information and clarifications during construction or repair works, reviewing submittals, schedule and change orders, etc. c. Provide project management assistance, including monthly project coordination and status meetings, preparation of meeting agenda and minutes, schedule updates, etc. d. Prepare and track punch list items upon substantial completion of the project. e. Prepare and submit Record Drawings to the City. All documents for public review should be submitted in an electronic format compliant with the Americans with Disabilities Act (ADA). Per City Administrative Order 8-16, “Documents must be provided as accessible PDFs or in another accessible format. Accessible PDFs are PDF documents created so that they are not read solely as an image by assistive technology and screen readers. This is usually achieved through the use of tags, or a structured, textual representation of the PDF that is presented to screen readers but have no visible effect on the PDF file.” The City may elect to further expand the scope of services or add new scope of service tasks, should such services assist the City in completing the forensic investigation and identifying suitable repair solutions. Examples of such expansion may include, but not be limited to, additional efforts needed to complete the Scope of Work not expressly written and preparation of secondary supportive or implementation documents. Such scope of service expansion will be subject to City and Consultant negotiating a mutually agreeable scope and fee, and approval by the City Council, if required. DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 7 of 7 SCHEDULE OF FEES Classification Hourly Rate Project Support $130 Technician $130 Project Technician $141 Senior Technician $151 Project Controls $172 Staff Professional 1 $182 Staff Professional 2 $191 Project Professional $214 Technical Specialist $225 Project Manager / Senior Technical Specialist $236 Senior Project Manager / Technical Expert $296 Program Manager / Senior Technical Expert $359 Principal $422 DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 1 of 4 EXHIBIT B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (City) and Haley & Aldrich Incorporated (Consultant) Forensic Investigation of Structural Components at the City of Fresno’s NESWTF Ozone Contact Basin and Filter Gallery MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to Consultant’s profession. MINIMUM LIMITS OF INSURANCE Consultant, or any party the CONSULTANT subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to City, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 2 of 4 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS Consultant shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Consultant shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its officers, officials, employees, agents and volunteers; or (ii) Consultant shall provide a financial guarantee, satisfactory to City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. City, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. Consultant shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed manuscript insurance company endorsement providing DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 3 of 4 additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 2. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, Consultant’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents and volunteers shall be excess of Consultant’s insurance and shall not contribute with it. Consultant shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: Consultant and its insurer shall waive any right of subrogation against City, its officers, officials, employees, agents and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims- made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by Consultant. 2. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five-year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by Consultant, Consultant must purchase “extended reporting” coverage for a minimum of five years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to City for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after 30 calendar days written notice by certified mail, return receipt requested, has been given to City. Consultant is also responsible for providing written notice to the City under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Consultant shall furnish DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E DPU-S Eng. CSA, Short Form T&M – Contingency (05-2023) Page 4 of 4 City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for City, Consultant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than 15 calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by Consultant shall not be deemed to release or diminish the liability of Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Consultant, its principals, officers, agents, employees, persons under the supervision of Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. VERIFICATION OF COVERAGE Consultant shall furnish City with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to City’s execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of City, Consultant shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. SUBCONTRACTORS - If Consultant subcontracts any or all of the services to be performed under this Agreement, Consultant shall require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a separate side agreement with the City to provide required indemnification and insurance protection. Any required side agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by City Risk Manager or designee. If no side agreement is required, Consultant shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and Consultant shall ensure that City, its officers, officials, employees, agents, and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with Consultant, and City, prior to commencement of any work by the subcontractor. DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E EXHIBIT C DISCLOSURE OF CONFLICT OF INTEREST Forensic Investigation of Structural Components at the City of Fresno’s NESWTF Ozone Contact Basin and Filter Gallery YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature Date (Name) (Company) (Address) Additional page(s) attached. (City, State Zip) DocuSign Envelope ID: A03DE0CD-A300-41BD-B3B5-8E8D53D5F74E X X Gary Mochizuki X 6/29/2023 X Walnut Creek, CA 94596 X 785 Ygnacio Valley Road NA Haley & Aldrich, Inc. X City of Fresno Department of Public Utilities ¯ Forensic Investigation of Structural Components at the NESWTF Ozone Contact Basin and Filters Gallery Vicinity Map 0 250 500125 Feet International Ave Behymer Ave Willow AveChestnut AveClovis Community College Clovis North High School Northeast Surface Water Treatment Facility City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1087 Agenda Date:7/20/2023 Agenda #: 1.-V. REPORT TO THE CITY COUNCIL FROM:BROCK D. BUCHE, PE, PLS, Director Department of Public Utilities BY:JESUS A. GONZALEZ, PE, Assistant Director Department of Public Utilities - Utilities Planning & Engineering SARAH AGUILA, Supervising Engineering Technician Department of Public Utilities - Utilities Planning & Engineering SUBJECT Actions pertaining to the Installation of a 16-inch diameter water main in Polk Avenue from Gettysburg Avenue to Acacia Avenue (Bid File 12301690) (Council District 1): 1. Adopt a finding of Categorical Exemption pursuant to Class 2, Section 15302(c) (Replacement or Reconstruction) of the California Environmental Quality Act Guidelines. 2. Award a construction contract to West Valley Construction Company, Inc., in the amount of $963,992. RECOMMENDATION Staff recommends City Council adopt a finding of Categorical Exemption pursuant to Class 2, Section 15302(c) (Replacement or Reconstruction) of the California Environmental Quality Act (CEQA) Guidelines for the Installation of a 16-inch diameter water main in Polk Avenue from Gettysburg Avenue to Acacia Avenue (Project); award a construction contract for the Project to West Valley Construction Company, Inc., in the amount of $963,992; and authorize the Director of Public Utilities, or designee, to sign and execute all documents on behalf of the City of Fresno (City). EXECUTIVE SUMMARY The Department of Public Utilities - Water Division (DPU), seeks to award a water main replacement and services transfer construction contract to West Valley Construction Company, Inc., in the amount of $963,992. The Project is necessary to replace a 14-inch diameter water main that is experiencing unexpected deterioration. The scope of work includes installation of 1,400 linear feet of 16-inch diameter water main, as well as associated fire hydrants, valves, and services transfers. BACKGROUND DPU has identified 1,400 linear feet of existing 14-inch diameter water main, located in Polk Avenue between Gettysburg and Acacia Avenues, as being prone to experiencing unexpected failures. The City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1087 Agenda Date:7/20/2023 Agenda #: 1.-V. between Gettysburg and Acacia Avenues,as being prone to experiencing unexpected failures.The scope of work includes the replacement of the existing 14-inch Polyvinyl Chloride (PVC)DR25 water main with a 16-inch ductile iron water main,fire hydrants,valves,and service transfers.Replacement of the water main will prevent further expensive failures from occurring and ensure reliable levels of service. A Notice Inviting Bids was published on April 19,2023,and posted on the City’s Planet Bids website. The plans and specifications were distributed to 24 prospective bidders and posted at 9 Building Exchanges.Five sealed bid proposals were received and publicly opened on May 16,2023.West Valley Construction Company,Inc.,was determined to be the lowest responsive and responsible bidder, with the bid amount of $963,992. The bid will expire on August 19, 2023. The staff determination was posted on the City’s Planet Bids website on Thursday,June 29,2023. Staff recommends City Council award a construction contract to West Valley Construction Company, Inc.,in the amount of $963,992,as the lowest responsive and responsible bidder.Their bid price is 20%above the Engineer’s Estimate of $800,000.Price overage was due to higher than anticipated costs as reflected in all bid proposals received. ENVIRONMENTAL FINDINGS Staff has performed an environmental assessment for this Project in accordance with the CEQA requirement and has determined that it is consistent with Categorical Exemption pursuant to Class 2, Section 15302(c)(Replacement or Reconstruction).This Project entails the replacement of an existing water main involving negligible expansion of capacity.Furthermore,none of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines, Section 15300.2 apply to this Project. LOCAL PREFERENCE Local preference was implemented as the lowest responsive and responsible bidder is a local business pursuant to the Fresno Municipal Code Section 4-108(a). FISCAL IMPACT There is no impact to the General Fund.Funding for this Project is included within the Water Division’s Enterprise Fund. The Project is located in Council District 1. Attachments: Attachment 1 - Environmental Assessment Attachment 2 - Notice of Exemption Attachment 3 - Bid Evaluation and Fiscal Impact Statement Attachment 4 - Sample Contract Attachment 5 - Vicinity Map City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ CITY OF FRESNO CATEGORICAL EXEMPTION ENVIRONMENTAL ASSESSMENT THE PROJECT DESCRIBED HEREIN IS DETEMINED TO BE CATEGORICALLY EXEMPT FROM THE PREPARATION OF ENVIRONMENTAL DOCUMENTS PURSUANT TO ARTICLE 19 OF THE STATE CEQA GUIDELINES. CONTACT: Sarah Aguila City of Fresno – Department of Public Utilities 1626 E Street Fresno, CA 93706 Phone: 559-621-1615 Email: sarah.aguila@Fresno.gov PROJECT TITLE: Installation of a 16-inch Water Main in Polk Avenue from Gettysburg Avenue to Acacia Avenue PROJECT LOCATIONS: Polk Avenue between Gettysburg and Acacia Avenues PROJECT DESCRIPTION: The purpose of the project is to replace the existing 14-inch Polyvinyl Chloride (PVC) DR25 water main with a 16-inch ductile iron water main, as well as associated fire hydrants, valves, and service transfers The Project is exempt under Section 15302(c)/Class 2 of the California Environmental Quality Act (CEQA) Guidelines. The proposed project is consistent with the Class 2 exemption. This Project entails the replacement of an existing water main and associated existing fire hydrants, valves, and services. All water facilities involved in the Project are publicly owned utilities. The Project is necessary to prevent further expensive failures from occurring, ensure consistent levels of service, and meet public health standards for water facilities. This Project entails a negligible expansion of capacity. None of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines, Section 15300.2, apply: (a) Location The Project is not located in a sensitive environment or an environmental resource of hazardous or critical concern as designated by federal, state, or local agencies. (b) Cumulative Impact The Project will not have a cumulative negative impact over time that is significant. A water main is replaced once every 60 or more years and the impacts are beneficial to the operation of the water system (c) Significant Effect The Project will not have a significant effect on the environment due to unusual circumstances. The water main replacement is to maintain industry standards. (d) Scenic Highways The Project will not result in damage to scenic resources, including but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway officially designated as a state scenic highway. The Project is not located near scenic highways. (e) Hazardous Waste Sites The Project is not located on a hazardous waste site which is included on any list compiled pursuant to Section 65962.5 of the Government Code. (f) Historical Resources The Project will not cause a substantial adverse change in the significance of a historical resource. The Project is limited to water main replacement, which are not historical resources. Furthermore, the proposed project is not expected to have a significant effect on the environment. Accordingly, a categorical exemption, as noted above, has been prepared for the project. Date: May 16, 2023 Prepared by: Sarah Aguila  Statutory Exemptions. State code number: _______________________________________________ Print Form Notice of Exemption Appendix E From: (Public Agency): ____________________________To: Office of Planning and Research P.O. Box 3044, Room 113 _______________________________________________Sacramento, CA 95812-3044 County Clerk (Address) ___________________________ ___________________________ County of: __________________ Project Title: ____________________________________________________________________________ Project Applicant: ________________________________________________________________________ Project Location - Specific: Project Location - City: ______________________ Project Location - County: Description of Nature, Purpose and Beneficiaries of Project: _____________________ Name of Public Agency Approving Project: _____________________________________________________ Name of Person or Agency Carrying Out Project: ________________________________________________ Exempt Status: (check one): Ministerial (Sec. 21080(b)(1); 15268); Declared Emergency (Sec. 21080(b)(3); 15269(a)); Emergency Project (Sec. 21080(b)(4); 15269(b)(c)); Reasons why project is exempt: Lead Agency Contact Person: ____________________________ Area Code/Telephone/Extension: _______________ If filed by applicant: 1.Attach certified document of exemption finding. 2.Has a Notice of Exemption been filed by the public agency approving the project? Yes No Signature: ____________________________ Date: Signed by Lead Agency Signed by Applicant Authority cited: Sections 21083 and 21110, Public Resources Code. Date Received for filing at OPR: Reference: Sections 21108, 21152, and 21152.1, Public Resources Code. _______________ Categorical Exemption. State type and section number: ____________________________________ ______________________________________________ ______________ Title: _______________________ Revised 2011 - 1 - DPW-S Formal PWI (05-2022) CONTRACT CITY OF FRESNO, CALIFORNIA PUBLIC WORK OF IMPROVEMENT THIS CONTRACT is made and entered into by and between CITY OF FRESNO, a California municipal corporation (City), and [Contractor Name], [Legal Identity] (Contractor) as follows: 1. Contract Documents. The “Notice Inviting Bids,” “Instructions to Bidders,” “Bid Proposal,” and the “Specifications” including “General Conditions,” “Special Conditions,” and “Technical Specifications” for the following: [Title] (Bid File No. [Bid File No.]) [Alternates (if any)] copies of which are annexed hereto, together with all the drawings, plans, and documents specifically referred to in said annexed documents, including Performance and Payment Bonds, if required, and are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents. 2. Price and Work. For the monetary consideration of [Written Dollar Amount] dollars and [Written Cents Amount] cents ($[Amount]), as set forth in the Bid Proposal, Contractor promises and agrees to perform or cause to be performed, in a good and workmanlike manner, under the direction and to the satisfaction of the City’s “Engineer,” and in strict accordance with the Specifications, all of the work as set forth in the Contract Documents. 3. Payment. City accepts Contractor’s Bid Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. The Contractor agrees to accept electronic payment from City. 4. Indemnification. To the furthest extent allowed by law including California Civil Code Section 2782, Contractor shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited to personal injury, death at any time and property damage) incurred by City, Contractor or any other person, and from any and all claims, demands and actions in law or equity (including attorney’s fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Contract. Contractor’s obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or willful misconduct, of City or any of its officers, officials, employees, agents, or volunteers. If Contractor should subcontract all or any portion of the work to be performed under this Contract, Contractor shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. - 2 - DPW-S Formal PWI (05-2022) 5. Trench Shoring Detailed Plan. Contractor acknowledges the provisions of Section 6705 of the California Labor Code and, if said provisions are applicable to this Contract, agrees to comply therewith. 6. Worker’s Compensation Certification. In compliance with the provisions of Section 1861 of the California Labor Code, Contractor hereby certifies as follows: I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of work of this Contract and will make my subcontractors aware of this provision. 7. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. [Signatures follow on the next page.] - 3 - DPW-S Formal PWI (05-2022) IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by City shall be subsequent to that of Contractor’s, and this Contract shall be binding and effective upon execution by both parties. [Contractor Name], [Legal Identity] By: Name: (Type or print written signature.) Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) Dated: By: Name: (Type or print written signature.) Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Dated: CITY OF FRESNO, a California municipal corporation By: [Name], [Title] Department of Public Works Dated: ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy No signature of City Attorney required. Standard Document #DPW-S Formal PWI (05-2022) has been used without modification, as certified by the undersigned. By: [City Certifier Name] [City Certifier Title] Department of Public Works City address: City of Fresno Attention: [Name], [Title] [Street Address] Fresno, CA [Zip] Ellendale AveWheeler AveDelbert AvePolk AveGettysburg AveLola AveRosendo AveSan Gabriel Ave Ellendale AveConstance AveSanta Ana Ave McCaffrey AveDonner Ave State StPico Ave Alamos Ave Delbert AveState StAcacia Ave Fairmont Ave Rialto Ave Norwich Ave Indianapolis Ave Water Main Replacement for Polk Avenue from Gettysburg Avenue to Acacia Avenue City of Fresno Department of Public Utilities Vicinity Map 0 250 500125 Feet ¯ Project Boundary City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1096 Agenda Date:7/20/2023 Agenda #: 1.-W. REPORT TO THE CITY COUNCIL FROM:BROCK D. BUCHE, PE, PLS, Director Department of Public Utilities BY:JESUS A. GONZALEZ, PE, Assistant Director Department of Public Utilities - Utilities Planning & Engineering CHARLES MASTERS, EIT, Engineer II Department of Public Utilities - Utilities Planning & Engineering SUBJECT Actions pertaining to the Fresno-Clovis Regional Wastewater Reclamation Facility remote racking systems (Council District 3): 1. ***Resolution - Adopt a Resolution authorizing the purchase and installation of remote racking upgrades for circuit breakers at the Fresno-Clovis Regional Wastewater Reclamation Facility from Wesco International, Inc., in an amount not to exceed $900,637, without advertised competitive bidding.(Subject to Mayor’s Veto) 2. Award a sole source purchase agreement to Wesco International, Inc., in the amount of $900,637, to provide necessary safety upgrades to 59 medium voltage circuit breakers at the Fresno-Clovis Regional Wastewater Reclamation Facility. RECOMMENDATIONS Staff recommends City Council adopt a resolution suspending competitive bidding under the sole source exception; award a purchase agreement to Wesco International, Inc. (Wesco), in the amount of $900,637 to provide and install necessary safety upgrades to 59 medium voltage circuit breakers at the Fresno-Clovis Regional Wastewater Reclamation Facility (RWRF); and authorize the Director of Public Utilities, or designee, to sign the contract on behalf of the City of Fresno (City). EXECUTIVE SUMMARY The RWRF requires remote racking technology upgrades to 59 medium voltage circuit breakers to eliminate the risk of electrocution to maintenance workers. The upgrades will allow electricians to engage and disengage circuit breakers from a safe distance prior to maintenance. The manufacturer of the existing circuit breakers is Eaton Corporation, who is also the sole provider of the necessary upgrade components. Wesco is the exclusive distributor of Eaton Corporation products in this region. Staff recommends that City Council award a sole source purchase agreement with Wesco in the amount of $900,637 to furnish and install the upgrades. City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT R. 2023-207 APPROVED ON CONSENT File #:ID 23-1096 Agenda Date:7/20/2023 Agenda #: 1.-W. BACKGROUND The RWRF is a secondary wastewater treatment facility that processes an average of 60 million gallons per day (MGD).Throughout the facility,most electrical equipment operates on a medium voltage (V)ranging from 600V to 12,470V.Currently,when RWRF staff need to perform maintenance on the circuit breakers,they must physically disengage and engage electricity through the breaker,a process referred to as unracking and racking.When performing these tasks they are exposed to the risk of lethal electrocution via arc flash,a phenomenon where a flashover of electric current leaves its intended path and travels through the air from one conductor to another,or to ground.The results of an arc flash are often violent and when a human is in close proximity,serious injury and even death can occur.The development of unique and specialized remote racking technology eliminates this risk by allowing equipment to be racked and unracked remotely thereby eliminating safety risks.This technology is available as an upgrade to the existing compatible circuit breakers. Eaton Corporation is the sole provider of remote racking upgrades that are compatible with the medium voltage circuit breakers used at the RWRF.The RWRF staff contacted Eaton Corporation to obtain a quote for remote racking upgrades to 59 existing medium voltage circuit breakers.A price quote of $900,637 was provided to the City on March 24,2023,with the purchase to be conducted through Wesco as the exclusive provider of Eaton Corporation products in this region.This quote will expire July 31, 2023 and at that time labor and material costs will increase. The City’s Information Services Department has reviewed the proposal to ensure that there are no cybersecurity concerns with respect to this project and have given approval. ENVIRONMENTAL FINDINGS The procurement and installation of remote racking systems is not a project as defined by Section 15378 of the California Environmental Quality Act. LOCAL PREFERENCE Local preference was not implemented because this is a sole source purchase. FISCAL IMPACT There is no impact to the General Fund.Funds for this project are included in the Wastewater Division’s 5-year Capital Improvement budget within the Wastewater Enterprise Fund 40501.This project is located within Council District 3. Attachments: Attachment 1 - Resolution Attachment 2 - Wesco Purchase Agreement City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ GSD-B Formal Bid Contract – Product (12-2022) - 1 - PRODUCT PURCHASE CONTRACT THIS CONTRACT (Contract) is made and entered into by and between the CITY OF FRESNO, a California municipal corporation (City), and WESCO INTERNATIONAL, INC, a Pennsylvania Corporation (Contractor), as follows: 1. CONTRACT DOCUMENTS. The “Terms and Conditions of Sale” from Wesco International, Inc. and “Scope of Work” from Eaton Corporation documents are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents. 2. PRICE. For the monetary consideration of NINE HUNDRED THOUSAND SIX HUNDRED THIRTY-SEVEN DOLLARS AND ZERO CENTS ($900,637), as set forth in the Proposal, the Contractor promises and agrees to furnish or cause to be furnished, in a new and working condition, and to the satisfaction of the City, and in strict accordance with the Specifications, all of the items as set forth in the Contract Documents. 3. PAYMENT. The City accepts the Contractor's Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. The Contractor agrees to accept electronic payment from the City. 4. INDEMNIFICATION: To the furthest extent allowed by law, including California Civil Code section 2782 (if applicable), the Contractor shall indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents, and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited to personal injury, death at any time and property damage) incurred by the City, the Contractor or any other person, and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees, litigation expenses, and costs to enforce this agreement ), arising or alleged to have arisen directly or indirectly out of performance of this Contract. The Contractor's obligations under the preceding sentence shall apply regardless of whether the City or any of its officers, officials, employees, agents , or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or by the willful misconduct, of the City or any of its officers, officials, employees, agents, or volunteers. If the Contractor should subcontract all or any portion of the work to be performed under this Contract, the Contractor shall require each subcontractor to indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. 5. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. [Signatures follow on the next page.] DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 GSD-B Formal Bid Contract – Product (12-2022) - 2 - IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by the City shall be subsequent to that of the Contractor’s, and this Contract shall be binding and effective upon execution by both parties. CITY OF FRESNO, A California municipal corporation By: BROCK D. BUCHE, PE, PLS, Director Department of Public Utilities APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Date Supv./Senior Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy WESCO INTERNATIONAL, INC, a Pennsylvania Corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) REVIEWED BY: Addresses: CITY: City of Fresno Attention: Charles Masters, Engineer 1626 E Street Fresno, CA 93706 Phone: (559) 621-1630 E-mail: Charles.Masters@fresno.gov CONTRACTOR: WESCO INTERNATIONAL, INC Attention: Matthew Hopper, Sales Manager 3712 W Gettysburg Ave Fresno, CA 93722 Phone: (559) 786-8944 E-mail: mhopper@wesco.com DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 Jesus A. Gonzalez 7/5/2023 Assistant Director Sales Manager 7/5/2023 Matthew Hopper Brandon Collet 7/5/2023 Clerk Attesting TERMS AND CONDITIONS OF SALE Effective as of October 25th, 2022 Page 1 of 9 City of Fresno – 5-15-23 1. DEFINITIONS 1.1. “Application” means Seller’s application for business credit extended to and signed by Buyer in connection with these Terms. 1.2. “Buyer” means the person or entity specified in the Order or SOW. 1.3. “Buyer Material” means Buyer’s preexisting intellectual property provided by Buyer for the purpose of an Order or SOW. 1.4. “Confidential Information” means information received by the receiving party from the disclosing party which (a) is marked as "Confidential" or "Proprietary"; or (b) would reasonably be considered confidential and/or proprietary under the circumstances surrounding disclosure. 1.5. “Customer” means Buyer’s customer, including any end user, of the Products, Software, and/or Services. 1.6. “Deliverables” means any work product, reports, or other deliverables developed and provided by Seller as part of the Service s and required under an Order or SOW. 1.7. “Existing Agreement” means a mutually-executed agreement between the parties that governs the purchase and sale of the Products, Software and/or Services. 1.8. “Order” means a purchase order issued by Buyer to Seller for the purchase and/or use of the Products, Software, and/or Servic es. 1.9. “Products” means those products, materials, or goods described in an Order or SOW. 1.10. “Seller” means the selling entity specified in the Order or SOW. 1.11. “Seller Materials” means any and all processes, formulas, tools, ideas, concepts, methodologies, software, know -how, business practices, trade secrets, object code, source code, documentation, information and ideas developed by Seller or its licensors, and all intellectual property right s therein. 1.12. “Services” means those specific tasks, functions, responsibilities, Deliverables and other services described in an Order or SOW. 1.13. “Software” means the computer programs, operating systems, interfaces, software-as-a-service, applications or other software specified in an Order or SOW. 1.14. “SOW” means a document between Seller and Buyer that specifies Products and/or Services provided by Seller to Buyer. 1.15. “Special-Order Product” means any Product (i) that Seller procures or specially stocked for Buyer (including Products that are custom made, modified, altered, or includes special features), (ii) not readily saleable by Seller to other customers, or (iii) identified by Seller as non-cancelable or non-returnable. 1.16. “Terms” means these Terms and Conditions of Sale. 2. SCOPE OF AGREEMENT. Unless there is an Existing Agreement, these Terms govern the sale, purchase and use of Products, Software, and/or Services by Buyer from Seller and, together with the Application, and each Order and SOW, constitutes the entire and separate agreement between the parties with respect to the subject matter of these Terms. If a conflict arises between or among these Terms, the Application, and an Order and/or SOW, these Terms shall prevail unless otherwise expressly agreed in writing by authorized representatives of the parties. If Buyer is accepting these Terms on behalf of another party, Buyer represents and warrants that Buyer has full authority to bind such party to these Terms. Any additional, preprinted or different terms contained on any purchase order, portal, or other communication from Buyer purporting to apply shall be deemed void and unenforceable unless expressly agreed and signed in writing by authorized representatives of both parties. Buyer’s or its Customer’s placement of an Order or receipt or acceptance of the Products, Software and/or Services constitute acceptance of these Terms. 3. ORDERS. Seller has the right, in its sole discretion, to cancel, accept or reject any Order, in whole or in part, at any time. If Seller cancels or rejects any Order after payment has been made, Buyer is entitled to a refund within three (3) days of the cancellation, of the amount paid. Buyer is not obligated to pay any remaining balance in the event that Seller cancels or rejects an order. Any change requested by the Buyer to any aspect of the scope of an Order or SOW must be agreed in writing by both parties and may result in a price and/or delivery adjustment as determined by Seller. Seller reserves the right to implement a minimum order size of $350 per Order. If Seller authorizes that all or part of an Order or SOW be terminated or suspended by modification, rescission or as otherwise provided in Sections 6 and 16 by Buyer, Buyer shall pay termination charges equal to Seller’s costs associated with the Order or SOW, as determined by generally accepted accounting principles. Seller’s costs shall include any amount Seller must pay to its suppliers and manufacturers relating to the relevant Order or SOW. Buyer agrees it (i) must take possession and accept delivery of any Special-Order Product within ninety (90) days upon completion of Seller’s delivery obligations or the Product being available for pick- up, as applicable, and (ii) cannot cancel any Order for Special-Order Product. If Buyer (a) does not take possession and/or accepts delivery of any Special-Order Product upon completion of Seller’s delivery obligations or the Special-Order Product being available for pick-up, as applicable, or (b) cancels an Order for Special-Order Product, Buyer shall then pay or reimburse Seller the purchase price of the Special-Order Products plus any associated cancellation fees, including, but not limited to, any storage and transportation fees incurred by Seller. Seller may, in its discretion, require a non-refundable deposit for any Special-Order Product ordered by Buyer. 4. SERVICES. The Services requested by Buyer shall be specified in an Order or SOW. When applicable, Buyer shall provide Seller with suf ficient, free, safe and timely access to its premises and/or system as required to provide the Services. Buyer warrants that the premises where the Services will be performed will comply with all applicable federal, state and local occupational safety, welfare and health standards, rules, and regulations. Buyer agrees to ensure, so far as is reasonably practicable, the health, safety and welfare of Seller’s personnel when on Buyer’s premises including, but not limited to providing and maintaining premises and systems that are, so far as is reasonably practicable; safe and without risks to health. Seller may use subcontractors to perform its contractual obligations under an Order or SOW. If Seller uses subcontractors, Seller will be solely responsible for ensuring that they comply with their respective contractual requirements. Buyer shall not supervise or direct the performance of any Seller subcontractors. Seller or Seller’s subcontractors, when applicable, shall obtain and maintain the necessary licenses, certifications, and permits, specialty or otherwise, required to provide the Services. If Seller’s performance of any of its obligations is prevented or delayed by Buyer: (a) Seller shall, without limiting its other rights or remedies under these Terms or as otherwise provided by law or equ ity, have the right to suspend or terminate performance of the Services; and (b) Buyer shall be liable for any costs and expenses sustained or incurred by Seller as a result thereof. Without limiting the foregoing, completion times referenced in an Order or SOW are only estimates. 5. PRICE. Prices on Seller’s website, catalogs or in Seller quotes are subject to change without notice. Unless otherwise extended in writing by Seller, all prices on a Seller quote will expire and become invalid upon the expiration date stated therein, provided however, Seller reserves the right to update its quote or price in the event of any increase in tariffs, levies, duties, freight or importation cost or charges, su pplier pricing or surcharge, or a material exchange rate fluctuation. In such event, Seller will provide an updated quote or price and will not ship Product or provide Software or Services until Buyer receives an Order with the correct price. Any manifest errors are not binding on Seller. Buyer is lia ble for applicable transaction taxes, including sales, use, and value- added taxes, goods and services taxes, duties, customs, tariffs, and other government-imposed DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 TERMS AND CONDITIONS OF SALE Effective as of October 25th, 2022 Page 2 of 9 transactional charges however designated (and any related interest or penalty) on amounts payable by Buyer (collectively, “Transaction Taxes”), regardless of when such Transaction Taxes are levied or imposed. Buyer shall provide Seller with proof of exemption from Transaction Taxes at least fifteen (15) business days before the invoice due date. 6. PAYMENT. (a) Payment for Products, Software and Services must be made (i) in the currency identified in the invoice or in its equiva lent as specified in writing by Seller, and (ii) by check or wire transfer or any other means specified by Seller, at its sole discretion. Buyer shall pay any Seller invoice within thirty (30) days from invoice date without any right to offset, counterclaim, holdback or deduction. Buyer must provide notice of any payment dispute within ten (10) days of the date of the invoice or Buyer waives any right to dispute such invoice; however, any such dispute shall not delay timely payment to Seller. Seller reserves the right to require guarantees, security or payment in advance of shipment from Buyer. In the event Buyer fails to pay the total sums due on an invoice by the due date or if an Insolvency Event (as defined in sectio n 15.4 below) occurs, the entire outstanding balance due to Seller on all invoices shall be accelerated and become due in full immediately and the maximum allowable charge and/or interest allowed by applicable laws shall be applied to all past due accounts commencing from the due date of t he invoice until paid. Seller shall also be entitled, in addition to all other remedies available at law or in equity, to suspend performance of any outstanding Orders or SOWs and to recover reasonable attorneys’ fees and/or other expenses incurred collecting all outstanding sums from Buyer or otherwise enforcing or successfully defending these Terms. Seller may set off any amount due from Buyer from any amounts due to Buyer. Seller reserves the right to convert any payment into electronic funds at its discretion. (b) If Seller extends business credit to Buyer under an Application, then Seller’s Business Credit Terms published at www.wesco.com/termsofsale, as amended from time-to-time, shall apply and are expressly incorporated herein by reference. 7. SHIPPING. Unless otherwise agreed to in writing, (i) all Product shipments shall be FOB shipping point, and (ii) Seller may, in its sole discretion, use any commercial carriers and method and route of transportation for shipment of the Products. Buyer shall be responsible f or shipping charges, including all applicable freight, shipping, insurance and handling charges, unless otherwise agreed to in writing. Title to and risk of loss of the Products passes to Buyer upon transfer to the carrier at the shipping point. Software may be delivered electronically. Shipping dates or other applicable performance dates are estimated on the basis of prompt receipt of the Order and all information, drawings and approvals required to be furnished by Buyer. In the event Buyer, verbally or in writing, confirms a delivery date with Seller but subsequently suspend s the Order or is unable to accept delivery, Buyer shall reimburse Seller for all costs and expenses Seller incurs as a result thereof, including, but not limited to, reasonable storage costs. No delay in the shipment or delivery of any Products relieves Buyer of its obligations under these Terms. Seller reserves the right to make partial or early shipments without liability or penalty. Buyer shall pay for the units shipped whether such shipment is in whole, partial or early fulfillment of an Order. 8. ACCEPTANCE. Buyer shall be deemed to have accepted the Products and Services unless written notice of rejection is given to the Seller within five (5) business days from date of delivery. 9. RETURNS. Product returns shall be made pursuant to Seller’s Product Return Policy, published at www.wesco.com/termsofsale, as modified from time to time. Seller reserves the right to apply a re-stocking fees to any Product returns. Software cannot be returned without Seller’s express prior written authorization. 10. SHORTAGES. Buyer shall submit all claims for shortages in writing to Seller within ten (10) days of receiving the Products; otherwise such claims will be deemed waived. Quantities are subject to normal manufacturer allowances. In the case of wires and cables, such allowa nces are plus 10% and minus 5%. 11. RECOMMENDATIONS. Buyer acknowledges and agrees that any drawings, designs, suggestions, recommendations, or advice as to any products, software, or services including installation or use recommendations (collectively, “Recommendations”) are provided “as is” an d are for informational and conceptual purposes only. Buyer acknowledges that in the event it follows any such Recommendations, it does so at its own risk and agrees that Seller will not be liable for any damage, claims, liabilities, or losses suffered by Buyer or any third party, directly or indirectly, due to Buyer following any Recommendations. Any legal or regulatory compliance obligations shall remain Buyer’s sole responsibility, and nothing herein is intended to shift any such burden from Buyer to Seller. 12. WARRANTY. 12.1. Product and Software Warranty. Seller is only a reseller of Products and Software and shall transfer and assign to Buyer any and all transferable warranties made to Seller by the manufacturer of the Products and Software. Unless otherwise specified in a writing signed by Seller, Seller provides no independent warranty for any Products and Software. Any order arising out of this offer will be governed by the conditions contained in Eaton Selling Policy 25-000 effective November 1, 2017 (copy attached). Buyer’s sole and exclusive remedy for any alleged non- conforming part, defect, failure, inadequacy, or breach of any warranty related to Products and Software (collectively, “Defects”) shall be limited to those warranties and remedies provided by the manufacturers or licensor thereof. Seller is not responsible for obtaining or paying for access to, or uninstalling, installed Products, delivering replacement Products to the installation site, or installing replacement Products. Seller’s ob ligations under this Section 12.1 will be void unless Buyer provides Seller with notice of the Defect within 30 days of the date Buyer discovered or should have discovered the Defect. Buyer shall contact Seller prior to contacting the manufacturer or licensor. In the event Buyer provides notice of a Defect to the manufacturer or licensor, Buyer shall immediately notify and engage Seller on any and all discussions and actions to be taken with such manufacturer. Seller DOES NOT WARRANT that the Software will be free from errors or defects, will meet Buyer’s needs, or will operate without interruption. Seller DOES NOT WARRANT that the Software will provide fail-safe performance when used in hazardous environments, including any application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage. If Seller supplies any Products and Software which include open source software, Seller is not liable for defects in title or quality of the information, software or documentation, or for ensuring that it is correct, accurate, free of third-party property rights and copyrights, complete and/or usable. 12.2. Private Label Product Warranty. Solely as it pertains to those Products with Seller’s private label brands (collectively “Private Label Products”), Seller warrants that the Private Label Products are new and are free from defects in material and workmanship under normal use and conditions for a period of one (1) year from the original invoice date. If the Private Label Products fail to conform with the foregoing warranty during the warranty period, Buyer shall promptly notify Seller and Seller will, at its option and as Buyer’s sole and exclusive remedy, either (i) repair or replace the defective Private Label Products; or (ii) refund to Buyer the amount paid for the defective Private Label Products. 12.3. Services Warranty. Seller warrants that the Services it provides will be performed in a professional manner consistent with relevant industry standards. Provided Buyer notifies Seller in writing and in sufficient detail of a breach of the Services warranty in this section 12.3 within fifteen (15) days after provision of the non-conforming Services, Seller will, at its option, (a) re-perform the Services at no additional cost to Buyer or (b) credit Buyer the fees actually paid to Seller associated with the non-conforming Services. This is Buyer’s sole and exclusive remedy, and Seller’s sole and exclusive liability, with respect to any breach of warranty relating to the Services it provides. This Services warr anty is personal to Buyer and may not be assigned, transferred or passed-through to any third party. 12.4. Forfeiture of Warranty. The warranties described herein do not cover wear and tear and shall be ineffective and not apply to those Products, DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 TERMS AND CONDITIONS OF SALE Effective as of October 25th, 2022 Page 3 of 9 Software and Services that have been subjected to misuse, abuse, neglect, accident, damage, improper installation, unauthorized modification, or improper or unauthorized maintenance or repair, including, but not limited to, use, maintenance or repair not in accordance with the manufacturer’s or other provider’s specifications, license or instructions. 12.5. Buyer’s Information. Buyer acknowledges and agrees that, in performing its obligations under these Terms, Seller will rely upon the accuracy and completeness of the information and documentation Buyer provides, and that Seller’s performance is dependent on Buyer’s provision of complete and accurate information and data. It is Buyer’s responsibility to ensure that the Products, Software, and Services are the ones that it has requested and that all specifications and quantities are correct. 12.6. DISCLAIMER. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND SELLER DISCLAIMS AND EXCLUDES, AND BUYER WAIVES, ALL OTHER EXPRESS AND IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AGAINST REDHIBITORY DEFECTS, CONFORMITY TO ANY REPRESENTATION, DESCRIPTION, OR SPECIFICATION, PERFORMANCE, NON-INFRINGEMENT, AND OF ANY OTHER TYPE, REGARDLESS OF WHETHER ARISING BY LAW (STATUTORY OR OTHERWISE), COURSE OF PERFORMANCE, COURSE OF DEALING, OR ANY OTHER LEGAL OR EQUITABLE BASIS. IN THE EVENT DISCLAIMER OF WARRANTY STATEMENTS ARE DISALLOWED BY LAW, SUCH EXPRESS OR IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO THE LESSER OF THE APPLICABLE WARRANTY PERIOD OR THE MINIMUM PERIOD REQUIRED BY LAW. EXCEPT AS OTHERWISE SET FORTH HEREIN, THE PRODUCTS, SOFTWARE, AND SERVICES ARE PROVIDED “AS IS” EXCEPT TO THE EXTENT THE MANUFACTURER OR LICENSOR HONORS ANY WARRANTY EXPRESSLY MADE BY IT. 13. PROPRIETARY RIGHTS. LICENSE. 13.1. Intellectual Property Ownership. Each party shall retain ownership of all right, title and interest in and to its pre-existing intellectual property, Confidential Information, materials and/or Deliverables. Buyer grants to Seller a fully paid-up, non-exclusive, non-assignable, non-transferable, non-sublicensable license to use Buyer Material to perform its obligations during the term of the applicable SOW or Order. Upon payment in full of the applicable fees, Seller grants Buyer a fully paid-up, limited, non- exclusive, non-assignable, non-transferable, non-sublicensable, perpetual license to use and reproduce, for Buyer’s own internal business operations, the Deliverables (and any Seller Materials solely as provided by Seller as part of the Deliverables). Services will not be interpreted as “work for hire”. 13.2. Software License. If applicable, Buyer shall be granted a limited license to use any Software strictly pursuant to the license agreement provided by the Product or Software manufacturer, and Buyer shall be bound by and comply with and ensure that its Customer complies with, at all times, any license terms pertaining to such Product or Software. If applicable, unless otherwise agreed to in writing, Software associated with a Product is licensed and not sold to Buyer. Buyer shall, and shall cause its Customer to (i) comply with any applicable laws, regulations, industry standards and third party rights in connection with its access to and use of the Software; (ii) accept and comply with all obligations contained in the license agreement provided by the Product or Software manufacturer; and (iii) use reasonable and diligent efforts pursuant to industry standards to protect and maintain user information collected by Buyer’s applications, including personally -identifiable information, from unauthorized access or use. Buyer shall not, and Buyer shall instruct its Customer to not: (i) transfer, assign or sublicense the Software, or its license rights thereto, to any other person, organization or entity, including through rental, timesharing, subscription, hosting, or outsourcing the Software, except as specifically set forth herein; (ii) use the Software for any unauthorized purpose; (iii) attempt to create any derivative version thereof; (iv ) remove or modify any marking or notice on or displayed through the Software or documentation; or (v) de- compile, decrypt, reverse engineer, disassemble or otherwise reduce same to human-readable form. In the event Software and/or Services are provided and accessed by Buyer through the internet at a website provided by Seller, Buyer acknowledges and agrees that Seller is not responsible for (i) Buyer’s access to the internet, (ii) any breaches of security, interruptions and/or interceptions of information or communication through the internet, and (iii) changes or losses of data through the internet. Further, Buyer acknowledges that security of transmissions over the internet cannot be guaranteed. 14. INDEMNIFICATION AND INSURANCE REQUIREMENTS. 14.1. By Seller. Seller hereby transfers any intellectual property indemnity from the manufacturer of Products, Software, and Services to Buyer. Seller’s obligation to indemnify Buyer shall not be greater than the intellectual property indemnity provided by the manufacturer of such Products, Software, and Services and shall only apply if Buyer complies with section 14.3 herein. In the event of any such infringement claim, Seller shall, as Buyer’s sole and exclusive remedy, and at Seller sole option: (i) procure for Buyer the right to continue using the affected Products, Software or Services; (ii) replace the affected Products, Software, or Services with non-infringing Products, Software or Services; (iii) modify the affected Products, Software, or Services so they are non- infringing; or (iv) if fees were paid in advance, refund any prepaid fees associated with the affected Products, Software, or Services. Seller’s indemnification obligation does not apply if (a) Buyer continued to use the Products, Software or Services after Seller informed Buyer of modifications required to avoid infringement; or (c) the allege d infringement results from Buyer’s misuse, modification or enhancement of the Products, Software, and/or Services, whatever the case may be, or from the use of such in combination with other products not provided or approved by Seller. To the furthest extent allowed by law, Seller shall defend, indemnify and hold harmless Buyer from and agai nst any and all direct claims, losses, liabilities, damages, costs and expenses (including losses and costs incurred by Buyer and any reasonable attorney's fees and costs) which arise from Seller’s negligence or willful misconduct; a breach of Seller’s confidentiality (information not of public record) obligations arising from Seller’s negligence or willful misconduct; or Seller’s violation of a law applicable to Seller’s performance under the contract. If Seller subcontracts all or any portion of the services to be performed in connection with this Agreement, Seller will require each subcontractor to indemnify, hold harmless and defend you and your officers, officials, employees, agents and volunteers in accordance with this paragraph. This section shall survive termination or expiration of this Agreement. 14.2. By Buyer. Buyer shall indemnify and defend Seller and its affiliates, directors, officers, affiliates, employees, agents, successors, and permitted assigns (“Indemnitees”) against any claims, demands, damages, liabilities and expenses (including court costs and reasonable attorneys' fees) that Indemnitees incur as a result of or in connection with: (a) any third-party claims arising from Buyer’s: (i) failure to obtain any consent, authorization or license required for Indemnitees’ use of Buyer Materials; (ii) use of the Products, Software, or Services in any manner (e.g., solely or in combination) not expressly permitted by these Terms or the applicable license agreement or specifications provided by the Product and/or Software manufacturer or provider of Services; (iii) misuse, modifications, enhancements, or programming to the Products, Software, Se rvices; (iv) breach of its obligations, representations, and warranties under these Terms; or (v) gross negligence in connection with the performance of its obligations under these Terms; (b) Indemnitees’ compliance with any technology, designs, instructions or requirements, including any specifications provided by Buyer or a third party on Buyer’s behalf; and (c) any reasonable costs and attorneys’ fees and expenses required for Indemnitees to respond to a subpoena, court order or other official government inquiry regarding Buyer’s use of the Products, Software, or Services. 14.3. Notification. The indemnified party shall: (i) provide prompt written notice to the indemnifying party; (ii) reasonably cooperate in connection with the defense or settlement of the claim, including providing all reasonable information and assistance at the indemnifying party’s cost; and (iii) give DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 TERMS AND CONDITIONS OF SALE Effective as of October 25th, 2022 Page 4 of 9 the indemnifying party sole control over the defense and settlement of the claim, provided that any settlement of a claim shall not include a specific performance obligation or admission of liability by the indemnified party. Failure to provide timely notice that prejudices the indemnifying party shall relieve the indemnifying party of its obligations under these Terms to the extent the indemnifying party has been prejudiced and the failure to provide timely notice shall relieve the indemnifying party of any obligation to reimburse the indemnified party for its attorney’s fees incurred prior to notification. 14.4. The foregoing indemnities are personal to Seller and Buyer and may not be transferred or assigned to anyone except the manufacturer or a subcontractor performing any of the work in connection with this agreement. This section 14 states the parties’ exclusive remedies for any claims arising under sections 14.1 and 14.2, other than any remedies that may be available against third party manufacturers or providers of the Products, Software or Services. 14.5. INSURANCE REQUIREMENTS (a) Throughout the life of this Agreement, SELLER shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to d o business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by BUYER'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to BUYER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. 14.6. (b) If at any time during the life of the Agreement or any extension, SELLER or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to SELLER shall be withheld until notice is received by BUYER that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to BUYER. Any failure to maintain the required insurance shall be sufficient cause for BUYER to terminate this Agreement. No action taken by BUYER pursuant to this section shall in any way relieve SELLER of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitatio n, notification received by BUYER that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolv ent. 14.7. (c) The fact that insurance is obtained by SELLER shall not be deemed to release or diminish the liability of SELLER, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify BUYER shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by SELLER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of SELLER, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them. 15. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS, LOST REVENUE, OR ANY OTHER SPECIAL, INCIDENTAL, LIQUIDATED, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, EVEN IF THE PARTIES HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE. NO LIQUIDATED OR DELAY DAMAGES SHALL APPLY UNLESS AMOUNTS AND ASSOCIATED DELIVERY MILESTONES ARE EXPLICITY STATED IN THE ORDER. FURTHERMORE, TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER’S LIABILITY ON ANY CLAIM ARISING OUT OF OR CONNECTED WITH THESE TERMS OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS, SOFTWARE, OR SERVICES, WHETHER IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), MISREPRESENTATION, BREACH OF CONTRACT, OR OTHERWISE; , SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID FOR THE PRODUCTS, SOFTWARE, AND/OR SERVICES GIVING RISE TO THE CLAIM; however, such limitation of liability does not apply to: (i) SELLER’S indemnity and insurance obligations per Section 14 herein; or (ii) any claims arising out of SELLER’s fraud or willful misconduct. 16. TERMINATION AND SUSPENSION. 16.1. In addition to and subject to Seller’s rights set forth in section 6, in the event of any material breach of these Terms, Order, or SOW by either party, the non-breaching party may cancel the applicable Order or SOW by giving thirty (30) days' prior written notice thereof; unless the party in breach has cured the breach prior to the expiration of the thirty (30) day period. 16.2. In the event Seller or Buyer terminates an Order, Buyer shall not be entitled to any refund or credit of fees paid or payable hereunder. Buyer shall remain liable for Payment of invoices for Products and Software already delivered and Services already performed and for the fees and costs described in section 3 above, and payment of any manufacturer cancellation charges for unshipped items. In the event an Order is terminated, all licenses granted therein shall also terminate. Subject to the limitations and other provisions of these Terms, any provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of these Terms. 16.3. In addition to any other remedies provided under these Terms or applicable law, Seller may exercise any reclamation rights and/or suspend or terminate an Order or SOW with immediate effect if Buyer: (i) fails to pay any amount owed to Seller when due; (ii) fails to comply with any of its obligations herein; (iii) experiences an adverse change in financial position or becomes a credit risk; or (iv) becomes insolvent, receivership, reorganization or assignment for the benefit of creditors, to the extent permissible under law (each, an “Insolvency Event”). 17. CONFIDENTIALITY. The receiving party shall protect the disclosing party’s Confidential Information with the same degree of care as the receiving party normally uses in the protection of its own Confidential Information, but in no case with any less degree than reasonable care. The receiving party shall not disclose to any third party any Con fidential Information it receives from the disclosing party. Confidential Information excludes information that: (i) is publicly available other than by an act or omission of the receiving party; (ii) subsequent to its disclosure was lawfully received from a third party; (iii) was known by the receiving party prior to its receipt without any breach of any confidentiality obligations; or (iv) was independently developed by the receiving party without use of the disclosing party's Confidential Information. If the receiving party becomes legally obligated to disclose any Confidential Information by subpoena, court order or other lawful government action, the receiving party may disclose the Confidential Information only to the extent so ordered and, to the extent permitted by law, after providing prompt written notification to the disclosing party of the pending disclosure. Neither party may use such Confidential Information in any way for any purpose, except as authorized under the Order or SOW. Either party may disclose Confidential Information to its auditors or attorneys under an obligation of confidentiality no less stringent, or Seller to its affiliates and/or third parties on a need-to-know basis to the extent necessary. If Seller offers to sell Buyer Products, Software, or Services from a specific manufacturer, Buyer shall not purchase such Products, Software, or Serv ices directly from said manufacturer unless Seller provides prior written approval. 18. COMPLIANCE WITH LAW. Each party shall comply with all applicable laws, rules and regulations, including but not limited to, export and import, trade restrictions, FARs, anti-bribery and anti-corruption, anti-money laundering, anti-human trafficking and slavery, environmental protection, and health and safety. Products and Software may be subject to export controls under the laws, regulations, sanctions and/or directives of the United States and other countries, in which case, these Products and Software are only authorized for use (e.g., via a governmen t-approved and issued export license, which Buyer must obtain) by the ultimate end-user in the destination identified in the transaction documents between DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 TERMS AND CONDITIONS OF SALE Effective as of October 25th, 2022 Page 5 of 9 Seller and Buyer. Buyer shall not sell, export, re-export or transfer, or cause a deemed export or re-export of the Products and Software (in their original form or after being incorporated into other items) to any county or person to which/whom sell, export, re- export or transfer (actual or deemed) is prohibited without first obtaining all required authorizations or licenses. To the extent permitted by law, Buyer shall indemnify and hold Seller harmless from any loss or damage arising from its violation of any such laws, rules, and regulations. Furthermore, Buyer shall not use, transfer or access any Products, Software, or Services for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the manufacturer and the U.S. government by regulation or specific license. If Seller receives notice that Buyer is or becomes identified as a sanctioned or restricted party under applicable law (including without limitation, the U.S. Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) Specially designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List), Seller will not be obligated to perform any of its obligations under any Order or SOW. Equipment, systems, or services provided by Seller may incorporate, include, or use telecommunications equipment, systems, parts, components, elements, or services that have sourcing restrictions depending on the intended use under section 889 of the National Defense Authorization Act for Fiscal Year 2019 (Pub. L. No. 115-232). 19. PRIVACY. Each party shall comply with all applicable laws governing the collection, use and disclosure of personal data (as defined by applicable domestic and international data protection laws) and must obtain any required consents with respect to the handling of personal data as required by law. Buyer acknowledges that Seller is headquartered in the United States and operates globally, that data collected by Seller from Buyer in connection with these Terms may be transferred into and/or processed in the United States or other locations by Buyer or an authorized third party/subcontractor, Buyer and expressly consents to such transfer and processing. 20. FORCE MAJEURE. Seller shall not be liable for any failure to perform its obligations under an Order or SOW resulting directly or indirectly from, or contributed to or by acts of God, acts of terrorism, civil or military authority, epidemic or pandemic, fires, strikes or other labor disputes, accidents, floods, war, riot, inability to secure raw material or transportation facilities, hacking or other malicious attack, dissolution of the applicable manufacturer’s business, acts or omissions of carriers, or any other circumstances beyond Seller’s reasonable control. 21. LAW. VENUE. These Terms and any transactions contemplated herein shall be governed according to the substantive laws of the State of California, without regard to principles of conflicts of law, and shall not be governed by the U.N. Convention on the International Sale of Goods. Any issue, dispute or controversy (“Dispute”) between the parties, including with respect to contract formation or the interpretation of these Terms, that cannot be commercially resolved by the parties shall, by agreement of parties, be submitted to nonbinding mediation as a condition precedent to litigation. If Seller elects mediation, the parties shall mutually agree upon the mediator and shall share equally in the mediator’s fees. 22. RELATIONSHIP OF PARTIES. The parties are independent contractors and expressly disclaim any partnership, franchise, joint venture, agency, employer/employee, fiduciary or other special relationship. A person who is not a party to an Order or SOW shall not have any benefit or rights under or in connection with either. 23. GENERAL. These Terms shall be construed and interpreted without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. No amendments, modifications, waivers, rescission or termination of these Terms can be made through the parties’ course of dealings and no such change can be made except in writing and signed by authorized representatives of the parties. Failure by a party to exercise any right or remedy under these Terms shall not be deemed a waiver of such right or remedy unless in writing signed by the party, nor shall any waiver be implied from the acceptance of any payment. No waiver by a party of any right shall extend to or affect any other right, nor shall a waiver by a party of any breach extend to any subsequent breach. Buyer shall not assign an Order or SOW, by operation of law or otherwise, without the express written approval of Seller. Any attempt to assign or transfer all or any part of these Terms without first obtaining that written consent will be void or voidable, at Seller’s election. Any provision of these Terms that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be limited or eliminated to the minimum extent required by that jurisdiction, and the remaining provisions shall remain in full force and effect. Buyer acknowledges that the terms or content of any hyperlinked document, as amended from time to time, are incorporated in these Terms by reference and that it is Buyer’s responsibility to review the terms or content in the hyperlinks referenced. All notices under these Terms must be in writing (e.g., e-mail or physical mail) and addressed to the other party at its address set forth in the Order or SOW. In the event Seller provides product storage-related Services to Buyer under a Storage Term Sheet, Order or other documentation which specifically references these Terms; then the following additional terms and conditions shall apply. Any capitalized terms used herein and not defined shall have the meeting set forth in the Storage Term Sheet, as applicable. The term “Company” and “Buyer” shall have the same meaning for purposes of the Terms. In the event of a conflict between the following additional terms and conditions and the Terms, these terms and conditions shall prevail. 24. Term and Termination. The Storage Term Sheet shall run for the Storage Term (if no Storage Term in specified, the term shall be 90 days) and shall thereafter automatically renew for successive thirty (30) day renewal terms unless earlier terminated as provided herein. Either party may terminate the Storage Term Sheet by providing at least thirty (30) days prior written notice to the other party. Further, Seller may immediately terminate this Storage Term Sheet in the event Buyer fails to timely satisfy any invoice due to Seller. Upon the effective date of the termination of this Storage Term Sheet, Seller shall ship, at Buyer’s sole risk and expense, any remaining Products that are being stored on Buyer’s behalf to the Designated Buyer Ship- To Location. 25. Storage of Products. For Buyer’s benefit, Seller shall receive, unload, and store the Products at the Facility. Upon prior notice to Buyer, Seller may change the location of the Facility. The Products shall be stored at the Facility at Buyer’s sole risk and expense. 26. Shipping. Upon Buyer’s issuance of a Shipping Order (as defined below), and at Buyer’s sole risk and expense, Seller shall ship the Products to the Designated Ship-To Location. A “Shipping Order” shall mean a written request issued by Buyer to Seller that identifies: (i) the specific Product to be shipped; (ii) the quantity of Products to be shipped; (iii) the method of shipping selected by the Buyer; and (iv) the shipping destination, if different from the Designated Ship-To Location. Following acceptance of a Shipping Order, Seller shall ship the requested quantity of Products identified in the Shipping Order as soon as commercially reasonable, unless a specific date is mutually agreed to by the parties. If Buyer does not specify the mode of shipment or carrier, Seller shall use commercially reasonable efforts to ship the Products in the most cost -effective manner but does not guarantee that it will be the least expensive option available. Delivery of the Products being stored on Buyer’s behalf may be made in one or multiple shipments based on Seller’s discretion. Shipping charges shall be included on Seller’s invoice to Buyer; provided, however, that Seller may require, in its discretion, that Buyer prepay the fees and costs associated with shipping. 27. Invoicing and Payment. Regardless if the Products are being stored on Buyer’s behalf or if they have already been shipped to the Designated Buyer Ship-To Location, Buyer shall timely satisfy the invoices issued by Seller to Buyer for the purchase of the Products. Seller shall invoice Buyer for the Storage Fees plus applicable tax, and Buyer shall pay Seller the Storage Fees within Payment Terms of the date of the invoice. In the event Buyer fails to pay the total sums due on an invoice by the due date, the entire outstanding balance due to Seller on all invoices shall be accelerated and become due in full immediately and the maximum allowable charge and/or interest allowed by applicable laws shall be applied to all past due accounts DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 TERMS AND CONDITIONS OF SALE Effective as of October 25th, 2022 Page 6 of 9 commencing from the due date of the invoice until paid. Seller shall also be entitled, in addition to all other remedies available at law or in equity, to suspend performance of under the Storage Term Sheet and recover reasonable attorneys’ fees and/or other expenses incurred collecting all outstanding sums from Buyer or otherwise enforcing or successfully defending the Terms. Seller may set off any amount due from Buyer from any amounts due to Buyer. 28. Title and Risk of Loss to the Products. Seller is only storing Product that has been purchased by Buyer. As such, in the case of a Storage Terms Sheet, title to the Product and risk of loss shall at all times remain with Buyer, including, but not limited to, when they are being stored at the Facility. Buyer acknowledges and agrees that Seller shall have no obligation whatsoever to maintain any insurance specifically covering the Product. As such, Buyer shall be solely responsible for, and shall be required to maintain insurance to cover any risk of loss to the Products while in storage at the Facility. Buyer agrees to indemnify, defend, hold harmless and release Seller and its affiliates and their respective shareholders, officers, directors, employees, agents, successors and assigns from all liabilities arising from any loss or damage to the Products due to any cause whatsoever, including fire, insects, rodents, rust, normal wear and tear, leakage, moisture, changes in temperature, acts of God, deterioration by time, or damage or for any loss or damage from causes beyond Seller’s reasonable control. Further, Buyer shall be responsible for all risk of loss to the Products while en route to the Designated Buyer Ship-To Location or to such other destination as Buyer may designate in writing. DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 TERMS AND CONDITIONS OF SALE Effective as of October 25th, 2022 Page 7 of 9 Exhibit A MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence f orm and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership , maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non -owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Technology Professional Liability (Errors and Omissions) insurance appropriate to SELLER’S profession. Coverage shall be sufficiently broad to respond to duties and obligations as is undertaken by SELLER in this agreement and shall include but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, t rademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for bre ach response costs as well as regulatory fines penalties and credit monitoring expenses with limits sufficient to respond to these obligation s. MINIMUM LIMITS OF INSURANCE SELLER, or any party the SELLER subcontracts with, shall maintain limits of liability of not l ess than those set forth below. However, insurance limits available to BUYER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. TECHNOLOGY PROFESSIONAL LIABILITY (Errors and Omissions) appropriate to the Seller’s profession: (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event SELLER purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insura nce policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the BUYER, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 TERMS AND CONDITIONS OF SALE Effective as of October 25th, 2022 Page 8 of 9 SELLER shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and SELLER shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the BUYER’S Risk Manager or his/her designee. At the option of the BUYER’S Risk Manager or his/her designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects BUYER, its officers, officials, employees, agents and volunteers; or (ii) SELLER shall provide a financial guarantee, satisfactory to BUYER’S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall BUYER be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. BUYER, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. SELLER shall estab lish additional insured status for the Buyer and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 2. The coverage shall contain no special limitations on the scope of protection afforded to BUYER, its officers, officials, empl oyees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be av ailable to the Additional Insured. 3. For any claims relating to this Agreement, SELLER’S insurance coverage shall be primary insurance with respect to the BUYER, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the BUYER, its officers, officials, employees, agents and volunteers shall be excess of SELLER’S insurance and shall not contribute with it. SELLER shall establ ish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: SELLER and its insurer shall waive any right of subrogation against BUYER, its officers, officials, employees, agents and volunteers. If the Technology Professional (Errors and Omissions) insurance policy is written on a claims-made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by SELLER. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by SELLER, SELLER must purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to BUYER for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to BUYER. SELLER is also responsible for providing written notice to the BUYER under the same terms and conditions. Upon issuance by the insurer, broker, o r agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, SELLER shall furnish BUYER with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for BUYER, SELLER shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by SELLER shall not be deemed to release or diminish the liability of SELLER, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnifica tion to be provided by DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 TERMS AND CONDITIONS OF SALE Effective as of October 25th, 2022 Page 9 of 9 SELLER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of SELLER, its principals, officers, agents, employees, persons under the supervision of SELLER, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. VERIFICATION OF COVERAGE SELLER shall furnish BUYER with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the BUYER’S Risk Manager or his/her designee prior to BUYER’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of BUYER, SELLER shall immediately furnish Buyer with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. SUBCONTRACTORS If SELLER should subcontract all or any portion of the services to be performed under this Agreement, SELLER shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein and SELLER shall ensure that BUYER, its officers, officials, employees, agents and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with SELLE R and BUYER prior to the commencement of any work by the subcontractor. DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 Eaton Corporation Electrical Engineering Service & Systems 5735 W. Las Positas Blvd., Suite 100 Pleasanton, California 94588 Contact: Raymond Cooper Phone: (925) 416-9169 raymondtcooper@eaton.com Proposal for Power Metering Dashboard Solution Wastewater Treatment Plant City of Fresno, California Power Metering Dashboard & Integral Remote Racking Installation March 24, 2023 Eaton Proposal No.: SFK1-220630-01-RC REV. 3 FINAL DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California Power Metering Dashboard MARCH 2023 Eaton Proprietary and Confidential Unauthorized Use and/or Disclosure is Strictly Prohibited EATON CORPORATION 1 EATON CORPORATION 1 1. Project Summary The Wastewater Treatment Plant for the City of Fresno, California is seeking to procure the hardware for an Eaton Power Metering Dashboard. This proposal outlines the Power Metering Dashboard hardware necessary per our knowledge of the current facility conditions. 2. Equipment Bill of Material Eaton will provide the following Bill of Material: Qty. Description Catalog Number Drawing No. 4 PX Dashboard PXDBCSRT-2A1-D2 71Y8989 59 MR2 Pan Assembly and Integral Remote Racking Mechanism MR2APCANGABBB 71Y8989 7 Handheld Pendant 1C19628G02 71Y8989 3. Services Scope of Work Eaton Corporation will provide the necessary field service personnel, tools, materials, and approved test equipment to perform the scope of work as described herein. INCOMING 12KV SWITCHGEAR • Install Setup and Configuration of (1) PX Dashboard System for communication o Note: PX Dashboard already purchased by customer • Install Integral Remote Racking System in each of the circuit breaker cells below: o Main Breaker Cell “53-BKR-201” o Tie Breaker Cell “53-BKR-301” o Main Breaker Cell “53-BKR-101” o Feeder Breaker Cell “53-BKR-202” o Feeder Breaker Cell “53-BKR-102” o Feeder Breaker Cell “53-BKR-203” DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California Power Metering Dashboard MARCH 2023 Eaton Proprietary and Confidential Unauthorized Use and/or Disclosure is Strictly Prohibited EATON CORPORATION 2 EATON CORPORATION 2 MAIN SWITCHGEAR BUILDING SWITCHGEAR M-MVS A • Install Setup and Configuration of (1) PX Dashboard System for communication o Note: PX Dashboard already purchased by customer • Install Integral Remote Racking System in each of the circuit breaker cells below: o Main Breaker Cell “29-BKR-101” o Tie Breaker Cell “29-BKR-301” o Feeder Breaker Cell “29-BKR-102” o Feeder Breaker Cell “29-BKR-103” o Feeder Breaker Cell “29-BKR-104” o Feeder Breaker Cell “29-BKR-105” o Feeder Breaker Cell “29-BKR-106” o Feeder Breaker Cell “29-BKR-107” o Feeder Breaker Cell “29-BKR-108” o Feeder Breaker Cell “29-BKR-109” SWITCHGEAR M-MVS B • Install Setup and Configuration of (1) PX Dashboard System for communication o Note: PX Dashboard already purchased by customer • Install Integral Remote Racking System in each of the circuit breaker cells below: o Main Breaker Cell “29-BKR-201” o Feeder Breaker Cell “29-BKR-202” o Feeder Breaker Cell “29-BKR-203” o Feeder Breaker Cell “29-BKR-204” o Feeder Breaker Cell “29-BKR-205” o Feeder Breaker Cell “29-BKR-206” o Feeder Breaker Cell “29-BKR-207” o Feeder Breaker Cell “29-BKR-208” o Feeder Breaker Cell “29-BKR-209” A SIDE SWITCHGEAR BUILDING A SIDE SWITCHGEAR - 100 • Purchase (1) PX Dashboard System • Install Setup and Configuration of (1) PX Dashboard System for communication DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California Power Metering Dashboard MARCH 2023 Eaton Proprietary and Confidential Unauthorized Use and/or Disclosure is Strictly Prohibited EATON CORPORATION 3 EATON CORPORATION 3 • Install Integral Remote Racking System in each of the circuit breaker cells below: o Main Breaker Cell “60-BKR-100” o Tie Breaker Cell “60-BKR-300” o Feeder Breaker Cell “60-BKR-101” o Feeder Breaker Cell “60-BKR-102” o Feeder Breaker Cell “60-BKR-103” o Feeder Breaker Cell “60-BKR-104” o Feeder Breaker Cell “60-BKR-105” o Feeder Breaker Cell “60-BKR-106” o Feeder Breaker Cell “60-BKR-107” o Feeder Breaker Cell “60-BKR-108” A SIDE SWITCHGEAR - 200 • Purchase (1) PX Dashboard System • Install Setup and Configuration of (1) PX Dashboard System for communication • Install Integral Remote Racking System in each of the circuit breaker cells below: o Main Breaker Cell “60-BKR-200” o Feeder Breaker Cell “60-BKR-201” o Feeder Breaker Cell “60-BKR-202” o Feeder Breaker Cell “60-BKR-203” o Feeder Breaker Cell “60-BKR-204” o Feeder Breaker Cell “60-BKR-205” o Feeder Breaker Cell “60-BKR-206” o Feeder Breaker Cell “60-BKR-207” o Feeder Breaker Cell “60-BKR-208” BLOWER BUILDING 1 DOUBLE ENDED SWITCHGEAR – 100 & 200 • Purchase (1) PX Dashboard System • Install Setup and Configuration of (1) PX Dashboard System for communication • Install Integral Remote Racking System in each of the circuit breaker cells below: o Main Breaker Cell “04-BKR-101” o Tie Breaker Cell “04-BKR-301” o Feeder Breaker Cell “04-BKR-102” o Feeder Breaker Cell “04-BKR-103” o Feeder Breaker Cell “04-BKR-104” o Main Breaker Cell “04-BKR-201” DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California Power Metering Dashboard MARCH 2023 Eaton Proprietary and Confidential Unauthorized Use and/or Disclosure is Strictly Prohibited EATON CORPORATION 4 EATON CORPORATION 4 o Feeder Breaker Cell “04-BKR-202” o Feeder Breaker Cell “04-BKR-203” o Feeder Breaker Cell “04-BKR-204” DOUBLE ENDED SWITCHGEAR 400 & 500 • Purchase (1) PX Dashboard System • Install Setup and Configuration of (1) PX Dashboard System for communication • Install Integral Remote Racking System in each of the circuit breaker cells below: o Main Breaker Cell “04-BKR-501” o Tie Breaker Cell “04-BKR-601” o Feeder Breaker Cell “04-BKR-502” o Feeder Breaker Cell “04-BKR-503” o Main Breaker Cell “04-BKR-401” o Feeder Breaker Cell “04-BKR-402” o Feeder Breaker Cell “04-BKR-403” ADDITIONAL SCOPE OF WORK • Dashboard User Accessibility Configuration & Training o User creation/deprovisioning o Ability to access audit logs o Remove or disable the ability to power off systems remotely o Provide user accessibility configuration training to COF administrative staff DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California Power Metering Dashboard MARCH 2023 Eaton Proprietary and Confidential Unauthorized Use and/or Disclosure is Strictly Prohibited EATON CORPORATION 5 EATON CORPORATION 5 4. PRICING Item Description Each QTY. Price (CN) 001 Materials PX Dashboard, Processor and Mounting Kits $40,911 4 $163,642 MR2 Pan Assembly & Integral Remote Racking Mechanism $4,290 59 $253,107 Handheld Pendant $991 7 $6,936 Misc. Materials (Hardware, Mounting, Wire, Etc.) $144 59 $8,508 Foreseer to DT3000 Relays LOT $693 59 $40,898 Total Materials Price: $473,091 Price for the above scope of work is based on performing site work Monday – Friday, 8:00AM – 5:00PM. 5. ORDER ENTRY 1. Reference the Eaton Proposal Number listed on this proposal 2. Issue a purchase order to EATON CORPORATION 3. Email purchase order to: raymondtcooper@eaton.com Please reference Proposal Number SFK1-220630-01-RC on any purchase order issued in response to this proposal. 6. DELIVERY The scheduling of work will be mutually agreed upon between the customer and Eaton’s Electrical Engineering Services & Systems. Please allow three weeks for scheduling purposes. Job Title => Field Service Specialist / Engineer Design Engineer Scheduler Project Manager Hourly Rate =>$232 $276 $276 $323 1 56 0 0 20 $19,452 $19,452 2 0 0 0 80 $25,840 $25,840 3 0 80 0 0 $22,080 $22,080 4 0 0 0 24 $7,752 $7,752 5 56 0 0 0 $12,992 $12,992 6 1037 0 0 0 $240,584 $41,630 $282,214 7 112 0 0 0 $25,984 $25,984 8 56 0 0 0 $12,992 $12,992 9 0 0 56 0 $15,456 $15,456 Additional Scope of Work 10 12 0 0 0 $2,754 $2,784 * Task 6 - other direct cost includes hotels, meals etc. $427,546 Project Reporting Prevailing Wage Reporting Total Labor Price: Dashboard User Accessibilty Configuration & Training Planning, Meetings, and Site Visits Engineering and Design Mobilization and Demobilization Installation, Setup, and Configuration of PX Dashboard System Installation of Integral Remote Racking System in each Breaker Cell / FSR Specialist Project Travel Time Task Description Total Labor Costs Total Other Direct Costs Total Costs Job Safetey Review DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California Power Metering Dashboard MARCH 2023 Eaton Proprietary and Confidential Unauthorized Use and/or Disclosure is Strictly Prohibited EATON CORPORATION 6 EATON CORPORATION 6 7. QUALIFICATION / CLARIFICATIONS • Seller shall not be responsible for any failure to perform, or delay in performance of, its obligations resulting from the COVID-19 pandemic or any future epidemic, and Buyer shall not be entitled to any damages resulting thereof. • All work to be completed at straight time, Monday through Friday except for scheduled outages as defined in our proposal. • No time/labor included for site specific training meetings/classes/videos. If required, additional charges will apply and will be billed separately from this proposal. • Minor repairs and adjustments taking a minimal amount of time will be included in our base price. If additional time or material is required, it will be charged as an extra. • Any significant delays due to adverse weather will result in additional charges. • If straight time work is required to be performed on an overtime basis, Customer will be billed the difference between the straight time and overtime rate. • Stand-by power needs, if deemed necessary, are not included. • Applicable fees for outage related costs including stand-by and re-connect services are not included. • Eaton will correct minor deficiencies. Minor deficiencies are those that require no special tools, parts, etc. and take a minimal amount of time to perform. Repair labor beyond this, and all material, will be considered as extra. • Method of procedure (MOP) development or meeting time not outlined in the scope of work will be treated as an extra. • Replacement parts and additional labor required to perform any repairs necessary for proper operation of your equipment will be accomplished exclusively at your written direction and authorization. • Delays beyond the control of Eaton, extras and authorized additional work will be charged in accordance with the Eaton’s Electrical Engineering Services & Systems 2022 Price List PL02700001E. • Delay time: If Eaton arrives onsite to perform scheduled work and the work is cancelled, Eaton will charge for four (4) hours minimum per person, plus travel expenses if no replacement work can be scheduled. If sufficient notice (72 hours) is given to Eaton when canceling scheduled work, no additional charge will apply. • Third party billing will be subject to an additional 15% fee. 8. SAFETY TRAINING OF EATON FIELD PERSONNEL • All Eaton field personnel received training to comply with OSHA CFR1910 Electrical Safety Standard, which sets minimum safety rules and practices for the design, operation, and maintenance of high-voltage systems (over 600 volts). Safety standards are in place to meet or exceed NFPA 70E requirements, and appropriate Personal Protective Equipment (PPE) have been issued. • The customer is responsible to ensure that any supporting plant personnel have also be fully trained in electrical safety and provided with the appropriate personnel protective equipment. 9. DIVISION OF RESPONSIBILITY Eaton Responsibilities: DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California Power Metering Dashboard MARCH 2023 Eaton Proprietary and Confidential Unauthorized Use and/or Disclosure is Strictly Prohibited EATON CORPORATION 7 EATON CORPORATION 7 • Eaton will perform necessary adjustments, which are required to bring equipment to satisfactory operating condition, or review these with you prior to commencement of any additional work. • Eaton will obtain authorization in advance before performing any additional work. In these cases, Eaton will provide services on a time and material basis. Eaton will provide a listing of all applicable skills classifications that apply to the execution of this contract and identify the hourly rates (both straight time and overtime) that will apply for the duration of the contract. Eaton will also indicate escalation if applicable and, and in addition, provide a definition of when overtime rates apply. • Eaton will provide you with a minimum notice of 72 hours of intent to service any equipment. • Eaton shall furnish test engineers, field technicians, support personnel, tools, equipment, materials, supplies and transportation as required. • Eaton will provide and install safety locks, as required, and in accordance with the facility safety guidelines. • Eaton will perform voltage test and install necessary circuit / equipment safety grounds to assure safe working conditions • Upon completion of work: • Eaton will remove safety grounds installed by Eaton • Eaton will remove safety locks installed by Eaton. Customer Will Be Responsible For The Following: • Providing free access to equipment within their facility. • Ensuring that all equipment is available upon arrival of Eaton personnel, including removal from service to permit continuous progression of work. Delay time in making equipment available will be treated as an extra. • Identifying site contact for this project. • Providing electricians to remove equipment covers and re-install the same when required. • Coordinating all outages and perform all switching to de-energize and isolate equipment to be serviced. • Ensuring that all circuits to be de-energized have been clearly identified and that all plant personnel and downstream operations are aware of the required outage date, time and duration. This includes maintaining power to vital or necessary plant equipment and processes during the performance of this scope of work. • Providing a copy of the past maintenance records to Eaton personnel. • Providing manufacturers maintenance manuals upon arrival of Field Engineer/s. • Supplying a complete set of electrical plans, including the plant single-line diagram, specifications, and any pertinent change orders to Eaton before commencement of work. • Supply a suitable and stable source of power for operation of test and motorized equipment at each test site when normal power is removed or authorize Eaton to obtain a source of auxiliary power, Eaton shall specify requirements. Any non-standard generators rentals will result in a price adder to this proposal. • Providing a place to receive and unload replacement equipment, test equipment or other supplies. • Providing special tools supplied by equipment manufacturers. 10. WHY EATON FOR THIS PROJECT DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California Power Metering Dashboard MARCH 2023 Eaton Proprietary and Confidential Unauthorized Use and/or Disclosure is Strictly Prohibited EATON CORPORATION 8 EATON CORPORATION 8 • Eaton field personnel have years of experience with low, medium, and high voltage electrical distribution equipment and have been factory trained at the Eaton Distribution Equipment Manufacturing Facilities and obtained outside training on other competitors’ equipment. • Eaton maintains a fully functional and operational remote monitoring center, which can be incorporated as part of the solutions to improve your overall electrical system reliability. • Eaton has access to the engineering departments who currently design electrical equipment. • Eaton has the following in-house technical support available to the specification engineer: • Environmental-Health and Safety personnel • Factory design engineers • Power Systems Engineers • Quality and Standards Engineers • Eaton test equipment is state of the art and calibrated yearly. • Emergency Service available 24 hours per day, 365 days per year. 11. PROPRIETARY AND CONFIDENTIAL INFORMATION This submittal contains Eaton proprietary and confidential information, which may only be used by the City of Fresno to evaluate and respond to this submittal. By accepting this submittal from Eaton, City of Fresno agrees to not use this submittal, or any information contained herein, in any manner adverse to Eaton's interests; to keep in confidence the submittal and all information contained; and to not disclose to any third party or publish this submittal, any portion thereof, or any information contained herein without Eaton's prior written consent. 12. TERMS AND CONDITIONS Any order arising out of this offer will be governed by the conditions contained in Eaton Selling Policy 25-000 dated November 1, 2008. Taxes, if applicable, not included. This offer is valid for 30 days unless otherwise extended, modified, or withdrawn, in writing, by Eaton. Payments are due and payable net within thirty (30) days from the date of each invoice. Please use proposal reference number SFK1-220630-02-RC on any purchase order issued in response to this proposal. It is a privilege to have this opportunity to be of service. If there are any further questions or needs, please contact one of your proposal team members listed in the next section. Eaton’s Electrical Engineering Services & Systems looks forward to working with you on this project. 13. PROPOSAL TEAM CONTACTS DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California Power Metering Dashboard MARCH 2023 Eaton Proprietary and Confidential Unauthorized Use and/or Disclosure is Strictly Prohibited EATON CORPORATION 9 EATON CORPORATION 9 For questions regarding this proposal, please contact: Eaton Corporation Electrical Engineering Service & Systems Service Sales Representative: Raymond Cooper Phone: (925) 416-9169 Email: raymondtcooper@eaton.com Eaton Corporation Electrical Engineering Service & Systems Technical Application Support Engineer: Lee Kambestad Phone: 909-247-6559 Email: leekambestad@eaton.com 14. ATTACHMENTS Eaton Selling Policy 25-000 DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California Power Metering Dashboard MARCH 2023 Eaton Proprietary and Confidential Unauthorized Use and/or Disclosure is Strictly Prohibited EATON CORPORATION 10 EATON CORPORATION 10 DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California Power Metering Dashboard MARCH 2023 Eaton Proprietary and Confidential Unauthorized Use and/or Disclosure is Strictly Prohibited EATON CORPORATION 11 EATON CORPORATION 11 DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California Power Metering Dashboard MARCH 2023 Eaton Proprietary and Confidential Unauthorized Use and/or Disclosure is Strictly Prohibited EATON CORPORATION 12 EATON CORPORATION 12 DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California Power Metering Dashboard MARCH 2023 Eaton Proprietary and Confidential Unauthorized Use and/or Disclosure is Strictly Prohibited EATON CORPORATION 13 EATON CORPORATION 13 DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1038 Agenda Date:7/20/2023 Agenda #: 1.-X. REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, PE, Director Public Works Department GREGORY A. BARFIELD MA, Director Department of Transportation BY:WILLIAM C. HERR, Assistant Director Public Works Department, Construction Management Division SUBJECT Approve Contract Change Order No. 6 to Strategic Mechanical, Inc. in the amount of $9,958.15 for the Department of Transportation Fresno Area Express Replace HVAC FAX Administration Building Project, Project ID: FC00036 (Council District 3) RECOMMENDATION Staff recommends Council approve Contract Change Order No. 6 in the amount of $9,958.15 for the installation of one ventilation louver in the mechanical room of the FAX Administration Building. EXECUTIVE SUMMARY Contract Change Order No. 6 provides for the installation of one (1) 30”x30” louver in the mechanical room of the FAX Administration Building. During final inspections, the Building Official noted that the air combustion calculations for the mechanical room indicated that the ventilation did not meet current codes. The installation of a new louver is necessary to provide for adequate air for proper combustion for the mechanical equipment in the building. This will satisfy the code requirements and the associated building permit’s final approvals. BACKGROUND On September 30, 2021, Council awarded a construction Contract in the amount of $549,994.92 to Strategic Mechanical, Inc. for the Replacement of the HVAC System at the FAX Administration Building. The Notice to Proceed was issued with a start date of April 20, 2022, and completion date of October 16, 2022. There have been five (5) Contract Change Orders approved to date totaling $108,192.32, resulting in a revised Contract Price of $658,187.24. There have also been sixty-two (62) suspension days granted to allow for the hot weather temperatures to pass prior to switching out City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1038 Agenda Date:7/20/2023 Agenda #: 1.-X. the HVAC equipment to accommodate employee comfort. this resulted in a revised Contract Completion Date of December 18, 2022. The original scope of work was determined to be substantially complete on December 18, 2022, however one item on the punch list required the installation of the ventilation louver. The Building Codes required new air combustion calculations for the mechanical room. It was determined that the installation of a new louver in the mechanical room would enable the facility to comply with current codes. This work was not identified in the original contract documents. ENVIRONMENTAL FINDINGS Staff has reviewed the scope and nature of this Project and through Environmental Assessment P21- 04668 determined that the scope of this Project falls under Section 15301/Class 1 and Section 15303/Class 3 Categorial Exemptions set for the California Environmental Quality Act (CEQA) Guidelines, as this Project is for the replacement of existing HVAC systems involving negligible or no expansion of capacity. The project will replace existing HVAC systems at the FAX Administration Building to meet current standards. Furthermore, none of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines, Section 15300.2 apply to this project. This project is not expected to have a significant effect on the environment. LOCAL PREFERENCE Local preference was not implemented as this is a change to an existing award. FISCAL IMPACT This project has no fiscal impact to the General Fund. This project will be funded from State of California Proposition 1B State of Good Repairs funds and FTA 5307/5339 grants. Attachment(s): Contract Change Order No. 6 City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1119 Agenda Date:7/20/2023 Agenda #:1.-Y. REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, PE, Director Public Works Department JENNIFER CLARK, Director Planning and Development Department AARON A. AGUIRRE, Director Parks, After School, Recreation and Community Services Department BY:RANDALL W. MORRISON, PE, Assistant Director Public Works Department, Engineering Division PHILIP SKEI, Assistant Director Planning & Development Department MIKE MOONEYHAM, PE, Professional Engineer Public Works Department, Site Development SUBJECT Actions pertaining to the Senior Activity Center and Affordable Housing Project (Council District 4) 1. Adopt an addendum to the Mitigated Negative Declaration as prepared for Environmental Assessment No. P23-02319, dated April 21, 2023, for the proposed project pursuant to the State of California Environmental Quality Act (CEQA) 2. Approve a 57-Year Ground Lease Agreement with Integrated Community Development, or related legal entity, to develop and operate the Senior Affordable Rental Housing project located at 4323-4333 North Blackstone Avenue 3. Approve an Affordable Housing Agreement with Integrated Community Development, or related legal entity, to develop a Senior Affordable Rental Housing project located at 4323- 4333 North Blackstone Avenue 4. Approve Phase 1 of a Progressive Design-Build Contract with Integrated Community Development to provide design services related to the Senior Activity Center Project in an amount not to exceed $634,117 RECOMMENDATIONS Staff recommends that the City Council (1) adopt the Addendum to a Mitigated Negative Declaration City of Fresno Printed on 7/31/2023Page 1 of 5 powered by Legistar™ 7/20/2023 TM/MA 6-0 GB RECUSED File #:ID 23-1119 Agenda Date:7/20/2023 Agenda #:1.-Y. Staff recommends that the City Council (1)adopt the Addendum to a Mitigated Negative Declaration as prepared for Environmental Assessment No.P23-02319,dated April 21,2023,(2)approve a Ground Lease Agreement with Integrated Community Development (ICD),or related legal entity,in substantially the form attached,to develop and operate the Senior Affordable Rental Housing project and authorize the City Manager to sign all implementing documents,approved as to form by the City Attorney’s Office,(3)approve an Affordable Housing Agreement with ICD,or related legal entity,in substantially the form attached,to develop a Senior Affordable Rental Housing project and authorize the City Manager to sign all implementing documents,approved as to form by the City Attorney’s Office,(4)approve Phase 1 of a Progressive Design-Build Contract (Contract)with ICD,in substantially the form presented,to provide design services related to the Senior Activity Center Project in an amount not to exceed $634,117 and authorize the Public Works Director or designee to execute a final Contract, approved as to form by the City Attorney’s Office. EXECUTIVE SUMMARY Staff has completed an assessment of new significant effects,as required for an Addendum to a Mitigated Negative Declaration,for the proposed project due to an increase of the number of proposed housing units to be included in the scope of the project from 70 to 100 units.Staff recommends Council adopt the Addendum to a Mitigated Negative Declaration as prepared for Environmental Assessment No. P23-02319, dated April 21, 2023. In May 2023,Council approved the use of Design-Build project delivery method for the Senior Activity Center and Affordable Housing project.Staff issued a Request for Qualifications (RFQ)to develop the project and received two responsible and responsive statements of qualifications (SOQ).Based on the evaluation completed by a selection panel,staff recommends approving a Progressive Design -Build agreement,in substantially the form attached,with ICD for the development of the Senior Activity Center and an Affordable Housing Agreement and Ground Lease Agreement with ICD,or related legal entity,in substantially the form presented,for the development and operation of the Senior Affordable Housing Project.Approval of the Ground Lease Agreement and Affordable Housing Agreement is required for the Senior Affordable Housing Project to commence. The Public Works Department and ICD will work collaboratively along with all stakeholders,to design the Senior Activity Center Project in accordance with the project program and budget.The project delivery method takes advantage of the Design-Builder’s expertise during all stages of design, funding,construction,and property management,and facilitates ownership and commitment by all parties involved and provides a high degree of cost and schedule certainty.Council approval of Phase 1 of a Progressive Design-Build (PDB)Contract is required in order for the design of the Senior Activity Center Project to commence.The final Contract will be reviewed and approved by the City Attorney’s Office prior to execution.The Progressive Design-Build Contract is funded through FY2024 appropriations from Measure P Expenditure Category 2,New Neighborhood Parks;Senior and Youth Recreation Facilities. BACKGROUND On July 25,2022,Council approved three actions pertaining to the development of the Senior Activity Center and Affordable Housing project,including adopting the Mitigated Negative Declaration for Proposed Acquisition for the Senior Center and Housing Project pursuant to the California Environmental Quality Act (CEQA)guidelines,adopting the 2nd amendment of the Annual City of Fresno Printed on 7/31/2023Page 2 of 5 powered by Legistar™ File #:ID 23-1119 Agenda Date:7/20/2023 Agenda #:1.-Y. Environmental Quality Act (CEQA)guidelines,adopting the 2nd amendment of the Annual Appropriation Resolution No.2022-154 appropriating Community Development Block Grant (CDBG) funds for the acquisition of 4343 North Blackstone Avenue (APN 426-253-17)and 4323-4333 North Blackstone Avenue (APN 426-253-19),and approving the agreement for purchase and sale of two parcels totaling 5.51 acres located at 4343 North Blackstone Avenue (APN 426-253-17)and 4323- 4333 North Blackstone Avenue (APN 426-253-19). The development of the new city-wide Senior Activity Center Project and Senior Affordable Housing Project will allow the City to expand services to the community by connecting seniors to vital resources that have been requested,including but not limited to the senior hot meals program,health and fitness programs,wellness programs,transportation services,volunteer opportunities, educational and arts programs,and technology programs.The proposed 30,000 square foot facility will consist of specific features and amenities that will be determined through a community engagement process and may include features such as community education rooms,aquatic facilities,a commercial kitchen,multi-purpose spaces,and indoor and outdoor recreational and fitness facilities. The site shall be designed to accommodate the Senior Activity Center and up to 100 units of affordable rental housing for seniors,consisting of studio,one-bedroom,and two-bedroom units.The development will optimize the use of shared spaces (e.g.,parking,and other amenities)as much as possible with the Senior Activity Center.All the housing units will be made available to senior households earning between 30%and 60%of Area Median Income (AMI),with the precise unit mix to be determined by the funding source that eventually funds the construction of the development. The City will enter into an Affordable Housing Agreement and a 57-year Ground Lease Agreement with ICD,or related legal entity,for long-term operation and management of the Senior Affordable Housing complex. On May 25,2023,Council approved the use of Fresno Municipal Code Section 4-502(d),Design- Build Qualification Method of procurement for this project.Through a competitive PDB procurement process,the Department of Public Works (DPW)advertised a Request for Qualifications (RFQ)on May 26,2023,via Planet Bids and direct email to prospective design-build teams with the capability and experience necessary to execute a PDB senior center and housing project.Two design-build teams responded to the RFQ.Their qualifications were evaluated and rated by a committee of six in accordance with the provisions of the RFQ,and interviews were conducted with both teams.The evaluation committee consisted of staff representing different City departments,including Public Works,City Manager,Housing and Community Development,PARCS,and City Council District 4. ICD,based in Woodland Hills,CA,and their team was determined to be the most qualified team to collaboratively work with the City and provide the best opportunity to meet the Project goals and required outcome,including long-term management of the Affordable Housing.The ICD team includes Y&M Architects,builder and general contractor BLH Construction,non-profit partner and housing co-developer CBH, and property manager Winn Companies. The Ground Lease Agreement and Affordable Housing Agreement will be reviewed and approved as to form by the City Attorney’s Office prior to execution.The final agreements will be reviewed and approved by the City Attorney’s Office prior to execution. The PDB Contract utilizes a modified Design-Build Institute of America (DBIA)standard Progressive Design-Build Agreement which has been reviewed by the City Attorney’s Office.The final Contract City of Fresno Printed on 7/31/2023Page 3 of 5 powered by Legistar™ File #:ID 23-1119 Agenda Date:7/20/2023 Agenda #:1.-Y. will be reviewed and approved by the City Attorney’s Office prior to execution. Planned future actions associated with the Senior Activity Center Project include executing Phase Two (construction) of the Progressive Design-Build contract. ENVIRONMENTAL FINDINGS NEPA Pursuant to the National Environmental Policy Act (NEPA)guidelines,a Phase I Environmental Site Assessment was completed and summarized in a report dated January 27,2022.The NEPA review concluded a Finding of No Significant Impact.The Housing and Community Development Division received authorization to use grant funds from the U.S.Department of Housing and Urban Development on May 27, 2022. CEQA Council adopted the Mitigated Negative Declaration for the acquisition of the property for the Senior Activity Center and Affordable Housing Project pursuant to the California Environmental Quality Act (CEQA) guidelines on July 25, 2022. Since the time the original environmental document was approved,the number of housing units proposed to be included in the project has increased from 70 units to 100 units.An assessment of new significant effects was completed in April 2023 and determined that the revised project would not have a significant impact. It may be determined that:(1)The revised project does not significantly exceed the scope of Environmental Assessment for City of Fresno Proposed Acquisition for Senior Center and Housing Project;(2)No substantial changes are proposed in the revised project which require major revisions to the previous environmental finding due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;(3)No substantial changes will occur with respect to the circumstances under which the project is undertaken;and,(4) No new information,which was not known and could not have been known,at the time the environmental finding for Environmental Assessment City of Fresno Proposed Acquisition for Senior Center and Housing Project was adopted, has become available. Therefore,the Staff has determined that an addendum to Environmental Assessment No.P 23-02319 for the Proposed Acquisition for Senior Center and Housing Project is appropriate given that none of the conditions described in Section 15162 of the CEQA Guidelines calling for preparation of a subsequent negative declaration have occurred;and,new information added is only for the purposes of providing minor changes or additions, in accordance with Section 15164 of the CEQA Guidelines. Therefore,staff recommends Council adopt the Addendum to a Mitigated Negative Declaration as prepared for Environmental Assessment No.P 23-02319,dated April 21,2023,for the Senior Activity Center and Affordable Housing Project. LOCAL PREFERENCE Local preference does not apply.The Fresno Municipal Code does not require local preference for design-build and affordable housing projects. City of Fresno Printed on 7/31/2023Page 4 of 5 powered by Legistar™ File #:ID 23-1119 Agenda Date:7/20/2023 Agenda #:1.-Y. FISCAL IMPACT All funds contributed to the Senior Activity Center Development may consist of a combination of Federal,State,or local sources.The City will enter into a ground lease and service contract with ICD, or related legal entity,for a period of 57-years for the Senior Affordable Housing Development.ICD, or related legal entity,will be applying for 9%Low Income Housing Tax Credits to finance the development of the Senior Affordable Housing.No funds are being contributed toward the construction of the Senior Affordable Housing at this time. The Progressive Design-Build Contract is funded through FY2024 appropriations from Measure P Expenditure Category 2, New Neighborhood Parks; Senior and Youth Recreation Facilities. Attachment(s): Addendum to a Mitigated Negative Declaration Prepared for Environmental Assessment for City of Fresno Proposed Acquisition for Senior Center and Housing Project Ground Lease Agreement Affordable Housing Agreement Progressive Design-Build Agreement Vicinity Map Location Map City of Fresno Printed on 7/31/2023Page 5 of 5 powered by Legistar™ CITY OF FRESNO ADDENDUM TO A MITIGATED NEGATIVE DECLARATION PREPARED FOR ENVIRONMENTAL ASSESSMENT FOR CITY OF FRESNO PROPOSED ACQUISITION FOR SENIOR CENTER AND HOUSING PROJECT (As filed with the Fresno County Clerk on July 27, 2022) Addendum prepared in accordance with Section 15164 of the California Environmental Quality Act (CEQA) Guidelines This addendum was not circulated for public review pursuant to Section 15164(c) of the CEQA Guidelines. The full Initial Study and Mitigated Negative Declaration SCH No. 2022060718 are on file in the Development and Resource Management Department, Fresno City Hall, 3rd Floor, 2600 Fresno Street, Fresno, California 93721 (559) 621-8277 ENVIRONMENTAL ASSESSMENT NUMBER: ___________________ APPLICANT: Aldi Ramirez City of Fresno Parks, After School, and Community Services 1515 E. Divisadero Street Fresno, CA 93721 PROJECT LOCATION: 4343 North Blackstone Avenue and 4323-4333 North Blackstone Avenue, Fresno, CA 93726; Located on the west side of North Blackstone Avenue between East Holland Avenue and East Swift Avenue in the City and county of Fresno, California (See Exhibit A - Vicinity Map). APN: 426-253-17 and 426-253-19 Site Latitude: 36°47'49" N & Site Longitude: -119°47'30.5" W Mount Diablo Base & Meridian, Township 13, Range 20, Section 16 PROJECT DESCRIPTION (Original): The City of Fresno intends to acquire the subject property located on the west side of North Blackstone Avenue between East Holland Avenue and East Swift Avenue at 4343 North Blackstone Avenue and 4233-4333 North Blackstone Avenue. The Project site consists of two (2) parcels that total 5.51 acres in size. One of the Project site parcels (APN: 426-253-17) currently contains a 40,564-square foot (sf.) grocery store and paved parking lot and is the proposed area of work (“Area of Work”). The other Project site parcel (APN:426-253-19) currently consists of an existing strip mall with six (6) separate tenant spaces, four (4) of which are leased to operating businesses. Acquisition of the property by the City would facilitate the demolition of the existing grocery store to develop a 29,000 square foot (sf.) senior center and 33,000 sf., 70-unit affordable housing development for seniors. The senior center and affordable housing development in the Area of Work. The proposed senior center would provide programs and services for senior residents including, but not limited to, meal and nutrition programs, information and assistance, health and fitness programs, wellness programs, recreation activities, educational and arts programs, etc. to serve approximately 1,162 to 2,323 seniors a year. The existing development located on the parcel identified as APN 426-253-19 with a site address of 4233-4333 North Blackstone Avenue would remain with the City assuming the current leases. No development is proposed on this portion of the Project site. Addendum to a Mitigated Negative Declaration Environmental Assessment for City of Fresno Proposed Acquisition for Senior Center and Housing Project April 21, 2023 PROJECT DESCRIPTION (Revised): Since the time of the original environmental document was approved, the city has acquired/purchased the land. The proposed housing project has gone from 70 units to 100 units. For the environmental analysis, this addendum only analyzes the change contemplated from the original project, which is the increase in the number of housing units from 70 units (original project) to 100 units (revised project). The revised project would not have a significant impact. It may be determined that: (1) The revised project does not significantly exceed the scope of Environmental Assessment for City of Fresno Proposed Acquisition for Senior Center and Housing Project; (2) No substantial changes are proposed in the revised project which require major revisions to the previous environmental finding due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (3) No substantial changes will occur with respect to the circumstances under which the project is undertaken; and, (4) No new information, which was not known and could not have been known, at the time the environmental finding for Environmental Assessment City of Fresno Proposed Acquisition for Senior Center and Housing Project was adopted, has become available. Analysis for this determination is detailed in the section below. Therefore, the City of Fresno has determined that an addendum to Environmental Assessment City of Fresno Proposed Acquisition for Senior Center and Housing Project is appropriate given that none of the conditions described in Section 15162 of the CEQA Guidelines calling for preparation of a subsequent negative declaration have occurred; and, new information added is only for the purposes of providing minor changes or additions, in accordance with Section 15164 of the CEQA Guidelines. Section 15162 provides that when a negative declaration has been adopted for a project, no subsequent negative declaration shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: FINDINGS PURSUANT TO SECTION 15162 OF THE CEQA GUIDELINES. (1) Substantial changes are proposed in the project which would require major revisions of the previous negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; Finding (1): The revised project proposes 100 affordable units compared to the original project, which proposed 70 units. This is not a substantial change and would not create new significant environmental effects since the project is proposing the same operations, residential use. It is also assessed that the revised project would not cause a substantial increase in the severity of previously identified significant effects, as demonstrated in Table 1. Table 1: Assessment of New Significant Effects CEQA Impact Area New Significant Effects (compared with the original project) Aesthetics No Impact. Project site is not adjacent to scenic highways, rivers, or historical buildings. There are also no scenic resources within or adjacent to the sites. The project, as revised, would implement the MND’s mitigation measure governing exterior lighting, which would mitigate all potential light and glare impact to a less than significant level. Thus, there are no new significant impacts. Agriculture/ Forestry Resources No Impact. Project area is developed, is not located within areas zoned for agricultural or forestry uses, and does not contain agricultural or forestry resources. Since these conditions remain the same, the revised project would not result in additional or new impacts. Addendum to a Mitigated Negative Declaration Environmental Assessment for City of Fresno Proposed Acquisition for Senior Center and Housing Project April 21, 2023 Air Quality Less than Significant Impact. Since the revised project exceeds the thresholds for Small Project Analysis Level (SPAL) that was used in the IS/MND, operational and construction-related emissions of criteria air pollutants were estimated using CalEEMod. As shown in Table 2 and Table 3 below, the estimated total operational and construction emissions for ROG, NOx, CO, SOx, PM10, and PM2.5 are below the thresholds of significance. Table 2: Construction Emissions of Criteria Air Pollutants - Unmitigated Construction Year Emissions (Tons/Year) ROG NOx CO SOx PM10 PM2.5 2023 0.15 1.26 1.41 0.00 0.18 0.11 2024 1.25 0.88 1.15 0.00 0.08 0.05 Maximum 1.25 1.26 1.41 0.00 0.18 0.11 Significance Thresholds 10 10 100 27 15 15 Exceed Significance Thresholds? No No No No No No CalEEMod run on April 10, 2023 (see Attachment A). Source of Thresholds: San Joaquin Valley Air Pollution Control District (SJVAPCD). 2015. Guidance for Assessing and Mitigating Air Quality Impacts. February 19. Website: https://www.valleyair.org/transportation/GAMAQI- 2015/FINAL-DRAFT-GAMAQI.PDF. Accessed April 10, 2023. Table 3: Operational Emissions of Criteria Air Pollutants - Unmitigated Source Emissions (Tons/Year) ROG NOX CO SOX PM10 PM2.5 Area 0.65 0.05 0.76 0.00 0.01 0.01 Energy 0.01 0.08 0.05 0.00 0.01 0.01 Mobile 0.59 0.96 5.07 0.01 1.14 0.31 Waste/Water - - - - 0.00 0.00 Annual Total 1.25 1.09 5.87 0.01 1.16 0.33 Significance Thresholds 10 10 100 27 15 15 Exceed Significance Thresholds? No No No No No No CalEEMod run on April 10, 2023 (see Attachment A). Based on the SJVAPCD’s guidance, the construction and operational emissions would not cause an ambient air quality standard violation. As such, the revised project would not result in substantial impacts. Biological Resources No Impact. The project site is developed and improved. The site is paved with urban landscaping such as herbaceous vegetation, shrubs, or trees. Since all site conditions remain the same, the revised project would not result in additional or new impacts. Cultural Resources No Impact. CHRIS record search conducted on June 20, 2022, with no evidence that historical resources exist on the project site. The project, as revised, would implement the MND’s mitigation measure to mitigate hidden or buried resources that may exist on site. Since all site conditions remain the same, the revised project would not result in additional or new impacts. Addendum to a Mitigated Negative Declaration Environmental Assessment for City of Fresno Proposed Acquisition for Senior Center and Housing Project April 21, 2023 Energy Less than Significant Impact. Energy use remains typical of residential use and the revised project would comply with regulations as stated in the ISMND. Table 4 shows the comparison of energy consumption of the original and revised project. While the revised project energy consumption increases compared to the original project since it proposes more dwelling units, the energy per unit that is consumed decreases. As such, the revised project would not result in substantial impacts. Table 4: Energy Consumption Comparison Energy Consumption Original project Revised project Electricity(kWh/year) 525,825 644,169 Natural Gas (kBTU/year) 1,424,934 1,778,350 Electricity per unit 7,512 6,442 Natural Gas per unit 20,356 17,784 Geology/ Soils No Impact. There are no active faults in the City of Fresno and the site has low potential for ground failure, landslides, etc. In addition, the site is infill and surrounded by urban uses. Since all site conditions remain the same, the revised project would not result in additional or new impacts. Greenhouse Gas Emissions No Impact. While the revised project would produce increased GHG emission compared to the original project, the revised project is consistent with the Fresno GHG Reduction Plan Update CEQA Consistency Checklist as reviewed in the ISMND. Since the revised project is compliant with the Fresno GHG Reduction Plan Update, the revised project would not result in additional or new impacts. Hazards/ Hazardous Materials No Impact. Since the revised project proposes residential uses and a senior center that consist of the same operations as the original project, it is anticipated that the use, transport, and disposal of hazardous materials would be similar, and thus would not be the type or quantity that would pose a significant hazard to the public. Since all site conditions and proposed operations remain the same, the revised project would not result in additional or new impacts. Hydrology/ Water Quality Less than Significant Impact. Since the site is larger than one (1) acre, compliance with NPDES would ensure future development does not violate water quality standards. Development of the revised project would also increase water demand compared to the original project. However, the proposed development density does not exceed the intensity anticipated in the General Plan or PEIR. While the revised project could increase the rate or amount of surface runoff, the project would be reviewed and conditioned by the FMFCD prior to approval to ensure controlled runoff. Lastly, as the site is currently developed, redevelopment facilitated by the project would result in improved drainage and recharge possibilities consistent with City requirements. Since site conditions remain the same and the revised project is within the scope of the General Plan, the revised project would not result in significant or new impacts. Land Use/ Planning No Impact. The project and project site is considered “infill” since it is located in an urban neighborhood surrounded by existing developments, roadways, and utility lines. No physical division would occur. Since site conditions and the proposed operations remain the same, the revised project would not result in additional or new impacts. Mineral Resources No Impact. The project site is not located in an area designated for mineral resource preservation or recovery. Since site conditions remain Addendum to a Mitigated Negative Declaration Environmental Assessment for City of Fresno Proposed Acquisition for Senior Center and Housing Project April 21, 2023 the same, the revised project would not result in additional or new impacts. Noise Less than Significant Impact. The project, as revised, would implement the MND’s mitigation measure to mitigate construction noise. Since site conditions and the proposed operations remain the same, the revised project would not result in additional or new impacts. Population and Housing No Impact. The revised project proposes a use that is consistent with the zoning and planned land use of the site. As such, the project would not result in unplanned growth and would have no impact. Public Services Less than Significant Impact. The revised project is expected to increase density, increasing the demand for public services. Consequently, the project would be conditioned to pay development impact fees and/or dedicate park land as regulated in the Code. Since the payment of fees authorized by the statute is deemed “full and complete mitigation” and the project is consistent with planned growth, the revised project would result in a less than significant impact. Recreation Less than Significant Impact. The revised project is expected to increase residential units, increasing the demand for park land and recreation facilities. The Project would be conditioned to pay development impact fees and dedicate open space as regulated in the Code. As such, the revised project would result in a less than significant impact. Transportation No Impact. The City of Fresno VMT Thresholds Section 3.0 regarding Project Screening discusses a variety of projects that may be screened out of a VMT analysis. The project, according to the ISMND, is eligible to screen out because the Project is within 0.50-miles of a Transit Priority Area and a High-Quality Transit Area. Since the site location and the transit conditions remain the same, the revised project would not result in additional or new impacts. Tribal Cultural Resources No Impact. A CHRIS record search was conducted on June 20, 2022, with no evidence found that historical resources exist on the project site. No consultation was requested for the original project. The project, as revised, would implement the MND’s mitigation measure to mitigate hidden or buried resources that may exist on site. Since all site conditions remain the same, the revised project would not result in additional or new impacts. Utilities and Service Systems Less than Significant Impact. The revised project would increase residential units, increasing the demand for utilities and services systems. However, the revised project’s land use and development density does not exceed the scale anticipated in the General Plan or PEIR. As a result, it can be presumed that the existing and planned utilities and service systems would be adequate to serve the project. In addition, the project would be subject to conditions from the city’s public works and public utilities departments to ensure that adequate utilities are in place. Solid waste is expected to increase by 13.8 tons per year compared to the original project. Similar to the original project, the Project will be required by the City to install one (1) trash and recycling enclosure per 30 units for collection by Allied Waste Services. As such, compliance with the applicable measures and policies, as well as impact fees and other conditions of approval, the revised project would not result in significant or new impacts. Addendum to a Mitigated Negative Declaration Environmental Assessment for City of Fresno Proposed Acquisition for Senior Center and Housing Project April 21, 2023 Wildfire No Impact. The site is fully developed and surrounded with a mix of urban uses and is not located within a wildland, which precludes the risk of wildfire. In addition, the revised project would not impair access to the existing roadway network and development would be conditioned to Building and Fire Code so that they would not exacerbate fire risks. Since site conditions remain the same, the revised project would not result in additional or new impacts. (2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or, Finding (2): The Initial Study (IS) and Mitigated Negative Declaration (MND) that was prepared for the original project was adopted in 2022. Since then, there have been no substantial changes to the circumstances under which the project is undertaken that have occurred. The development on the project site and within the vicinity of the project is generally the same as it was in 2022. (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous Negative Declaration was adopted, shows any of the following: (A) The project will have one or more significant effects not discussed in the previous negative declaration; (B) Significant effects previously examined will be substantially more severe than shown in the previous negative declaration; (C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project; and, (D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous negative declaration, would substantially reduce one or more significant effects on the environment. Finding (3): All significant effects were discussed in the original MND and impacts that are more severe than the original MND are discussed in Finding 1. In addition, mitigation measures of the previous MND remain feasible and effective. As such, there is no new information of substantial information that would cause a significant effect. ADDENDUM PREPARED BY: Bonique Emerson, AICP, VP of Planning Shin Tu, AICP Candidate, Associate Planner SUBMITTED BY: _______________________________________ _______________________________________ CITY OF FRESNO DEVELOPMENT AND RESOURCE MANAGEMENT DEPARTMENT DATE: April 21, 2023 Senior Center - revised project San Joaquin Valley Unified APCD Air District, Annual Project Characteristics - Land Use - The project site (Area of Work) is approximately 4.25 acres. Health Club refers to the senior center 1.1 Land Usage Land Uses Size Metric Lot Acreage Floor Surface Area Population Apartments Mid Rise 100.00 Dwelling Unit 4.25 100,000.00 317 Health Club 29.00 1000sqft 0.00 29,000.00 0 1.2 Other Project Characteristics Urbanization Climate Zone Urban 3 Wind Speed (m/s)Precipitation Freq (Days)2.7 45 1.3 User Entered Comments & Non-Default Data 1.0 Project Characteristics 2.0 Emissions Summary Utility Company Pacific Gas and Electric Company 2025Operational Year CO2 Intensity (lb/MWhr) 203.98 0.033CH4 Intensity (lb/MWhr) 0.004N2O Intensity (lb/MWhr) Table Name Column Name Default Value New Value tblLandUse LotAcreage 2.63 4.25 tblLandUse LotAcreage 0.67 0.00 tblWoodstoves NumberCatalytic 4.25 0.00 tblWoodstoves NumberNoncatalytic 4.25 0.00 CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 1 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 2.1 Overall Construction ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Year tons/yr MT/yr 2023 0.1472 1.2618 1.4104 2.7500e- 003 0.1254 0.0584 0.1837 0.0518 0.0547 0.1065 0.0000 241.9645 241.9645 0.0495 3.5700e- 003 244.2671 2024 1.2468 0.8777 1.1495 2.2000e- 003 0.0455 0.0386 0.0841 0.0122 0.0363 0.0485 0.0000 193.0801 193.0801 0.0362 3.2400e- 003 194.9486 Maximum 1.2468 1.2618 1.4104 2.7500e- 003 0.1254 0.0584 0.1837 0.0518 0.0547 0.1065 0.0000 241.9645 241.9645 0.0495 3.5700e- 003 244.2671 Unmitigated Construction ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Year tons/yr MT/yr 2023 0.1472 1.2618 1.4104 2.7500e- 003 0.1254 0.0584 0.1837 0.0518 0.0547 0.1065 0.0000 241.9643 241.9643 0.0495 3.5700e- 003 244.2669 2024 1.2468 0.8777 1.1495 2.2000e- 003 0.0455 0.0386 0.0841 0.0122 0.0363 0.0485 0.0000 193.0799 193.0799 0.0362 3.2400e- 003 194.9485 Maximum 1.2468 1.2618 1.4104 2.7500e- 003 0.1254 0.0584 0.1837 0.0518 0.0547 0.1065 0.0000 241.9643 241.9643 0.0495 3.5700e- 003 244.2669 Mitigated Construction CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 2 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio-CO2 Total CO2 CH4 N20 CO2e Percent Reduction 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Quarter Start Date End Date Maximum Unmitigated ROG + NOX (tons/quarter)Maximum Mitigated ROG + NOX (tons/quarter) 1 6-1-2023 8-31-2023 0.6731 0.6731 2 9-1-2023 11-30-2023 0.5559 0.5559 3 12-1-2023 2-29-2024 0.5331 0.5331 4 3-1-2024 5-31-2024 0.5259 0.5259 5 6-1-2024 8-31-2024 1.2867 1.2867 Highest 1.2867 1.2867 2.2 Overall Operational ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Area 0.6445 0.0460 0.7580 2.8000e- 004 7.1400e- 003 7.1400e- 003 7.1400e- 003 7.1400e- 003 0.0000 44.5341 44.5341 1.9900e- 003 7.9000e- 004 44.8206 Energy 9.5900e- 003 0.0837 0.0478 5.2000e- 004 6.6300e- 003 6.6300e- 003 6.6300e- 003 6.6300e- 003 0.0000 154.5004 154.5004 0.0115 2.9100e- 003 155.6537 Mobile 0.5930 0.9581 5.0670 0.0116 1.1323 0.0105 1.1428 0.3030 9.8300e- 003 0.3129 0.0000 1,093.559 1 1,093.559 1 0.0620 0.0634 1,114.010 2 Waste 0.0000 0.0000 0.0000 0.0000 42.8920 0.0000 42.8920 2.5348 0.0000 106.2631 Water 0.0000 0.0000 0.0000 0.0000 2.6112 5.7912 8.4024 0.2691 6.4500e- 003 17.0516 Total 1.2471 1.0877 5.8728 0.0124 1.1323 0.0242 1.1565 0.3030 0.0236 0.3266 45.5032 1,298.384 8 1,343.888 0 2.8794 0.0736 1,437.799 2 Unmitigated Operational CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 3 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 2.2 Overall Operational ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Area 0.6445 0.0460 0.7580 2.8000e- 004 7.1400e- 003 7.1400e- 003 7.1400e- 003 7.1400e- 003 0.0000 44.5341 44.5341 1.9900e- 003 7.9000e- 004 44.8206 Energy 9.5900e- 003 0.0837 0.0478 5.2000e- 004 6.6300e- 003 6.6300e- 003 6.6300e- 003 6.6300e- 003 0.0000 154.5004 154.5004 0.0115 2.9100e- 003 155.6537 Mobile 0.5930 0.9581 5.0670 0.0116 1.1323 0.0105 1.1428 0.3030 9.8300e- 003 0.3129 0.0000 1,093.559 1 1,093.559 1 0.0620 0.0634 1,114.010 2 Waste 0.0000 0.0000 0.0000 0.0000 42.8920 0.0000 42.8920 2.5348 0.0000 106.2631 Water 0.0000 0.0000 0.0000 0.0000 2.6112 5.7912 8.4024 0.2691 6.4500e- 003 17.0516 Total 1.2471 1.0877 5.8728 0.0124 1.1323 0.0242 1.1565 0.3030 0.0236 0.3266 45.5032 1,298.384 8 1,343.888 0 2.8794 0.0736 1,437.799 2 Mitigated Operational 3.0 Construction Detail Construction Phase Phase Number Phase Name Phase Type Start Date End Date Num Days Week Num Days Phase Description 1 Demolition Demolition 6/1/2023 6/28/2023 5 20 2 Site Preparation Site Preparation 6/29/2023 7/5/2023 5 5 3 Grading Grading 7/6/2023 7/17/2023 5 8 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio-CO2 Total CO2 CH4 N20 CO2e Percent Reduction 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 4 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 4 Building Construction Building Construction 7/18/2023 6/3/2024 5 230 5 Paving Paving 6/4/2024 6/27/2024 5 18 6 Architectural Coating Architectural Coating 6/28/2024 7/23/2024 5 18 OffRoad Equipment Phase Name Offroad Equipment Type Amount Usage Hours Horse Power Load Factor Architectural Coating Air Compressors 1 6.00 78 0.48 Paving Cement and Mortar Mixers 2 6.00 9 0.56 Demolition Concrete/Industrial Saws 1 8.00 81 0.73 Building Construction Cranes 1 7.00 231 0.29 Demolition Excavators 3 8.00 158 0.38 Grading Excavators 1 8.00 158 0.38 Building Construction Forklifts 3 8.00 89 0.20 Building Construction Generator Sets 1 8.00 84 0.74 Grading Graders 1 8.00 187 0.41 Paving Pavers 1 8.00 130 0.42 Paving Paving Equipment 2 6.00 132 0.36 Paving Rollers 2 6.00 80 0.38 Demolition Rubber Tired Dozers 2 8.00 247 0.40 Grading Rubber Tired Dozers 1 8.00 247 0.40 Site Preparation Rubber Tired Dozers 3 8.00 247 0.40 Building Construction Tractors/Loaders/Backhoes 3 7.00 97 0.37 Grading Tractors/Loaders/Backhoes 3 8.00 97 0.37 Residential Indoor: 202,500; Residential Outdoor: 67,500; Non-Residential Indoor: 43,500; Non-Residential Outdoor: 14,500; Striped Parking Area: 0 (Architectural Coating – sqft) Acres of Grading (Site Preparation Phase): 7.5 Acres of Grading (Grading Phase): 8 Acres of Paving: 0 CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 5 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.2 Demolition - 2023 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Off-Road 0.0227 0.2148 0.1964 3.9000e- 004 9.9800e- 003 9.9800e- 003 9.2800e- 003 9.2800e- 003 0.0000 33.9921 33.9921 9.5200e- 003 0.0000 34.2301 Total 0.0227 0.2148 0.1964 3.9000e- 004 9.9800e- 003 9.9800e- 003 9.2800e- 003 9.2800e- 003 0.0000 33.9921 33.9921 9.5200e- 003 0.0000 34.2301 Unmitigated Construction On-Site 3.1 Mitigation Measures Construction Paving Tractors/Loaders/Backhoes 1 8.00 97 0.37 Site Preparation Tractors/Loaders/Backhoes 4 8.00 97 0.37 Building Construction Welders 1 8.00 46 0.45 Trips and VMT Phase Name Offroad Equipment Count Worker Trip Number Vendor Trip Number Hauling Trip Number Worker Trip Length Vendor Trip Length Hauling Trip Length Worker Vehicle Class Vendor Vehicle Class Hauling Vehicle Class Demolition 6 15.00 0.00 0.00 10.80 7.30 20.00 LD_Mix HDT_Mix HHDT Site Preparation 7 18.00 0.00 0.00 10.80 7.30 20.00 LD_Mix HDT_Mix HHDT Grading 6 15.00 0.00 0.00 10.80 7.30 20.00 LD_Mix HDT_Mix HHDT Building Construction 9 84.00 15.00 0.00 10.80 7.30 20.00 LD_Mix HDT_Mix HHDT Paving 8 20.00 0.00 0.00 10.80 7.30 20.00 LD_Mix HDT_Mix HHDT Architectural Coating 1 17.00 0.00 0.00 10.80 7.30 20.00 LD_Mix HDT_Mix HHDT CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 6 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.2 Demolition - 2023 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Worker 4.7000e- 004 3.2000e- 004 3.7300e- 003 1.0000e- 005 1.2000e- 003 1.0000e- 005 1.2100e- 003 3.2000e- 004 1.0000e- 005 3.2000e- 004 0.0000 0.9711 0.9711 3.0000e- 005 3.0000e- 005 0.9803 Total 4.7000e- 004 3.2000e- 004 3.7300e- 003 1.0000e- 005 1.2000e- 003 1.0000e- 005 1.2100e- 003 3.2000e- 004 1.0000e- 005 3.2000e- 004 0.0000 0.9711 0.9711 3.0000e- 005 3.0000e- 005 0.9803 Unmitigated Construction Off-Site ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Off-Road 0.0227 0.2148 0.1964 3.9000e- 004 9.9800e- 003 9.9800e- 003 9.2800e- 003 9.2800e- 003 0.0000 33.9920 33.9920 9.5200e- 003 0.0000 34.2300 Total 0.0227 0.2148 0.1964 3.9000e- 004 9.9800e- 003 9.9800e- 003 9.2800e- 003 9.2800e- 003 0.0000 33.9920 33.9920 9.5200e- 003 0.0000 34.2300 Mitigated Construction On-Site CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 7 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.2 Demolition - 2023 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Worker 4.7000e- 004 3.2000e- 004 3.7300e- 003 1.0000e- 005 1.2000e- 003 1.0000e- 005 1.2100e- 003 3.2000e- 004 1.0000e- 005 3.2000e- 004 0.0000 0.9711 0.9711 3.0000e- 005 3.0000e- 005 0.9803 Total 4.7000e- 004 3.2000e- 004 3.7300e- 003 1.0000e- 005 1.2000e- 003 1.0000e- 005 1.2100e- 003 3.2000e- 004 1.0000e- 005 3.2000e- 004 0.0000 0.9711 0.9711 3.0000e- 005 3.0000e- 005 0.9803 Mitigated Construction Off-Site 3.3 Site Preparation - 2023 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Fugitive Dust 0.0491 0.0000 0.0491 0.0253 0.0000 0.0253 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Off-Road 6.6500e- 003 0.0688 0.0456 1.0000e- 004 3.1700e- 003 3.1700e- 003 2.9100e- 003 2.9100e- 003 0.0000 8.3627 8.3627 2.7000e- 003 0.0000 8.4303 Total 6.6500e- 003 0.0688 0.0456 1.0000e- 004 0.0491 3.1700e- 003 0.0523 0.0253 2.9100e- 003 0.0282 0.0000 8.3627 8.3627 2.7000e- 003 0.0000 8.4303 Unmitigated Construction On-Site CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 8 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.3 Site Preparation - 2023 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Worker 1.4000e- 004 9.0000e- 005 1.1200e- 003 0.0000 3.6000e- 004 0.0000 3.6000e- 004 1.0000e- 004 0.0000 1.0000e- 004 0.0000 0.2913 0.2913 1.0000e- 005 1.0000e- 005 0.2941 Total 1.4000e- 004 9.0000e- 005 1.1200e- 003 0.0000 3.6000e- 004 0.0000 3.6000e- 004 1.0000e- 004 0.0000 1.0000e- 004 0.0000 0.2913 0.2913 1.0000e- 005 1.0000e- 005 0.2941 Unmitigated Construction Off-Site ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Fugitive Dust 0.0491 0.0000 0.0491 0.0253 0.0000 0.0253 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Off-Road 6.6500e- 003 0.0688 0.0456 1.0000e- 004 3.1700e- 003 3.1700e- 003 2.9100e- 003 2.9100e- 003 0.0000 8.3627 8.3627 2.7000e- 003 0.0000 8.4303 Total 6.6500e- 003 0.0688 0.0456 1.0000e- 004 0.0491 3.1700e- 003 0.0523 0.0253 2.9100e- 003 0.0282 0.0000 8.3627 8.3627 2.7000e- 003 0.0000 8.4303 Mitigated Construction On-Site CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 9 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.3 Site Preparation - 2023 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Worker 1.4000e- 004 9.0000e- 005 1.1200e- 003 0.0000 3.6000e- 004 0.0000 3.6000e- 004 1.0000e- 004 0.0000 1.0000e- 004 0.0000 0.2913 0.2913 1.0000e- 005 1.0000e- 005 0.2941 Total 1.4000e- 004 9.0000e- 005 1.1200e- 003 0.0000 3.6000e- 004 0.0000 3.6000e- 004 1.0000e- 004 0.0000 1.0000e- 004 0.0000 0.2913 0.2913 1.0000e- 005 1.0000e- 005 0.2941 Mitigated Construction Off-Site 3.4 Grading - 2023 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Fugitive Dust 0.0283 0.0000 0.0283 0.0137 0.0000 0.0137 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Off-Road 6.8400e- 003 0.0717 0.0590 1.2000e- 004 3.1000e- 003 3.1000e- 003 2.8500e- 003 2.8500e- 003 0.0000 10.4243 10.4243 3.3700e- 003 0.0000 10.5085 Total 6.8400e- 003 0.0717 0.0590 1.2000e- 004 0.0283 3.1000e- 003 0.0314 0.0137 2.8500e- 003 0.0166 0.0000 10.4243 10.4243 3.3700e- 003 0.0000 10.5085 Unmitigated Construction On-Site CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 10 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.4 Grading - 2023 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Worker 1.9000e- 004 1.3000e- 004 1.4900e- 003 0.0000 4.8000e- 004 0.0000 4.8000e- 004 1.3000e- 004 0.0000 1.3000e- 004 0.0000 0.3884 0.3884 1.0000e- 005 1.0000e- 005 0.3921 Total 1.9000e- 004 1.3000e- 004 1.4900e- 003 0.0000 4.8000e- 004 0.0000 4.8000e- 004 1.3000e- 004 0.0000 1.3000e- 004 0.0000 0.3884 0.3884 1.0000e- 005 1.0000e- 005 0.3921 Unmitigated Construction Off-Site ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Fugitive Dust 0.0283 0.0000 0.0283 0.0137 0.0000 0.0137 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Off-Road 6.8400e- 003 0.0717 0.0590 1.2000e- 004 3.1000e- 003 3.1000e- 003 2.8500e- 003 2.8500e- 003 0.0000 10.4242 10.4242 3.3700e- 003 0.0000 10.5085 Total 6.8400e- 003 0.0717 0.0590 1.2000e- 004 0.0283 3.1000e- 003 0.0314 0.0137 2.8500e- 003 0.0166 0.0000 10.4242 10.4242 3.3700e- 003 0.0000 10.5085 Mitigated Construction On-Site CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 11 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.4 Grading - 2023 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Worker 1.9000e- 004 1.3000e- 004 1.4900e- 003 0.0000 4.8000e- 004 0.0000 4.8000e- 004 1.3000e- 004 0.0000 1.3000e- 004 0.0000 0.3884 0.3884 1.0000e- 005 1.0000e- 005 0.3921 Total 1.9000e- 004 1.3000e- 004 1.4900e- 003 0.0000 4.8000e- 004 0.0000 4.8000e- 004 1.3000e- 004 0.0000 1.3000e- 004 0.0000 0.3884 0.3884 1.0000e- 005 1.0000e- 005 0.3921 Mitigated Construction Off-Site 3.5 Building Construction - 2023 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Off-Road 0.0936 0.8559 0.9665 1.6000e- 003 0.0416 0.0416 0.0392 0.0392 0.0000 137.9238 137.9238 0.0328 0.0000 138.7441 Total 0.0936 0.8559 0.9665 1.6000e- 003 0.0416 0.0416 0.0392 0.0392 0.0000 137.9238 137.9238 0.0328 0.0000 138.7441 Unmitigated Construction On-Site CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 12 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.5 Building Construction - 2023 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 9.8000e- 004 0.0395 0.0121 1.8000e- 004 5.9200e- 003 2.6000e- 004 6.1700e- 003 1.7100e- 003 2.4000e- 004 1.9500e- 003 0.0000 17.2535 17.2535 7.0000e- 005 2.5800e- 003 18.0246 Worker 0.0157 0.0105 0.1244 3.5000e- 004 0.0400 2.1000e- 004 0.0402 0.0106 1.9000e- 004 0.0108 0.0000 32.3573 32.3573 1.0100e- 003 9.4000e- 004 32.6630 Total 0.0167 0.0500 0.1365 5.3000e- 004 0.0459 4.7000e- 004 0.0463 0.0123 4.3000e- 004 0.0128 0.0000 49.6108 49.6108 1.0800e- 003 3.5200e- 003 50.6877 Unmitigated Construction Off-Site ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Off-Road 0.0936 0.8559 0.9665 1.6000e- 003 0.0416 0.0416 0.0392 0.0392 0.0000 137.9237 137.9237 0.0328 0.0000 138.7439 Total 0.0936 0.8559 0.9665 1.6000e- 003 0.0416 0.0416 0.0392 0.0392 0.0000 137.9237 137.9237 0.0328 0.0000 138.7439 Mitigated Construction On-Site CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 13 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.5 Building Construction - 2023 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 9.8000e- 004 0.0395 0.0121 1.8000e- 004 5.9200e- 003 2.6000e- 004 6.1700e- 003 1.7100e- 003 2.4000e- 004 1.9500e- 003 0.0000 17.2535 17.2535 7.0000e- 005 2.5800e- 003 18.0246 Worker 0.0157 0.0105 0.1244 3.5000e- 004 0.0400 2.1000e- 004 0.0402 0.0106 1.9000e- 004 0.0108 0.0000 32.3573 32.3573 1.0100e- 003 9.4000e- 004 32.6630 Total 0.0167 0.0500 0.1365 5.3000e- 004 0.0459 4.7000e- 004 0.0463 0.0123 4.3000e- 004 0.0128 0.0000 49.6108 49.6108 1.0800e- 003 3.5200e- 003 50.6877 Mitigated Construction Off-Site 3.5 Building Construction - 2024 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Off-Road 0.0817 0.7461 0.8973 1.5000e- 003 0.0340 0.0340 0.0320 0.0320 0.0000 128.6763 128.6763 0.0304 0.0000 129.4370 Total 0.0817 0.7461 0.8973 1.5000e- 003 0.0340 0.0340 0.0320 0.0320 0.0000 128.6763 128.6763 0.0304 0.0000 129.4370 Unmitigated Construction On-Site CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 14 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.5 Building Construction - 2024 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 8.9000e- 004 0.0368 0.0110 1.7000e- 004 5.5200e- 003 2.4000e- 004 5.7600e- 003 1.5900e- 003 2.3000e- 004 1.8200e- 003 0.0000 15.8365 15.8365 7.0000e- 005 2.3700e- 003 16.5438 Worker 0.0135 8.6500e- 003 0.1073 3.1000e- 004 0.0373 1.9000e- 004 0.0375 9.9100e- 003 1.7000e- 004 0.0101 0.0000 29.4253 29.4253 8.4000e- 004 8.1000e- 004 29.6880 Total 0.0144 0.0455 0.1183 4.8000e- 004 0.0428 4.3000e- 004 0.0432 0.0115 4.0000e- 004 0.0119 0.0000 45.2618 45.2618 9.1000e- 004 3.1800e- 003 46.2319 Unmitigated Construction Off-Site ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Off-Road 0.0817 0.7461 0.8973 1.5000e- 003 0.0340 0.0340 0.0320 0.0320 0.0000 128.6761 128.6761 0.0304 0.0000 129.4368 Total 0.0817 0.7461 0.8973 1.5000e- 003 0.0340 0.0340 0.0320 0.0320 0.0000 128.6761 128.6761 0.0304 0.0000 129.4368 Mitigated Construction On-Site CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 15 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.5 Building Construction - 2024 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 8.9000e- 004 0.0368 0.0110 1.7000e- 004 5.5200e- 003 2.4000e- 004 5.7600e- 003 1.5900e- 003 2.3000e- 004 1.8200e- 003 0.0000 15.8365 15.8365 7.0000e- 005 2.3700e- 003 16.5438 Worker 0.0135 8.6500e- 003 0.1073 3.1000e- 004 0.0373 1.9000e- 004 0.0375 9.9100e- 003 1.7000e- 004 0.0101 0.0000 29.4253 29.4253 8.4000e- 004 8.1000e- 004 29.6880 Total 0.0144 0.0455 0.1183 4.8000e- 004 0.0428 4.3000e- 004 0.0432 0.0115 4.0000e- 004 0.0119 0.0000 45.2618 45.2618 9.1000e- 004 3.1800e- 003 46.2319 Mitigated Construction Off-Site 3.6 Paving - 2024 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Off-Road 7.9300e- 003 0.0745 0.1100 1.7000e- 004 3.5900e- 003 3.5900e- 003 3.3200e- 003 3.3200e- 003 0.0000 14.7423 14.7423 4.6300e- 003 0.0000 14.8581 Paving 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Total 7.9300e- 003 0.0745 0.1100 1.7000e- 004 3.5900e- 003 3.5900e- 003 3.3200e- 003 3.3200e- 003 0.0000 14.7423 14.7423 4.6300e- 003 0.0000 14.8581 Unmitigated Construction On-Site CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 16 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.6 Paving - 2024 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Worker 5.2000e- 004 3.3000e- 004 4.1400e- 003 1.0000e- 005 1.4400e- 003 1.0000e- 005 1.4500e- 003 3.8000e- 004 1.0000e- 005 3.9000e- 004 0.0000 1.1361 1.1361 3.0000e- 005 3.0000e- 005 1.1463 Total 5.2000e- 004 3.3000e- 004 4.1400e- 003 1.0000e- 005 1.4400e- 003 1.0000e- 005 1.4500e- 003 3.8000e- 004 1.0000e- 005 3.9000e- 004 0.0000 1.1361 1.1361 3.0000e- 005 3.0000e- 005 1.1463 Unmitigated Construction Off-Site ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Off-Road 7.9300e- 003 0.0745 0.1100 1.7000e- 004 3.5900e- 003 3.5900e- 003 3.3200e- 003 3.3200e- 003 0.0000 14.7423 14.7423 4.6300e- 003 0.0000 14.8581 Paving 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Total 7.9300e- 003 0.0745 0.1100 1.7000e- 004 3.5900e- 003 3.5900e- 003 3.3200e- 003 3.3200e- 003 0.0000 14.7423 14.7423 4.6300e- 003 0.0000 14.8581 Mitigated Construction On-Site CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 17 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.6 Paving - 2024 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Worker 5.2000e- 004 3.3000e- 004 4.1400e- 003 1.0000e- 005 1.4400e- 003 1.0000e- 005 1.4500e- 003 3.8000e- 004 1.0000e- 005 3.9000e- 004 0.0000 1.1361 1.1361 3.0000e- 005 3.0000e- 005 1.1463 Total 5.2000e- 004 3.3000e- 004 4.1400e- 003 1.0000e- 005 1.4400e- 003 1.0000e- 005 1.4500e- 003 3.8000e- 004 1.0000e- 005 3.9000e- 004 0.0000 1.1361 1.1361 3.0000e- 005 3.0000e- 005 1.1463 Mitigated Construction Off-Site 3.7 Architectural Coating - 2024 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Archit. Coating 1.1402 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Off-Road 1.6300e- 003 0.0110 0.0163 3.0000e- 005 5.5000e- 004 5.5000e- 004 5.5000e- 004 5.5000e- 004 0.0000 2.2979 2.2979 1.3000e- 004 0.0000 2.3012 Total 1.1418 0.0110 0.0163 3.0000e- 005 5.5000e- 004 5.5000e- 004 5.5000e- 004 5.5000e- 004 0.0000 2.2979 2.2979 1.3000e- 004 0.0000 2.3012 Unmitigated Construction On-Site CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 18 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.7 Architectural Coating - 2024 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Worker 4.4000e- 004 2.8000e- 004 3.5200e- 003 1.0000e- 005 1.2200e- 003 1.0000e- 005 1.2300e- 003 3.3000e- 004 1.0000e- 005 3.3000e- 004 0.0000 0.9657 0.9657 3.0000e- 005 3.0000e- 005 0.9743 Total 4.4000e- 004 2.8000e- 004 3.5200e- 003 1.0000e- 005 1.2200e- 003 1.0000e- 005 1.2300e- 003 3.3000e- 004 1.0000e- 005 3.3000e- 004 0.0000 0.9657 0.9657 3.0000e- 005 3.0000e- 005 0.9743 Unmitigated Construction Off-Site ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Archit. Coating 1.1402 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Off-Road 1.6300e- 003 0.0110 0.0163 3.0000e- 005 5.5000e- 004 5.5000e- 004 5.5000e- 004 5.5000e- 004 0.0000 2.2979 2.2979 1.3000e- 004 0.0000 2.3012 Total 1.1418 0.0110 0.0163 3.0000e- 005 5.5000e- 004 5.5000e- 004 5.5000e- 004 5.5000e- 004 0.0000 2.2979 2.2979 1.3000e- 004 0.0000 2.3012 Mitigated Construction On-Site CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 19 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 3.7 Architectural Coating - 2024 ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Hauling 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Vendor 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Worker 4.4000e- 004 2.8000e- 004 3.5200e- 003 1.0000e- 005 1.2200e- 003 1.0000e- 005 1.2300e- 003 3.3000e- 004 1.0000e- 005 3.3000e- 004 0.0000 0.9657 0.9657 3.0000e- 005 3.0000e- 005 0.9743 Total 4.4000e- 004 2.8000e- 004 3.5200e- 003 1.0000e- 005 1.2200e- 003 1.0000e- 005 1.2300e- 003 3.3000e- 004 1.0000e- 005 3.3000e- 004 0.0000 0.9657 0.9657 3.0000e- 005 3.0000e- 005 0.9743 Mitigated Construction Off-Site 4.0 Operational Detail - Mobile 4.1 Mitigation Measures Mobile CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 20 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Mitigated 0.5930 0.9581 5.0670 0.0116 1.1323 0.0105 1.1428 0.3030 9.8300e- 003 0.3129 0.0000 1,093.559 1 1,093.559 1 0.0620 0.0634 1,114.010 2 Unmitigated 0.5930 0.9581 5.0670 0.0116 1.1323 0.0105 1.1428 0.3030 9.8300e- 003 0.3129 0.0000 1,093.559 1 1,093.559 1 0.0620 0.0634 1,114.010 2 4.2 Trip Summary Information 4.3 Trip Type Information Average Daily Trip Rate Unmitigated Mitigated Land Use Weekday Saturday Sunday Annual VMT Annual VMT Apartments Mid Rise 544.00 491.00 409.00 1,498,585 1,498,585 Health Club 954.97 605.23 775.17 1,519,174 1,519,174 Total 1,498.97 1,096.23 1,184.17 3,017,759 3,017,759 Miles Trip %Trip Purpose % Land Use H-W or C-W H-S or C-C H-O or C-NW H-W or C-W H-S or C-C H-O or C-NW Primary Diverted Pass-by Apartments Mid Rise 10.80 7.30 7.50 45.60 19.00 35.40 86 11 3 Health Club 9.50 7.30 7.30 16.90 64.10 19.00 52 39 9 4.4 Fleet Mix Land Use LDA LDT1 LDT2 MDV LHD1 LHD2 MHD HHD OBUS UBUS MCY SBUS MH Apartments Mid Rise 0.517111 0.052324 0.170980 0.155671 0.027786 0.007423 0.013424 0.026160 0.000649 0.000313 0.023324 0.001439 0.003395 Health Club 0.517111 0.052324 0.170980 0.155671 0.027786 0.007423 0.013424 0.026160 0.000649 0.000313 0.023324 0.001439 0.003395 5.0 Energy Detail CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 21 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Electricity Mitigated 0.0000 0.0000 0.0000 0.0000 0.0000 59.6010 59.6010 9.6400e- 003 1.1700e- 003 60.1903 Electricity Unmitigated 0.0000 0.0000 0.0000 0.0000 0.0000 59.6010 59.6010 9.6400e- 003 1.1700e- 003 60.1903 NaturalGas Mitigated 9.5900e- 003 0.0837 0.0478 5.2000e- 004 6.6300e- 003 6.6300e- 003 6.6300e- 003 6.6300e- 003 0.0000 94.8995 94.8995 1.8200e- 003 1.7400e- 003 95.4634 NaturalGas Unmitigated 9.5900e- 003 0.0837 0.0478 5.2000e- 004 6.6300e- 003 6.6300e- 003 6.6300e- 003 6.6300e- 003 0.0000 94.8995 94.8995 1.8200e- 003 1.7400e- 003 95.4634 5.1 Mitigation Measures Energy Historical Energy Use: N CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 22 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 5.2 Energy by Land Use - NaturalGas NaturalGa s Use ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Land Use kBTU/yr tons/yr MT/yr Apartments Mid Rise 1.17805e +006 6.3500e- 003 0.0543 0.0231 3.5000e- 004 4.3900e- 003 4.3900e- 003 4.3900e- 003 4.3900e- 003 0.0000 62.8652 62.8652 1.2000e- 003 1.1500e- 003 63.2388 Health Club 600300 3.2400e- 003 0.0294 0.0247 1.8000e- 004 2.2400e- 003 2.2400e- 003 2.2400e- 003 2.2400e- 003 0.0000 32.0343 32.0343 6.1000e- 004 5.9000e- 004 32.2247 Total 9.5900e- 003 0.0837 0.0478 5.3000e- 004 6.6300e- 003 6.6300e- 003 6.6300e- 003 6.6300e- 003 0.0000 94.8995 94.8995 1.8100e- 003 1.7400e- 003 95.4634 Unmitigated NaturalGa s Use ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Land Use kBTU/yr tons/yr MT/yr Apartments Mid Rise 1.17805e +006 6.3500e- 003 0.0543 0.0231 3.5000e- 004 4.3900e- 003 4.3900e- 003 4.3900e- 003 4.3900e- 003 0.0000 62.8652 62.8652 1.2000e- 003 1.1500e- 003 63.2388 Health Club 600300 3.2400e- 003 0.0294 0.0247 1.8000e- 004 2.2400e- 003 2.2400e- 003 2.2400e- 003 2.2400e- 003 0.0000 32.0343 32.0343 6.1000e- 004 5.9000e- 004 32.2247 Total 9.5900e- 003 0.0837 0.0478 5.3000e- 004 6.6300e- 003 6.6300e- 003 6.6300e- 003 6.6300e- 003 0.0000 94.8995 94.8995 1.8100e- 003 1.7400e- 003 95.4634 Mitigated CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 23 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 6.0 Area Detail 5.3 Energy by Land Use - Electricity Electricity Use Total CO2 CH4 N2O CO2e Land Use kWh/yr MT/yr Apartments Mid Rise 394479 36.4987 5.9000e- 003 7.2000e- 004 36.8596 Health Club 249690 23.1023 3.7400e- 003 4.5000e- 004 23.3307 Total 59.6009 9.6400e- 003 1.1700e- 003 60.1903 Unmitigated Electricity Use Total CO2 CH4 N2O CO2e Land Use kWh/yr MT/yr Apartments Mid Rise 394479 36.4987 5.9000e- 003 7.2000e- 004 36.8596 Health Club 249690 23.1023 3.7400e- 003 4.5000e- 004 23.3307 Total 59.6009 9.6400e- 003 1.1700e- 003 60.1903 Mitigated CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 24 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 6.1 Mitigation Measures Area ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e Category tons/yr MT/yr Mitigated 0.6445 0.0460 0.7580 2.8000e- 004 7.1400e- 003 7.1400e- 003 7.1400e- 003 7.1400e- 003 0.0000 44.5341 44.5341 1.9900e- 003 7.9000e- 004 44.8206 Unmitigated 0.6445 0.0460 0.7580 2.8000e- 004 7.1400e- 003 7.1400e- 003 7.1400e- 003 7.1400e- 003 0.0000 44.5341 44.5341 1.9900e- 003 7.9000e- 004 44.8206 CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 25 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 6.2 Area by SubCategory ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e SubCategory tons/yr MT/yr Architectural Coating 0.1140 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Consumer Products 0.5038 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Hearth 4.3800e- 003 0.0374 0.0159 2.4000e- 004 3.0200e- 003 3.0200e- 003 3.0200e- 003 3.0200e- 003 0.0000 43.3207 43.3207 8.3000e- 004 7.9000e- 004 43.5782 Landscaping 0.0223 8.5500e- 003 0.7421 4.0000e- 005 4.1200e- 003 4.1200e- 003 4.1200e- 003 4.1200e- 003 0.0000 1.2134 1.2134 1.1600e- 003 0.0000 1.2425 Total 0.6445 0.0460 0.7580 2.8000e- 004 7.1400e- 003 7.1400e- 003 7.1400e- 003 7.1400e- 003 0.0000 44.5341 44.5341 1.9900e- 003 7.9000e- 004 44.8206 Unmitigated CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 26 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 7.1 Mitigation Measures Water 7.0 Water Detail 6.2 Area by SubCategory ROG NOx CO SO2 Fugitive PM10 Exhaust PM10 PM10 Total Fugitive PM2.5 Exhaust PM2.5 PM2.5 Total Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e SubCategory tons/yr MT/yr Architectural Coating 0.1140 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Consumer Products 0.5038 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Hearth 4.3800e- 003 0.0374 0.0159 2.4000e- 004 3.0200e- 003 3.0200e- 003 3.0200e- 003 3.0200e- 003 0.0000 43.3207 43.3207 8.3000e- 004 7.9000e- 004 43.5782 Landscaping 0.0223 8.5500e- 003 0.7421 4.0000e- 005 4.1200e- 003 4.1200e- 003 4.1200e- 003 4.1200e- 003 0.0000 1.2134 1.2134 1.1600e- 003 0.0000 1.2425 Total 0.6445 0.0460 0.7580 2.8000e- 004 7.1400e- 003 7.1400e- 003 7.1400e- 003 7.1400e- 003 0.0000 44.5341 44.5341 1.9900e- 003 7.9000e- 004 44.8206 Mitigated CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 27 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied Total CO2 CH4 N2O CO2e Category MT/yr Mitigated 8.4024 0.2691 6.4500e- 003 17.0516 Unmitigated 8.4024 0.2691 6.4500e- 003 17.0516 7.2 Water by Land Use Indoor/Out door Use Total CO2 CH4 N2O CO2e Land Use Mgal MT/yr Apartments Mid Rise 6.5154 / 4.10754 6.6591 0.2131 5.1000e- 003 13.5060 Health Club 1.71515 / 1.05122 1.7432 0.0561 1.3400e- 003 3.5456 Total 8.4023 0.2691 6.4400e- 003 17.0516 Unmitigated CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 28 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 7.2 Water by Land Use Indoor/Out door Use Total CO2 CH4 N2O CO2e Land Use Mgal MT/yr Apartments Mid Rise 6.5154 / 4.10754 6.6591 0.2131 5.1000e- 003 13.5060 Health Club 1.71515 / 1.05122 1.7432 0.0561 1.3400e- 003 3.5456 Total 8.4023 0.2691 6.4400e- 003 17.0516 Mitigated 8.1 Mitigation Measures Waste 8.0 Waste Detail Total CO2 CH4 N2O CO2e MT/yr Mitigated 42.8920 2.5348 0.0000 106.2631 Unmitigated 42.8920 2.5348 0.0000 106.2631 Category/Year CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 29 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 8.2 Waste by Land Use Waste Disposed Total CO2 CH4 N2O CO2e Land Use tons MT/yr Apartments Mid Rise 46 9.3376 0.5518 0.0000 23.1335 Health Club 165.3 33.5544 1.9830 0.0000 83.1296 Total 42.8920 2.5349 0.0000 106.2631 Unmitigated Waste Disposed Total CO2 CH4 N2O CO2e Land Use tons MT/yr Apartments Mid Rise 46 9.3376 0.5518 0.0000 23.1335 Health Club 165.3 33.5544 1.9830 0.0000 83.1296 Total 42.8920 2.5349 0.0000 106.2631 Mitigated 9.0 Operational Offroad CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 30 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 11.0 Vegetation Equipment Type Number Hours/Day Days/Year Horse Power Load Factor Fuel Type 10.0 Stationary Equipment Fire Pumps and Emergency Generators Equipment Type Number Hours/Day Hours/Year Horse Power Load Factor Fuel Type Boilers Equipment Type Number Heat Input/Day Heat Input/Year Boiler Rating Fuel Type User Defined Equipment Equipment Type Number CalEEMod Version: CalEEMod.2020.4.0 Date: 4/10/2023 9:19 AMPage 31 of 31 Senior Center - revised project - San Joaquin Valley Unified APCD Air District, Annual EMFAC Off-Model Adjustment Factors for Gasoline Light Duty Vehicle to Account for the SAFE Vehicle Rule Applied 1 DESIGN CONTRACT THIS CONTRACT is made and entered into by and between the CITY OF FRESNO, a California municipal corporation (City), and INTEGRATED COMMUNITY DEVELOPMENT, a limited liability company (Design-Build Entity), as follows: RECITALS WHEREAS, the City desires to obtain professional design services for the design of plans and general construction contract documents for the Senior Activity Center at 4343 North Blackstone Avenue (Project); and WHEREAS, the City desires to utilize a Progressive Design Build delivery method to design and build the Project; and WHEREAS, the selected design-build team composed of [DESIGN-BUILDER NAME] and it’s sub-consultants, including architects and engineers from [SUB - CONSULTANTS NAME], shall provide design services and hereby repre sents that it desires to and is professionally and legally capable of performing the services call for by this Agreement; and WHEREAS, this Agreement will be administered for the City by its Department of Public Works Director (Director) or designee. 1. Contract Documents. The “Request for Qualifications”, “Specifications”, the “DBIA Progressive Design Build Agreement”, as modified, and the “DBIA Standard Form of General Conditions of Contract Between Owner and Design -Builder”, as modified, for design services related to a Senior Activity Center at 4343 North Blackstone Avenue, copies of which are annexed hereto as part of Exhibit 1, together with all the documents specifically referred to in said annexed documents, are hereby incorporated into and made part of this Contract, and shall be known as the Contract Documents. 2. Price. For the monetary consideration of $634,117, as set forth in Exhibit 1, Design-Builder promises and agrees to perform or cause to be performed, in a good and workmanlike manner, and to the satisfaction of the City, and in strict accordance with the Specifications, all of the work as set forth in the Contract Documents. 3. Payment. The City accepts the Design-Builder’s Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. The Design-Builder agrees to accept electronic payment from the City. 4. Scope of Services. Design-Builder shall perform the services described herein and in Exhibit 1 to complete the design of the Project more fully described in Exhibit 1, and this shall include all work incidental to, or necessary to perform, such design services even though not specifically described in Exhibit 1. By entry into this Agreement and upon City’s issuance of a written “Notice to Proceed”, City 2 contracts for the services in Phase One for design. Design-Builder shall not perform any other Phase of the Agreement, and this Agreement shall not be a contract for any other Phase, until further performance is authorized by City’s issuance of a written “Notice to Proceed” for such additional phase(s). It shall, however, remain Design-Builder’s offer to perform all remaining phases described herein. In the event Design-Builder performs without City’s prior written authorization, Design-Builder will not be entitled to compensation for such services. The DBIA Design Build Agreement (Agreement), as modified, contains additional terms and conditions related to this Contract. In the event of a conflict between this Contract and the Agreement, this Contract shall take precedence. However, if this Contract does not address a legal issue for this Project, the parties shall be governed by the provisio ns of the Agreement. [SIGNATURES FOLLOW ON THE NEXT PAGE] 3 IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by the City shall be subsequent to that of the Design-Builder’s, and this Contract shall be binding and effective upon execution by both parties. CITY OF FRESNO, A California municipal corporation By: _____________________________ Scott Mozier Public Works Director Public Works Department Dated: __________________________ APPROVED AS TO FORM: ANDREW JANZ City Attorney By: _____________________________ Brandon M. Collet Supervising Deputy City Attorney City Attorney’s Office Dated: __________________________ ATTEST: TODD STERMER, CMC City Clerk By: _____________________________ Deputy Dated: __________________________ Addresses: CITY: City of Fresno Attention: Mike Mooneyham, PE, Professional Engineer 2600 Fresno Street Fresno, CA 93721 Phone: (559) 621-8623 E-mail: mike.mooneyham@fresno.gov INTEGRATED COMMUNITY DEVELOPMENT, A limited liability company By: _____________________________ Name: __________________________ Title: ___________________________ (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: _____________________________ Name: __________________________ Title: ___________________________ (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) REVIEWED BY: [NAME] [TITLE] ________________________________ DESIGN-BUILDER: INTEGRATED COMMUNITY DEVELOMPENT Attention: Jake Lingo, Senior Vice President 20750 Ventura Boulevard, Suite 155 Woodland Hills, CA 91364 Phone: 818-974-2966 E-mail: jakelingo@icdemail.com 4 Attachment: Exhibit 1 – Contract Documents including Scope of Services Exhibit A – Owner’s Project Criteria Exhibit C – Federal Requirements Exhibit D – (Intentionally Omitted) Exhibit E – Disclosure of Conflict of Interest Federal Wage Rates General Conditions Progressive Design- Build Agreement Document No. 544 Second Edition, 2022 © Design-Build Institute of America Washington, D.C. DBIA Contract Document #544 EXHIBIT 1 DBIA Document No. 544 Page 1 Progressive Design-Build Agreement © 2022 Design-Build Institute of America Progressive Design-Build Agreement This document has important legal consequences. Consultation with an attorney is recommended with respect to its completion or modification. This AGREEMENT is made as of the day of in the year of 2023 , by and between the following parties, for services in connection with the Project identified below: OWNER: City of Fresno 2600 Fresno Street Fresno, CA 93721 DESIGN-BUILDER: Integrated Community Development 20750 Ventura Boulevard, Suite 155 Woodland Hills, CA 91364 PROJECT: Senior Activity Center 4343 North Blackstone Avenue In consideration of the mutual covenants and obligations contained herein, Owner and Design -Builder agree as set forth herein. DBIA Document No. 544 Page 2 Progressive Design-Build Agreement © 2022 Design-Build Institute of America Article 1 General 1.1 Duty to Cooperate. Owner and Design-Builder commit at all times to cooperate fully with each other, and proceed on the basis of trust and good faith to permit each party to realize the benefits afforded under this Agreement 1.2 Definitions. Terms, words, and phrases used in this Agreement shall have the meanings given them in DBIA Document No. 535, Standard Form of General Conditions of Contract Between Owner and Design-Builder (2022 Edition) ("General Conditions of Contract") 1.3 Design Services. Design-Builder shall, consistent with applicable state licensing laws, provide design services, including architectural, engineering, and other design professional services required by this Agreement. Such design service es shall be provided through qualified, licensed design professionals who are either (i) employed by Design-Builder, or (ii) procured by Design- Builder from independent sources. Nothing in this Agreement is intended to create any legal or contractual relationship between Owner and any independent design professional. Article 2 Design-Builder’s Services and Responsibilities 2.1 General Services. 2.1.1 Owner shall provide Design-Builder with Owner’s Project Criteria describing Owner’s program requirements and objectives for the Project as set forth in Exhibit A. Owner’s Project Criteria shall include Owner’s use, space, price, time, site, performance, and expandability requirements. Owner’s Project Criteria may include conceptual documents, design specifications, design performance specifications, and other technical materials and requirements prepared by or for Owner. 2.1.2 If Owner’s Project Criteria have not been developed prior to the execution of this Agreement, Design-Builder will assist Owner in developing Owner’s Project Criteria, with such service deemed to be an additional service for which additional compensation shall be paid by Owner to Design-Builder. If Owner has developed Owner’s Project Criteria prior to executing this Agreement, Design-Builder shall review and prepare a written evaluation of such criteria, including recommendations to Owner for different and innovative approaches to the design and construction of the Project. The parties shall meet to discuss Design-Builder’s written evaluation of Owner’s Project Criteria and agree upon what revisions, if any, should be made to such criteria. 2.2 Phased Services. 2.2.1 Phase 1 Services. Design-Builder shall perform the services of design, pricing, and other services for the Project based on Owner’s Project Criteria, as may be revised in accordance with Section 2.1 hereof, as set forth in Exhibit B, Scope of Services. Design-Builder shall perform such services to the level of completion required for Design-Builder and Owner to establish the Contract Price for Phase 2, as set forth in Section 2.3 below. The Contract Price for Phase 2 shall be developed during Phase 1 on an “open-book” basis. Design-Builder’s Compensation for Phase 1 Services is set forth in Section 7.1.1 herein. The level of completion required for Phase 1 Services is defined in Exhibit B, Scope of Services (either as a percentage of design completion or by defined deliverables). 2.2.2 Phase 2 Services. Design-Builder’s Phase 2 services shall consist of the completion of design services for the Project, the procurement of all materials and equipment for the Project, the DBIA Document No. 544 Page 3 Progressive Design-Build Agreement © 2022 Design-Build Institute of America performance of construction services for the Project, the start-up, testing, and commissioning of the Project, and the provision of warranty services, all as further described i n the Contract Price Amendment. Upon receipt of Design-Builder’s proposed Contract Price for Phase 2, Owner may proceed as set forth in Section 2.3. 2.3 Proposal. Upon completion of the Phase 1 Services and any other Basis of Design Documents upon which the parties may agree, Design-Builder shall submit a proposal to Owner (the “Proposal”) for the completion of the design and construction for the Project for the Contract Price, which may be based on Lump Sum or Design-Builder’s Fee and Cost of the Work with an option for a Guaranteed Maximum Price (GMP). 2.3.1 The Proposal shall include the following unless the parties mutually agree otherwise: 2.3.1.1 The Contract Price shall be in accordance with Section 7.1 2.3.1.2 The Basis of Design Documents, which may include, by way of example, Owner’s Project Criteria, which are set forth in detail and are attached to the Proposal; 2.3.1.3 A list of the assumptions and clarifications made by Design-Builder in the preparation of the Proposal, which list is intended to supplement the information contained in the drawings and specifications and is specifically included as part of the Basis of Design Documents; 2.3.1.4 The Scheduled Substantial Completion Date upon which the Proposal is based, to the extent said date has not already been established under Section 6.2.1 hereof, and a schedule upon which the Scheduled Substantial Completion Date is based and a Project Schedule for the Work; 2.3.1.5 If applicable, a list of Allowance Items, Allowance Values, and a statement of their basis; 2.3.1.6 If applicable, a schedule of alternate prices; 2.3.1.7 If applicable, a schedule of unit prices; 2.3.1.8 If applicable, a statement of Additional Services which may be performed but which are not included in the Proposal, and which, if performed, shall be the basis for an increase in the Contract Price and/or Contract Time(s); 2.3.1.9 If applicable, a Savings provision; 2.3.1.10 If applicable, Performance Incentives; 2.3.1.11 The time limit for acceptance of the Proposal; and 2.3.1.12 An Owner’s permit list, a list detailing the permits and governmental approvals that Owner will bear responsibility to obtain. 2.3.2 Review and Adjustment to Proposal. 2.3.2.1 After submission of the Proposal, Design-Builder and Owner shall meet to discuss and review the Proposal. If Owner has any comments regarding the Proposal, or finds any inconsistencies or inaccuracies in the information presented, it shall promptly give written notice to Design-Builder of such comments or findings. If appropriate, Design- Builder shall, upon receipt of Owner’s notice, make appropriate adjustments to the Proposal. DBIA Document No. 544 Page 4 Progressive Design-Build Agreement © 2022 Design-Build Institute of America 2.3.2.2 Acceptance of Proposal. If Owner accepts the Proposal, as may be amended by Design-Builder, the Contract Price and its basis shall be set forth in an amendment to this Agreement, when mutually agreed between the parties (Contract Price Amendment). Once the parties have agreed upon the Contract Price and Owner has issued a Notice t o Proceed with Phase 2, Design-Builder shall perform the Phase 2 Services, all as further described in the Contract Price Amendment, as it may be revised. 2.3.2.3 Failure to Accept the Proposal. If Owner rejects the Proposal, or fails to notify Design-Builder in writing on or before the date specified in the Proposal that it accepts the Proposal, the Proposal shall be deemed withdrawn and of no effect. In such event, Owner and Design-Builder shall meet and confer as to how the Project will proceed, with Owner having the following options: i Owner may suggest modifications to the Proposal, whereupon, if such modifications are accepted in writing by Design-Builder, the Proposal shall be deemed accepted and the parties shall proceed in accordance with Section 2.3.2.2 above; ii Owner may authorize Design-Builder to continue to proceed with the Work on the basis of reimbursement as provided in Section 7.1.2 hereof without a Contract Price, in which case all references in this Agreement to the Contract Price shall not be applicable; or iii Owner may terminate this Agreement for convenience in accordance with Article 9 hereof; provided, however, in this event, Design-Builder shall not be entitled to the payment provided for in Section 9.2 hereof. 2.3.2.4 If Owner fails to exercise any of the above options, Design-Builder shall have the right to (a) continue with the Work as if Owner had elected to proceed in accordance with Section 2.3.2.3 ii. above, and be paid by Owner accordingly, unless and until Owner notifies it in writing to stop the Work; (b) suspend performance of Work in accordance with Section 11.3.1 of the General Conditions of Contract, provided, however, that in such event Design- Builder shall not be entitled to the payment provided for in Section 9.2 hereof; or (c) may give written notice to Owner that it considers this Agreement completed. If Owner fails to exercise any of the options under Section 2.3.2.3 within ten (10) days of receipt of Design- Builder’s notice, then this Agreement shall be deemed completed. If Owner terminates the relationship with Design-Builder under Section 2.3.2.3(iii), or if this Agreement is deemed completed under this paragraph, then Design-Builder shall have no further liability or obligations to Owner under this Agreement. Article 3 Contract Documents 3.1 The Contract Documents are comprised of the following: 3.1.1 All written modifications, amendments, minor changes, and Change Orders to this Agreement issued in accordance with DBIA Document No. 535, Standard Form of General Conditions of Contract Agreement Between Owner and Design-Builder (2022 Edition) (“General Conditions of Contract”); 3.1.2 The Contract Price Amendment referenced in Section 2.3.2.2 herein or the Proposal accepted by Owner in accordance with Section 2.3 herein. 3.1.3 This Agreement, including all exhibits (list for example, performance standard requirements, performance incentive arrangements, markup exhibits, allowances, unit prices, or exhibit detailing offsite reimbursable personnel) but excluding, if applicable, the Contract Price Amendment; DBIA Document No. 544 Page 5 Progressive Design-Build Agreement © 2022 Design-Build Institute of America 3.1.4 The General Conditions of Contract; 3.1.5 Construction Documents prepared and approved in accordance with Section 2.4 of the General Conditions of Contract; 3.1.6 Exhibit B, Scope of Services; and 3.1.7 The following other documents, if any: Article 4 Interpretation and Intent 4.1 Design-Builder and Owner, at the time of acceptance of the Proposal by Owner in accordance with Section 2.3 hereof, shall carefully review all the Contract Documents, including the various documents comprising the Basis of Design Documents for any conflicts or ambiguities. Design-Builder and Owner will discuss and resolve any identified conflicts or ambiguities prior to execution of the Agreement, or if applicable, prior to Owner’s acceptance of the Proposal. 4.2 The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s) for the Contract Price. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. In the event inconsistencies, conflicts, or ambiguities between or among the Contract Documents are discovered after Owner’s acceptance of the Proposal, Design-Builder and Owner shall attempt to resolve any ambiguity, conflict, or inconsistency informally, recognizing that the Contract Documents shall take precedence in the order in which they are listed in Section 3.1 hereof. (Note, the parties are strongly encouraged to establish in the Contract Price Amendment or Proposal (as applicable) the priority of the various documents comprising such exhibit or proposal.) 4.3 Terms, words, and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in the General Conditions of Contract. 4.4 If Owner’s Project Criteria contain design specifications: (a) Design-Builder is entitled to reasonably rely on the accuracy of the information represented in the design specifications and their c ompatibility with other information set forth in Owner’s Project Criteria, including any design performance specifications; and (b) Design-Builder shall be entitled to an adjustment in its Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost and/or time of performance have been adversely impacted by such inaccurate design specification. 4.5 The Contract Documents form the entire agreement between Owner and Design -Builder and by incorporation herein are as fully binding on the parties as if repeated herein. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents. Article 5 Ownership of Work Product 5.1 Any reports, information, or other data prepared or assembled by the Design Builder pursuant to this Agreement shall not be made available to any individual or organization by the Design Builder without the prior written approval of the City. During the term of this Agreement, and thereafter, the Design Builder shall not, without the prior written consent of the City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of the City, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, models, DBIA Document No. 544 Page 6 Progressive Design-Build Agreement © 2022 Design-Build Institute of America source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the City. 5.2 Any and all original sketches, pencil tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by the Design Builder pursuant to this Agreement are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement or default by the Design Builder. The Design Builder grants the City a copyright license to use such drawings and writings. The Design Builder shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. The City may modify the design including any drawings or writings. Any use by the City of the aforesaid sketches, tracings, plans, computations, specifications, computer disk files, writings, and other documents in completed form as to other projects or extensions of this Project, or in uncomp leted form, without specific written verification by the Design Builder will be at the City’s sole risk and without liability or legal exposure to the Design Builder. The Design Builder may keep a copy of all drawings and specifications for its sole and exclusive use. 5.3 If the Design Builder should subcontract all or any portion of the services to be performed under this Agreement, the Design Builder shall cause each subcontractor to also comply with the requirements of this Section 5. 5.4 This Section 5 shall survive expiration or termination of this Agreement. Article 6 Contract Time 6.1 Date of Commencement. The Phase 1 Services shall commence within five (5) days of Design- Builder’s receipt of Owner’s Notice to Proceed unless the parties mutually agree otherwise in writing. The Work shall commence within five (5) days of Design-Builder’s receipt of Owner’s Notice to Proceed for Phase 2 Services (“Date of Commencement”) if the Proposal is accepted and the Contract Price Amendment is amended to this Agreement unless the parties mutually agree otherwise in writing . 6.2 Substantial Completion and Final Completion. 6.2.1 Substantial Completion of the entire Work shall be achieved no later than ( ) calendar days after the Date of Commencement (“Scheduled Substantial Completion Date”). 6.2.2 Interim milestones and/or Substantial Completion of identified portions of the Work shall be achieved as follows: (Insert any interim milestones (“Scheduled Interim Milestone Dates”) for portions of the Work with different scheduled dates for Substantial Completion.) 6.2.3 Final Completion of the Work or identified portions of the Work shall be achieved as expeditiously as reasonably practicable. Final Completion is the date when all Work is complete pursuant to the definition of Final Completion set forth in Section 1.2.14 of the General Conditions of Contract. 6.2.4 All of the dates set forth in this Article 6 (“Contract Time(s)”) shall be subject to adjustment in accordance with the General Conditions of Contract. 6.3 Time is of the Essence. Owner and Design-Builder mutually agree that time is of the essence with respect to the dates and times set forth in the Contract Documents. 6.4 Liquidated Damages. Design-Builder understands that if Substantial Completion is not attained by the Scheduled Substantial Completion Date, Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder agrees that if Substantial Completion is not attained by ____________ DBIA Document No. 544 Page 7 Progressive Design-Build Agreement © 2022 Design-Build Institute of America (_____) days after the Scheduled Substantial Completion Date (the “LD Date”), Design -Builder shall pay Owner ________________ Dollars ($__________) as liquidated damages for each day that Substantial Completion extends beyond the LD Date. (If a GMP is not established upon execution of this Agreement, the parties should consider setting liquidated damages after GMP negotiations .) 6.5 Any liquidated damages assessed pursuant to this Agreement shall be in lieu of all liability for any and all extra costs, losses, expenses, claims, penalties, and any other damages, whether special or consequential, and of whatsoever nature, incurred by Owner which are occasioned by any delay in achieving Substantial Completion, Interim Milestone Dates (if any), or Final Completion. Article 7 Contract Price 7.1 Contract Price. 7.1.1 Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract the sum of Six Hundred Thirty-Four Thousand One Hundred Seventeen Dollars ($634,117) for the Phase 1 Services, subject to adjustments made in accordance with the General Conditions of Contract. Unless otherwise provided in the Contract Documents, the Phase 1 Services compensation is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements. 7.1.2 For Phase 2 Services, Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract a contract price (“Contract Price”) equal to the Lump Sum amount set forth in Section 7.2 hereof or in the Contract Price Amendment, or equal to the Design-Builder’s Fee (as defined in Section 7.4 hereof) plus the Cost of the Work (as defined in Section 7.5 hereof), subject to any GMP established in Section 7.6 hereof or as set forth in the Contract Price Amendment and any adjustments made in accordance with the General Conditions of Contract. 7.1.3 For the specific Work set forth below, Owner agrees to pay Design -Builder, as part of the Contract Price, on the following basis: (This is an optional section intended to provide the parties with flexibility to identify and price limited services.) 7.2 Lump Sum. Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract the sum of _________________________________________ Dollars ($_______) (“Contract Price”) for the Work for Phase 2 Services, subject to adjustments made in accordance with the General Conditions of Contract. Unless otherwise provided in the Contract Documents, the Contract Price is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements. 7.3 Markups for Changes. If the Contract Price requires an adjustment due to changes in the Work , and the cost of such changes is determined under Sections 9.4.1.3 or 9.4.1.4 of the General Conditions of Contract, the following markups shall be allowed on such changes: 7.3.1 For additive Change Orders, including additive Change Orders arising from both additive and deductive items, it is agreed that Design-Builder shall receive a Fee of TEN percent (10%) of the additional costs incurred for that Change Order, plus any other markups set forth at Exhibit hereto. 7.3.2 For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, the deductive amounts shall include: [Check one box only.] DBIA Document No. 544 Page 8 Progressive Design-Build Agreement © 2022 Design-Build Institute of America No additional reduction to account for Design-Builder’s Fee or any other markup. or An amount equal to the sum of: (a) _____________________ percent (_______%) applied to the direct costs of the net reduction (which amount will account for a reduction associated with Design-Builder’s Fee); plus (b) any other markups set forth at Exhibit _________ hereto applied to the direct costs of the net reduction. 7.4 Design-Builder’s Fee: Not used 7.5 Cost of the Work. 7.5.1 The term Cost of the Work shall mean costs reasonably incurred by Design-Builder in the proper performance of the Work. The Cost of the Work shall include only the following: 7.5.1.1 Wages of direct employees of Design-Builder performing the Work at the Site or, with Owner’s agreement, at locations off the Site, provided, however, that the costs for those employees of Design-Builder performing design services shall be calculated on the basis of prevailing market rates for design professionals performing such services or, if applicable, those rates set forth in an exhibit to this Agreement. 7.5.1.2 Wages or salaries of Design-Builder’s supervisory and administrative personnel engaged in the performance of the Work and who are located at the Site or working off - Site to assist in the production or transportation of material and equipment nec essary for the Work. 7.5.1.3 Wages or salaries of Design-Builder’s personnel stationed at Design-Builder’s principal or branch offices, but only to the extent said personnel are identified in the Design- Builder’s Proposal and performing the function set forth in said Proposal. The reimbursable costs of personnel stationed at Design-Builder’s principal or branch offices shall include a TEN percent (10%) markup to compensate Design-Builder for the Project-related overhead associated with such personnel. 7.5.1.4 Costs incurred by Design-Builder for employee benefits, premiums, taxes, insurance, contributions and assessments required by law, collective bargaining agreements, or which are customarily paid by Design-Builder, to the extent such costs are based on wages and salaries paid to employees of Design-Builder covered under Sections 7.5.1.1 through 7.5.1.3 hereof. 7.5.1.5 The reasonable portion of the cost of travel, accommodations and meals for Design-Builder’s personnel necessarily and directly incurred in connection with the performance of the Work. 7.5.1.6 Payments properly made by Design-Builder to Subcontractors and Design Consultants for performance of portions of the Work, including any insurance and bond premiums incurred by Subcontractors and Design Consultants. 7.5.1.7 Costs incurred by Design-Builder in repairing or correcting defective, damaged or nonconforming Work (including any warranty or corrective Work performed after Substantial Completion), provided that such Work was beyond the reasonable control of Design-Builder, or caused by the ordinary mistakes or inadvertence, and not the negligence, of Design-Builder or those working by or through Design-Builder. If the costs associated with such Work are recoverable from insurance, Subcontractors or Design Consultants, Design-Builder shall exercise best efforts to obtain recovery from the appropriate source and provide a credit to Owner if recovery is obtained. DBIA Document No. 544 Page 9 Progressive Design-Build Agreement © 2022 Design-Build Institute of America 7.5.1.8 Costs, including transportation, inspection, testing, storage, and handling of materials, equipment, and supplies incorporated or reasonably used in completing the Work. 7.5.1.9 Costs less salvage value of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by the workers that are not fully consumed in the performance of the Work and which remain the property of Design- Builder, including the costs of transporting, inspecting, testing, handling, installing, maintaining, dismantling, and removing such items. 7.5.1.10 Costs of removal of debris and waste from the Site. 7.5.1.11 The reasonable costs and expenses incurred in establishing, operating and demobilizing the Site office, including the cost of facsimile transmissions, long -distance telephone calls, postage and express delivery charges, telephone service, photocopying , and reasonable petty cash expenses. 7.5.1.12 Rental charges and the costs of transportation, installation, minor repairs and replacements, dismantling and removal of temporary facilities, machinery, equipment and hand tools not customarily owned by the workers, which are provided by Design-Builder at the Site, whether rented from Design-Builder or others, and incurred in the performance of the Work. 7.5.1.13 Premiums for insurance and bonds required by this Agreement or the performance of the Work. 7.5.1.14 All fuel and utility costs incurred in the performance of the Work. 7.5.1.15 Sales, use, or similar taxes, tariffs, or duties incurred in the performance of the Work. 7.5.1.16 Legal costs, court costs, and costs of mediation and arbitration reasonably arising from Design-Builder’s performance of the Work, provided such costs do not arise from disputes between Owner and Design-Builder. 7.5.1.17 Costs for permits, royalties, licenses, tests and inspections incurred by Design- Builder as a requirement of the Contract Documents. 7.5.1.18 The cost of defending suits or claims for infringement of patent rights arising from the use of a particular design, process, or product required by Owner, paying legal judgments against Design-Builder resulting from such suits or claims, and paying settlements made with Owner’s consent. 7.5.1.19 Deposits which are lost, except to the extent caused by Design-Builder’s negligence. 7.5.1.20 Costs incurred in preventing damage, injury, or loss in case of an emergency affecting the safety of persons and property. 7.5.1.21 Accounting and data processing costs related to the Work. 7.5.1.22 Other costs reasonably and properly incurred in the performance of the Work to the extent approved in writing by Owner. [Design-Builder and Owner may want to consider adding the following Section 7.5.1.23 to address the payment of warranty work.] DBIA Document No. 544 Page 10 Progressive Design-Build Agreement © 2022 Design-Build Institute of America 7.5.1.23 Owner and Design-Builder agree that an escrow account in the amount of Six Hundred Thirty-Four Thousand One Hundred Seventeen Dollars ($634,117) shall be established prior to Final Completion, which escrow shall be used to reimburse Design- Builder for the Costs of the Work incurred after Final Completion to perform warranty Work. The escrow agreement will provide that any sums not used at the expiration of the warranty period shall be returned to Owner, subject to any savings Design -Builder may be entitled to under this Agreement. In the event the warranty escrow account is exhausted, but funds remain under the GMP, Owner shall be obligated to pay Design-Builder the Costs of the Work incurred after Final Completion to perform warranty Work up to the GMP. 7.5.2 Non-Reimbursable Costs. The following shall be excluded from the Cost of the Work: 7.5.2.1 Compensation for Design-Builder’s personnel stationed at Design-Builder’s principal or branch offices, except as provided for in Sections 7.5.1.1, 7.5.1.2, and 7.5.1.3 hereof. 7.5.2.2 Overhead and general expenses, except as provided for in Section 7.5.1 hereof, or which may be recoverable for changes to the Work. 7.5.2.3 The cost of Design-Builder’s capital used in the performance of the Work. 7.5.2.4 If the parties have agreed on a GMP, costs that would cause the GMP, as adjusted in accordance with the Contract Documents, to be exceeded. 7.6 The Guaranteed Maximum Price. 7.6.1 Design-Builder guarantees that it shall not exceed the GMP of Dollars ($ ). Documents used as a basis for the GMP shall be identified in the Contract Price Amendment to this Agreement. Design-Builder does not guarantee any specific line item provided as part of the GMP and has the sole discretion to apply payment due to overruns in one line item to savings due to underruns in any other line item. Design -Builder agrees, however, that it will be responsible for paying all costs of completing the Work which exceed the GMP, as adjusted in accordance with the Contract Documents. (While the Contract Price Amendment will be developed in advance or concurrently with the execution of this Agreement, it is recommended that such exhibit include the items set forth in Section 2.3 above, to ensure that the basis for the GMP is well understood). 7.6.2 The GMP includes a Contingency in the amount of Dollars ($ ) which is available for Design-Builder’s exclusive use for unanticipated costs it has incurred that are not the basis for a Change Order under the Contract Documents. By way of example, and not as a limitation, such costs may include: (a) trade buy -out differentials; (b) overtime or acceleration; (c) escalation of materials; (d) correction of defective, damaged or nonconforming Work, design errors or omissions, however caused; (e) Subcontractor defaults; or (f) those events under Section 8.2.2 of the General Conditions of Contract that result in an extension of the Contract Time but do not result in an increase in the Contract Price. The Contingency is not available to Owner for any reason, including changes in scope or any other item which would enable Design-Builder to increase the GMP under the Contract Documents. Design-Builder shall provide Owner notice of all anticipated charges against the Contingency, and shall provide Owner as part of the monthly status report required by Section 2.1.2 of the General Condition s of Contract an accounting of the Contingency, including all reasonably foreseen uses or potential uses of the Contingency in the upcoming three (3) months. Design-Builder agrees that with respect to any expenditure from the Contingency relating to a Subcontractor default or an event for which insurance or bond may provide reimbursement, Design-Builder will in good faith exercise reasonable steps to obtain performance from the Subcontractor and/or recovery from any surety or insurance company. Design-Builder agrees that if Design-Builder is subsequently reimbursed for said costs, then said recovery will be credited back to the Contingency. DBIA Document No. 544 Page 11 Progressive Design-Build Agreement © 2022 Design-Build Institute of America 7.6.3 Savings. 7.6.3.1 If the sum of the actual Cost of the Work and Design-Builder’s Fee (and, if applicable, any prices established under Section 7.1.3 hereof) is less than the GMP, as such GMP may have been adjusted over the course of the Project, the difference (“Savings”) shall be shared as follows: [Choose one of the following.] FIFTY percent (50%) to Design-Builder and FIFTY percent (50%) to Owner. or The first Dollars ($ ) of Savings shall be provided to (choose either Design-Builder or Owner) , with the balance of Savings, if any, shared percent ( %) to Design-Builder and percent ( %) to Owner. 7.6.3.2 Savings shall be calculated and paid as part of Final Payment under Section 8.4 hereof, with the understanding that to the extent Design-Builder incurs costs after Final Completion which would have been payable to Design-Builder as a Cost of the Work, the parties shall recalculate the Savings in light of the costs so incurred, and Design -Builder shall be paid by Owner accordingly. 7.7 Allowance Items and Allowance Values. 7.7.1 Any and all Allowance Items, as well as their corresponding Allowance Values, are set forth in the Contract Price Amendment or the Proposal. 7.7.2 Design-Builder and Owner have worked together to review the Allowance Ite ms and Allowance Values based on design information then available to determine that the Allowance Values constitute reasonable estimates for the Allowance Items. Design-Builder and Owner will continue working closely together during the preparation of the design to develop Construction Documents consistent with the Allowance Values. Nothing herein is intended in any way to constitute a guarantee by Design-Builder that the Allowance Item in question can be performed for the Allowance Value. 7.7.3 No work shall be performed on any Allowance Item without Design-Builder first obtaining in writing advanced authorization to proceed from Owner. Owner agrees that if Design -Builder is not provided written authorization to proceed by the date set forth in the Project sched ule, due to no fault of Design-Builder, Design-Builder may be entitled to an adjustment of the Contract Time(s) and Contract Price. 7.7.4 The Allowance Value includes the direct cost of labor, materials, equipment, transportation, taxes, and insurance associated with the applicable Allowance Item. All other costs, including design fees, Design-Builder’s overall project management and general conditions costs, overhead and Fee, are deemed to be included in the original Contract Price, and are not subject to adjust ment notwithstanding the actual amount of the Allowance Item. 7.7.5 Whenever the actual costs for an Allowance Item is more than or less than the stated Allowance Value, the Contract Price shall be adjusted accordingly by Change Order, subject to Section 7.7.4. The amount of the Change Order shall reflect the difference be tween actual costs incurred by Design-Builder for the particular Allowance Item and the Allowance Value. DBIA Document No. 544 Page 12 Progressive Design-Build Agreement © 2022 Design-Build Institute of America 7.8 Performance Incentives. 7.8.1 Owner and Design-Builder have agreed to the performance incentive arrangements set forth in the Design-Builder’s Proposal. Article 8 Procedure for Payment 8.1 Payment for Preliminary Services. Design-Builder and Owner agree upon the following method for partial and final payment to Design-Builder for the services hereunder: (Insert terms.) 8.2 Contract Price Progress Payments. 8.2.1 Design-Builder shall submit to Owner on the FIFTEENTH (15TH) day of each month, beginning with the first month after the Date of Commencement, Design-Builder’s Application for Payment in accordance with Article 6 of the General Conditions of Contract. 8.2.2 Owner shall make payment within ten (10) days after Owner’s receipt of each properly submitted and accurate Application for Payment in accordance with Article 6 of the General Conditions of Contract, but in each case less the total of payments previously made, and less amounts properly withheld under Section 6.3 of the General Conditions of Contract. 8.2.3 If Design-Builder’s Fee under Section 7.4 hereof is a fixed amount, the amount of Design- Builder’s Fee to be included in Design-Builder’s monthly Application for Payment and paid by Owner shall be proportional to the percentage of the Work completed, less payments previously made on account of Design-Builder’s Fee. 8.3 Retainage on Progress Payments. 8.3.1 Owner will retain FIVE percent (5%) of each Application for Payment provided, however, that when fifty percent (50%) of the Work has been satisfactorily completed by Design -Builder and Design-Builder is otherwise in compliance with its contractual obligations, Owner will not retain any additional retention amounts from Design-Builder’s subsequent Applications for Payment. Owner will also reasonably consider reducing retainage for Work completed early in the Project. 8.3.2 Within fifteen (15) days after Substantial Completion of the entire Work or, if applicable, any portion of the Work, pursuant to Section 6.6 of the General Conditions of Contract, Owner shall release to Design-Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to: (a) the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion; and (b) all other amounts Owner is entitled to withhold pursuant to Section 6.3 of the General Conditions of Contract. [If Owner and Design-Builder have established a warranty reserve pursuant to Section 7.5.1.23 above, the following provision should be included.] If a warranty reserve has been established pursuant to Section 7.5.1.23 above, Owner shall at the time of Substantial Completion retain the agreed -upon amounts and establish an escrow account as contemplated by Section 7.5.1.23 above. 8.4 Final Payment. Design-Builder shall submit its Final Application for Payment to Owner in accordance with Section 6.7 of the General Conditions of Contract. Owner shall make payment on Design- Builder’s properly submitted and accurate Final Application for Payment (less any amount the parties may have agreed to set aside for warranty work) within ten (10) days after Owner’s receipt of the Final DBIA Document No. 544 Page 13 Progressive Design-Build Agreement © 2022 Design-Build Institute of America Application for Payment, provided that Design-Builder has satisfied the requirements for final payment set forth in Section 6.7.2 of the General Conditions of Contract. 8.5 Interest. Payments due and unpaid by Owner to Design-Builder, whether progress payments or final payment, shall bear interest commencing five (5) days after payment is due at the rate of ONE percent (1%) per month until paid. 8.6 Record Keeping and Finance Controls. Design-Builder acknowledges that this Agreement is to be administered on an “open book” arrangement relative to Costs of the Work. Design -Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles and as may be provided in the Contract Documents. During the performance of the Work and for a period of three (3) years after Final Payment, Owner and Owner’s accountants shall be afforded access to, and the right to audit from time to time, upon reasonable notice, Design-Builder’s records, books, correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda, and other data relating to the Work, all of which Design-Builder shall preserve for a period of three (3) years after Final Payment. Such inspection shall take place at Design-Builder’s offices during normal business hours unless another location and time is agreed to by the parties. Any multipliers or markups agreed to by Owner and Design-Builder as part of this Agreement are only subject to audit to confirm that such multiplier or markup has been charged in accordance with this Agreement, but the composition of such multiplier or markup is not subject to audit. Any lump sum agreed to by Owner and Design-Builder as part of this Agreement is not subject to audit. 8.7 Prompt Progress Payment to Subcontractors. All Contracts and Subcontracts (all tiers), shall contain the following provisions: 8.7.1 Prompt Payment To Subcontractors A Design-Builder, prime contractor or subcontractor shall pay a subcontractor not later than 10 days of receipt of each progress payment in accordance with the provision in Section 7108.5 of the California Business and Pro fessions Code concerning prompt payment to subcontractors. The 10 days is applicable unless, a longer period is agreed to in writing. Any violation of Section 7108.5 shall subject the violating contractor or subcontractor to the penalties, sanction and other remedies of that section. Federal regulation (49 CFR 26.29) requires that any delay or postponement of payment over 30 days of receipt of each payment may take place only for good cause and with the Owner’s prior written approval. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise, available to the prime contractor or subcontractor in the event of a dispute involving late payment, or nonpayment by the Design-Builder, deficient subcontract performance, or noncompliance by a subcontractor. This provision applies to both low -and very low-income prime contractors and subcontractors as well as those that are not. 8.7.2 Prompt Payment Of Funds Withheld To Subcontractors. The Owner shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the Owner of the contract work and pay retainage to the Design-Builder based on these acceptances. The Design-Builder, prime contractor or subcontractor shall return all monies withheld in retention from a subcontractor within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the Owner. Federal regulations (49 CFR 26.29) require that any delay or postponement of payment over 30 days may take place only for good cause and with the agency’s prior written approval. Any violation of this provision shall subject the violating prime contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise, available to the prime contractor or subcontractor in the event of a dispute involving late payment, or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor. This provision applies to both low-and very low-income prime contractors and subcontractors as well as those that are not. DBIA Document No. 544 Page 14 Progressive Design-Build Agreement © 2022 Design-Build Institute of America Article 9 Termination for Convenience 9.1 Upon ten (10 days’ written notice to Design-Builder, Owner may, for its convenience and without cause, elect to terminate this Agreement. In such event, Owner shall pay Design-Builder for the following: 9.1.1 All services performed and Work executed and for proven loss, cost, or expense in connection with the services and Work; 9.1.2 The reasonable costs and expenses attributable to such termination, including demobilization costs and amounts due in settlement of terminated contracts with Subcontractors and Design Consultants; and [Choose one of the following.] The fair and reasonable sums for overhead and profit on the sum of items 9.1.1 and 9.1.2 above. or Overhead and profit in the amount of TEN percent (10%) on the sum of items 9.1.1 and 9.1.2 above. 9.2 In addition to the amounts set forth in Section 9.1 above, Design-Builder shall be entitled to receive one of the following if the parties agree to an additional payment: 9.2.1 If Owner terminates this Agreement prior to commencement of construction, Design - Builder shall be paid ZERO percent (0%) of the remaining balance of the Contract Price or, if a GMP has not been established, the remaining balance of the most recent estimated Contract Price. 9.2.2 If Owner terminates this Agreement after commencement of construction, Design-Builder shall be paid TEN percent (10%) of the remaining balance of the Contract Price or, if a GMP has not been established, the remaining balance of the most recent estimated Contract Price. 9.3 If Owner terminates this Agreement pursuant to Section 9.1 above and proceeds to design and construct the Project through its employees, agents or third parties, Owner’s rights to use the Work Product shall be as set forth in Article 5 hereof. Such rights may not be transferred or assigned to others without Design-Builder’s express written consent and such third parties’ agreement to the terms of Article 5. Article 10 Representatives of the Parties 10.1 Owner’s Representatives. 10.1.1 Owner designates the individual listed below as its Senior Representative (“Owner ’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.2 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.) Scott Mozier, PE Public Works Director 2600 Fresno Street Fresno, CA 93721 DBIA Document No. 544 Page 15 Progressive Design-Build Agreement © 2022 Design-Build Institute of America 559-621-8650 10.1.2 Owner designates the individual listed below as its Owner’s Representative, which individual has the authority and responsibility set forth in Section 3.4 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.) Mike Mooneyham, PE Professional Engineer 2600 Fresno Street Fresno, CA 93721 559-621-8623 10.2 Design-Builder’s Representatives. 10.2.1 Design-Builder designates the individual listed below as its Senior Representative (“Design-Builder’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.2 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.) Benjamin Lingo Principal 20750 Ventura Boulevard, Suite 155 Woodland Hills, CA 91364 818-974-9246 Charles Brumbaugh Principal 20750 Ventura Boulevard, Suite 155 Woodland Hills, CA 91364 818-974-9395 10.2.2 Design-Builder designates the individual listed below as its Design-Builder’s Representative, which individual has the authority and responsibility set forth in Section 2.1.1 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.) Jake Lingo Senior Vice President 20750 Ventura Boulevard, Suite 155 Woodland Hills, CA 91364 818-974-2966 DBIA Document No. 544 Page 16 Progressive Design-Build Agreement © 2022 Design-Build Institute of America Article 11 Bonds and Insurance 11.1 Insurance. Design-Builder and Owner shall procure the insurance coverages set forth in the Insurance Exhibit attached hereto and in accordance with Article 5 of the General Conditions of Contract. 11.2 Bonds and Other Performance Security. Design-Builder shall provide the following performance bond and labor and material payment bond or other performance security: Performance Bond. (Check one box only. If no box is checked, then no bond is required.) Required Not Required Payment Bond. [Check one box only. If no box is checked, then no bond is required.] Required Not Required Other Performance Security. [Check one box only. If no box is checked, then no other performance security is required. If the “Required” box is checked, identify below the specific performance security that is being required and all salient commercial terms associated with that security.] Required Not Required Article 12 Other Provisions 12.1 Other provisions, if any, are as follows: (Insert any additional provisions .) 12.2 Listing of Exhibits and documents incorporated herein: Exhibit A – Owner’s Project Criteria Exhibit B – Scope of Services Exhibit C – Federal Requirements Exhibit D – (Intentionally Omitted) Exhibit E – Disclosure of Conflict of Interest DBIA Document No. 535, Standard Form of General Conditions of Contract Between Owner and Design-Builder (2022 Edition) ("General Conditions of Contract") Contract Price Amendment, if any. DBIA Document No. 544 Page 17 Progressive Design-Build Agreement © 2022 Design-Build Institute of America In executing this Agreement, Owner and Design-Builder each individually represents that it has the necessary financial resources to fulfill its obligations under this Agreement, and each has the necessary corporate approvals to execute this Agreement, and perform the services described herein. OWNER: DESIGN-BUILDER: Scott Mozier, PE ______________________________ (Name of Owner) (Name of Design-Builder) (Signature) (Signature) (Printed Name) (Printed Name) Public Works Director (Title) (Title) Date: Date: Caution: An original DBIA document has this caution printed in blue. This is a pri ntable copy and an original assures that changes will not be obscured as may occur when documents are reproduced. DBIA Document No. 544 Page 18 Progressive Design-Build Agreement © 2022 Design-Build Institute of America The license for use of this document expires 1 year from the date of purchase. To renew your license, visit store.dbia.org. Questions? We’re here to help. Contact us Design-Build Institute of America 1001 Pennsylvania Ave. NW, Suite 410 Washington, DC 20004 (202) 682-0110 dbia@dbia.org Exhibit A Page 1 of 7 EXHIBIT A OWNER’S PROJECT CRITERIA Progressive Design-Build Agreement Between City of Fresno (City) and Integrated Community Development (Design-Build Entity) SENIOR ACTIVITY CENTER AND AFFORDABLE HOUSING PROJECT 1. Project Delivery and Objectives 1.1. The Senior Activity Center (Center) and Senior Affordable Housing Project (Housing) will be designed and constructed in two phases using the progressive design-build delivery method as follows: 1.1.1. Preconstruction Phase (Phase One): Prepare design to approximately 80 percent complete and establish a Guaranteed Maximum Price (GMP) proposal. 1.1.2. Construction Phase (Phase Two): Upon award of a contract for the GMP or lump-sum price by the Owner, complete design, construction, and post-construction tasks including site facilities testing, as-built recording, warranty, and support. 1.2. Construction will consist of a 30,000 square foot Senior Activity Center as well as up to 100 units of Senior Affordable Housing. The City intends to own, manage, and operate the Senior Activity Center; while the Design-Build Entity will own, manage and operate the Senior Affordable Housing. 1.3. The site shall be designed to accommodate the Senior Activity Center and affordable housing units, optimizing use of shared spaces (e.g., parking and other amenities) as much as possible. Together Center and Housing shall be referred to as the Facility. 1.4. The Senior Activity Center must be located on parcel 426-253-17 and the Senior Affordable Housing must be developed on parcel 426-253-19. 1.5. The City’s objectives for delivery of the Project are as follows: 1.5.1. Design a high-quality Center, while engaging with the community to include needed features and amenities 1.5.2. Deliver a high-quality Facility in accordance with industry construction standards within the prescribed schedule and budget 1.5.3. Ensure a high degree of cost and schedule certainty 1.5.4. Achieve an optimal balance of risk allocation between the City and the Design-Builder 1.5.5. Develop the two City owned parcels in a coordinated, efficient, and complimentary manner to best serve the targeted senior community 1.5.6. Provide a Center to offer classes, activities, and resources to support, enhance and encourage an active healthy lifestyle for an active senior population 1.5.7. Provide a safe, comfortable, and accessible environment for senior living and socializing 2. Communications and Submittals 2.1. Regular meetings will be held through the life of the project. The Owner and Design-Builder will work together to determine the appropriate frequency, duration, and format (virtual or in-person). Exhibit A Page 2 of 7 2.2. All document submittals must be addressed to the Project Manager for the City of Fresno. Document delivery may be via email, mail, Microsoft Teams, or file transfer protocol. A transmittal cover sheet must be utilized for all document submittals. 3. Funding and Financing 3.1. The work hereunder constitutes a “public work” as defined in Chapter 1, Part 7, Division 2 of the California Labor Code, and Contractor shall cause the work to be performed as a “public work” in accordance with such Chapter of the California Labor Code. The Council of the City of Fresno has adopted Resolution No. 82 297 ascertaining the general prevailing rate of per diem wages and per diem wages for holidays and overtime in the Fresno area for each craft, classification, or type of worker needed in the execution of Contracts for the City. Information specific to the Work to be done under this Contract can be obtained by contacting the Contract Compliance Officer at the City of Fresno office of Construction Management, (559) 621-5600. 3.2. This is a federal project funded in full or in part by the Community Development Block Grant (CDBG) Program as administered by the U.S. Department of Housing and Urban Development (HUD). This project is subject to the payment of minimum wages mandated by the Davis-Bacon Act of 1931. A copy of the Federal wage rates is enclosed in the contract Agreement between the Owner and Design-Builder. 3.3. This project is subject to the payment of State or Federal wage rates, whichever rate is higher. 3.4. The successful Design-Build Entity will be responsible for financing the Senior Affordable Housing Development. 3.5. The City may contribute an amount, to be determined through development proposals submitted in response to the City’s Affordable Housing Development Notice of Funding Availability, toward the Senior Affordable Housing Development. All funds contributed to this Development may consist of a combination of Federal, State, or local sources. Without this contribution the Housing is infeasible. However, this does not commit the City to provide any funds towards the development of the Housing. 3.6. A ground lease and service contract will be negotiated between the selected Design-Build Entity and the City, for a period of 55 years, for the Senior Affordable Housing Development. 3.7. The site located at 4323-4333 N. Blackstone Ave, Fresno, California, (APN 426-253-19) is owned by the City and will remain under the City’s ownership. 3.8. The Design-Builder will enter into a development agreement for a low-cost, long-term ground lease transaction for the Senior Affordable Housing site and agrees to accept the Housing Property in its present state and condition, as-is. 3.9. The Property was purchased using a combination of Community Development Block Grant funds and Measure P funds and has been determined by the Fresno City Council and the State’s Housing and Community Development Department (HCD) to be surplus exempt property under a qualifying exemption but is still subject to certain conditions of the Surplus Land Act and the requirements of California Government Code §§ 54220-54234. 4. Site Overview 4.1. This site consists of two contiguous parcels: Fresno County Tax Assessor Parcels 426-253-17 and 426- 253-19. The site is located west of Blackstone Avenue, between Holland and Swift Avenues, as shown below (Figure 1). The northern parcel has been vacated and will be demolished to allow for the development of a Senior Activity Center. The southern parcel currently has tenants that will be relocated by City to allow for demolition and the development of Senior Affordable Housing. Exhibit A Page 3 of 7 Figure 1: Site Location 4.2. For information on allowable land uses, please reference the link below: https://library.municode.com/ca/fresno/codes/code_of_ordinances?nodeId=MUCOFR_CH15CIDECOIN RE_PTIIBAOVDI_ART11MIEDIMX&showChanges=true 4.3. APN 426-253-17 (Senior Activity Center): 4.3.1. Zoning Highlights • Size: 4.25 Acres • Zoning: CMX (Corridor/Center Mixed-Use District) • The CMX district is intended to allow for either horizontal or vertical mixed-use development along key circulation corridors in the city where height and density can be easily Exhibit A Page 4 of 7 accommodated. Ground-floor retail and upper-floor residential or offices are the primary uses, with residential uses, personal and business services, and public and institutional space as supportive uses. Development will facilitate the transformation of existing transportation corridors into vibrant, highly walkable areas with broad, pedestrian-friendly sidewalks, trees, landscaping, and local-serving uses with new buildings that step down in relationship to the scale and character of adjacent neighborhoods. • Residential Density du/ac: 16 Minimum, No Maximum • Height (Maximum): 60 Feet 4.4. APN 426-253-19 (Senior Affordable Housing): 4.4.1. Zoning Highlights • Size: 1.26 Acres • Zoning: CMX (Corridor/Center Mixed-Use District) • The CMX district is intended to allow for either horizontal or vertical mixed-use development along key circulation corridors in the city where height and density can be easily accommodated. Ground-floor retail and upper-floor residential or offices are the primary uses, with residential uses, personal and business services, and public and institutional space as supportive uses. Development will facilitate the transformation of existing transportation corridors into vibrant, highly walkable areas with broad, pedestrian-friendly sidewalks, trees, landscaping, and local-serving uses with new buildings that step down in relationship to the scale and character of adjacent neighborhoods. • Residential Density du/ac: 16 Minimum, No Maximum • Height (Maximum): 60 Feet 4.5. Utilities: 4.5.1. The site has access to: • Water (City of Fresno) • Trash (City of Fresno) • Sewer (City of Fresno) • Storm Water (Fresno Metropolitan Flood Control) • Gas (PG&E) • Electric (PG&E) 5. Senior Activity Center Scope of Work 5.1. The size of the facility and specific site features and amenities will be determined through a community engagement process and may include features such as community education rooms, aquatic facilities, a commercial kitchen, multi-purpose spaces, and indoor and outdoor recreational and fitness facilities. All aspects of the design should prioritize accessibility. The exact size of the Senior Activity Center will be determined based on the feature selection following community engagement, but 30,000 square feet of indoor space is anticipated. The building may be multi-story or single-story depending on various factors such as community input and budget. Exhibit A Page 5 of 7 5.2. The Design-Builder shall include the following systems in the facility and shall work with the City to define the requirements during the design phase. These systems include, but are not limited to: 5.2.1. Building Management System Metasys (or similar system) for the purpose of integrating and controlling energy efficient lighting and HVAC systems 5.2.2. Emergency standby generator 5.2.3. Access control 5.2.4. Interior and exterior security cameras 5.2.5. Security system 5.2.6. IDF Rooms 5.2.7. Structural cabling for network communication 5.2.8. Low voltage cabling 5.2.9. Fiber connectivity between buildings/future buildings 5.2.10. City standard enterprise networking equipment (switches, access points, voip phones) from Cisco 5.2.11. Install a locking lid Christy P-48 vault and 4” conduit from the outside the Senior Activity Center to the MPOE. 5.2.12. Directional bore to install (2) 1.5” HDPE conduits from the new Senior Activity Center vault to the existing ITS vault on the east side of Blackstone Avenue. 5.2.13. Install, terminate, and splice a 144-count fiber optic cable from the Senior Activity Center MPOE to the existing ITS vault. 5.2.14. Install Conduits for future EV Charging Infrastructure 6. Community Engagement Process 6.1. The City, in collaboration with Southwest Strategies, is facilitating the first phase of the community engagement process July 5 – August 30, 2023, including the staffing of a Senior Center Outreach Headquarters; a nine (9) meeting workshop series; survey gathering; and door-to-door campaigning. 6.2. The Design-Builder shall actively participate in the first phase of the engagement process including: 6.2.1. Attendance of at least one-half (1/2) of the scheduled in-person community meetings. 6.2.2. Provide, at minimum, one (1) staff member for 20 hours per week for purposes of staffing the Senior Center Outreach Headquarters through August 30, 2023. 6.2.3. Provide data-entry support for physical paper surveys. 6.3. The Design-Builder shall propose a second phase of the community engagement process to include: 6.3.1. At minimum seven (7) in-person and two (2) hybrid/virtual community meetings for purposes of presenting and collecting feedback on the Design-Builder’s schematic design. Including all collateral required for advertising in print, digital, and social media. 6.3.2. At minimum, one (1) in-person and one (1) hybrid/virtual community meetings for purposes of presenting the final Design-Builder’s 80%/Pre-construction design to the public. Including all collateral required for advertising in print, digital, and social media. Recommended in- person meeting location is the Senior Center Outreach Headquarters. Exhibit A Page 6 of 7 6.3.3. All materials presented to the public, in any medium, must be translated into Hmong, Spanish, and Punjabi by the Design-Builder or their sub-consultant and submitted to the City for review and approval prior to public release, unless explicitly approved by the City. 6.3.4. Provide, at minimum, one (1) staff member for 40 hours per week for purposes of staffing the Senior Center Outreach Headquarters beginning September 1, 2023, until such time the building will be demolished, or Design-Builder has entered the Construction phase, whichever comes first. 7. Senior Affordable Housing Development Scope of Work 7.1. Affordable rental housing development for Seniors, consisting of studio, one bedroom, and two- bedroom units. Development to also include parking, which may be shared with the neighboring activity center. 7.2. The proposed development and affordability restrictions support the findings that the property qualifies as exempt from the California Surplus Land Act as stated in Government Code Section 37364(a) which requires: 7.2.1. Minimum of 80% of the area of any parcel shall be used for development of housing (remaining 20% could be ancillary commercial or park/open space use); 7.2.2. Not less than 40% of the total number of housing units developed on any parcel pursuant to this section shall be affordable to households whose incomes are equal to, or less than, 75 percent of the maximum income of lower income households (80% of area median income) and at least half of which (20% of the units) shall be affordable to very low-income households (50% of area median income); and 7.2.3. Dwelling units shall be restricted by regulatory agreement to remain continually affordable to those persons and families for the longest feasible time, but not less than 30 years and shall be recorded against the property; and 7.2.4. Other income restrictions shall apply depending on funding sources. In addition, the site may be subject to the U.S. Department of Housing and Urban Development (HUD) Community Development Block Grant Program requirements for very low-, low- and moderate-income housing, and any other affordability requirements of proposed funding sources. 7.3. HCD requires that a Covenant or Restriction to be recorded on the Property. The affordable covenant/restriction states if 10 or more units of housing is ever built on the property 15% of the units must remain affordable for 45-55 years (depending on whether rental or owner-occupied units.) 8. Sustainability 8.1. All development must meet or exceed the requirements as stated in the following: 8.1.1. Fresno Municipal Code Section 4-116 8.1.2. California Building Energy Efficiency Standards – Title 24 9. Standard Drawings and Standard Specifications 9.1. The development of the Senior Activity Center and Affordable Housing must be in compliance with City of Fresno Standard Drawings and Standard Specifications. 9.2. For information on City of Fresno Standard Drawings and Standard Specifications, please reference the link below: https://www.fresno.gov/publicworks/developer-doorway/#tab-8 Exhibit A Page 7 of 7 10. Environmental Clearance 10.1. The City has completed an Environmental Assessment for the development of both parcels, with a Finding of No Significant Impact [24 CFR 58.40(g)(1); 40 CFR 1508.27] (Attachment D). It will ultimately be the responsibility of the Design-Builder to ensure all environmental requirements/mitigations are completed as part of the Environmental Assessment Findings, as shown below: 10.1.1. Mitigation Measures and Conditions [40 CFR 1505.2(c)] • Summarize below all mitigation measures adopted by the Responsible Entity to reduce, avoid, or eliminate adverse environmental impacts and to avoid non-compliance or non- conformance with the above-listed authorities and factors. These measures/conditions must be incorporated into project contracts, development agreements, and other relevant documents. The staff responsible for implementing and monitoring mitigation measures should be clearly identified in the mitigation plan. 10.1.2. Clean Air - Compliance Measures: • According to the San Joaquin Valley Air Pollution Control District (District), the Project specific annual criteria pollutants emissions from construction and operation emissions of are not expected to exceed any of the District significance thresholds as identified in the District's Guidance for Assessing and Mitigating Air Quality Impacts (GAMAQI). Other potential air quality impacts related to Toxic Air Contaminants, Ambient Air Quality Standards, Hazards and Odors, may require assessments and mitigation. In addition, the Project may be subject to other District rules, which include but are not limited to: Rule 4102 (Nuisance), Rule 4601 (Architectural Coatings), Rule 4641 (Cutback, Slow Cure, and Emulsified Asphalt, Paving and Maintenance Operations), Rule 4702 (Internal Combustion Engines - Phase 1), Rule 4201 (Internal Combustion Engines - Phase 2), and Rule 4101 (Visible Emissions). 10.1.3. Contamination and Toxic Substances [24 CFR Part 50.3(i) & 58.5(i)(2] - Mitigation Measures: • Mitigation Measures may be required if the following conditions are encountered during redevelopment of the subject site: o Former fuel storage tank(s) and/or piping or impacts to soil from former fuel storage tanks and/or piping are identified o Impacts to soil in the vicinity of the former dry cleaners or auto repair are identified o Asbestos and/or lead based paint is identified in building materials upon completion of the comprehensive surveys 10.2. A qualified consultant should be contacted to assess potential subject site impacts and to support compliance with regulatory requirements. Mitigations measures may include a limited subsurface investigation to assess potential soil, soil gas, and/or groundwater impacts. 10.3. At the time the Environmental Assessment, there were no plans to renovate or demolish the multi- tenant commercial buildings along the southern portion of the subject site. However, further environmental analysis is planned to evaluate the impacts of demolishing these buildings to development Senior Affordable Housing. Exhibit B Page 1 of 3 EXHIBIT B SCOPE OF SERVICES Progressive Design-Build Agreement Between City of Fresno (City) and Integrated Community Development (Design-Build Entity) Senior Activity Center Scope of Work The City seeks to develop a new Senior Activity Center and Affordable Housing on two contiguous City- owned properties in central Fresno, located at 4323-4343 North Blackstone Avenue (APN 426-253-19 and APD 426-253-17). The new development will expand services to the community by connecting seniors to vital resources such as the senior hot meal program, health and fitness programs, wellness programs, transportation services, volunteer opportunities, educational and arts programs, and technology programs. The size, specific site features, and amenities of the Senior Activity Center will be determined through a community engagement process and may include features such as community education rooms, aquatic facilities, a commercial kitchen, multi-purpose spaces, and indoor and outdoor recreational and fitness facilities. All aspects of the design should prioritize accessibility. The exact size of the Senior Activity Center will be determined based on the feature selection following community engagement, but a minimum of 30,000 square feet of indoor space is anticipated. The building may be multi-story or single- story depending on various factors such as community input and budget. The site shall be designed to accommodate the Senior Activity Center and up to 100 units of affordable housing, optimizing use of shared spaces (e.g., parking, and other amenities) as much as possible. Scope of Services – Preconstruction Services Phase 1 • Task 01 – Site Assessment o Review and verify project site and existing conditions o Review zoning regulations o Review regulatory requirements and planning and development standards o Review existing technical documentation, surveys, and engineering reports o Survey subsurface utility locations o Perform additional engineering studies as required to support design and cost estimating o Provide geotechnical testing as required • Task 02 – Preliminary Master Site Plan o Develop a Master Site Plan concept to be utilized as the initial starting point for public engagement • Task 03 – Community Engagement Campaign o Develop a community engagement campaign to engage the community in the design process o Review previously gathered community feedback defining needed features and amenities and potentially meet with prior consultant(s) if necessary Exhibit B Page 2 of 3 o Prepare materials for and lead inclusive community engagement initiatives, including community meetings o Present design development plans (up to and including 80%) at community meetings, gather additional feedback, and incorporate in subsequent designs o Provide materials and engagement opportunities in accessible settings in multiple languages to include at minimum English, Spanish, Hmong, Punjabi, and ASL o Provide thoughtful leadership in innovative or nontraditional means of engaging hard-to-reach individuals and communities o Social media, print, radio, television, mail, etc. o Provide one staff member for 40 hours per week at the Senior Center Outreach Headquarters as specified in the Owner’s Project Criteria • Task 04 – Plan Development o Develop the architectural/engineering design (including preparing and submitting intermediate design review packages) based on active engagement with the community and City o Provide an Opinion of Probable Construction Cost with each plan revision o Confirm adequacy of existing NEPA/CEQA documentation as design progresses • Task 05 – Proposed Design and Cost Assessment o Produce the basis-of-design report and preliminary cost estimate o Summarize preliminary design criteria o Develop preliminary design including preliminary drawings and technical specification outlines o Develop proposed schedule o Regulatory requirements and permit acquisition planning o Develop project budget estimate • Task 06 - Project Management: o Develop and implement Project Management Plan o Develop and implement Quality Plan o Develop and implement Change Management Plan o Develop a project execution plan and project schedule o Administer bi-weekly team meetings and updates with City staff o Submit progress reports as required o Submit progress payment and invoicing documentation o Prepare a project cost model and provide detailed cost estimates as the design and design alternatives are advanced o Prepare, submit, and negotiate a GMP or lump-sum price to complete the Construction Services Phase 2: ▪ GMP proposal development ▪ Final construction work plan and schedule development ▪ Final regulatory and permitting plan Exhibit B Page 3 of 3 ▪ Phase 2 contract finalization and negotiation meetings Compensation Compensation for all services described above. Fees will be billed monthly in accordance with the work completed. PRECONSTRUCTION SERVICES PHASE 1 $ 634,117 Additional Service Fees There would be no additional services without prior written authorization by the City. Schedule Time allotted for each phase is described in detail in Agreement Section 1 Scope of Services and is summarized below. Part 1: Programming and Schematic Design 60 calendar days Part 2: Design Development Phase 90 calendar days Part 3: Construction Document Phase 120 calendar days Part 4: Bidding Phase Assistance No defined duration Part 5: Construction Phase Assistance No defined duration CDBG/HUD PW DIV III 3.0 rev. 04/21 EXHIBIT C FEDERAL REQUIREMENTS Requirements Checklist Federal Requirement Applicability Threshold I False Information All Contracts Access to Project Site and Records Equal Employment Opportunity Form: Certification of Compliance of Affirmative Action (only required for non-construction contracts more than $50,000) Suspension and Debarment Subcontracting with Small, Minority Firms, and Women’s Business Enterprises Form: Good Faith Effort Solicitation List Form: Good Faith Effort Certification Procurement of Recovered Materials Energy Efficiency Federal Requirement Applicability Threshold II Anti-Lobbying Contracts in excess of $100,000 III Clean Air Act Contracts in excess of $150,000 Construction Contracts Applicability Threshold IV Accessibility Requirements All Construction Contracts V Federal Labor Standards Form: Current DB Wage Determination Construction contracts in excess of $2,000 VI Contract Work Hours and Safety Standards Contracts in excess of $100,000 that involve the employment of mechanics or laborers VII Section 3 Clause Form: Section 3 Plan Form: Section 3 Assurance Form: Section 3 Workforce Breakdown Form: Section 3 Subcontract Breakdown Contracts that (1) involve public construction, housing rehabilitation, or housing construction and (2) are in excess of $100,000 VIII Bonding Requirements For construction or facility improvement contracts or subcontracts exceeding the Simplified Acquisition Threshold ($250,000 as of March 2018) CDBG REQUIREMENTS CDBG/HUD PW DIV III 3.2 rev. 04/21 False Information Bidder is advised that providing false, fictitious or misleading information with respect to CDBG funds may result in criminal, civil or administrative prosecution under 18 U.S.C. § 1001, 18 U.S.C. § 1343, 31 U.S.C. § 3729, 31 U.S.C. § 3801 or another applicable statute. Bidder shall promptly refer to City and HUD’s Office of the Inspector General any credible evidence that a principal, employee, agent, subcontractor, or other person has submitted a false claim under the False Claims Act or has committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct involving CDBG funds. Bidder shall ensure that contractual language in third party contracts enforces these provisions. Access to Project Site and Records Bidder will provide access to the City, HUD, the Comptroller General of the United States, or any of their duly authorized representatives to any books, documents, papers, and records of the contractor which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions. Contractor will retain all required records for three years after final payments are made and all other pending matters are closed. Bidder will provide suitable access to the project site at all reasonable times during construction to the City, HUD, the Comptroller General of the United States, or any of their duly authorized representatives. Contractor shall also meet all reporting requirements to allow City to comply with the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109–282). Equal Employment Opportunity Bidder shall abide by all Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor. All contracts and subcontracts entered into will contain the following equal opportunity clause: During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. (3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an CDBG REQUIREMENTS CDBG/HUD PW DIV III 3.3 rev. 04/21 investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. (4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance. Reporting Requirements Bidder and any proposed subcontractor shall comply with the filing requirements of 41 CFR §60-1.7 by filing Standard Form 100 (EEO-1) only if (1) the bidder has 50 or more employees; and (2) the contract value will be greater than $50,000. Bidder and any proposed subcontractor shall complete the Affirmative Action Program Certification of Compliance only if (1) the bidder has 50 or more employees; (2) the work is for non-construction supply or service; and (2) the contract value will be greater than $50,000. Elimination of Segregated Facilities Bidder shall ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensuring that its employees are not assigned to perform their services at any location, under the contractor's control, where the facilities are segregated. This obligation extends to all contracts containing the equal opportunity clause regardless of the amount of the contract. The term “facilities,” as used in this section, means waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, wash rooms, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees; Provided, That separate or single-user restrooms and necessary dressing or sleeping areas shall be provided to assure privacy between the sexes. CDBG REQUIREMENTS CDBG/HUD PW DIV III 3.4 rev. 04/21 Suspension and Debarment By submitting a bid/proposal under this solicitation, the Bidder certifies that neither it nor any person or firm who has an interest in the Bidder’s firm is a person or firm ineligible to be awarded Government contracts, contracts or participate in programs pursuant to 2 CFR Part 180. The Bidder agrees that no part of this work shall be subcontracted to any person or parties listed on the government-wide Excluded Parties List System in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR Part 1986 Comp., p. 189) and 12689 (3 CFR Part 1989 Comp., p. 235). In addition, bidders shall ensure that contractual language in third party contracts enforce this provision. SUBCONTRACTING WITH SMALL AND MINORITY FIRMS, WOMEN’S BUSINESS ENTERPRISES, AND LABOR SURPLUS AREA FIRMS The Bidder shall take the following steps to ensure that, whenever possible, subcontracts are awarded to small business firms, minority firms, women's business enterprises, and labor surplus area firms described in Executive Orders 11625, 12432 and 12138, and 2 CFR part 200: 1. Placing qualified small and minority businesses and women's business enterprises on solicitation lists; 2. Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; 3. Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises; 4. Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises; and 5. Using the services and assistance of the U.S. Small Business Administration, the Minority Business Development Agency of the U.S. Department of Commerce, and State and local governmental small business agencies. Definitions: Disadvantaged business enterprise (DBE) means an entity owned or controlled by a socially and economically disadvantaged individual as described by Public Law 102-389 (42 U.S.C. 4370d) or an entity owned and controlled by a socially and economically disadvantaged individual as described by Title X of the Clean Air Act Amendments of 1990 (42 U.S.C. 7601 note); a Small Business Enterprise (SBE); a Small Business in a Rural Area (SBRA); or a Labor Surplus Area Firm (LSAF), a Historically Underutilized Business (HUB) Zone Small Business Concern, or a concern under a successor program. Labor surplus area firm (LSAF) means a concern that together with its first-tier subcontractors will perform substantially in labor surplus areas (as identified by the Department of Labor in accordance with 20 CFR part 654). Performance is substantially in labor surplus areas if the costs incurred under the contract on account of manufacturing, production or performance of appropriate services in labor surplus areas exceed 50 percent of the contract price. Minority business enterprise (MBE) means a business enterprise that is at least 51 percent owned by a minority group or groups including: a Disadvantaged Business Enterprise (DBE) other than a Small Business Enterprise (SBE), a Labor Surplus Area Firm (LSAF), a Small Business in Rural Areas (SBRA), or a Women's Business Enterprise (WBE). Small business, small business concern or small business enterprise (SBE) means a concern, including its affiliates, that is independently owned and operated, not dominant in the field of operation in which it is bidding, and qualified as a small business under the criteria and size standards in 13 CFR part 121. CDBG REQUIREMENTS CDBG/HUD PW DIV III 3.5 rev. 04/21 Women's business enterprise (WBE) means a business concern which is at least 51% owned or controlled by women. Determination of ownership by a married woman in a community property jurisdiction will not be affected by her husband's 50 percent interest in her share. Similarly, a business concern which is more than 50 percent owned by a married man will not become a qualified WBE by virtue of his wife's 50 percent interest in his share. PROCUREMENT OF RECOVERED MATERIALS Bidder must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. ENERGY EFFICIENCY Bidder will comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation (42 U.S.C. 6201). ANTI-LOBBYING For contracts in excess of $100,000, the Bidder certifies that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Further, the contractor agrees to disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. CLEAN AIR ACT For contracts in excess of $150,000, the Bidder agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). ACCESSIBILITY REQUIREMENTS All buildings and residential structures designed, constructed, or altered is subject to the requirements of the Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157) and shall comply with the Uniform Federal Accessibility Standards (appendix A to 24 CFR part 40 for residential structures, and appendix A to 41 CFR part 101-19, subpart 101-19.6, for general type buildings). All facilities designed and constructed shall be readily accessible to and usable by individuals with disabilities. Further, the ADA requires the removal of architectural barriers and communication barriers that are structural in nature in existing facilities, where such removal is readily achievable— that is, easily accomplishable and able to be carried out without much difficulty or expense. (42 U.S.C. 12131; 47 U.S.C. 155, 201, 218, and 225) FEDERAL LABOR STANDARDS Davis Bacon Bidder will comply with all applicable standards, orders, or requirements of the Davis Bacon Act, as amended (40 U.S.C. 3141-3148) as supplemented by Department of Labor regulations (29 CFR part 5). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by CDBG REQUIREMENTS CDBG/HUD PW DIV III 3.6 rev. 04/21 the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. (State prevailing wage rates required in these Specifications may be higher. Contractor and subcontractors shall pay whichever rate is higher.) Copeland Anti-Kickback Bidder will comply with the Copeland "Anti-Kickback" Act (40 U.S.C. 3145) as supplemented in Department of Labor regulations (29 CFR part 3). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation t o which it is otherwise entitled. The Bidder and each Subcontractor must submit a weekly statement on the wages paid to each employee performing on covered work during the prior week. CONTRACT WORK HOURS AND SAFETY STANDARDS Bidder will comply with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327A 330) as supplemented by Department of Labor regulations (29 CFR part 5). The contractor must compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. SECTION 3 Bidder agrees to comply with HUD’s regulations in 24 CFR part 135, which implement Section 3. As evidenced by the submission of their bid, the Bidder certifies that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. Definitions For purpose of this section, Section 3 residents are defined as: 1) residents of public housing; or 2) individuals that reside in the metropolitan area or non-metropolitan county in which the Section 3 covered assistance is expended and meet the definition of a low- or very low-income person as defined by HUD. For purpose of this section, Section 3 business concerns are defined as one of the following: 1) businesses that are 51 percent or more owned by Section 3 residents; 2) businesses whose permanent, full-time employees include persons, at least 30 percent of whom are current Section 3 residents or were Section 3 residents within 3 years of the date of first employment with the business concern; or 3) businesses that provide evidence of a commitment to subcontract in excess of 25 percent of the dollar award of all subcontracts to be awarded to business concerns that meet the qualifications set forth in the two previous categories. CONTRACT CLAUSE A. The work to be performed under this contract is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of section 3 is to ensure that employment and other economic opportunities generat ed by HUD assistance or HUD-assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing. B. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which implement section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. CDBG REQUIREMENTS CDBG/HUD PW DIV III 3.8 rev. 04/21 C. The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. D. The contractor agrees to include this section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. E. The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than 3.7 F. Those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135. G. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. H. With respect to work performed in connection with section 3 covered Indian housing assistance, section 7(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. Parties to this contract that are subject to the provisions of section 3 and section 7(b) agree to comply with section 3 to the maximum extent feasible, but not in derogation of compliance with section 7(b). CDBG REQUIREMENTS CDBG/HUD PW DIV III 3.8 rev. 04/21 Insert Current Applicable Federal Wage Rate DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit C Page 26 of 26 EXHIBIT C DISCLOSURE OF CONFLICT OF INTEREST [Project Title] YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? ☐ ☐ 2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno? ☐ ☐ 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? ☐ ☐ 4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? ☐ ☐ 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? ☐ ☐ 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? ☐ ☐ * If the answer to any question is yes, please explain in full below. Explanation: Signature Date Name Company Address City, State, Zip ☐ Additional page(s) attached. Exhibit E Page 1 of 1 EXHIBIT E Senior Activity Center Standard Form of General Conditions of Contract Between Owner and Design-Builder Document No. 535 Third Edition, 2022 © Design-Build Institute of America Washington, D.C. DBIA Contract Document #535 Design-Build Institute of America - Contract Documents LICENSE AGREEMENT By using the DBIA Contract Documents, you agree to and are bound by the terms of this License Agreement. 1. License. The Design-Build Institute of America (“DBIA”) provides DBIA Contract Documents and licenses their use worldwide. You acknowledge that DBIA Contract Documents are protected by the copyright laws of the United States. You have a limited nonexclusive license to: (a) Use DBIA Contract Documents on any number of machines owned, leased or rented by your company or organization; (b) Use DBIA Contract Documents in printed form for bona fide contract purposes; and (c) Copy DBIA Contract Documents into any machine-readable or printed form for backup or modification purposes in support of your permitted use. 2. User Responsibility. You assume sole responsibility for the selection of specific documents or portions thereof to achieve your intended results, and for the installation, use, and results obtained from the DBIA Contract D ocuments. You acknowledge that you understand that the text of the DBIA Contract Documents has important legal consequences and that consultation with an attorney is recommended with respect to use or modification of the text. You will not represent that any of the contract documents you generate from DBIA Contract Documents are DBIA documents unless (a) the document text is used without alteration or (b) all additions and changes to, and deletions from, the text are clearly shown. 3. Copies. You may not use, copy, modify, or transfer DBIA Contract Documents, or any copy, modification or merged portion, in whole or in part, except as expressly provided for in this license. Reproduction of DBIA Contract Documents in printed or machine-readable format for resale or educational purposes is expressly prohibited. You will reproduce and include DBIA’s copyright notice on any printed or machine-readable copy, modification, or portion merged into another document or program. 4. Transfers. You may not transfer possession of any copy, modification or merged portion of DBIA Contract Documents to another party, except that a party with whom you are contracting may receive and use such transferred material solely for purposes of its contract with you. You may not sublicense, assign, or transfer this license except as expressly provided in this Agreement, and any attempt to do so is void. 5. Term. The license is effective for one year from the date of purchase. DBIA may elect to terminate it earlier, by written notice to you, if you fail to comply with any term or condition of this Agreement. 6. Limited Warranty. DBIA warrants the electronic files or other media by which DBIA Contract Documents are furnished to be free from defects in materials and workmanship under normal use during the Term. There is no other warranty of any kind, expressed or implied, including, but n ot limited to the implied warranties of merchantability and fitness for a particular purpose. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. This warranty gives you specific legal rights and you m ay also have other rights which vary from state to state. DBIA does not warrant that the DBIA Contract Documents will meet your requirements or that the operation of DBIA Contract Documents will be uninterrupted or error free. 7. Limitations of Remedies. DBIA’s entire liability and your exclusive remedy shall be: the replacement of any document not meeting DBIA’s "Limited Warranty" which is returned to DBIA with a copy of your receipt, or at DBIA’s election, your money will be refunded. In no event will DBIA be liable to you for any damages, including any lost profits, lost savings or other incidental or consequential damages arising out of the use or inability to use DBIA Contract Documents even if DBIA has been advised of the possibility of such damages, or f or any claim by any other party. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. 8. Acknowledgment. You acknowledge that you have read this agreement, understand it and agree to be bound by its terms and conditions and that it will be governed by the laws of the District of Columbia. You further agree that it is the complete and exclusive statement of your agreement with DBIA which supersedes a ny proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this agreement. Instruction Sheet for DBIA Document No. 535 Page 1 © 2022 Design-Build Institute of America INSTRUCTIONS For DBIA Document No. 535 Standard Form of General Conditions of Contract Between Owner and Design-Builder (2022 Edition) General Instructions No. Subject Instruction 1. Standard Forms Standard form contracts have long served an important function in the United States and international construction markets. The common purpose of these forms is to provide an economical and convenient way for parties to contract for design and construction services. As standard forms gain acceptance and are used with increased frequency, parties are able to enter into contracts with greater certainty as to their rights and responsibilities. 2. DBIA Standard Form Contract Documents Since its formation in 1993, the Design-Build Institute of America (DBIA) has regularly evaluated the needs of Owners, Design-Builders, and other parties to the design-build process in preparation for developing its own contract forms. Consistent with DBIA’s mission of promulgating best design-build practices, DBIA believes that the design-build contract should reflect a balanced approach to risk that considers the legitimate interests of all parties to the design-build process. DBIA’s Standard Form Contract Documents reflect a modern risk allocation approach, allocating each risk to the party best equipped to manage and minimize that risk, with the goal of promoting best design-build practices. 3. Use of Non- DBIA Documents To avoid inconsistencies among documents used for the same project, DBIA’s Standard Form Contract Documents should not be used in conjunction with non-DBIA documents unless the non-DBIA documents are appropriately modified on the advice of legal counse l. Moreover, care should also be taken when using different editions of the DBIA Standard Form Document on the same project to ensure consistency. 4. Legal Consequences DBIA Standard Form Contract Documents are legally binding contracts with important legal consequences. Contracting parties are advised and encouraged to seek legal counsel in completing or modifying these Documents. 5. Reproduction DBIA hereby grants to purchasers a limited license to reproduce its Documents consistent with the License Agreement accompanying these Documents. At least two original versions of the Agreement should be signed by the parties. Any other reproduction of DBIA Documents is strictly prohibited. 6. Modifications Effective contracting is accomplished when the parties give specific thought to their contracting goals and then tailor the contract to meet the unique needs of the project and the design-build team. For that reason, these Documents may require modification for various purposes including, for example, to comply with local codes and laws, or to add special terms. DBIA’s latest revisions to its Documents provide the parties an opportunity to customize their contractual relationship by selecting various optional contract clauses that may better reflect the unique needs and risks associated with the project. Any modifications to these Documents should be initialed by the parties. At no time should a document be re-typed in its entirety. Re-creating the document violates copyright laws and destroys one of the advantages of standard forms – familiarity with the terms. 7. Execution It is good practice to execute two original copies of the Agreement. Only persons authorized to sign for the contracting parties may execute the Agreement. Instruction Sheet for DBIA Document No. 535 Page 2 © 2022 Design-Build Institute of America Specific Instructions Section Title Instruction General Purpose of This Document The General Conditions of Contract provide the terms and conditions under which the Work of the Project will be performed. This document accompanies DBIA Document No. 525 and DBIA Document No. 530 (each referred to herein generally as “Agreement”). It may also be incorporated by reference into other related agreements, as between Design-Builder and Design Consultant, and Design- Builder and Subcontractor. General Checklist The following Sections reference documents that are to be attached to the Agreement: Section 3.5.1 Owner’s Permit List Article 5 Insurance and Bonds Section 9.4.2 Unit Prices 2.1.3 Schedule The parties are encouraged, if possible, to agree to a schedule for the execution of the Work upon execution of the Agreement or upon establishing the GMP. 2.2.1 Design Professional Services The parties should be aware that in addition to requiring compliance with state licensing laws for design professionals, some states also require that the design professional have a corporate professional license. 2.3.1 Standard of Care for Design Professional’s Services Design-Builder’s obligation is to deliver a design that meets prevailing industry standards. However, DBIA has provided the parties at Article 11 of the Agreement an optional provision whereby if Owner can identify specific performance standards that can be objectively measured, Design-Builder is obligated to design the Project to satisfy these standards if this optional provision is selected. To avoid any confusion and to ensure that the parties fully understand what their obligations are, the specific performance standards should be clearly identified and should be able to be objectively measured. Design-Builder should recognize that this is a heightened standard of care that has insurance ramifications that should be discussed with Design-Builder’s insurance advisor. 3.5.1 Government Approvals and Permits Design-Builder is responsible for obtaining all necessary permits, approvals, and licenses, except to the extent specific permits, approvals, and licenses are set forth in an Owner’s Permit List, which must be attached as an exhibit to the Agreement. The parties, prior to execution of the Agreement, should discuss which permits, approvals and licenses need to be obtained for the Project and which party is in the best position to do so. 5.1.1 Design-Builder’s Insurance Requirements Design-Builder is obligated to provide insurance coverage from insurance carriers that meet the criteria set forth in the Insurance Exhibit attached to Section 10.1 of the Agreement. 5.1.2 Exclusions to Design-Build Parties are advised that their standard insurance policies may contain exclusions for the design-build delivery method. This Section 5.1.2 requires that any such exclusions be deleted from the policy. 5.2 Owner’s Insurance Requirements Owner, in addition to providing the insurance set forth in this Section and Section 5.3, is also obligated to procure the insurance coverages for the amounts and consistent with the terms set forth in the Insurance Exhibit made part of the Agreement. 5.4 Bonds and Other Performance Security Design-Builder is only obligated to provide bonds or other forms of performance security to the extent called for in Section 10.2 of the Agreement. Instruction Sheet for DBIA Document No. 535 Page 3 © 2022 Design-Build Institute of America Section Title Instruction 8.2.2 Compensability for Force Majeure Events The parties are provided the option in the Agreement of negotiating whether Design-Builder is entitled to compensation for Force Majeure Events. 9.4.1 Contract Price Adjustments Unit prices, if established, shall be attached pursuant to Article 2 of the Agreement. 9.4.3 Payment/ Performance of Disputed Services When Owner disputes Design-Builder’s entitlement to a change order or disagrees with Design-Builder regarding the scope of Work, and nevertheless expects Design-Builder to perform the services, Design-Builder’s cash flow and ability to complete the Work will be hampered if Owner fails to pay Design-Builder for the disputed services. This Section provides a balanced approach whereby Design-Builder is required to perform the services, but Owner is required to pay fifty percent (50%) of Design-Builder’s reasonable estimated direct costs of performing such services until the dispute is settled. By so doing, Owner does not forfeit its right to deny total responsibility for payment, and Design-Builder does not give up its right to demand full payment. The dispute shall be resolved according to Article 10. Article 10 Contract Adjustments and Disputes DBIA endorses the use of partnering, negotiation, mediation and arbitration for the prevention and resolution of disputes. The General Conditions of Contract provides for the parties’ Representatives and Senior Representatives to attempt to negotiate the dispute or disagreement. If this attempt fails, the dispute shall be submitted to mandatory, non-binding mediation. Any dispute that cannot be resolved by mediation shall then be submitted to binding arbitration, unless the parties elect in the Agreement to submit their dispute to a court of competent jurisdiction. 10.3.4 Arbitration The prevailing party in any arbitration shall receive reasonable attorneys’ fees from the other party. DBIA supports this “loser pays” provision to encourage parties to negotiate or mediate their differences and to minimize the number of frivolous disputes. 10.4 Duty to Continue Performance Pending the resolution of any dispute or disagreement, both Owner and Design-Builder shall continue to perform their respective duties under the Contract Documents, unless the parties provide otherwise in the Contract Documents. 10.5 Consequential Damages DBIA believes that it is inappropriate for either Owner or Design-Builder to be responsible to the other for consequential damages arising from the Project. This limitation on consequential damages in no way restricts, however, the payment of liquidated damages, if any, under Article 5 of the Agreement. 11.4 Design-Builder’s Right to Terminate for Cause If Design-Builder properly terminates the Agreement for cause, it shall recover from Owner in the same way as if Owner had terminated the Agreement for convenience under Section 11.6 of the General Conditions. Owner shall pay to Design-Builder its costs, reasonable overhead and profit on the costs, and an additional payment based on a percentage of the remaining balance of the Contract Price, all as set forth in Article 8 of the Agreement. 11.6.2 Termination for Convenience: Owner’s Use of Work Product Owner should not use the Termination for Convenience clause to obtain Design-Builder’s valuable design concepts and then seek lower bids from another design-builder. If Owner terminates this Agreement for its own convenience, and chooses to proceed with the Project using Design-Builder’s Work Product, Owner should pay an additional sum for the use of Design-Builder’s Work Product pursuant to Section 4.3 of the Agreement. Article 12 Electronic Data Design-Builder and Owner shall agree on the software and format for the transmission of Electronic Data. Ownership of Work Product in electronic form is governed by Article 4 of the Agreement. The transmitting party disclaims all warranties with respect to the media transmitting the Electronic Data, but nothing in this Article is intended to negate duties with respect to the standard of care in creating the Electronic Data. TABLE OF CONTENTS Article Name Page Article 1 General ............................................................................................................ 1 Article 2 Design-Builder’s Services and Responsibilities ................................................ 3 Article 3 Owner’s Services and Responsibilities ............................................................. 7 Article 4 Hazardous Conditions and Differing Site Conditions ........................................ 9 Article 5 Insurance and Bonds ..................................................................................... 10 Article 6 Payment ......................................................................................................... 12 Article 7 Indemnification ............................................................................................... 14 Article 8 Time ............................................................................................................... 16 Article 9 Changes to the Contract Price and Time ....................................................... 17 Article 10 Contract Adjustments and Disputes ............................................................. 18 Article 11 Stop Work and Termination .......................................................................... 20 Article 12 Electronic Data ............................................................................................. 23 Article 13 Miscellaneous ............................................................................................... 24 DBIA Document No. 535 Page 1 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America Article 1 General 1.1 Mutual Obligations. 1.1.1 Owner and Design-Builder commit at all times to cooperate fully with each other and proceed on the basis of trust and good faith, to permit each party to realize the benefits afforded under the Contract Documents. 1.2 Basic Definitions. 1.2.1 Agreement refers to the executed contract between Owner and Design-Builder under either DBIA Document No. 525, Standard Form of Agreement Between Owner and Design-Builder – Lump Sum (2022 Edition); DBIA Document No. 530, Standard Form of Agreement Between Owner and Design-Builder – Cost Plus Fee With an Option for a Guaranteed Maximum Price (2022 Edition); DBIA Document No. 544, Standard Form of Progressive Design-Build Agreement (2022 Edition); or DBIA Document No. 545, Standard Form of Progressive Design-Build Agreement for Water and Wastewater Projects (2022 Edition). 1.2.2 Basis of Design Documents are as follows: For DBIA Document No. 530, Standard Form of Agreement Between Owner and Design-Builder – Cost Plus Fee With an Option for a Guaranteed Maximum Price, the Basis of Design Documents are those documents specifically listed in, as applicable, the GMP Exhibit or GMP Proposal as being the “Basis of Design Documents.” For DBIA Document No. 525, Standard Form of Agreement Between Owner and Design-Builder – Lump Sum, for DBIA Document No. 544, Standard Form of Progressive Design- Build Agreement, the Basis of Design Documents are Owner’s Project Criteria, Design-Builder’s Proposal, and the Deviation List, if any. For DBIA Document No. 545, Standard Form of Progressive Design-Build Agreement for Water and Wastewater Projects, the Basis of Design Documents are Owner’s Project Criteria, Design-Builder’s Proposal and the Deviation List, if any. 1.2.3 California Building Code (CBC), Latest Edition; California Plumbing Code (CPC), Latest Edition; California Mechanical Code (CMC), Latest Edition; National Electrical Code (NEC), Latest Edition; California Fire Code (CFC), Latest Edition; California Health and Safety Code (as applicable). For purposes of this definition, “Latest Edition” shall mean the edition, and to the extent, adopted by the City through the City of Fresno Municipal Code. 1.2.4 City, Buyer, Owner, Vendee, City of Fresno shall each mean and refer to the City of Fresno, California. 1.2.5 City Standard Specifications - City of Fresno, Standard Specifications, Department of Public Works, dated September 2010 and as amended from time-to-time. 1.2.6 Construction Documents are the documents, consisting of Drawings and Specifications, to be prepared or assembled by Design-Builder consistent with the Basis of Design Documents unless a deviation from the Basis of Design Documents is specifically set forth in a Change Order exe cuted by both Owner and Design-Builder, as part of the design review process contemplated by Section 2.4 of these General Conditions of Contract. 1.2.7 Construction Manager shall mean and refer to the Owner’s authorized representative at the Job Site, in responsible charge of administering the Contract. The Construction Manager shall be the single point of contact for all correspondence, submittals, progress payment requests, and contacts to and from the Contractor. 1.2.8 Council, City Council shall each mean and refer to the Council of the Buyer. 1.2.9 Day or Days shall mean calendar days unless otherwise specifically noted in the Contract DBIA Document No. 535 Page 2 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America Documents. 1.2.10 Design-Build Team is comprised of Design-Builder, Design Consultant, and key Subcontractors identified by Design-Builder. 1.2.11 Design Consultant is a qualified, licensed design professional who is not an employee of Design-Builder, but is retained by Design-Builder, or employed or retained by anyone under contract with Design-Builder, to furnish design services required under the Contract Documents. A Design Sub-Consultant is a qualified, licensed design professional who is not an employee of Design Consultant but is retained by Design Consultant or employed or retained b y anyone under contract to Design Consultant, to furnish design services required under the Contract Documents. 1.2.12 Design Submission means any and all documents, shop drawings, electronic information, including computer programs and computer generated materials, data, plans, drawings, sketches, illustrations, specifications, descriptions, models, and other information developed, prepared, furnished, delivered or required to be delivered by, or for, Design-Builder. 1.2.13 Engineer, City Engineer shall mean and refer to the City Engineer and any duly authorized representative. 1.2.14 Final Completion is the date on which all Work is complete in accordance with the Contract Documents, including but not limited to, any items identified in the punch list prepared under Section 6.6.1 and the submission of all documents set forth in Section 6.7.2 . 1.2.15 Force Majeure Events are those events that are beyond the control of both Design-Builder and Owner, including the events of war, floods, labor disputes, earthquakes, epidemics, adverse weather conditions not reasonably anticipated, and other acts of God. 1.2.16 General Conditions of Contract refer to this DBIA Document No. 535, Standard Form of General Conditions of Contract Between Owner and Design-Builder (2022 Edition). 1.2.17 GMP Exhibit means that exhibit attached to DBIA Document No. 530, Standard Form of Agreement Between Owner and Design-Builder – Cost Plus Fee With an Option for a Guaranteed Maximum Price, which exhibit will have been agreed upon by Owner and Design -Builder prior to the execution of the Agreement. 1.2.18 GMP Proposal or Proposal means that proposal developed by Design-Builder in accordance with Section 6.6 of DBIA Document No. 530, Standard Form of Agreement Between Owner and Design-Builder, Cost Plus Fee With an Option for a Guaranteed Maximum Price or with Section 2.3 of DBIA Document No. 544, Progressive Design-Build Agreement, or DBIA Document No. 545, Progressive Design-Build Agreement for Water and Wastewater Projects. 1.2.19 Hazardous Conditions are any materials, wastes, substances and chemicals deemed to be hazardous under applicable Legal Requirements, or the handling, storage, remediation, or disposal of which are regulated by applicable Legal Requirements. 1.2.20 Legal Requirements are all applicable federal, state and local laws, codes, ordinances, rules, regulations, orders and decrees of any government or quasi -government entity having jurisdiction over the Project or Site, the practices involved in the Project or Site, or any Work. 1.2.21 Owner’s Project Criteria are developed by or for Owner to describe Owner’s program requirements and objectives for the Project, including use, space, price, time, site and expandability requirements, as well as submittal requirements and other requirements governing Design- Builder’s performance of the Work. Owner’s Project Criteria may include conceptual documents, design criteria, design performance specifications, design specifications, and LEED® or other sustainable design criteria and other Project-specific technical materials and requirements. DBIA Document No. 535 Page 3 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America 1.2.22 Purchasing Manager shall mean and refer to the Purchasing Manager of the Buyer. 1.2.23 Site is the land or premises on which the Project is located. 1.2.24 State Standard Specifications - State of California, Department of Transportation, Standard Specifications, Latest Edition. 1.2.25 Subcontractor is any person or entity retained by Design-Builder as an independent contractor to perform a portion of the Work and shall include materialmen and suppliers. 1.2.26 Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent contractor to perform any portion of a Subcontractor’s Work and shall include materialmen and suppliers. 1.2.27 Substantial Completion or Substantially Complete means the date on which the Work, or an agreed upon portion of the Work, is sufficiently complete in accordance with the Contract Documents so that Owner can occupy and use the Project or a portion thereof for its intended purposes. 1.2.28 Work is comprised of all Design-Builder’s design, construction and other services required by the Contract Documents, including procuring and furnishing all materials, equipment, services and labor reasonably inferable from the Contract Documents. Article 2 Design-Builder’s Services and Responsibilities 2.1 General Services. 2.1.1 Design-Builder’s Representative shall be reasonably available to Owner and shall have the necessary expertise and experience required to supervise the Work. Design-Builder’s Representative shall communicate regularly with Owner and shall be vested with the authority to act on behalf of Design-Builder. Design-Builder’s Representative may be replaced only with the mutual agreement of Owner and Design-Builder. 2.1.2 Unless the parties agree on a different time period for submission of a status report, Design-Builder shall provide Owner with a monthly status report detailing the progress of the Work, including (i) whether the Work is proceeding according to schedule ; (ii) whether discrepancies, conflicts, or ambiguities exist in the Contract Documents that require resolution; (iii) whether health and safety issues exist in connection with the Work; (iv) status of the contingency account to the extent provided for in the Standard Form of Agreement Between Owner and Design-Builder – Cost Plus Fee With an Option for a Guaranteed Maximum Price; and (v) other items that require resolution so as not to jeopardize Design-Builder’s ability to complete the Work for the Contract Price and within the Contract Time(s). Status reports shall be submitted with Design-Builder’s draft Payment Applications as a pre-requisite to payment. 2.1.3 Unless a schedule for the execution of the Work has been attached to the Agreement as an exhibit at the time the Agreement is executed, Design-Builder shall prepare and submit, at least three (3) days prior to the meeting contemplated by Section 2.1.4 hereof, a schedule for the execution of the Work for Owner’s review and response. The schedule shall indicate the dates for the start and completion of the various stages of Work, including the dates when Owner information and approvals are required to enable Design-Builder to achieve the Contract Time(s). The schedule shall be revised as required by conditions and progress of the Work, but such revisions shall not DBIA Document No. 535 Page 4 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America relieve Design-Builder of its obligations to complete the Work within the Contract Time(s), as such dates may be adjusted in accordance with the Contract Documents. Owner’s review of, and response to, the schedule shall not be construed as relieving Design -Builder of its complete and exclusive control over the means, methods, sequences and techniques for executing the Work. 2.1.4 The parties will meet within seven (7) days after execution of the Agreement to discuss issues affecting the administration of the Work and to implement the necessary procedures, including those relating to submittals and payment, to facilitate the ability of the parties to perform their obligations under the Contract Documents. 2.2 Design Professional Services. 2.2.1 Design-Builder shall, consistent with applicable state licensing laws, provide through qualified, licensed design professionals employed by Design-Builder, or procured from qualified, independent licensed Design Consultants, the necessary design services, including architectural, engineering and other design professional services, for the preparation of the required drawings, specifications and other design submittals to permit Design-Builder to complete the Work consistent with the Contract Documents. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Design Consultant. 2.2.2 Design-Builder shall employ only Design Consultants and/or Design Subconsultants who are duly licensed and qualified to perform the Work consistent with the Contract Documents . Prior to the date that Design Consultants and/or Design Subconsultants perform Work on the Project, Design-Builder shall identify in writing to Owner all Design Consultants and Design Subconsultants. To the extent that Design-Builder has not selected a Design Consultant or Design Subconsultant prior to performing the Work, Design-Builder shall provide Owner in writing a list of any subsequently added Design Consultants and/or Design Subconsultants and their scope of Work prior to their performing Work on the Project. Owner may reasonably object to Design-Builder’s selection of any Design Consultant or Design Subconsultant, provided that the Contract Price and/or Contract Time(s) shall be adjusted to the extent that Owner’s decision impacts Design- Builder’s cost and/or time of performance. Design-Builder shall not substitute a listed Design Consultant or Subconsultant without obtaining Owner’s prior written consent; such consent shall not be unreasonably withheld. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Design Consultant or Design Subconsultant, including but not limited to any third-party beneficiary rights. 2.3 Standard of Care for Design Professional Services. 2.3.1 The standard of care for all design professional services performed to execute the Work shall be the care and skill ordinarily used by members of the applicable profession practicing under similar conditions at the same time and locality of the Project. 2.4 Design Development Services. 2.4.1 Design-Builder and Owner shall, consistent with any applicable provision of the Contract Documents, agree upon any interim Design Submissions that Owner may wish to review, which interim Design Submissions may include design criteria, drawings, diagrams and specifications setting forth the Project requirements. 2.4.1.1 Design Submissions shall be consistent with the Owner’s Project Criteria as well as the Basis of Design Documents, as the Basis of Design Documents may have been changed or supplemented through the design process set forth in this Section 2.4.1. By submitting Design Submissions, Design-Builder represents to the Owner that the Work depicted and otherwise shown, contained, or reflected in Design Submissions may be constructed in compliance with the then current Contract Price and Contract Time. Notwithstanding the above, Design-Builder may propose Design Submissions that may alter the Basis of Design Documents, the Contract Price and/or Contract Time; however, DBIA Document No. 535 Page 5 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America Design-Builder must provide notice thereof in accordance with Article 10 of the General Conditions and obtain a Change Order before such proposed Design Submissions are incorporated into the Construction Documents. 2.4.1.2 On or about the time of the Design Submissions, Design-Builder and Owner shall meet and confer about the Design Submissions, with Design-Builder identifying during such meetings, among other things, the evolution of the design and any changes to the Basis of Design Documents, or, if applicable, previously submitted Design Submissions. Changes to the Basis of Design D ocuments, including those that are deemed minor changes under Section 9.3.1, shall be processed in accordance with Article 9. Minutes of the meetings, including a full listing of all changes, will be maintained by Design -Builder and provided to all attendees for review. Following the design review meeting, Owner shall review and approve the interim Design Submissions and meeting minutes in a time that is consistent with the turnaround times set forth in Design-Builder’s schedule. 2.4.1.3 Owner shall review and respond to Design Submissions, providing any comments and/or concerns about the Design Submissions. Owner shall provide all comments on the Design Submissions within the time provided by the Contract Documents. Design-Builder shall revise the Design Submissions (and any other deliverables) in response to Owner’s comments and incorporate said responses into the next submission of Design Submissions. 2.4.1.4 If incorporation of Owner’s comments results in a design that is inconsistent with or otherwise gives rise to a change in Owner’s Project Criteria, the Basis of Design Documents, the Contract Price and/or the Contract Time, Design-Builder shall provide notice thereof in accordance with Articles 9 and 10 of the General Conditions. Changes to the Basis of Design Documents, the Contract Price and/or the Contract Time, including those that are deemed minor changes, shall be processed in accordance with Article 9 of the General Conditions. 2.4.2 Design-Builder shall submit to Owner Construction Documents setting forth in detail drawings and specifications describing the requirements for construction of the Work. The Construction Documents shall be consistent with the latest set of interim Design Submissions, as such submissions may have been modified in a design review meeting and recorded in the meeting minutes. The parties shall have a design review meeting to discuss, and Owner shall review and approve, the Construction Documents in accordance with the procedures set forth in Section 2.4.1 above. Design-Builder shall proceed with construction in accordance with the approved Construction Documents and shall submit one set of approved Construction Documents to Owner prior to commencement of construction. 2.4.3 Owner’s review and approval of interim Design Submissions, meeting minutes, and the Construction Documents is for the purpose of mutually establishing a conformed set of Contract Documents compatible with the requirements of the Work. Neither Owner’s review nor approval of any interim Design Submissions, meeting minutes, and Construction Documents shall be deemed to transfer any design liability from Design-Builder to Owner. Design-Builder shall provide Owner with sufficient time in the Project Schedule to review and approve the Design Submissions. 2.4.4 To the extent not prohibited by the Contract Documents or Legal Requirements, Design - Builder may prepare interim Design Submissions and Construction Documents for a portion of the Work to permit construction to proceed on that portion of the Work prior to completion of the Construction Documents for the entire Work. 2.5 Legal Requirements. 2.5.1 Design-Builder shall perform the Work in accordance with all Legal Requirements and shall provide all notices applicable to the Work as required by the Legal Requirements. DBIA Document No. 535 Page 6 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America 2.5.2 The Contract Price and/or Contract Time(s) shall be adjusted to compensate Design- Builder for the effects of any changes in the Legal Requirements enacted after the date of the Agreement affecting the performance of the Work, or if a Guaranteed Maximum Price is established after the date of the Agreement, the date the parties agree upon the Guaranteed Maximum Price. Such effects may include, without limitation, revisions Design-Builder is required to make to the Construction Documents because of changes in Legal Requirements. 2.6 Government Approvals and Permits. 2.6.1 Except as identified in an Owner’s Permit List attached as an exhibit to the Agreement, Design-Builder shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees required for the prosecution of the Work by any government or quasi- government entity having jurisdiction over the Project. 2.6.2 Design-Builder shall provide reasonable assistance to Owner in obtaining tho se permits, approvals and licenses that are Owner’s responsibility. 2.7 Design-Builder’s Construction Phase Services. 2.7.1 Unless otherwise provided in the Contract Documents to be the responsibility of Owner or a separate contractor, Design-Builder shall provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start-up, material, equipment, machinery, temporary utilities and other temporary facilities to permit Design-Builder to complete construction of the Project consistent with the Contract Documents. 2.7.2 Design-Builder shall perform all construction activities efficiently and with the requisite expertise, skill and competence to satisfy the requirements of the Contract Documents. Design- Builder shall at all times exercise complete and exclusive control over the means, methods, sequences and techniques of construction. 2.7.3 Design-Builder shall employ only Subcontractors who are duly licensed and qualified to perform the Work consistent with the Contract Documents. Prior to the date that Subcontractors perform Work on the Project, Design-Builder shall identify in writing to Owner all Subcontractors. To the extent that Design-Builder has not selected a Subcontractor prior to performing the Work, Design-Builder shall provide Owner in writing a list of any subsequently added Subcontractors prior to their performing Work on the Project. Owner may reasonably object to Design-Builder’s selection of any Subcontractor, provided that the Contract Price and/or Contract Time(s) shall be adjusted to the extent that Owner’s decision impacts Design-Builder’s cost and/or time of performance. Design-Builder may not substitute listed Subcontractors without Owner’s prior written consent; such consent shall not be unreasonably withheld. 2.7.4 Design-Builder assumes responsibility to Owner for the proper performance of the Work of Subcontractors and any acts and omissions in connection with such performance. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Subcontractor or Sub-Subcontractor, including but not limited to any third-party beneficiary rights. 2.7.5 Design-Builder shall coordinate the activities of all Subcontractors. If Owner performs other work on the Project or at the Site with separate contractors under Owner’s control, Design-Builder agrees to reasonably cooperate and coordinate its activities with those of such separate contractors so that the Project can be completed in an orderly and coordinated manner without unreasonable disruption. 2.7.6 Design-Builder shall keep the Site reasonably free from debris, tr ash, graffiti and vandalism, and construction wastes to permit Design-Builder to perform its construction services efficiently, safely and without interfering with the use of adjacent land areas. Upon Substantial Completion of the Work, or a portion of the Work, Design-Builder shall remove all debris, trash, DBIA Document No. 535 Page 7 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America graffiti, U.S.A. markings, construction wastes, materials, equipment, machinery and tools arising from the Work or applicable portions thereof to permit Owner to occupy the Project or a portion of the Project for its intended use. 2.8 Design-Builder’s Responsibility for Project Safety. 2.8.1 Design-Builder recognizes the importance of performing the Work in a safe manner so as to prevent damage, injury or loss to (i) all individuals at the Site, whether working or visiting ; (ii) the Work, including materials and equipment incorporated into the Work or stored on -Site or off-Site; and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes responsibility for implementing and monitoring all safety precautions and programs related to the performance of the Work. Design-Builder shall, prior to commencing construction, designate a Safety Representative with the necessary qualifications and experience to supervise the implementation and monitoring of all safety precautions and programs related to the Work. Unless otherwise required by the Contract Documents, Design-Builder’s Safety Representative shall be an individual stationed at the Site who may have responsibilities on the Project in addition to safety. The Safety Representative shall make routine daily inspections of the Site and shall hold weekly safety meetings w ith Design- Builder’s personnel, Subcontractors and others as applicable. 2.8.2 Design-Builder and Subcontractors shall comply with all Legal Requirements relating to safety, as well as any Owner-specific safety requirements set forth in the Contract Documents, provided that such Owner-specific requirements do not violate any applicable Legal Requirement. Design-Builder will immediately report in writing any safety-related injury, loss, damage or accident arising from the Work to Owner’s Representative and, to the extent mandated by Legal Requirements, to all government or quasi-government authorities having jurisdiction over safety- related matters involving the Project or the Work. 2.8.3 Design-Builder’s responsibility for safety under this Section 2.8 is n ot intended in any way to relieve Subcontractors and Sub-Subcontractors of their own contractual and legal obligations and responsibility for (i) complying with all Legal Requirements, including those related to health and safety matters; and (ii) taking all necessary measures to implement and monitor all safety precautions and programs to guard against injuries, losses, damages or accidents resulting from their performance of the Work. 2.9 Design-Builder’s Warranty. 2.9.1 Design-Builder warrants to Owner that the construction, including all materials and equipment furnished as part of the construction, shall be new unless otherwise specified in the Contract Documents, of good quality, in conformance with the Contract Documents and free of defects in materials and workmanship. Design-Builder’s warranty obligation excludes defects caused by abuse, alterations, or failure to maintain the Work in a commercially reasonable manner. Nothing in this warranty is intended to limit any manufacturer’s warranty wh ich provides Owner with greater warranty rights than set forth in this Section 2.9 or the Contract Documents. Design-Builder will provide Owner with all manufacturers’ warranties upon Substantial Completion. 2.10 Correction of Defective Work. 2.10.1 Design-Builder agrees to correct any Work that is found to not be in conformance with the Contract Documents, including that part of the Work subject to Section 2.9 hereof, within a period of one year from the date of Substantial Completion of the Work or any po rtion of the Work, or within such longer period to the extent required by any specific warranty included in the Contract Documents. 2.10.2 Design-Builder shall, within seven (7) days of receipt of written notice from Owner that the Work is not in conformance with the Contract Documents, take meaningful steps to commence correction of such nonconforming Work, including the correction, removal or replacement of the nonconforming Work and any damage caused to other parts of the Work affected by the DBIA Document No. 535 Page 8 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America nonconforming Work. If Design-Builder fails to commence the necessary steps within such seven (7) day period, Owner, in addition to any other remedies provided under the Contract Documents, may provide Design-Builder with written notice that Owner will commence corre ction of such nonconforming Work with its own forces. If Owner does perform such corrective Work, Design- Builder shall be responsible for all reasonable costs incurred by Owner in performing such correction. If the nonconforming Work creates an emergency requiring an immediate response, the seven (7) day period identified herein shall be deemed inapplicable. 2.10.3 The one-year period referenced in Section 2.10.1 above applies only to Design-Builder’s obligation to correct nonconforming Work and is not intended to constitute a period of limitations for any other rights or remedies Owner may have regarding Design -Builder’s other obligations under the Contract Documents. Article 3 Owner’s Services and Responsibilities 3.1 Duty to Cooperate. 3.1.1 Owner shall, throughout the performance of the Work, cooperate with Design-Builder and perform its responsibilities, obligations and services in a timely manner to facilitate Design -Builder’s timely and efficient performance of the Work and so as not to delay or interfere with Design- Builder’s performance of its obligations under the Contract Documents. 3.1.2 Owner shall provide timely reviews and approvals of interim Design Submissions and Construction Documents consistent with the turnaround times set forth in Design-Builder’s schedule. 3.1.3 Owner shall give Design-Builder timely notice of any Work that Owner notices to be defective or not in compliance with the Contract Documents. 3.2 Furnishing of Services and Information. 3.2.1 Unless expressly stated to the contrary in the Contract Documents, Owner shall provide, at its own cost and expense, for Design-Builder’s information and use the following, all of which Design-Builder is entitled to rely upon in performing the Work: 3.2.1.1 Surveys describing the property, boundaries, topography and reference points for use during construction, including existing service and utility lines; 3.2.1.2 Geotechnical studies describing subsurface conditions, and other surveys describing other latent or concealed physical conditions at the Site; 3.2.1.3 Temporary and permanent easements, zoning and other requirements and encumbrances affecting land use, or necessary to permit the proper design and construction of the Project and enable Design-Builder to perform the Work; 3.2.1.4 A legal description of the Site; 3.2.1.5 To the extent available, record drawings of any existing structures at the Site; and 3.2.1.6 To the extent available, environmental studies, reports and impact statements describing the environmental conditions, including Hazardous Conditions, in existence at the Site. DBIA Document No. 535 Page 9 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America 3.2.2 Owner is responsible for securing and executing all necessary agreements with adjacent land or property owners that are necessary to enable Design-Builder to perform the Work. Owner is further responsible for all costs, including attorneys’ fees, incurred in securing these necessary agreements. 3.3 Financial Information. 3.3.1 At Design-Builder’s written request, Owner shall promptly furnish reasonable evidence satisfactory to Design-Builder that Owner has adequate funds available and committed to fulfill all of Owner’s contractual obligations under the Contract Documents. If Owner fails to furnish such financial information in a timely manner, Design-Builder may stop Work under Section 11.3 hereof or exercise any other right permitted under the Contract Documents. 3.3.2 Design-Builder shall cooperate with the reasonable requirements of Owner’s lenders or other financial sources. Notwithstanding the preceding sentence, after execution of the Agreement Design-Builder shall have no obligation to execute for Owner or Owner’s lenders or other financial sources any documents or agreements that require Design-Builder to assume obligations or responsibilities greater than those existing obligations Design-Builder has under the Contract Documents. 3.4 Owner’s Representative. 3.4.1 Owner’s Representative shall be responsible for providing Owner -supplied information and approvals in a timely manner to permit Design-Builder to fulfill its obligations under the Contract Documents. Owner’s Representative shall also provide Design-Builder with prompt notice if it observes any failure on the part of Design-Builder to fulfill its contractual obligations, including any errors, omissions or defects in the performance of the Work. Owner’s Representative shall communicate regularly with Design-Builder and shall be vested with the authority to act on behalf of Owner. 3.5 Government Approvals and Permits. 3.5.1 Owner shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees set forth in Owner’s Permit List attached as an exhibit to the Agreement. 3.5.2 Owner shall provide reasonable assistance to Design -Builder in obtaining those permits, approvals and licenses that are Design-Builder’s responsibility. 3.6 Owner’s Separate Contractors. 3.6.1 Owner is responsible for all work performed on the Project or at the Site by separate contractors under Owner’s control. Owner shall contractually require its separate contractors to cooperate with and coordinate their activities so as not to interfere with Design -Builder in order to enable Design-Builder to timely complete the Work consistent with the Contract Documents. Article 4 Hazardous Conditions and Differing Site Conditions 4.1 Hazardous Conditions. 4.1.1 Unless otherwise expressly provided in the Contract Documents to be part of the Work, Design-Builder is not responsible for any Hazardous Conditions encountered at the Site. Upon DBIA Document No. 535 Page 10 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America encountering any Hazardous Conditions, Design-Builder will stop Work immediately in the affected area and duly notify Owner and, if required by Legal Requirements, all government or quasi-government entities with jurisdiction over the Project or Site. 4.1.2 Upon receiving notice of the presence of suspected Hazardous Conditions, O wner shall take the necessary measures required to ensure that the Hazardous Conditions are remediated or rendered harmless. 4.1.3 Design-Builder shall be obligated to resume Work at the affected area of the Project only after Owner’s expert provides it with written certification that (i) the Hazardous Conditions have been removed or rendered harmless; and (ii) all necessary approvals have been obtained from all government and quasi-government entities having jurisdiction over the Project or Site. 4.1.4 Design-Builder will be entitled, in accordance with these General Conditions of Contract, to an adjustment in its Contract Price and/or Contract Time(s) to the extent Design -Builder’s cost and/or time of performance have been adversely impacted by the presence of Hazardous Conditions. 4.1.5 Notwithstanding the preceding provisions of this Section 4.1, Owner is not responsible for Hazardous Conditions introduced to the Site by Design-Builder, Subcontractors or anyone for whose acts they may be liable. To the fullest extent permitted by law, Design-Builder shall indemnify, defend and hold harmless Owner and Owner’s officers, directors, employees and agents from and against all claims, losses, damages, liabilities and expenses, including attorneys’ fees expenses, and costs to enforce this agreement, arising out of or resulting from those Hazardous Conditions introduced to the Site by Design-Builder, Subcontractors or anyone for whose acts they may be liable. 4.2 Differing Site Conditions. 4.2.1 Concealed or latent physical conditions or subsurface conditions at the Site that (i) materially differ from the conditions indicated in the Contract Documents or (ii) are of an unusual nature, differing materially from the conditions ordinarily encountered and generally rec ognized as inherent in the Work, are collectively referred to herein as “Differing Site Conditions.” If Design- Builder encounters a Differing Site Condition, Design-Builder will be entitled to an adjustment in the Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost and/or time of performance are adversely impacted by the Differing Site Condition. 4.2.2 Upon encountering a Differing Site Condition, Design-Builder shall provide prompt written notice to Owner of such condition, which not ice shall not be later than fourteen (14) days after such condition has been encountered. Design-Builder shall, to the extent reasonably possible, provide such notice before the Differing Site Condition has been substantially disturbed or altered. Article 5 Insurance and Bonds 5.1 Design-Builder’s Insurance Requirements. 5.1.1 MINIMUM LIMITS DETAILED BELOW APPLY DURING DESIGN PHASE (PHASE 1) ONLY. THE HIGHER LIMITS DETAILED IN 5.1.2 MUST BE IN FORCE PRIOR TO ANY CONSTRUCTION (PHASE 2). (a) Throughout the life of this Agreement, DESIGN-BUILDER shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A- DBIA Document No. 535 Page 11 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by OWNER'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated there in. However, the insurance limits available to OWNER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, DESIGN-BUILDER or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to DESIGN- BUILDER shall be withheld until notice is received by OWNER that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to OWNER. Any failure to maintain the required insurance shall be sufficient cause for OWNER to terminate this Agreement. No action taken by OWNER pursuant to this section shall in any way relieve DESIGN-BUILDER of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by OWNER that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by DESIGN-BUILDER shall not be deemed to release or diminish the liability of DESIGN-BUILDER, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify OWNER shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by DESIGN-BUILDER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of DESIGN- BUILDER, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non -owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to DESIGN-BUILDER’s profession. MINIMUM LIMITS OF INSURANCE DESIGN/BUILD DESIGN-BUILDER DBIA Document No. 535 Page 12 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America DESIGN-BUILDER shall procure and maintain for the duration of the contract, and for 5 years thereafter, insurance with limits of liability not less than those set forth below. However, insurance limits available to OWNER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreemen t. 2. COMMERCIAL AUTOMOBILE LIABILITY $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation Insurance as required by the State of California with statutory limits and EMPLOYER’S LIABILITY with limits of liability not less than: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 4. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $2,000,000 per claim/occurrence; and, (ii) $4,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event DESIGN-BUILDER purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the OWNER, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS DESIGN-BUILDER shall be responsible for payment of any deductibles contained in an y insurance policy(ies) required herein and DESIGN-BUILDER shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared on the Certificate of Insurance, and approved by, the OWNER’S Risk Manager or his/her designee. At the option of the OWNER’S Risk Manager or his/her designee, either: DBIA Document No. 535 Page 13 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America (i) The insurer shall reduce or eliminate such deductibles or self -insured retentions as respects OWNER, its officers, officials, employees, agents and volunteers; or (ii) DESIGN-BUILDER shall provide a financial guarantee, satisfactory to OWNER’S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall OWNER be responsible for the payment of any deductibles or self- insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS (i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to OWNER, except ten (10) days for nonpayment of premium. DESIGN-BUILDER is also responsible for providing written notice to the OWNER under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non -renewal, or reduction in coverage or in limits, DESIGN-BUILDER shall furnish OWNER with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for OWNER, DESIGN-BUILDER shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. (ii) The Commercial General and Automobile, Liability insurance policies shall be written on an occurrence form. (iii) The Commercial General and Automobile Liability insurance policies shall be endorsed to name City of Fresno, its officers, officials, agents, employees and volunteers as an additional insured. DESIGN-BUILDER shall establish additional insured status for the OWNER for all ongoing and completed operations under Commercial General Liability policies by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37. (iv) All such policies of insurance shall be endorsed so the DESIGN-BUILDERS’ insurance shall be primary and no contribution shall be required of OWNER. The coverage shall contain no special limitations on the scope of protection afforded to Owner, its officers, officials, employees, agents and volunteers. If DESIGN-BUILDER maintains higher limits of liability than the minimums shown above, OWNER requires and shall be entitled to coverage for the higher limits of liability maintained by DESIGN- BUILDER. (v) Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. (vi) For any claims related to this Agreement, DESIGN-BUILDER’S insurance coverage shall be primary insurance with respect to the City of Fresno, its officers, officials, agents, employees and volunteers. Any insurance or self-insurance maintained by the OWNER, its officers, officials, agents, employees and volunteers shall be excess of the DESIGN-BUILDER’S insurance and shall not contribute with it. (vii) The Workers’ Compensation insurance policy shall contain, or be endorsed to contain, a waiver of subrogation as to City of Fresno, its officers, officials, agents, employees and volunteers. If the Professional (Errors and Omissions) policy is written on a claims-made form: DBIA Document No. 535 Page 14 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by DESIGN-BUILDER. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by DESIGN-BUILDER, DESIGN-BUILDER must purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to OWNER for review. 5. These requirements shall survive expiration or termination of the Agreement. PROVIDING OF DOCUMENTS - DESIGN-BUILDER shall furnish OWNER with all certificate(s) and applicable endorsements effecting coverage required herein All certificates and applicable endorsements are to be received and approved by the OWNER’S Risk Manager or his/her designee prior to OWNER’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of OWNER, DESIGN-BUILDER shall immediately furnish OWNER with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All subcontractors working under the direction of DESIGN-BUILDER shall also be required to provide all documents noted herein. SUBCONTRACTORS -If DESIGN-BUILDER subcontracts any or all of the services to be performed under this Agreement, DESIGN-BUILDER shall require, at the discretion of the OWNER Risk Manager or designee, subcontractor (s) to enter into a separate Side Agreement with the Owner to provide required indemnification and insurance protection. Any required Side Agreement(s) and a ssociated insurance documents for the subcontractors must be reviewed and preapproved by OWNER Risk Manager or designee. If no Side Agreement is required, DESIGN-BUILDER shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and DESIGN-BUILDER shall ensure that OWNER, its officers, officials, employees, agents and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with DESIGN-BUILDER, and OWNER, prior to commencement of any work by the subcontractors. 5.1.2 PHASE 2 BUILD Design-Builder’s insurance shall specifically delete any design-build or similar exclusions that could compromise coverages because of the design-build delivery of the Project. (a) Throughout the life of this Agreement, DESIGN-BUILDER shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by OWNER'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those DBIA Document No. 535 Page 15 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America amounts stated therein. However, the insurance limits available to OWNER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the mi nimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, DESIGN-BUILDER or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to DESIGN-BUILDER shall be withheld until notice is received by OWNER that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to OWNER. Any failure to maintain the required insurance shall be sufficient cause for OWNER to terminate this Agreement. No action taken by OWNER pursuant to this section shall in any way relieve DESIGN-BUILDER of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by OWNER that an insurer has commenced pro ceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by DESIGN-BUILDER shall not be deemed to release or diminish the liability of DESIGN-BUILDER, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify OWNER shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by DESIGN-BUILDER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of DESIGN-BUILDER, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set f orth under “Minimum Limits of Insurance.” 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to DESIGN - BUILDER’s profession. DBIA Document No. 535 Page 16 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America MINIMUM LIMITS OF INSURANCE DESIGN/BUILD DESIGN-BUILDER DESIGN-BUILDER shall procure and maintain for the duration of the contract, and for 5 years thereafter, insurance with limits of liability not less than those set forth below. However, insurance limits available to OWNER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY (i) $5,000,000 per occurrence for bodily injury and property damage; (ii) $5,000,000 per occurrence for personal and advertising injury; (iii) $10,000,000 aggregate for products and completed operations; and, (iv) $10,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation Insurance as required by the State of California with statutory limits and EMPLOYER’S LIABILITY with limits of liability not less than: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 4. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $2,000,000 per claim/occurrence; and, (ii) $4,000,000 policy aggregate. DBIA Document No. 535 Page 17 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America 5. BUILDERS RISK (Course of Construction) insurance in an amount equal to the completed value of the project with no coinsurance penalty provisions. 6. CONTRACTOR’S POLLUTION LIABILITY with coverage for bodily injury, property damage or pollution clean-up costs that could result from of pollution condition, both sudden and gradual. Including a discharge of pollutants brought to the work site, a release of pre -existing pollutants at the site, or other pollution conditions with limits of liability of not less than the following: (i) $2,000,000 per occurrence or claim; and, (ii) $4,000,000 general aggregate per annual policy period. (a) In the event this Agreement involves the transportation of hazardous material, either the Commercial Automobile policy or other appropriate insurance policy shall be endorsed to include Transportation Pollution Liability insurance covering materials to be transported by DESIGN- BUILDER pursuant to the Agreement. UMBRELLA OR EXCESS INSURANCE In the event DESIGN-BUILDER purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the OWNER, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS DESIGN-BUILDER shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and DESIGN-BUILDER shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared on the Certificate of Insurance, and approved by, the OWNER’S Risk Manager or his/her designee. At the option of the OWNER’S Risk Manager or his/her designee, either: (i) The insurer shall reduce or eliminate such deductibles or self -insured retentions as respects OWNER, its officers, officials, employees, agents and volunteers; or (ii) DESIGN-BUILDER shall provide a financial guarantee, satisfactory to OWNER’S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall OWNER be responsible for the payment of DBIA Document No. 535 Page 18 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS (i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to OWNER, except ten (10) days for nonpayment of premium. DESIGN-BUILDER is also responsible for providing written notice to the OWNER under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, DESIGN-BUILDER shall furnish OWNER with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for OWNER, DESIGN -BUILDER shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. (ii) The Commercial General, Automobile, and Pollution Liability insurance pol icies shall be written on an occurrence form. (iii) The Commercial General, Automobile and Contractors Pollution Liability insurance policies shall be endorsed to name City of Fresno, its officers, officials, agents, employees and volunteers as an additional insured. DESIGN-BUILDER shall establish additional insured status for the OWNER for all ongoing and completed operations under both Commercial General and Commercial Pollution Liability policies by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37. (iv) All such policies of insurance shall be endorsed so the DESIGN -BUILDERS’ insurance shall be primary and no contribution shall be required of OWNER. The coverage shall contain no special limitations on the scope of protection afforded to Owner, its officers, officials, employees, agents and volunteers. If DESIGN-BUILDER maintains higher limits of liability than the minimums shown above, OWNER requires and shall be entitled to coverage for the higher limits of liability maintained by DESIGN-BUILDER. (v) Should any of these policies provide that the defense costs are p aid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. (vi) For any claims related to this Agreement, DESIGN-BUILDER’S insurance coverage shall be primary insurance with respect to the City of Fresno, its officers, officials, agents, employees and volunteers. Any insurance or self-insurance maintained by the OWNER, its officers, officials, agents, employees and volunteers shall be excess of the DESIGN-BUILDER’S insurance and shall not contribute with it. (vii) The Workers’ Compensation insurance policy shall contain, or be endorsed to contain, a waiver of subrogation as to City of Fresno, its officers, officials, agents, employees and volunteers. (viii) The Builder’s Risk Insurance shall have the policy endorsed to provide the City of Fresno to be named as a Loss Payee. If the Professional (Errors and Omissions) policy is written on a claims-made form: DBIA Document No. 535 Page 19 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by DESIGN -BUILDER. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by DESIGN-BUILDER, DESIGN-BUILDER must purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to OWNER for review. 5. These requirements shall survive expiration or termination of the Agreement. PROVIDING OF DOCUMENTS - DESIGN-BUILDER shall furnish OWNER with all certificate(s) and applicable endorsements effecting coverage required herein All certificates and applicable endorsements are to be received and approved by the OWNER’S Risk Manager or his/her designee prior to OWNER’S execution of the Agreement and before work commences. All non - ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of OWNER, DESIGN-BUILDER shall immediately furnish OWNER with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All subcontractors working under the direction of DESIGN-BUILDER shall also be required to provide all documents noted herein. SUBCONTRACTORS -If DESIGN-BUILDER subcontracts any or all of the services to be performed under this Agreement, DESIGN-BUILDER shall require, at the discretion of the OWNER Risk Manager or designee, subcontractor (s) to enter into a separate Side Agreement with the Owner to provide required indemnification and insurance protection. Any r equired Side Agreement(s) and associated insurance documents for the subcontractors must be reviewed and preapproved by OWNER Risk Manager or designee. If no Side Agreement is required, DESIGN - BUILDER shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and DESIGN-BUILDER shall ensure that OWNER, its officers, officials, employees, agents and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with DESIGN-BUILDER, and OWNER, prior to commencement of any work by the subcontractors. DBIA Document No. 535 Page 20 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America 5.4 Bonds and Other Performance Security. 5.4.1 If Owner requires Design-Builder to obtain performance and labor and material payment bonds, or other forms of performance security, the amount, form and other conditions of such security shall be as set forth in the Agreement. 5.4.2 All bonds furnished by Design-Builder shall be in a form satisfactory to Owner. The surety shall be a company Article 6 Payment 6.1 Schedule of Values. 6.1.1 Unless required by Owner upon execution of this Agreement, within ten (10) days of execution of the Agreement, Design-Builder shall submit for Owner’s review and approval a schedule of values for all of the Work. The Schedule of Values will (i) subdivide the Work into its respective parts; (ii) include values for all items comprising the Work ; and (iii) serve as the basis for monthly progress payments made to Design-Builder throughout the Work. 6.1.2 Owner will timely review and approve the schedule of values so as not to delay the submission of Design-Builder’s first application for payment. Owner and Design-Builder shall timely resolve any differences so as not to delay Design-Builder’s submission of its first application for payment. 6.2 Monthly Progress Payments. 6.2.1 On or before the date established in the Agreement, Design-Builder shall submit for Owner’s review and approval its Application for Payment requesting payment for all Work performed as of the date of the Application for Pay ment. The Application for Payment shall be accompanied by all supporting documentation required by the Contract Documents and/or established at the meeting required by Section 2.1.4 hereof. 6.2.2 The Application for Payment may request payment for equipmen t and materials not yet incorporated into the Project, provided that (i) Owner is satisfied that the equipment and materials are suitably stored at either the Site or another acceptable location ; (ii) the equipment and materials are protected by suitable insurance; and (iii) upon payment, Owner will receive the equipment and materials free and clear of all liens and encumbrances. 6.2.3 All discounts offered by Subcontractors, Sub-Subcontractors, and suppliers to Design- Builder for early payment shall accrue one hundred percent to Design-Builder to the extent Design- Builder advances payment. Unless Owner advances payment to Design-Builder specifically to receive the discount, Design-Builder may include in its Application for Payment the full undiscounted cost of the item for which payment is sought. 6.2.4 The Application for Payment shall constitute Design-Builder’s representation that the Work described therein has been performed consistent with the Contract Documents, has progressed to the point indicated in the Application for Payment, and that title to all Work will pass to Owner free and clear of all claims, liens, encumbrances, and security interests upon the incorporation of the Work into the Project, or upon Design-Builder’s receipt of payment, whichever occurs earlier. 6.3 Withholding of Payments. 6.3.1 On or before the date established in the Agreement, Owner shall pay Design-Builder all amounts properly due. If Owner determines that Design-Builder is not entitled to all or part of an DBIA Document No. 535 Page 21 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America Application for Payment as a result of Design-Builder’s failure to meet its obligations hereunder, it will notify Design-Builder in writing at least five (5) days prior to the date payment is due. The notice shall indicate the specific amounts Owner intends to withhold, th e reasons and contractual basis for the withholding, and the specific measures Design-Builder must take to rectify Owner’s concerns. Design-Builder and Owner will attempt to resolve Owner’s concerns prior to the date payment is due. If the parties cannot resolve such concerns, Design-Builder may pursue its rights under the Contract Documents, including those under Article 10 hereof. 6.3.2 Notwithstanding anything to the contrary in the Contract Documents, Owner shall pay Design-Builder all undisputed amounts in an Application for Payment within the times required by the Agreement. 6.4 Design-Builder’s Payment Obligations. 6.4.1 Design-Builder will pay Design Consultants and Subcontractors, in accordance with its contractual obligations to such parties, all the amounts Design -Builder has received from Owner on account of their work. Design-Builder will impose similar requirements on Design Consultants and Subcontractors to pay those parties with whom they have contracted. Design-Builder will indemnify and defend Owner against any claims for payment and mechanic’s liens as set forth in Section 7.3 hereof. 6.5 Substantial Completion. 6.5.1 Design-Builder shall notify Owner when it believes the Work, or to the extent permitted in the Contract Documents, a portion of the Work, is Substantially Complete. Within five (5) days of Owner’s receipt of Design-Builder’s notice, Owner and Design-Builder will jointly inspect such Work to verify that it is Substantially Complete in accordance with the requirements of the Contract Documents. If such Work is Substantially Complete, Owner shall prepare and issue a Certificate of Substantial Completion that will set forth (i) the date of Substantial Completion of the Work or portion thereof; (ii) the remaining items of Work that have to be completed before final payment ; (iii) provisions (to the extent not already provided in the Contract Documents) establishing Owner’s and Design-Builder’s responsibility for the Project’s security, maintenance, utilities and insurance pending final payment; and (iv) an acknowledgment that warranties commence to run on the date of Substantial Completion, except as may otherwise be noted in the Certificate of Substantial Completion. 6.5.2 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, Owner shall release to Design-Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion. 6.5.3 Owner, at its option, may use a portion of the Work which has been determined to be Substantially Complete, provided, however, that (i) a Certificate of Substantial Completion has been issued for the portion of Work addressing the items set forth in Section 6.6.1 above ; (ii) Design- Builder and Owner have obtained the consent of their sureties and insurers, and to the extent applicable, the appropriate government authorities having jurisdiction over the Project ; and (iii) Owner and Design-Builder agree that Owner’s use or occupancy will not interfere with Design - Builder’s completion of the remaining Work. 6.5.4 On the date that the Owner issues the Certificate of Substantial Completion, the Owner shall provide Design-Builder with the final punch list identifying the remaining minor corrective items to be completed for final completion of the Project. When the Design-Builder considers the final punch list work to be complete, it shall request Owner to perform a final walk through of the Project to determine if said punch list work is complete and whether Design-Builder has otherwise completed all of its obligations under the Contract Documents. DBIA Document No. 535 Page 22 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America 6.6 Completion. The Owner shall record the Notice of Completion when the entire Work including, but not limited to Design-Builder’s closeout document obligations are fully satisfied, Design-Builder’s punch list(s) and work shall have been completed to the satisfaction of the Owner. However, the Owner, at its sole option, may accept completion of the Contract and have the Notice of Completion recorded when the entire Work including individual portions of the Work shall have been completed to the satisfaction of the Owner, except for minor corrective items, as distinguished from incomplete items. Regardless of the cause therefore, the Design-Builder may not maintain any claim or cause of action against the Owner for damages incurred as a result of its failure or inability to complete its Work on the Project in a shorter period than established in the Contract Documents, the parties stipulating that the period set forth in the Contract Documents is a reasonable time within which to perform the work on the Project. 6.7 Final Payment. 6.7.1 After receipt of a Final Application for Payment from Design-Builder, Owner shall make final payment by the time required in the Agreement, provided that Design-Builder has achieved Final Completion. 6.7.2 At the time of submission of its Final Application for Payment, De sign-Builder shall provide the following information: 6.7.2.1 An affidavit that there are no claims, obligations or liens outstanding or unsatisfied for labor, services, material, equipment, taxes or other items performed, furnished or incurred for or in connection with the Work which will in any way affect Owner’s interests; 6.7.2.2 A general release executed by Design-Builder waiving, upon receipt of final payment by Design-Builder, all claims, except those claims previously made in writing to Owner and remaining unsettled at the time of final payment; 6.7.2.3 Consent of Design-Builder’s surety, if any, to final payment; 6.7.2.4 All operating manuals, warranties, As-Built drawings, marked up Record documents, and other deliverables required by the Contract Documents; and 6.7.2.5 Certificates of insurance confirming that required coverages will remain in effect consistent with the requirements of the Contract Documents. 6.7.3 Upon making final payment, Owner waives all claims against Design-Builder except claims relating to (i) Design-Builder’s failure to satisfy its payment obligations, if such failure affects Owner’s interests; (ii) Design-Builder’s failure to complete the Work consistent with the Contract Documents, including defects appearing after Substantial Completion; and (iii) the terms of any special warranties required by the Contract Documents. 6.7.4 Deficiencies in the Work discovered after Substantial Completion, whether or not such deficiencies would have been included on the punch list if discovered earlier, shall be deemed warranty Work. Such deficiencies shall be corrected by Design-Builder under Sections 2.9 and 2.10 herein and shall not be a reason to withhold final payment from Design-Builder, provided, however, that Owner shall be entitled to withhold from the Final Payment the reasonable value of completion of such deficient work until such work is completed. DBIA Document No. 535 Page 23 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America Article 7 Indemnification 7.1 Patent and Copyright Infringement. 7.1.1 Design-Builder shall defend any action or proceeding brought against Owner based on any claim that the Work, or any part thereof, or the operation or use of the Work or any part thereof, constitutes infringement of any United States patent or copyright, now or hereafter issued. Owner shall give prompt written notice to Design-Builder of any such action or proceeding and will reasonably provide authority, information and assistance in the defense of same. Design-Builder shall indemnify and hold harmless Owner from and against all damages and costs, including but not limited to attorneys’ fees and expenses awarded against Owner or Design-Builder in any such action or proceeding. Design-Builder agrees to keep Owner informed of all developments in the defense of such actions. 7.1.2 If Owner is enjoined from the operation or use of the Work, or any part thereof, as the result of any patent or copyright suit, claim, or proceeding, Design-Builder shall at its sole expense take reasonable steps to procure the right to operate or use the Work. If Design-Builder cannot so procure such right within a reasonable time, Design -Builder shall promptly, at Design-Builder’s option and at Design-Builder’s expense, (i) modify the Work so as to avoid infringement of any such patent or copyright; or (ii) replace said Work with Work that does not infringe or violate any such patent or copyright. 7.1.3 Sections 7.1.1 and 7.1.2 above shall not be applicable to any suit, claim or proceeding based on infringement or violation of a patent or copyright (i) relating solely to a particular process or product of a particular manufacturer specified by Owner and not offered or recommended by Design-Builder to Owner; or (ii) arising from modifications to the Work by Owner or its agents after acceptance of the Work. If the suit, claim or proceeding is based upon events set forth in the preceding sentence, Owner shall defend, indemnify and hold harmless Design-Builder to the same extent Design-Builder is obligated to defend, indemnify and hold harmless Owner in Section 7.1.1 above. 7.1.4 The obligations set forth in this Section 7.1 shall constitute the sole agreement between the parties relating to liability for infringement of violation of any patent or copyright. 7.2 Payment Claim Indemnification. 7.2.1 Provided that Owner is not in breach of its contractual obligation to make payments to Design-Builder for the Work, Design-Builder shall indemnify, defend and hold harmless Owner from any claims or mechanic’s liens brought against Ow ner or against the Project as a result of the failure of Design-Builder, or those for whose acts it is responsible, to pay for any services, materials, labor, equipment, taxes or other items or obligations furnished or incurred for or in connection with the Work. Within three (3) days of receiving written notice from Owner that such a claim or mechanic’s lien has been filed, Design-Builder shall commence to take the steps necessary to discharge said claim or lien, including, if necessary, the furnishing of a mechanic’s lien bond. If Design-Builder fails to do so, Owner will have the right to discharge the claim or lien and hold Design-Builder liable for costs and expenses incurred, including attorneys’ fees. 7.3 Design-Builder’s General Indemnification. 7.3.1 To the furthest extent allowed by law, including California Civil Code section 2782, DESIGN- BUILDER shall indemnify, defend and hold harmless OWNER and each of its officers, officials, employees, agents, and volunteers from any and all claims, demands, actions in law or equity, loss, liability, fines, penalties, forfeitures, interest, costs including legal fees, and damages (whether in contract, tort, or strict liability, including but not limited to personal injury, death at any time, DBIA Document No. 535 Page 24 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America property damage, or loss of any type) arising or alleged to have arisen directly or indirectly out of (1) any voluntary or involuntary act or omission, (2) error, omis sion or negligence, or (3) the performance or non-performance of this Contract . DESIGN-BUILDER'S obligations as set forth in this section shall apply regardless of whether OWNER or any of its officers, officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of OWNER or any of its officers, officials, employees, agents or volunteers. To the fullest extent allowed by law, and in addition to the express duty to indemnify, DESIGN- BUILDER, whenever there is any causal connection between the DESIGN-BUILDER’s performance or non-performance of the work or services required under this Contract and any claim or loss, injury or damage of any type, DESIGN-BUILDER expressly agrees to undertake a duty to defend OWNER and any of its officers, officials, employees, agents, or volunteers, as a separate duty, independent of and broader that the duty to indemnify. The duty to defend as herein agreed to by DESIGN-BUILDER expressly includes all costs of litigation, attorneys fees, settlement costs and expenses in connection with claims or litigation, whether or not the claims are valid, false or groundless, as long as the claims could be in any manner be causally connected to DESIGN- BUILDER as reasonably determined by OWNER. Upon the tender by OWNER to DESIGN-BUILDER, DESIGN-BUILDER shall be bound and obligated to assume the defense of OWNER and any of its officers, officials, employees, agents, or volunteers, including the a duty to settle and otherwise pursue settlement negotiations, and shall pay, liquidate, discharge and satisfy any and all settlements, judgments, awards, or expenses resulting from or arising out of the claims without reimbursement from OWNER or any of its officers, officials, employees, agents, or volunteers. It is further understood and agreed by DESIGN-BUILDER that if OWNER tenders a defense of a claim on behalf of OWNER or any of its officers, officials, employees, agents, or volunteers and DESIGN-BUILDER fails, refuses or neglects to assume the defense thereof, OWNER and its officers, officials, employees, agents, or volunteers may agree to compromise and settle or defend any such claim or action and DESIGN-BUILDER shall be bound and obligated to reimburse OWNER and its officers, officials, employees, agents, or volunteers for the amounts expended by each in defending or settling such claim, or in the amount required to pay any judgmen t rendered therein. The defense and indemnity obligations set forth above shall be direct obligations and shall be separate from and shall not be limited in any manner by any insurance procured in accordance with the insurance requirements set forth in t his Contract. In addition, such obligations remain in force regardless of whether OWNER provided approval for, or did not review or object to, any insurance DESIGN-BUILDER may have procured in a accordance with the insurance requirements set forth in this Contract. The defense and indemnity obligations shall arise at such time that any claim is made, or loss, injury or damage of any type has been incurred by OWNER, and the entry of judgment, arbitration, or litigation of any claim shall not be a condition precedent to these obligations. The defense and indemnity obligations set forth in this section shall survive termination or expiration of this Contract. If DESIGN-BUILDER should subcontract all or any portion of the work to be performed under this Contract, DESIGN-BUILDER shall require each subcontractor to Indemnify, hold harmless and defend OWNER and each of its officers, officials, employees, agents and volunteers in accordance with the terms as set forth above. DBIA Document No. 535 Page 25 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America Article 8 Time 8.1 Obligation to Achieve the Contract Times. 8.1.1 Design-Builder agrees that it will commence performance of the Work and achieve the Contract Time(s) in accordance with Article 5 of the Agreement. 8.2 Delays to the Work. 8.2.1 If Design-Builder is delayed on the critical path in the performance of the Work due to acts, omissions, conditions, events, or circumstances beyond its control and due to no fault of its own or those for whom Design-Builder is responsible, the Contract Time(s) for performance shall be reasonably extended by Change Order. By way of example, events that will entitle Design-Builder to an extension of the Contract Time(s) include acts or omissions of Owner or anyone under Owner’s control (including separate contractors), changes in the Work, Differing S ite Conditions, Hazardous Conditions, and Force Majeure Events. 8.2.2 In addition to Design-Builder’s right to a time extension for those events set forth in Section 8.2.1 above, Design-Builder shall also be entitled to an appropriate adjustment of the Contract Price provided, however, that the Contract Price shall not be adjusted for Force Majeure Events unless otherwise provided in the Agreement. Article 9 Changes to the Contract Price and Time 9.1 Change Orders. 9.1.1 A Change Order is a written instrument issued after execution of the Agreement signed by Owner and Design-Builder, stating their agreement upon all of the following: 9.1.1.1 The scope of the change in the Work; 9.1.1.2 The amount of the adjustment to the Contract Price; and 9.1.1.3 The extent of the adjustment to the Contract Time(s). 9.1.2 All changes in the Work authorized by applicable Change Order shall be performed under the applicable conditions of the Contract Documents. Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for such changes. 9.1.3 If Owner requests a proposal for a change in the Work from Design-Builder and subsequently elects not to proceed with the change, a Change Order shall be issued to reimburse Design-Builder for reasonable costs incurred for estimating services, design services and services involved in the preparation of proposed revisions to the Contract Documents. 9.1.4 Approval of any change order by the Owner is subject to Resolution No. 2017-158 as adopted by the City Council. The approval authority defined in Resolution No. 2017-158 shall be based on the current awarded contract price for each Phase as approved by City Council. DBIA Document No. 535 Page 26 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America 9.2 Work Change Directives. 9.2.1 A Work Change Directive is a written order prepared and signed by Owner directing a change in the Work prior to agreement on an adjustment in the Contract Price and/or the Contract Time(s). 9.2.2 Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for the Work Change Directive. Upon reaching an agreement, the parties shall prepare and execute an appropriate Change Order reflecting the terms of the agreement. 9.3 Minor Changes in the Work. 9.3.1 Minor changes in the Work do not involve an adjustment in the Contract Price and/or Contract Time(s) and do not materially and adversely affect the Work, including the design, quality, performance and workmanship required by the Contract Documents. Design-Builder may make minor changes in the Work consistent with the intent of the Contract Documents, provided, however, that Design-Builder shall promptly inform Owner, in writing, of any such changes and record such changes on the documents maintained by Design-Builder. 9.4 Contract Price Adjustments. 9.4.1 The increase or decrease in Contract Price resulting from a change in the Work shall be determined by one or more of the following methods: 9.4.1.1 Unit prices set forth in the Agreement or as subsequently agreed to between the parties; 9.4.1.2 A mutually accepted lump sum, properly itemized and supported by sufficient substantiating data to permit evaluation by Owner; 9.4.1.3 Costs, fees and any other markups set forth in the Agreement; or 9.4.1.4 If an increase or decrease cannot be agreed to as set forth in items 9.4.1.1 through 9.4.1.3 above and Owner issues a Work Change Directive, the cost of the change of the Work shall be determined by the reasonable expense and savings in the performance of the Work resulting from the change, including a reasonable overhead and profit, as may be set forth in the Agreement. 9.4.2 If unit prices are set forth in the Contract Documents or are subsequently agreed to by the parties, but application of such unit prices will cause substantial inequity to Owner or Design-Builder because of differences in the character or quantity of such unit items as originally contemplated, such unit prices shall be equitably adjusted. 9.4.3 If Owner and Design-Builder disagree upon whether Design-Builder is entitled to be paid for any services required by Owner, or if there are any other disagreements over the scope of Work or proposed changes to the Work, Owner and Design-Builder shall resolve the disagreement pursuant to Article 10 hereof. As part of the negotiation process, Design-Builder shall furnish Owner with a good faith estimate of the costs to perform the disputed services in accordance with Owner’s interpretations. If the parties are unable to agree and Owner expects Design-Builder to perform the services in accordance with Owner’s interpretations, Design-Builder shall proceed to perform the disputed services, conditioned upon Owner issuing a written order to Design-Builder (i) directing Design-Builder to proceed; and (ii) specifying Owner’s interpretation of the services that are to be performed. If this occurs, Design-Builder shall be entitled to submit in its Applications for Payment an amount equal to fifty percent (50%) of its reasonable estimated direct cost to perform the services, and Owner agrees to pay such amounts, with the express understanding that (i) such payment by Owner does not prejudice Owner’s right to argue that it has no responsibility to pay for DBIA Document No. 535 Page 27 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America such services; and (ii) receipt of such payment by Design-Builder does not prejudice Design- Builder’s right to seek full payment of the disputed services if Owner’s order is deemed to be a change to the Work. 9.5 Emergencies. 9.5.1 In any emergency affecting the safety of persons and/or property, Design -Builder shall act, at its discretion, to prevent threatened damage, injury or loss. Any change in the Contract Price and/or Contract Time(s) on account of emergency work shall be dete rmined as provided in this Article 9. Article 10 Contract Adjustments and Disputes 10.1 Requests for Contract Adjustments and Relief. 10.1.1 If either Design-Builder or Owner believes that it is entitled to relief against the other for any event arising out of or related to the Work or Project, such party shall provide written notice to the other party of the basis for its claim for relief. Such notice shall, if possible, be made prior to incurring any cost or expense and in accordance with any specific notice requirements contained in applicable sections of these General Conditions of Contract. In the absence of any specific notice requirement, written notice shall be given within a reasonable time, not to exceed twenty -one (21) days, after the occurrence giving rise to the claim for relief or after the claiming party reasonably should have recognized the event or condition giving rise to the request, whichever is later. The claimant shall provide more complete information with respect to the claim within fourteen (14) days of the initial notice. The more complete information shall include sufficient information to advise the other party of the circumstances giving rise to the claim for relief, the specific contractual adjustment or relief requested and the basis of such request. 10.2 Dispute Avoidance and Resolution. 10.2.1 The parties are fully committed to working with each other throughout the Project and agree to communicate regularly with each other at all times so as to avoid or minimize disputes or disagreements. If disputes or disagreements do arise, Design-Builder and Owner each commit to resolving such disputes or disagreements in an amicable, professional and expeditious ma nner so as to avoid unnecessary losses, delays and disruptions to the Work. 10.2.2 Claims for Additional Time. DBIA Document No. 535 Page 28 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America Extension of time, when granted, will be based upon the effect of delays to the Project as a whole and will not be granted for noncontrolling delays to minor included portions of the Work unless it can be shown that such delays did, in fact, delay the progress of the Project as a whole. The Design-Builder shall not be entitled to damages or additional payment due to these delays except to the extent the delay exceeds the original Contract duration for Substantial Completion, and any extension hereunder other than any extension granted due to Owner caused delay, when Owner is responsible for the delay, the delay is unreasonable under the circumstances involved, not within the contemplation of the parties, and such delay causes actual damage to the Design-Builder. The Owner shall not be entitled to liquidated damages for Design-Builder delays unless the delay by Design-Builder exceeds the original Contract duration for Substantial Completion and any extension of time to which the Design-Builder is entitled to under the Specifications. If delays are caused by unforeseen events beyond the control of the Design-Builder, such delays will entitle the Design-Builder to an extension of time as provided herein. War, governmental regulations, priorities, labor disputes, strikes, fires, floods, adverse weather necessitating cessation of Work, other similar action of the elements, inability to obtain materials, equipment or labor because of Federal Government restrictions arising out of the National Defense or War Progra m, required Extra Work, action or inaction by the Owner, or other specific reasons as may be further described in the Specifications may constitute such a delay. If the Design-Builder is delayed by the failure of the Owner to furnish necessary rights of way or materials agreed to be furnished by it, or by failure to supply necessary plans or instructions concerning the Work, after written request therefore, the Design-Builder shall be entitled to an extension of time as provided herein. 10.2.3 Claims and Disputes. 10.2.3.1 General. The Design-Builder and Owner shall make good faith efforts to resolve any and all Claims and disputes in a timely manner that may from time to time arise during Design-Builder's performance of the Work. Claims, including those alleging an error or omission shall be directed to the Owner's Construction Manager for action as provided in the “Resolution of Claims and Disputes,” below. It shall be a condition precedent to Claims review by the Public Works Director or his or her designated representative and to mediation or litigation between the Design-Builder and Owner as to all such matters arising prior to the date final payment is due, that a formal decision on all Design- Builder Claims be made by the Construction Manager. It shall be a condition precedent that the Design-Builder appeal any disputed Claim to the Public Works Director prior to initiating mediation or litigation. It shall be a condition precedent that the Design-Builder mediate any disputed Claim through non-binding mediation as provided herein, prior to initiating litigation. Unless mutually waived in writing by both parties, these provisions apply regardless of 1) whether such matters relate to execution and progress of the Work, or 2) the extent to which the Work has been completed. Notice of Intent to Claim by Design-Builder must be made within 72 hours after occurrence of the event giving rise to such Claim, or within 72 hours after the claimant first discovers or should have reasonably discovered the condition giving rise to the Claim, whichever is later. Notice of Intent to Claim and Claims must be made by written notice. At all times during the course of the dispute resolution process pursuant to the “Resolution of Claims and Disputes,” the Design-Builder shall continue with the Work as directed, in a diligent manner and without delay, or shall conform to the Owner's decision or order, and shall be governed by all applicable provisions of the Contract. Records of the Work shall be kept in sufficient detai l to enable payment in accordance with applicable provisions in the Contract if this should become necessary. DBIA Document No. 535 Page 29 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America The making of final payment shall not constitute a waiver of Claims by the Owner including, but not limited to, the following: (i) liens, Claims, security interests or encumbrances arising out of the Contract and unsettled; (ii) failure of the Work to comply with the requirements of the Contract Documents; or (iii) terms of special warranties required by the Contract Documents. Design-Builder shall promptly provide an unconditional waiver and release upon final payment in accordance with California Civil Code section 3262 and these Contract Documents. Except to the extent of any Claim arising from City’s sole or active negligence, and except to the extent Design- Builder expressly describes any other disputed Claims for which prior written notice has been given the City and lists the respective dollar amounts in an unconditional waiver and release, the making of final payment shall constitute a waiver of Claims by the Design-Builder pertaining to any and all costs, expenses, changes or other Claims related to Contract Price or Contract Time, including any synergistic effects attributed to multiple Change Orders. In the event of any disputed Claims between the City and Design-Builder, the City may withhold from the final payment an amount not to exceed 150% of the disputed amount. 10.2.3.2 Resolution of Claims and Disputes. (1) Decision of Construction Manager: a. If the Design-Builder believes any Work or demand to be outside the requirements of the Contract or believes that omissions, conflicts, errors, or discrepancies will cause or have caused the Design-Builder additional costs or delays in the performance of the Work, he/she shall file a written Notice of Intent to Claim with the Construction Manager within 72 hours after occurrence of the event giving rise to the Claim, or within 72 hours after the Design-Builder or its subcontractor first discovers or should have reasonably discovered the condit ion giving rise to the Claim, whichever is later. If a written Notice of Intent to Claim is not submitted within this time period, the Design-Builder shall waive his or her right to further Claims on the issue and any synergistic effects related to such Claim. 1. Within 10 working days following the Notice of Intent to Claim, the Design-Builder shall provide a Notice of Claim with complete supporting data for the Claim of the cost and delay related to such omissions, conflicts, errors, discrepancies, or Work alleged to be outside the requirements of the Contract. Notwithstanding the foregoing, if all supporting data cannot reasonably be made available within said 10 working days, then Design-Builder shall provide all then available supporting data along with a request for additional time, stating a time certain, to obtain the remainder of supporting data along with both an explanation of the nature of such supporting data and the reason why additional time is necessary to provide same to the Construction Manager. 2. If a written Notice of Claim, along with complete supporting data or all then available supporting data and reasonable request for additional time with explanation as required above, is not submitted within 10 working days following the Notice of Intent to Claim, the Design-Builder shall waive his or her right to make further Claims on the issue and any synergistic effects related to such Claim. 3. The Design-Builder’s request for additional time to provide the remainder of its supporting data shall be deemed acceptable to Owner unless the Construction Manager rejects in writing Design-Builder’s request within 5 working days from receipt of Design-Builder’s request. If the Construction Manager rejects Design-Builder’s request for additional time, then Design-Builder shall either provide complete supporting data immediately upon receipt of such rejection or within any time acceptable to the Construction Manager as stated in his or her written rejection, whichever is later (unless otherwise mutually agreed upon in writing by Design-Builder and Construction Manager). DBIA Document No. 535 Page 30 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America b. The Construction Manager will review any and all Claims and take one or more of the following preliminary actions in writing within 10 working days of receipt of written Notice of Claim and complete supporting data: 1) request additional supporting data from the Design-Builder; 2) reject the Claim in whole, or in part, stating reasons for rejection; or, 3) recommend approval of the Claim. In the event the Construction Manager has not taken any preliminary action within 10 working days, then the Claim is deemed rejected unless the Design-Builder and the Construction Manager mutually agree in writing to extend the time period for taking preliminary action. The Construction Manager will make his or her decision on the basis of the pertinent Contract provisions, together with the facts and circumstances inv olved in the dispute. The Construction Manager may also, but is not obligated to, notify the surety on Design-Builder's performance bond of the nature and amount of the Claim. c. If the Construction Manager requests additional supporting data from the Design-Builder, the Design-Builder shall supply the additional information to the Construction Manager within 10 working days unless the Design-Builder and the Construction Manager mutually agree in writing to extend the time period for supplying such information. The Construction Manager will have 10 working days from the receipt of additional supporting data to provide a written decision unless the Design-Builder and the Construction Manager mutually agree in writing to extend the time period for providing such decision. In the event the Construction Manager has not provided a written decision within 10 working days, or any extended time period agreed to in writing by Construction Manager and Design-Builder, then the Claim is deemed rejected and this shall constitute Design- Builder’s automatic request for an appeal meeting with the Public Works Director unless the Design-Builder submits a written withdrawal of its Claim. d. If the Claim is rejected in whole or in part by a written decision of the Construction Manager, the Design-Builder shall notify the Construction Manager in writing within 10 working days after receiving the written decision that either: 1) the decision is accepted, and the Claim is amended; accordingly, or 2) the Design-Builder requests an appeal meeting with the Public Works Director. Failure to timely request an appeal meeting with the Public Works Director following receipt of the written decision constitutes acceptance by the Design-Builder of the Construction Manager's decision. If the Owner and Design-Builder are able to resolve their dispute, the Owner will promptly process any required Contract changes. (2) Decision of Public Works Director a. The Public Works Director, or his or her designee, shall meet with the Design-Builder and the Construction Manager within 15 working days (unless necessary to accommodate the Public Works Director’s schedule, or that of his or her designee, but in no event longer than 20 working days; or unless otherwise mutually agreed upon in writing by Design-Builder and Construction Manager) from the Design-Builder's timely submittal of his or her request, or any automatic request hereunder, for a meeting. The Design-Builder may make a presentation in support of his or her Claim. No attorney may take part in the presentation or defense of the Claim in the meeting with the Public Works Director, or his or her designee. Nothing herein shall prevent an attorney from providing advice to a party either before or after the meeting. In the event the meeting wi th the Public Works Director, or his or her designee, has not been conducted within the time provided herein or as agreed upon in writing by Design-Builder and Construction Manager, then the Claim is deemed rejected and, unless the Design-Builder submits a written withdrawal of its Claim, the parties shall proceed to mediation as provided herein. DBIA Document No. 535 Page 31 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America b. Within 10 working days (unless otherwise mutually agreed upon in writing by Design- Builder and Construction Manager) from the meeting with the Design-Builder and the Construction Manager, the Public Works Director, or his or her designee, shall render a written decision and a copy thereof shall be personally delivered, or mailed return receipt requested, to the Design- Builder. In the event the Public Works Director, or his or her designee, has not provided a written decision within 10 working days, or any extended time period agreed to in writing by Construction Manager and Design-Builder, then the Claim is deemed rejected and, unless the Design-Builder submits a written withdrawal of its Claim, the parties shall proceed to mediation as provided herein. c. If the Claim is rejected in whole or in part by a written decision of the Public Works Director, or his or her designee, the Design-Builder shall notify the Construction Manager in writing within 10 working days after receiving the written decision that either: 1) the decision is accepted and the Claim is amended accordingly; or 2) the Design-Builder rejects the decision of the Public Works Director, or his or her designee. Failure to timely notify the Construction Manager of either following receipt of the Public Works Director’s written decision, or that of his or her designee, shall constitute acceptance by the Design-Builder of the Public Works Director’s decision, or that of his or her designee. If the Owner and Design-Builder are able to resolve their dispute, the Owner will promptly process any required Contract changes. If the Design-Builder rejects the written decision of the Public Works Director or his or her designee, the parties shall proceed to mediation as provided herein. (3) Mediation a. In the event that the Claim is not resolved after exhausting all aforementioned administrative measures, then the Design-Builder must participate in non-binding mediation with City before the Design-Builder may initiate litigation. b. The parties shall mutually select, in writing, a mediator with at least 5 years’ experience in the construction industry. In the event that the parties are unable to agree on a mediator within 15 working days of Design-Builder’s rejection of the decision of the Public Works Director or his or her designee, the City may select the mediator. Mediation, including at least one session requiring physical attendance by all parties, shall begin within 15 working days of selection of the mediator, unless necessary to accommodate the mediator’s schedule. The parties shall share the mediator’s fees and any administrative costs of mediation equally. The mediation shall be held in Fresno, California, unless another location is mutually agreed upon by the parties in writing. In the event the parties are unable to reach a mutually acceptable resolution of the Claim within 20 working days of the start of mediation, unless extended or otherwise terminated by written mutual agreement of the parties, mediation shall terminate. c. If the Owner and Design-Builder are able to resolve their dispute the Owner will promptly process any required Contract changes. Any settlement reached in principle must be in writing and is subject to approval by the City Manager or City Counc il consistent with City laws and policies. Should the dispute remain unresolved, the parties may resort to other dispute resolution procedures. d. All statements made during the mediation shall be confidential and subject to sections 703.5, 1119 and 1152 of the California Evidence Code. (4) Government Claims Act. Nothing herein is intended by the parties to waive any requirements of the Design-Builder to comply with the Government Claims Act including, without limitation, California Government Code section 905; and Design-Builder agrees that it shall remain responsible for complying with said section regarding any Claim. The parties agree, however, that the timeline for the Design-Builder to file a claim under the Government Claims Act is tolled until exhaustion of the Design-Builder of its administrative remedies hereunder (i.e., either upon termination of mediation, or upon written mutual waiver of mediation by the parties, whichever first occurs). DBIA Document No. 535 Page 32 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America (5) Litigation a. If the Design-Builder continues to dispute the Work demanded of him/her after exhausting all aforementioned administrative measures, the Design-Builder may institute legal proceedings, but only after final acceptance of the Project by the Owner. Unless specifically waived by the Owner, in writing, the submission of a dispute for mediation in accordance with the above provisions shall be a condition precedent to the Design-Builder's right to initiate a suit, action or other proceeding against the Owner for damages. b. In the event Owner initiates suit, action, or other proceeding against the Design-Builder for damages, the prevailing party in such suit or action shall be entitled to recover reasonable attorney's fees and costs of suit. c. In the event Design-Builder initiates suit, action, or other proceeding against the Owner, the Owner shall be entitled to recover reasonable attorneys' fees and engineering defense costs if the Design-Builder is not awarded, by the arbitrator or court, a dollar amount greater than 50 percent of the Design-Builder's original Claim for damages. d. The Design-Builder shall include, or cause to be included, a requirement in all subcontracts of all tiers of Subcontractors for this Project that whenever the Subcontractor disputes the Work demanded of him/her, he/she shall cooperate and comply with the Claims and Dispute procedures contained herein including, without limitation, exhausting all administrative measures prior to instituting legal proceedings, and instituting legal proceedings only after final acceptance of t he Project by the Owner. 10.3 Mediator The Owner shall be responsible for fifty percent (50%) of the Mediator costs. If needed, the owner’s share of the cost shall be added through a contract change order. The dollar amount listed in the bid item is an estimate only and will be included in each Bidder’s Proposal. Invoices of the Mediator shall be paid by the Design-Builder only upon direct written authorization from the Owner. Final payment to Design-Builder will be based on fifty percent (50%) of the total amount of Owner approved invoices of the Mediator actually billed to Owner by Design-Builder. The Design-Builder shall include the specified lump sum bid item on the Bid Proposal for payment of Owner’s share of costs for the Mediator. Payment will be made under this bid item by issuance of a Change Order approved by the Owner and charged against this lump sum allocati on. This bid item may be increased, decreased, or deleted in its entirety and is not to be construed as additional money owed to the Design-Builder. If no Change Order is issued against this bid item, the Contract Price shall be reduced by the full amount of the bid item included in the Bid Proposal for the Mediator. The Design-Builder shall have no claim for anticipated overhead or profit should the Owner fail to issue any Change Orders against this bid item. 10.4 Duty to Continue Performance. 10..1 Unless provided to the contrary in the Contract Documents, Design-Builder shall continue to perform the Work and Owner shall continue to satisfy its payment obligations for undisputed amounts to Design-Builder as well as any further amounts pursuant to Sec tion 9.4.3, pending the final resolution of any dispute or disagreement between Design-Builder and Owner. 10.5 CONSEQUENTIAL DAMAGES. 10.5.1 NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY (EXCEPT AS SET DBIA Document No. 535 Page 33 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America FORTH IN SECTION 10.5.2 BELOW), NEITHER DESIGN-BUILDER NOR OWNER SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL LOSSES OR DAMAGES, WHETHER ARISING IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LOSSES OF USE, PROFITS, BUSINESS, REPUTATION OR FINANCING. 10.7.2 The consequential damages limitation set forth in Section 10.5.1 above is not intended to affect the payment of liquidated damages or lost early completion bonus, if any, set forth in Article 5 of the Agreement, which both parties recognize has been established, in part, to reimburse Owner or reward Design-Builder for some damages that might otherwise be deemed to be consequential. Article 11 Stop Work and Termination 11.1 Owner’s Right to Stop Work. 11.1.1 Owner may, without cause and for its convenience, order Design-Builder in writing to stop and suspend the Work. 11.1.2 Design-Builder is entitled to seek an adjustment of the Contract Price and/or Contract Time(s) if its cost or time to perform the Work has been adversely impacted by any suspension of stoppage of the Work by Owner. 11.2 Owner’s Right to Perform and Terminate for Cause. 11.2.1 If Design-Builder persistently fails to (i) provide a sufficient number of skilled workers, (ii) supply the materials required by the Contract Documents, (iii) comply with applicable Legal Requirements, (iv) timely pay, without cause, Design Consultants or Subcontractors, (v) prosecute the Work with promptness and diligence to ensure that the Work is completed by the Contract Time(s), as such times may be adjusted, or (vi) perform material obligations under the Contract Documents, then Owner, in addition to any other rights and remedies provided in the Contract Documents or by law, shall have the rights set forth in Sections 11.2.2 and 11.2.3 below. 11.2.2 Upon the occurrence of an event set forth in Section 11.2.1 above, Owner may p rovide written notice to Design-Builder that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within seven (7) days of Design -Builder’s receipt of such notice. If Design-Builder fails to cure, or reasonably commence to cure, such problem, then Owner may give a second written notice to Design-Builder of its intent to terminate within an additional seven (7) day period. If Design-Builder, within such second seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then Owner may declare the Agreement terminated for default by providing written notice to Design-Builder of such declaration. 11.2.3 Upon declaring the Agreement terminated pursuant to Section 11.2.2 above, Owner may enter upon the premises and take possession, for the purpose of completing the Work, of all materials, equipment, scaffolds, tools, appliances and other items thereon, which have been purchased or provided for the performance of the Work, all of which Design -Builder hereby transfers, assigns and sets over to Owner for such purpose, and to employ any person or persons to complete the Work and provide all of the required labor, services, materials, equipment and other items. In the event of such termination, Design-Builder shall not be entitled to receive any further payments under the Contract Documents until the Work shall be finally completed in accordance with the Contract Documents. At such time, if the unpaid balance of the Contract Price exceeds the cost and expense incurred by Owner in completing the Work, such excess shall be paid by Owner to Design-Builder. Notwithstanding the preceding sentence, if the Agreement establishes a DBIA Document No. 535 Page 34 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America Guaranteed Maximum Price, Design-Builder will only be entitled to be paid for Work performed prior to its default. If Owner’s cost and expense of completing the Work exceeds the unpaid balance of the Contract Price, then Design-Builder shall be obligated to pay the difference to Owner. Such costs and expense shall include not only the cost of completing the Work, but also losses, damages, costs and expense, including attorneys’ fees and expenses, incurred by Owner in connection with the reprocurement and defense of claims arising from Design-Builder’s default, subject to the waiver of consequential damages set forth in Section 10.5 hereof. 11.3 Termination for Convenience. 11.3.1 Upon ten (10) days’ written notice to Design-Builder, Owner may, for its convenience and without cause, elect to terminate this Agreement. In such event, Owner shall pay Design-Builder for the following: 11.3.1.1 All Work executed and for proven loss, cost or expense in connection with the Work; 11.3.1.2 The reasonable costs and expenses attributable to such termination, including demobilization costs and amounts due in settlement of terminated contracts with Subcontractors and Design Consultants; and 11.3.1.3 The amount set forth in Article 8 of the Agreement. 11.3.2 If Owner terminates this Agreement pursuant to Section 11.6.1 above and proceeds to design and construct the Project through its employees, agents or third parties, Owner’s rights to use the Work Product shall be as set forth in Section 4.3 of the Agreement. Such rights may not be transferred or assigned to others without Design-Builder’s express written consent and such third parties’ agreement to the terms of Article 4 of the Agreement. Article 12 Electronic Data 12.1 Electronic Data. 12.1.1 The parties recognize that Contract Documents, including drawings, specifications and three-dimensional modeling (such as Building Information Models) and other Work Product may be transmitted among Owner, Design-Builder and others in electronic media as an alternative to paper hard copies (collectively “Electronic Data”). 12.2 Transmission of Electronic Data. 12.2.1 Owner and Design-Builder shall agree upon the software and the format for the transmission of Electronic Data. Each party shall be responsible for securing the legal rights to access the agreed-upon format, including, if necessary, obtaining appropriately licensed copies of the applicable software or electronic program to display, interpret and/or generate the Electronic Data. 12.2.2 Neither party makes any representations or warranties to the other with respect to the functionality of the software or computer program associated with the electronic transmission of Work Product. Unless specifically set forth in the Agreement, ownership of the Electronic Data does not include ownership of the software or computer program with which it is associated, transmitted, generated or interpreted. DBIA Document No. 535 Page 35 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America 12.2.3 By transmitting Work Product in electronic form, the transmitting party does not transfer or assign its rights in the Work Product. The rights in the Electronic Data shall be as set forth in Article 4 of the Agreement. Under no circumstances shall the transfer of ownership of Electronic Data be deemed to be a sale by the transmitting party of tangible goods. 12.3 Electronic Data Protocol. 12.3.1 The parties acknowledge that Electronic Data may be altered or corrupted, intentionally or otherwise, due to occurrences beyond their reasonable control or knowledge, including but not limited to compatibility issues with user software, manipulation by the recipient, errors in transcription or transmission, machine error, environmental factors, and operator error. Consequently, the parties understand that there is some level of increased risk in the use of Electronic Data for the communication of design and construction information and, in consideration of this, agree, and shall require their independent contractors, Subcontractors and Design Consultants to agree, to the following protocols, terms and conditions set forth in this Section 12.3. 12.3.2 Electronic Data will be transmitted in the format agreed upon in Section 12.2.1 above, including file conventions and document properties, unless prior arrangements are made in advance in writing. 12.3.3 The Electronic Data represents the information at a particular point in time and is subject to change. Therefore, the parties shall agree upon protocols for notification by the author to the recipient of any changes which may thereafter be made to the Electronic Data, which protocol shall also address the duty, if any, to update such information, data or other information contained in the electronic media if such information changes prior to Final Completion of the Project. 12.3.4 The transmitting party specifically disclaims all warranties, expressed or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, with respect to the media transmitting the Electronic Data. However, transmission of the Electronic Data via electronic means shall not invalidate or negate any duties pursuant to the applicable standard of care with respect to the creation of the Electronic Data, unless such data is materially changed or altered after it is transmitted to the receiving party, and the transmitting party did not participate in such change or alteration. Article 13 Miscellaneous 13.1 Confidential Information. 13.1.1 Confidential Information is defined as information which is determined by the transmitting party to be of a confidential or proprietary nature and: (i) the transmitting party identifies as either confidential or proprietary; (ii) the transmitting party takes steps to maintain the confidential or proprietary nature of the information; and (iii) the document is not otherwise available in or considered to be in the public domain. The receiving party agrees to maintain the confidentiality of the Confidential Information and agrees to use the Confidential Information solely in connection with the Project. 13.2 Assignment. 13.2.1 Neither Design-Builder nor Owner shall, without the written consent of the other assign, transfer or sublet any portion or part of the Work or the obligations required by the Contract Documents. DBIA Document No. 535 Page 36 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America 13.3 Successorship. 13.3.1 Design-Builder and Owner intend that the provisions of the Contract Documents are binding upon the parties, their employees, agents, heirs, successors and assigns. 13.4 Governing Law. 13.4.1 The Agreement and all Contract Documents shall be governed by the laws of the location of the Project, without giving effect to its conflict of law principles. 13.5 Severability. 13.5.1 If any provision or any part of a provision of the Contract Documents shall be finally determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to any applicable Legal Requirements, such determination shall not impair or otherwise affect the validity, legality, or enforceability of the remaining provision or parts of the provision of the Contract Documents, which shall remain in full force and effect as if the unenforceable provision or part were deleted. 13.6 No Waiver. 13.6.1 The failure of either Design-Builder or Owner to insist, in any one or more instances, on the performance of any of the obligations required by the other under the Contract Documents shall not be construed as a waiver or relinquishment of such obligation or right with respect to future performance. 13.7 Headings. 13.7.1 The headings used in these General Conditions of Contract, or any other Contract Document, are for ease of reference only and shall not in any way be construed to limit or alter the meaning of any provision. 13.8 Notice. 13.8.1 Whenever the Contract Documents require that notice be provided to the other party, notice will be deemed to have been validly given (i) if delivered in person to the individual intended to receive such notice; (ii) four (4) days after being sent by registered or certified mail, postage prepaid to the address indicated in the Agreement; (iii) if transmitted by facsimile, by the time stated in a machine-generated confirmation that notice was received at the facsimile number of the intended recipient; or (iv) by electronic mail, by the time frame stated in the email-generated confirmation that notice was received by the email of the intended recipient. 13.9 Amendments. 13.9.1 The Contract Documents may not be changed, altered, or amended in any way except in writing signed by a duly authorized representative of each party. 13.10 Attorney’s Fees. 13.10.1 If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant of the Contract Documents, the prevailing party in such proceeding shall be entitled to recover from the other party its reasonable attorney’s fees and legal expenses. 13.11 Interpretation. 13.11.1 The parties acknowledge that this Contract in its final form is the result of the combined efforts of the parties and that, should any provision of this Contr act be found to be DBIA Document No. 535 Page 37 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America ambiguous in any way, such ambiguity shall not be resolved by construing this Contract in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning DBIA Document No. 535 Page 38 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America The license for use of this document expires 1 year from the date of purchase. 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Contact us Design-Build Institute of America 1001 Pennsylvania Ave. NW, Suite 410 Washington, DC 20004 (202) 682-0110 dbia@dbia.org Whites Bridge MapleBrawleyHerndon Bullard Shaw ClovisFowlerTemperanceWestPalmClovisFowlerTemperanceDe WolfShields McKinley Belmont ChestnutPeachAmerican CedarGrantlandHayesElmEastMarksWestWalnutCorneliaNorth California Jensen Ashlan GrantlandHayesCorneliaBrawleyMarksShaw Bullard Herndon Nees De WolfShields McKinley Belmont California Jensen North Kings Canyon AshlanPeachBehymer Copper Shepherd NeesBlackstoneFirstCedarChestnutGarfieldBryanPolkBlytheValentineVan NessFruitMaroaFresnoMillbrookMapleWillowDakota Clinton Olive Gettysburg Barstow Sierra Alluvial Nielsen Kearney Muscat Annadale Church WillowMinnewawaMalaga OrangeBryanSunnysideArmstrongLocanFigCherryHughesFruitPolkValentineBlytheAlluvial Sierra Barstow Perrin SunnysideArmstrongLocanClinton Olive Tulare Butler Church Annadale DakotaMinnewawaInternational Teague Senior Center N 0 1.5 30.75 Miles Project ID: CTWD0276Council District: 4 Senior CenterVICINITY MAP DEPARTMENT OFPUBLIC WORKS District 4 City_Limits Senior Activity Center and Affordable Housing ATTACHMENT A Senior Activity Center and Affordable Housing Project ID: PC00240 Council District: 4 E Swift AveE Swift Ave E H oll a n d A v eE H oll a n d A v e N Blackstone AveN Blackstone AveCopyright nearmap 2015 4343 N. Blackstone Ave, Fresno, CA Project ID: CTWD0276 Council District: 4 LOCATION MAPN 0 60 12030 Feet DEPARTMENT OFPUBLIC WORKS Exhibit ASenior Center Senior Center Legend Proposed Senior Center City Limits ATTACHMENT B Senior Activity Center and Affordable Housing Scope of Site Work PC00240 4323-4343 N. Blackstone Ave Fresno, CA Senior Activity Center Senior Affordable Housing GROUND LEASE This GROUND LEASE (the Lease), dated as of this ___ day of ___________, 2023 (Effective Date), is made and entered into by and between the City of Fresno, a California municipal corporation (Landlord or City), and [FILL IN PARTNERSHIP ENTITY] (Tenant). Landlord and Tenant may each be referred to as a “Party” or collectively as the “Parties.” RECITALS A. Landlord is the fee owner of that certain real property located at 4323-4333 N. Blackstone Avenue, Fresno, California (APN 426-253-19) in the City of Fresno, California and described and depicted in more detail in Exhibit A to this Lease (Subject Property). B. Landlord and Corporation for Better Housing, a California nonprofit public benefit corporation (the managing general partner of Tenant) have entered into that certain Affordable Housing Agreement dated July ___, 2023 (the Affordable Housing Agreement ) to set forth the terms and conditions relating to (1) Tenant’s ground lease of the Subject Property from City; (2) Tenant’s development of the Project thereon; and (3) Tenant’s agreement to develop and provide affordable housing for senior households on the Subject Property. Terms not otherwise defined in this Lease shall have the meaning set forth in the Affordable Housing Agreement. C. Pursuant to the terms of the Affordable Housing Agreement, Landlord desires to lease the Subject Property to Tenant subject to the terms and conditions of this Lease. The Parties have concurrently entered into that certain Affordable Housing Agreement dated July ___, 2023. NOW, THEREFORE, with reference to these Recitals and on the terms and conditions contained in this Lease, Landlord and Tenant agree as follows: ARTICLE I LEASE OF PREMISES; STATE OF TITLE 1.1 Subject Property. Landlord leases to Tenant, and Tenant leases from Landlord, the Subject Property described and depicted in Exhibit A to this Lease. 1.2 State of Title. This Lease is subject to all easements, covenants, conditions, restrictions, reservations, rights-of-way, and other matters of record (Permitted Exceptions). Tenant may, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, enter into, and record against the Subject Property certain regulatory agreements in form and substance reasonably acceptable to Landlord in connection with the issuance of tax credits or other financing of the construction and development of the Subject Property. 1.3 As-Is Conveyance. TENANT SPECIFICALLY ACKNOWLEDGES AND AGREES THAT LANDLORD IS LEASING THE SUBJECT PROPERTY ON AN “AS IS WITH ALL FAULTS” BASIS, CONDITION AND STATE OF REPAIR INCLUSIVE OF ALL FAULTS AND DEFECTS, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE CLOSING, INCLUDING THE ENVIRONMENTAL CONDITION (“AS IS CONDITION”) AND THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, TENANT IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES FROM LANDLORD OR ANY OF LANDLORD’S ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, ATTORNEYS OR BROKERS (EACH A “LANDLORD PARTY” AND COLLECTIVELY, “LANDLORD PARTIES”) AS TO ANY MATTERS CONCERNING THE SUBJECT PROPERTY. 1.4 Disclaimers. Tenant acknowledges and agrees that except as expressly set forth in this Lease: (i) neither Landlord, nor any Landlord Party, has made any representations, warranties, or promises to Tenant, or to anyone acting for or on behalf of Tenant, concerning the condition of the Subject Property, suitability of the Subject Property for the Project or any other aspect of the Subject Property; (ii) the condition of the Subject Property has been independently evaluated by Tenant prior to the Closing; and (iii) any information, which Tenant has received or may hereafter receive from Landlord or any Landlord Party were and are furnished without warranty of any kind and on the express condition that Tenant has made its own independent verification of the accuracy, reliability and completeness of such information and that Tenant will not rely on any of the foregoing. 1.5 Waivers and Releases. Tenant hereby releases Landlord from any and all manner of rights, liabilities, claims, actions, causes of action, suits, proceedings, demands, damages, costs, expenses (including attorney’s fees and costs) or other compensation whatsoever, in law or equity, of whatever kind or nature, whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent that Tenant now has or may have or which may arise in the future arising out of, directly or indirectly, or in any way connected with (i) all warranties of whatever type or kind with respect to the physical or environmental condition of the Subject Property, whether express, implied or otherwise, including those of fitness for a particular purpose or use; (ii) use, management, ownership or operation of the Subject Property; (iii) the physical, environmental or other condition of the Subject Property; (iii) the application of, compliance with or failure to comply with any federal, state or local laws, regulations or governmental requirements as to the Subject Property; (iv) the presence of hazardous materials or substances on to the Subject Property; and (v) the As Is Condition (the foregoing are collectively referred to as Claims). By releasing and forever discharging the Claims, Tenant expressly waives any rights under California Civil Code Section 1542, which provides: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” INITIALS: TENANT _______ Notwithstanding the foregoing, the release and waiver of Claims set forth in this Section shall not apply to any Claims arising from a breach by Landlord of this Lease or the gross negligence or willful misconduct of Landlord or its officers, employees, agents or representatives. The provisions of this section are a material portion of the consideration given by each Party to the other in exchange for such Party’s performance under this Lease. ARTICLE II IMPROVEMENTS 2.1 Construction of Improvements. Tenant shall bear the sole responsibility for constructing the Project and any related improvements required by the City of Fresno or any other governmental agency, including but not limited to infrastructure for water, sewer, and other utilities to serve the Subject Property (Improvements). Tenant is responsible for obtaining all necessary permits and approvals required to construct the Project and Improvements, provided that Landlord shall reasonably cooperate with Tenant in connection with obtaining such permits and approvals. The Project and Improvements shall be constructed in accordance with all applicable laws and regulations and in accordance with the requirements of the Affordable Housing Agreement. 2.2 Title to Improvements. Tenant shall have title to the Project and Improvements that are constructed on the Subject Property by Tenant under this Lease during the Term. Upon termination of this Lease or expiration of the Term, title to the Project and Improvements shall immediately and automatically vest in the Landlord, without any compensation or payment to Tenant. This Section 2.2 shall survive the expiration or termination of this Lease. ARTICLE III TERM 3.1 Term. The term of this Lease shall be for 57 years from the Effective Date, unless earlier terminated as provided herein (Term). ARTICLE IV MONETARY PROVISIONS 4.1 Rent. Tenant shall pay to Landlord during the Term One Dollar ($1.00) per year on or before the first day of the Term and annually thereafter, commencing on the Effective Date (Rent). 4.2 Property Taxes; Transfer Taxes. a. Personal Property Taxes. Tenant shall pay before delinquency all taxes, assessments, license fees, and other charges that are levied and assessed on Tenant’s personal property. b. Real Property Taxes. At all times during the Term, Tenant agrees to pay in a timely manner all taxes, assessments, fees, and charges that at any time during the Term may be levied or charged by the federal government, the state, county, City, or any other tax or assessment levying body on any activity carried on under this Lease, any interest in this Lease, any possessory right that Tenant may have in or to the Subject Property, or that is levied and assessed against the land that comprises the Subject Property and all improvements on the Subject Property. Tenant, at no cost to Landlord, reasonably may contest the legal validity or amount of any such taxes, assessments, or charges for which Tenant is responsible, and institute such proceedings as Tenant considers necessary; provided, however, that Tenant shall at all times Indemnify Landlord or any officer, director, employee, partner, agent, or contractor of Landlord (Authorized Representative) against any and all Claims resulting therefrom, and protect Landlord and the Subject Property from foreclosure of any lien, and that Landlord shall not be required to join in any proceeding or contest brought by Tenant. The term “Indemnify” includes indemnify, hold harmless, protect, and defend with counsel reasonably acceptable to the Landlord. The term “Claims” refers to all claims, damages, suits, liability, penalties, costs, and expenses, including, without limitation, attorneys’ fees. c. Transfer Taxes on Lease. If any governmental authority levies, assesses, and/or imposes on Landlord a transfer tax as a result of this Lease, Tenant shall, at Landlord’s election in its sole discretion, either pay such tax directly to the governmental authority or pay the amount of such tax to Landlord, in which latter event Landlord shall pay such tax directly to the governmental authority. 4.3 Utilities. a. Payment of Utilities and Services. Tenant, at its cost, shall be responsible for arranging for all utilities to be provided to the Subject Property that are required to serve the Project. Tenant shall promptly pay all charges for water, gas, electricity, telephone, sewage, refuse, and any other utilities or materials used or consumed on the Subject Property directly to the party providing such utilities or services. b. Interruption of Utility Services. Landlord shall not be liable to Tenant in damages or otherwise (i) if any utility becomes unavailable from any public utility company, public authority, or any other person or entity supplying or distributing such utility; or (ii) for any disruption in any utility service caused by the making of any repairs or improvements or by any cause beyond Landlord’s reasonable control, and such interruption shall not constitute a termination of this Lease, or an eviction of Tenant, or give Tenant the right to reduce or abate Rent. ARTICLE V USE OF THE PREMISES 5.1 Permitted Uses. Tenant shall use the Subject Property for the construction of the Project and Improvements on the Subject Property and the subsequent utilization of the Project and Improvements by Tenant for use as a senior rental affordable housing project (the Permitted Use). If Tenant desires to change the Permitted Use on the Subject Property to another use or uses, such change in use shall require the prior written approval of Landlord, in its sole and absolute discretion. 5.2 Use Covenants. Developer shall continuously operate the Subject Property as a senior rental affordable housing project. The Subject Property shall be managed in a first-class fiscally responsible manner to ensure continual use of the Project. 5.3 Affordable Housing Agreement. The Parties shall comply with the provisions of the Affordable Housing Agreement. 5.4 Compliance with Laws. a. Tenant shall, at Tenant’s sole cost, promptly comply with all federal, state and local laws, ordinances and regulations (Laws) and with the requirements of any governmental authority having jurisdiction over the Subject Property, relating to or affecting the Subject Property or the condition, use, or occupancy of the Subject Property, including the obligation to make improvements, repairs, and alterations required by such Laws, regardless of the cost thereof, at what point in time during the Term compliance is required, and whether such compliance was foreseen or unforeseen. The judgment of any court of competent jurisdiction or the admission of Tenant in any action against Tenant, whether Landlord is a party thereto or not, that Tenant has violated any of the foregoing shall be conclusive of that fact between Landlord and Tenant. Tenant shall promptly furnish Landlord with a copy of any notices received from any governmental agency in connection with the Subject Property. b. Tenant may reasonably and in good faith contest any Law through appropriate proceedings, and, during such contest, Tenant need not comply therewith; provided further that Tenant shall at all times reasonably protect the interests of Landlord under this Lease, shall Indemnify Landlord from all Claims actually and reasonably incurred as a result of the contest, and shall promptly comply with any such contested Law if any such contest is resolved against Tenant. Tenant agrees to Indemnify Landlord or any officer, director, employee, partner, agent, or contractor of Landlord (Landlord Party) from and against any Claims imposed or sought to be imposed on or involving Landlord for any violation or alleged violation of any such Laws except to the extent such Claims arise from the gross negligence or willful misconduct of any Landlord Party. 5.5 Landlord’s Access to Subject Property. a. In addition to Landlord’s rights pursuant to Section 5.4 and pursuant to the Affordable Housing Agreement, Landlord reserves the right for Landlord and any Landlord Party to enter the Subject Property at any reasonable time and upon reasonable written notice (a) to inspect the Subject Property; (b) to determine whether Tenant is complying with Tenant’s obligations under this Lease; (c) to perform any other obligation of Tenant after Tenant’s failure to perform same (after notice and expiration of applicable cure periods); or (d) if Tenant defaults under this Lease (after notice and expiration of applicable cure periods); provided, however, that Landlord’s entry shall not unreasonably interfere with the business and operations at the Subject Property. b. Landlord shall be permitted to enter on the Subject Property, as may reasonably be necessary and upon reasonable written notice, except in the event of exigent circumstances, in order for Landlord or its designees to make improvements or do other work, or to make improvements, repairs, or maintenance to adjacent property owned by Landlord. Landlord’s entry shall not unreasonably interfere with the business and operations at the Subject Property. ARTICLE VI REPAIRS AND MAINTENANCE; ALTERATIONS; NEW IMPROVEMENTS 6.1 New Improvements and Alterations. After the Project and Improvements are constructed pursuant to Article II of this Lease, Tenant shall not alter, add to, or modify the Project or Improvements (Alterations) without Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned, or delayed. Despite the foregoing, Tenant may, without Landlord’s prior written approval, (a) make Alterations within the interior of the Project, if such work will not result in a use of the Project in violation of this Lease and will not cause any violation of the Affordable Housing Agreement or any permit or approval applicable to the Project; and (b) make Alterations required to comply with any applicable law or insurance underwriter’s requirement. Alterations shall not include Repairs and Maintenance (as hereinafter defined), and no such Landlord approval is required for any Repairs and Maintenance. 6.2 Tenant’s Repair and Maintenance Obligations. Tenant at all times and at its sole cost shall ensure that the Subject Property, Project, and Improvements, including without limitation landscaping, utilities, structural components, roofing materials, windows, exterior and interior features, furnishing and equipment and fire and security systems, are maintained in a first-class, structurally sound, sanitary, and safe condition (Repairs and Maintenance) and in accordance with all requirements of applicable laws, governmental authorities, insurance underwriters, mortgages, deeds of trust, and covenants, conditions, and restrictions pertaining to the Subject Property, Project or Improvements, including the Affordable Housing Agreement. To that end, Tenant shall timely perform all reasonably required repairs or replacements to the Subject Property, Project and the Improvements located thereon (whether interior or exterior, structural or nonstructural, foreseeable or unforeseeable, ordinary or extraordinary). 6.3 Mechanics’ Liens, Notices of Non-responsibility, and Other Alteration and Maintenance Requirements. All Alterations and repairs must be performed in a good and workmanlike manner and in accordance with all applicable Laws, insurance underwriter’s requirements, and any recorded deeds of trust, mortgages, covenants, conditions, or restrictions by duly licensed contractors. Work may not commence until Tenant (a) has obtained any required permits or approvals and (b) has provided Landlord with at least ten business days’ notice of the date for commencement of work (except for repair work required to be performed in cases of emergency or to relieve an imminent threat to life or property), to permit Landlord an opportunity to post an appropriate notice of non- responsibility. Once begun, all such work shall be diligently prosecuted to completion. If this Lease terminates before completion of any Alteration or Repairs and Maintenance by Tenant, on request Tenant shall assign its rights under any construction, design, or material supply contract required for completion of the work to Landlord or its designee. 6.4 No Landlord Obligation. Landlord shall have no obligation whatsoever to maintain, repair, alter, improve, or reconstruct the Subject Property or the Improvements or to comply with any applicable law or with any other legal or insurance requirement concerning the condition or repair of the Subject Property, Project or Improvements. Tenant expressly recognizes that, because of the potential length of the Term of this Lease, it may be necessary for Tenant to perform substantial maintenance, repair, rehabilitation, or reconstruction of the Project or Improvements in order to ensure that the Project or Improvements are kept in the condition required by this Lease. In this regard, Tenant expressly waives (a) all defenses to its maintenance obligations under this Lease; (b) the right to require Landlord to make repairs; (c) any right to make repairs at the expense of Landlord; (d) the right to reduce or offset rent as a consequence of the condition of the Subject Property, Project or Improvements; (e) the benefits of California Civil Code §§1932, 1941, and 1942, as amended from time to time; and (f) any law, judicial pronouncement, or common law principle similar thereto, which is now or hereafter in effect or is otherwise inconsistent with the provisions of this Lease. However, these waivers do not limit Tenant’s rights or Landlord’s obligations arising out of the negligence or willful misconduct of Landlord or its agents, representatives, employees, contractors, or invitees. 6.5 Right to Enter. Tenant will permit Landlord and any Landlord Party to enter the Subject Property at all times during usual business hours, on giving Tenant reasonable written notice, to inspect the same and to perform any work required of Tenant by this Lease that Tenant has failed to perform within 30 days following written notice to Tenant of default and subject to the rights of the Limited Partners under Section 11.12 hereof; provided, however, that in the event of any Tenant default that creates an imminent threat to life or property, Landlord may enter the Subject Property without notice and may take such actions as may be required to relieve such threat. As additional rent, Tenant shall reimburse Landlord for the actual and reasonable cost of any repairs, replacements, or improvements to the Subject Property, Project or Improvements incurred by Landlord under this Section, promptly on receipt of an invoice. Nothing in this Section shall imply any duty on the part of Landlord to make any inspection, take any action, or do any such work, nor shall Landlord’s performance of any repairs, alterations, or improvements constitute a waiver of Tenant’s default in failing to do the same. Except to the extent arising out of the negligence or willful misconduct of Landlord, or its agents, representatives, employees, contractors, or invitees, no exercise by Landlord of any rights herein reserved shall entitle Tenant to any compensation, abatement of Rent, damages, reimbursement, or other relief for any interference with any business conducted on the Subject Property or any other injury, property damage, loss, or liability as a consequence of such entry or repairs. ARTICLE VII INSURANCE 7.1 Insurance Requirements (a) Throughout the life of this Agreement, TENANT shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, TENANT or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve TENANT of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by TENANT shall not be deemed to release or diminish the liability of TENANT, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by TENANT. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of TENANT, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: (i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as broad as the most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01 and include insurance for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than the following: $2,000,000 per occurrence for bodily injury and property damage $2,000,000 per occurrence for personal and advertising injury $4,000,000 aggregate for products and completed operations $4,000,000 general aggregate applying separately to work performed under the Agreement (ii) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least as broad as the most current version of Insurance Service Office (ISO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1-Any Auto) with limits of liability of not less than $1,000,000 per accident for bodily injury and property damage. (iii) WORKERS’ COMPENSATION insurance as required under the California Labor Code. (iv) EMPLOYEE LIABILITY insurance with limits of liability of not less than $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 diseased each employee. (vi) CONTRACTOR POLLUTION with coverage for bodily injury, property damage or pollution clean-up costs that could result from of pollution condition, both sudden and gradual. Including a discharge of pollutants brought to the work site, a release of pre- existing pollutants at the site, or other pollution conditions with limits of liability of not less than the following: $1,000,000 per occurrence $2,000,000 general aggregate per annual policy period In the event the work involves any lead-based, mold or asbestos environmental hazard, either the Automobile Liability insurance policy or the Pollution Liability insurance policy shall be endorsed to include Transportation Pollution Liability insurance covering materials to be transported by the TENANT pursuant to the SLFRF Agreement. In the event the work involves any lead-based environmental hazard (e.g., lead- based paint), the TENANT’s Pollution Liability insurance policy shall be endorsed to include coverage for lead based environmental hazards. In the event the TENANT involves any asbestos environmental hazard (e.g., asbestos remediation), the TENANT’s Pollution Liability insurance policy shall be endorsed to include coverage for asbestos environmental hazards. In the event the SLFRF Agreement involves any mold environmental hazard (e.g., mold remediation), the Pollution Liability insurance policy shall be endorsed to include coverage for mold environmental hazards and “microbial matter including mold” within the definition of “Pollution” under the policy. UMBRELLA OR EXCESS INSURANCE In the event TENANT purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS TENANT shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and TENANT shall also be responsible for payment of any self- insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS All policies of insurance required hereunder shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar day written notice has been given to the CITY. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, the TENANT shall furnish the CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for the CITY, the TENANT shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. The General Liability, Pollution and Automobile Liability insurance policies shall be written on an occurrence form. The General Liability, Automobile Liability and Pollution Liability insurance policies shall name the CITY, its officers, officials, agents, employees, and volunteers as an additional insured for ongoing and completed operations. All such policies of insurance shall be endorsed so the TENANT’s insurance shall be primary and no contribution shall be required of the CITY. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, officials, employees, agents, and volunteers. If the TENANT maintains higher limits of liability than the minimums shown above, the CITY requires and shall be entitled to coverage for the higher limits of liability maintained by the TENANT. All insurance policies required, including the Workers’ Compensation insurance policy, shall contain a waiver of subrogation as to the City, its officers, officials, agents, employees, and volunteers. The TENANT shall furnish the CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY’s Risk Manager or his/her designee before work commences. Upon request of the CITY, the TENANT shall immediately furnish the CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. SUBCONTRACTORS If TENANT subcontracts any or all of the services to be performed under this Agreement, or contracts/subcontracts any work to be performed on the premises, TENANT shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the CITY to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee. If no Side Agreement is required, TENANT will be solely responsible for ensuring that its subcontractors meet the insurance requirements contained in this agreement. ARTICLE VIII ASSIGNMENT 8.1 Limitations on Transfer. a. General. The qualifications and identity of the Tenant are of particular concern to the City. It is because of the demonstrated qualifications and identity that the City has entered into the Affordable Housing Agreement and this Lease with the Tenant. Tenant may not transfer, assign or sell any interest in the Subject Property or the Project nor any rights or powers under this Lease, except as expressly set forth herein. It is expressly stipulated and agreed that any assignment, sale, transfer or other disposition of the Project or the Subject Property, or any portion(s) thereof or interest(s) therein or of any rights or powers under this Lease in violation of this Article VIII shall be null, void and without effect, shall cause a reversion of title to Tenant, and shall be ineffective to relieve Tenant of its obligations under this Lease. b. Prior to Completion. Prior to Completion, the Tenant shall not assign or transfer this Lease, the Project or the Subject Property, or any portion(s) thereof, or interest(s) therein, or any right(s) hereunder without the prior written approval of the City Manager. The City Manager shall have the right to disapprove any transfer, assignment or refinancing, which would diminish or otherwise impair the ability of the Developer to fulfill all its duties and obligations under this Agreement. c. Following Completion. Following Completion, Tenant shall not assign or transfer this Lease, the Project or the Subject Property, or any portion(s) thereof, or interest(s) therein, or any right(s) hereunder without the prior written approval of the City Manager, which approval shall not be unreasonably withheld or delayed, and shall be granted upon City’s receipt of evidence acceptable to City that the following conditions have been satisfied: i. Tenant is not in Default under the Affordable Housing Agreement or this Lease, or the purchaser or assignee agrees to undertake to cure any Defaults or violations of Tenant to the reasonable satisfaction of City. ii. The continued operation of the Project shall comply with the provisions of this Lease and the Affordable Housing Agreement. iii. Either (i) the purchaser or assignee or its property manager has at least three years’ experience in the ownership, operation and management of similar size rental housing projects, and at least one year’s experience in the ownership, operation and management of rental housing projects containing below-market-rate units, without any record of material violations of discrimination restrictions or other state or federal laws or regulations or local governmental requirements applicable to such projects, or (ii) the purchaser or assignee agrees to retain a property management firm with the experience and record described in subclause (i) above, or (iii) Developer or its management company will continue to manage the Project for at least one year following such transfer and during such period will provide training to the iv. purchaser or assignee and its manager in the responsibilities relating to the Affordable Units. v. The person or entity which is to acquire the Project does not have pending against it and does not have a history of significant and material building code violations or complaints concerning the maintenance, upkeep, operation and regulatory agreement compliance of any of its projects as identified by any local, state or federal regulatory agencies. vi. The proposed purchaser or assignee enters into a written assignment and assumption agreement in form and content reasonably satisfactory to City’s legal counsel, and, if requested by City, an opinion of such purchaser or assignee’s counsel to the effect that this Lease is a valid, binding and enforceable obligation of such purchaser or assignee, subject to bankruptcy and other standard limitations affecting creditor’s rights. d. Pre-Approved Transfers. Notwithstanding any other provision of this Lease to the contrary, City approval of a transfer or assignment of this Lease, the Project, or the Subject Property or any interest therein shall not be required in connection with any of the following: i. Any assignment for the purpose of obtaining and securing Tenant’s financing, as contemplated by this Agreement, including, without limitation, the grant of a deed of trust, assignment of rents and security agreement to secure the funds necessary for Tenant’s financing as contemplated in the Affordable Housing Agreement; ii. The rental, in the ordinary course of business, of the Housing Units at the Project, provided such rental is in accordance with the terms of this Lease and the Affordable Housing Agreement; iii. Any transfer to any entity of which Corporation for Better Housing (or its successor in interest) or an affiliate of Corporation for Better Housing (or its successor in interest) is the general partner, or managing member, or sole member, or controlling shareholder; iv. Any transfer of limited partnership interests in Tenant to any institutional investor or fund or syndicator making a capital contribution to the limited partnership in exchange for partnership interests in Tenant; v. Any transfer of the ownership interests of any entity which, directly or indirectly, owns or holds a partnership, membership, manager, shareholder, or other ownership interest in Tenant’s limited partner or the partners, members, managers, shareholders or owners of Tenant’s limited partner; vi. Any transfers of Corporation for Better Housing’s partnership interest in Tenant to any entity which is an affiliate of Corporation for Better Housing (or its successor in interest); vii. The removal and replacement by Tenant’s limited partner of any of Tenant’s general partners as permitted under Tenant’s limited partnership agreement; viii. Any transfer of Tenant’s leasehold interest in the Property that occurs by foreclosure or deed in lieu of foreclosure of any permitted senior lien to the respective holder thereof or to their nominees or assignees exclusive of the Tenant; ix. Any conveyance or dedication of any portion of the Subject Property to the City or other appropriate governmental agency, or the granting of easements or permits to facilitate the construction of the Project. In the event of an assignment or transfer by Tenant under the above subsections not requiring the City’s prior approval (other than in subsection (i) and (ii) above), Tenant nevertheless agrees that it shall give at least fifteen (15) days prior written Notice to City of such assignment or transfer. In addition, City shall be entitled to review such documentation as may be reasonably required by the City Manager for the purpose of determining compliance of such assignment or transfer with the requirements above. Notwithstanding anything to the contrary contained herein, in connection with any transfer permitted under this Section 8.1(d) without the consent of the City, no transfer fees, processing fees, or other associated costs shall be due and payable by Tenant in connection therewith. ARTICLE IX DEFAULT; REMEDIES 9.1 Remedies. If Tenant at any time shall be in default in the payment of Rent or any other monetary sum called for by this Lease for more than ten (10) days following written notice from Landlord to Tenant, or if Tenant at any time shall be in default in the keeping and performing of any of its other covenants or agreements in this Lease, and should such other default continue for thirty (30) days after written notice thereof from Landlord to Tenant specifying the particulars of such default, or if such other default is of a nature that curing the default will take more than thirty (30) days and Tenant has failed to commence to cure the default within thirty (30) days and diligently pursue completion of such cure and subject to the rights of the Limited Partners under Section 11.12 hereof, then, in addition to any and all other rights and remedies of Landlord hereunder and by law provided, Landlord may terminate this Lease by giving Tenant written notice of termination. On the giving of the notice, all Tenant’s rights in the Subject Property shall terminate. In addition to the foregoing, any default by Tenant under the Affordable Housing Agreement which is not cured following notice and expiration of any applicable cure periods thereunder shall also constitute a default under this Lease, and upon occurrence of such default, City shall have all remedies available to it under this Lease, including the right to terminate this Agreement as set forth herein. Promptly after notice of termination, Tenant shall surrender and vacate the Subject Property and shall commence and diligently prosecute the restoration of the Subject Property to its pre- Lease condition as required by Section 2.2 of this Lease. Landlord may reenter and take possession of the Subject Property and all remaining improvements and eject all parties in possession. Termination under this Section shall not relieve Tenant from the payment of any sum then due to Landlord or from any claim for damages previously accrued or then accruing against Tenant. 9.2 Damages. Should Landlord elect to terminate this Lease under the provisions of Section 9.1, Landlord shall be entitled to recover from Tenant as damages an amount, including actual and reasonable attorneys’ fees and court costs, necessary to compensate Landlord for all detriment proximately caused by Tenant’s default, including, without limitation, costs of removing the Project and Improvements from the Subject Property. 9.3 Landlord’s Right to Cure Tenant’s Default. Landlord, at any time after Tenant commits a default, can cure the default at Tenant’s cost. If Landlord at any time, by reason of Tenant’s default, pays any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the time the sum is paid, and if paid at a later date shall bear interest at the maximum rate allowed by law from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant. The sum, together with interest on it, shall be additional rent. ARTICLE X INDEMNITY 10.1 Tenant’s Indemnity. To the furthest extent allowed by law, Tenant shall indemnify, hold harmless and defend Landlord and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time, and property damage) incurred by the Landlord, the Tenant or any other person, and from any and all claims, demands, actions in law or equity (including attorney’s fees, litigation expenses, and costs to enforce this agreement) arising or alleged to have arisen directly or indirectly from or in connection with (a) the conduct or management of the Subject Property or of any business therein, or any work or thing whatsoever done, or any condition created in or about the Subject Property during the Term; (b) any act, omission, or negligence of Tenant or any of Tenant’s invitees, tenants, contractors, subcontractors, managers, or assignees; (c) any accident, injury, or damage whatsoever occurring in or at the Subject Property; (d) any breach or default by Tenant in the full and prompt payment of any amount due Landlord under this Lease, and for any breach, violation, or nonperformance of any term, condition, covenant, or other obligation of Tenant under this Lease or the Affordable Housing Agreement or any representation made by Tenant; and (e) any liens or encumbrances arising out of any work performed or materials furnished by or for Tenant, including any work Landlord may have performed or caused to be performed for Tenant for which Tenant has not paid Landlord. In the event Landlord is made a party to any litigation commenced by or against Tenant, then Tenant shall indemnify, hold harmless, and defend Landlord from all Claims resulting from such litigation, and shall pay all costs, expenses, and attorney fees actually and reasonably incurred or paid by Landlord in connection with such litigation. If Tenant shall subcontract all or any portion of the work to be performed under this agreement or should contract/subcontract any work on the premises, Tenant shall require all contractors and subcontractors to indemnify, hold harmless, and defend the Landlord and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. ARTICLE XI MISCELLANEOUS PROVISIONS 11.1 Holding Over. If Tenant shall hold over the Subject Property after the expiration of the Term with the consent of Landlord, either express or implied, such holding over shall be construed to be only a tenancy from month to month subject to all the covenants, conditions and obligations contained in this Lease. Tenant hereby agrees to continue payment of all monetary sums (such as taxes, insurance, etc.) which are the Tenant’s obligation under this Lease. 11.2 Quiet Possession. Landlord agrees that Tenant, upon paying the Rent and performing the covenants and conditions of this Lease, shall quietly have, hold and enjoy the Subject Property throughout the Term; and Landlord warrants to Tenant that as of the Effective Date there shall be no existing tenancies on the Subject Property. 11.3 Notices. Any notice to be given or other document to be delivered by either Party to the other hereunder shall be in writing and delivered to either Party personally or by depositing same in the United States mail, duly certified, with postage thereon fully prepaid and addressed to the Party for whom intended, as follows: To Landlord: City of Fresno Attn: City Manager 2600 Fresno Street Fresno, CA 93721 To Tenant: [INSERT LP NAME] c/o Corporation for Better Housing Attn: Lori Koester 21031 Ventura Boulevard, Suite 200 Woodland Hills, CA 91364 With a copy to: Chernove & Associates, Inc. 16027 Ventura Blvd., Suite 660 Encino, California 91436 Attn: Sheldon Chernove Phone: (818) 377-8100 Fax: (818) 377-9132 Email: schernove@chernovelaw.com And a copy to: Alliant Asset Management Company, LLC 21600 Oxnard Street, Suite 1200 Woodland Hills, CA 91367 Attn: Asset Management Either Party hereto, from time to time by written notice to the other Party, may designate a different address which shall be substituted for the one above specified. Notices shall be effective when received. Any notice or other document sent by certified mail, as aforesaid, shall be deemed received 72 hours after the mailing thereof, as above provided. 11.4 Waiver. No waiver of any breach of any of the terms, covenants, agreement, restrictions or conditions of this Lease shall be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions and conditions hereof. 11.5 Binding. Subject to the restrictions set forth herein regarding assignment of the leasehold estate, each of the terms, covenants and conditions of this lease shall extend to and be binding on and shall inure to the benefit of not only Landlord and Tenant but to each of their respective heirs, administrators, executors, successors and assigns. 11.6 Disclaimer of Partnership. The relationship of the Parties hereto is that of Landlord and Tenant, and it is expressly understood and agreed that Landlord does not in any way or for any purpose become a partner of Tenant or a joint venturer with Tenant in the conduct of Tenant’s business or otherwise. 11.7 Interpretation. The titles to the paragraphs of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part of the Lease. 11.8 Covenants and Conditions. Each term and each provision, including, without limitation, the obligation for the payment of Rent, to be performed by Tenant or Landlord as the case may be, shall be construed to be both a covenant and a condition of this Lease. 11.9 Integration. This Lease, together with the exhibits incorporated by reference, constitutes the entire agreement between the Parties and there are no conditions, representations or agreements regarding the matters covered by this Lease which are not expressed herein. 11.10 Estoppel Certificate. If, upon any sale, assignment or hypothecation of the Subject Property by Landlord or as required by any lender of the Subject Property or by the Limited Partners, an offset statement shall be required from either Party, each Party agrees to deliver within ten days after written request therefor by the other Party, a statement addressed to any such proposed mortgagee or purchaser, or to the requesting Party, in a form requested by such mortgagee or purchaser, certifying that this Lease is unmodified and in full force and effect (if such be the case), certifying the commencement and termination dates of the Lease term, certifying that there has been no assignment or sublease of this Lease and that there are no defenses or offsets hereto, or stating those claimed by the certifying Party, and containing such other information as reasonably may be requested by the party to whom such certificate is addressed. In the event either Party fails to deliver such offset statement to the other Party within the ten day period above provided, it shall be deemed that this Lease is in full force and effect and that neither Party has any defenses or offsets against the other Party, and that the other information contained in the requested statement is correct. 11.11 Counterparts. This Lease may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 11.12 Tenant’s Limited Partners. Tenant has advised City that, concurrently with the execution of this Lease, [INSERT NAME], and its successors and assigns (collectively, the Investor Limited Partner) and [INSERT NAME], (collectively, the Administrative Limited Partner; collectively, the Investor Limited partner and the Administrative Limited Partner are referred to herein as the Limited Partners) are entering into that certain [INSERT DOCUMENT NAME] , dated as of [INSERT DATE] (as may be amended, the Partnership Agreement with Corporation for Better Housing, a California nonprofit public benefit corporation, as general partner (the General Partner). In connection therewith, Landlord and Tenant hereby agree: a. Notwithstanding anything to the contrary contained in this Lease or the Affordable Housing Agreement, the respective interests of Tenant’s Investor Limited Partner and Administrative Limited Partner shall be freely transferable and any amendment to Tenant’s Partnership Agreement, to the extent such amendment effectuates such transfers, shall not require City approval or consent; provided that Tenant’s Administrative Limited Partner and/or Investor Limited Partner shall inform the City in writing of any such transfers. b. Notwithstanding anything to the contrary contained in this Lease or the Affordable Housing Agreement, whenever City shall deliver any Notice to Tenant with respect to any Default by Tenant hereunder or under the Affordable Housing Agreement, City shall at the same time deliver a copy of such Notice to the Limited Partner at the notice address provided by Tenant to City. No Notice of Default shall be effective as to such Limited Partner unless such notice is given. Each Limited Partner shall (insofar as the rights of City are concerned) have the right, at its option, within 60 days after the receipt of the copy of the Notice, to cure or remedy or commence to cure or remedy any such Default. Any cure of any Default hereunder made or tendered by the Limited Partner shall be deemed to be a cure by Tenant and shall be accepted or rejected on the same basis as if made or tendered by the Tenant. 11.13 Amendments. Any modification or amendment to this Lease must be in writing, signed by the Landlord and Tenant and only with the prior written consent of the Limited Partners. 11.14 Memorandum of Ground Lease. The Parties shall record a Memorandum of Ground Lease, against the Subject Property, in the form attached hereto as Exhibit B, concurrently with execution of this Lease. [SIGNATURE PAGE TO FOLLOW] IN WITNESS WHEREOF, the Parties have executed this Lease as of the Effective Date. LANDLORD: CITY OF FRESNO, a municipal corporation By: Georgeanne A. White City Manager APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Tracy N. Parvanian Supervising Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy TENANT: [INSERT NAME], L.P., a California limited partnership By: Corporation for Better Housing, a California nonprofit public benefit corporation, Its General Partner By: ____________________ Name: Lori Koester Title: Executive Director By: Name: Title: Attachments: EXHIBIT A – Legal Description of the Subject Property EXHIBIT B – Memorandum of Ground Lease EXHIBIT A LEGAL DESCRIPTION OF THE SUBJECT PROPERTY APN 426-253-19 All that portion of the North half of the Southeast quarter of the Southeast quarter of Section 16, Township 13 South, Range 20 East, Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California, according to the Official Plat thereof, described as follows: COMMENCING at the Southeast corner of the said North half of the Southeast quarter of the Southeast quarter of Section 16; thence South 88° 57' West, along the South line of the said North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 366.0 feet; thence North 00° 07' 30" West, parallel with the East line of said Section 16, a distance of 30.00 feet to the TRUE POINT OF BEGINNING this description; thence from said point, South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 107.31 feet to a point 32.00 feet east of the Southeast corner of Lot 1 of Tract No. 1145, Del Mar Homesites No. 2, as shown on the map thereof recorded in Book 15, of Plats, at Page 22, Fresno County Records; thence North 00° 07' West along a line 32.00 feet east of and parallel with the East line of said Tract No. 1145, a distance of 200.00 feet; thence North 88° 57' East, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 418.28 feet; thence South 00° 07' 30" East, along a line 55.00 feet west of and parallel with the said East line of Section 16, a distance of 100.00 feet; thence South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 311.00 feet; thence South 00° 07' 30" East, parallel with the said East line of Section 16, a distance of 100.00 feet to the TRUE POINT OF BEGINNING. 1 EXHIBIT B RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Fresno 2600 Fresno Street Fresno, CA 93721 Attention: City Manager Exempt from Recording Fees Per Government Code Sections 6103 & 27383 Space above this line for Recorder’s use only. MEMORANDUM OF GROUND LEASE THIS MEMORANDUM OF GROUND LEASE (Memorandum of Ground Lease) is made and entered into this day of 2023, by and between the City of Fresno (Landlord or City) and [INSERT ENTITY], a California limited partnership (Tenant). Landlord and Tenant may each be referred to as a “Party” and collectively as the “Parties”. RECITALS A. Landlord is the fee owner of that certain real property located at 4323-4333 N. Blackstone Avenue, Fresno, California (APN 426-253-1) in the City of Fresno, California and described and depicted in more detail in Exhibit A to this Memorandum of Ground Lease (Subject Property). B. Landlord and Corporation for Better Housing, a California nonprofit public benefit corporation (the general partner of Tenant), have entered into that certain Affordable Housing Agreement dated __________, 2023 (the Affordable Housing Agreement) to set forth the terms and conditions relating to (1) Tenant’s ground lease of the Subject Property from City; (2) Tenant’s development of the Project thereon; and (3) Tenant’s agreement to develop and provide affordable housing for senior households on the Subject Property. C. Pursuant to the terms of the Affordable Housing Agreement, Landlord and Tenant entered into a Ground Lease dated ____________, 2023 (Ground Lease). Now, therefore, the Parties agree as follows: TERMS 1. This Memorandum of Ground Lease is solely to provide record notice of the Ground Lease and in no way modifies the terms, conditions, provisions and covenants thereof. In the event of any inconsistency between this Memorandum of Ground Lease and the Ground Lease, the Ground Lease shall prevail. The foregoing recitals are incorporated by reference as though fully set forth herein. 2 2. The Ground Lease contains specific covenants governing the development, use, character, operation, and maintenance of the Subject Property for affordable housing purposes. 3. The terms and conditions of the Ground Lease are superior to any Leasehold Mortgage or other encumbrances recorded against Developer's leasehold interest in the Subject Property. In no event may City's fee interest in the Subject Property, be encumbered by or subordinated to any Leasehold Mortgage. 4. The initial term of the Ground Lease is a period of fifty-seven (57) years commencing on [MONTH] ___, 2023 (Commencement Date) and expiring fifty-seven years thereafter (Expiration Date), unless sooner terminated as provided therein. 5. The Ground Lease restricts Tenant from assigning the Ground Lease, or its interest therein, or subletting without Landlord's prior written consent in most circumstances. 6. The Parties hereto agree that this Memorandum of Ground Lease may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same agreement, binding all of the parties hereto, notwithstanding all of the parties are not signatory to the original or the same counterparts. For all purposes, including, without limitation, recordation, filing and delivery of this Memorandum of Ground Lease, duplicate unexecuted and unacknowledged pages of the counterparts may be discarded and the remaining pages assembled as one document. [SIGNATURE PAGE TO FOLLOW] 3 IN WITNESS WHEREOF, upon the day and year first hereinabove written, the Parties have executed this Memorandum of Ground Lease, personally or by officers or agents thereunto duly authorized. LANDLORD: CITY OF FRESNO, a municipal corporation By: Georgeanne A. White City Manager APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Tracy N. Parvanian Supervising Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy TENANT: [INSERT NAME] , L.P., a California limited partnership By: Corporation for Better Housing, a California nonprofit public benefit corporation, Its General Partner By: ____________________ Name: Lori Koester Title: Executive Director By: Name: Title: Attachments: EXHIBIT A – Legal Description of Subject Property 4 EXHIBIT A LEGAL DESCRIPTION OF THE SUBJECT PROPERTY APN 426-253-19 All that portion of the North half of the Southeast quarter of the Southeast quarter of Section 16, Township 13 South, Range 20 East, Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California, according to the Official Plat thereof, described as follows: COMMENCING at the Southeast corner of the said North half of the Southeast quarter of the Southeast quarter of Section 16; thence South 88° 57' West, along the South line of the said North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 366.0 feet; thence North 00° 07' 30" West, parallel with the East line of said Section 16, a distance of 30.00 feet to the TRUE POINT OF BEGINNING this description; thence from said point, South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 107.31 feet to a point 32.00 feet east of the Southeast corner of Lot 1 of Tract No. 1145, Del Mar Homesites No. 2, as shown on the map thereof recorded in Book 15, of Plats, at Page 22, Fresno County Records; thence North 00° 07' West along a line 32.00 feet east of and parallel with the East line of said Tract No. 1145, a distance of 200.00 feet; thence North 88° 57' East, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 418.28 feet; thence South 00° 07' 30" East, along a line 55.00 feet west of and parallel with the said East line of Section 16, a distance of 100.00 feet; thence South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 311.00 feet; thence South 00° 07' 30" East, parallel with the said East line of Section 16, a distance of 100.00 feet to the TRUE POINT OF BEGINNING. AFFORDABLE HOUSING AGREEMENT by and among City of Fresno, a municipal corporation and DEVELOPER i TABLE OF CONTENTS Page 100. DEFINITIONS .................................................................................................................. 3 101. Defined Terms...................................................................................................... 3 200. GROUND LEASE OF THE SUBJECT PROPERTY…………………………………… 25 201. Ground Lease .................................................................................................... 25 201.1 Term ....................................................................................................... 25 201.2 Rent ........................................................................................................ 25 201.3 Title to Improvements ............................................................................. 26 202. Conditions Precedent to Commencement of Ground Lease and City…………… 26 202.1 City’s Conditions Precedent to the Closing .............................................. 27 202.2 Developer Conditions Precedent to the Closing ...................................... 30 203. Payment of Developer Fee and Contractor Fee …………………………………. 32 204. Environmental Condition of the Site. ................................................................... 33 204.1 Environmental Condition of the Subject Property ..................................... 33 204.2 Studies and Reports ............................................................................... 33 204.3 Approval of Environmental Condition of the Subject Property .................. 33 204.4 Indemnification. ....................................................................................... 33 204.5 Duty to Prevent Hazardous Material Contamination ................................ 34 204.6 Release of City and City by Developer .................................................... 34 204.7 Environmental Inquiries .......................................................................... 35 205. Escrow ............................................................................................................... 36 205.1 Costs of Escrow ...................................................................................... 36 205.2 Escrow Instructions ................................................................................. 36 205.3 Authority of Escrow Agent ....................................................................... 37 205.4 Escrow Closing ....................................................................................... 37 205.5 Termination of Escrow ............................................................................ 37 205.6 Closing Procedure .................................................................................. 37 205.7 Review of Title ........................................................................................ 39 205.8 Title Insurance ........................................................................................ 39 300. DEVELOPMENT OF THE PROJECT. ........................................................................... 40 301. Development of the Project ................................................................................ 40 302. Design Review. .................................................................................................. 41 ii TABLE OF CONTENTS (Continued) Page 302.1 Basic Concept Drawings ......................................................................... 41 302.2 Design Development Drawings ............................................................... 42 302.3 Construction Drawings and Related Documents ..................................... 43 302.4 Standards for Disapproval ....................................................................... 43 302.5 Consultation and Coordination ................................................................ 43 302.6 Revisions and Change Orders ................................................................ 43 302.7 Defects in Development Plans ................................................................ 44 303. Timing of Development of Project ...................................................................... 44 304. City and Other Governmental Permits ................................................................ 44 305. Release of Construction Covenants.................................................................... 45 306. Insurance Requirements .................................................................................... 45 307. Indemnity ........................................................................................................... 49 308. Entry by City....................................................................................................... 49 309. Compliance with Laws ........................................................................................ 49 309.1 Prevailing Wage Laws ............................................................................ 50 309.2 Section 3 Compliance ............................................................................. 51 310. Financing of the Project. ..................................................................................... 51 310.1 Preferred Financing Structure ................................................................. 51 310.2 Submission of Evidence of Financing ..................................................... 55 310.3 Alternate Financing Sources ................................................................... 57 310.4 Reserved ................................................................................................ 57 310.5 Required Submissions ............................................................................ 57 310.6 Holder Performance of Development of the Project ................................ 58 310.7 Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure ....................................................................................................... 58 310.8 Failure of Holder to Complete Applicable Project .................................... 58 310.9 Right of City to Cure Mortgage or Deed of Trust Default ......................... 59 310.10 Subordination of Affordability Covenants; Non-Subordination of City’s Fee Interest ................................................................................... 59 310.11 Failure to Obtain Financing ..................................................................... 60 311. Cost Savings Obligation ..................................................................................... 60 311.1 Audit to Determine Cost Savings Amount ............................................... 60 311.2 Cost Savings Payment as Payment of Principal on City Subordinate Loan. .................................................................................. 61 311.3 Timing of Payment of Cost Savings ........................................................ 61 400. OPERATION OF HOUSING. ......................................................................................... 61 401. Number of Housing Units ................................................................................... 61 iii TABLE OF CONTENTS (Continued) Page 401.1 On-Site Manager .................................................................................... 62 402. Affordable Rent .................................................................................................. 62 403. Duration of Affordability Requirements .............................................................. 63 404. Selection of Tenants ........................................................................................... 63 405. Household Income Requirements ....................................................................... 64 405.1 Income Categories. ................................................................................. 64 406. [Intentionally omitted] ......................................................................................... 65 407. Leases; Rental Agreements for Housing Units ................................................... 65 408. Marketing Program ............................................................................................. 65 409. Maintenance. ...................................................................................................... 66 409.1 General Maintenance .............................................................................. 66 409.2 Program Maintenance ............................................................................. 67 409.3 Occupancy Limits ................................................................................... 67 410. Management of the Project. ............................................................................... 68 410.1 Property Manager ................................................................................... 68 410.2 Property Management Plan .................................................................... 68 410.3 Gross Mismanagement ........................................................................... 69 410.4 Code Enforcement .................................................................................. 70 411. Capital Reserve Requirements ........................................................................... 70 412. Operating Budget and Operating Reserve .......................................................... 71 413. Non-Discrimination Covenants ........................................................................... 72 414. Monitoring and Recordkeeping ........................................................................... 73 415. Regulatory Agreement........................................................................................ 74 500. DEFAULT AND REMEDIES. ......................................................................................... 76 501. Events of Default ................................................................................................ 76 502. Remedies ........................................................................................................... 76 503. Force Majeure .................................................................................................... 76 504. Termination by Developer .................................................................................. 77 iv TABLE OF CONTENTS (Continued) Page 505. Termination by City ............................................................................................ 77 506. Attorneys’ Fees .................................................................................................. 78 507. Remedies Cumulative ........................................................................................ 78 508. Waiver of Terms and Conditions ........................................................................ 78 600. GENERAL PROVISIONS. .............................................................................................. 78 601. Time is of the Essence ....................................................................................... 78 602. Notices ............................................................................................................... 78 603. Representations and Warranties of Developer.................................................... 80 604. Limitation Upon Change in Ownership, Management and Control of Developer. ......................................................................................................... 81 604.1 Prohibition............................................................................................... 81 604.2 Permitted Transfers ................................................................................ 81 604.3 City Consideration of Requested Transfer ............................................... 82 604.4 Approval of Refinancing of Primary Loan ................................................ 83 605. Successors and Assigns .................................................................................... 83 606. Non-Liability of Officials and Employees of City, City or Agency ......................... 83 607. Relationship between City and Developer .......................................................... 83 608. City Manager; City Approvals and Actions .......................................................... 84 609. Counterparts ...................................................................................................... 84 610. Integration .......................................................................................................... 84 611. Real Estate Brokerage Commission ................................................................... 84 612. Titles and Captions ............................................................................................ 84 613. Interpretation ...................................................................................................... 84 614. No Waiver .......................................................................................................... 85 615. [Intentionally Omitted] ........................................................................................ 85 616. Developer’s Payment and Reimbursement of City’s Post-Date of Agreement Third Party Costs. ............................................................................ 85 616.1 Third Party Costs Defined; Obligation ..................................................... 85 616.2 Payment of Third Party Costs ................................................................. 86 616.3 Exception to Payment of Post-Date of Agreement Third Party Costs ...... 86 617. Implementation of Agreement ............................................................................ 86 618. Amendment ........................................................................................................ 86 619. Severability......................................................................................................... 87 620. Computation of Time .......................................................................................... 87 621. Legal Advice ...................................................................................................... 87 622. Cooperation........................................................................................................ 87 623. Conflicts of Interest ............................................................................................. 87 5 ATTACHMENTS Attachment No. 1 Legal Description Attachment No. 2 Site Map Attachment No. 3 Schedule of Performance Attachment No. 3A Preliminary Budget Attachment No. 4 Scope of Development Attachment No. 5 Release of Construction Covenants Attachment No. 6 City Regulatory Agreement Attachment No. 7 Notice of Affordability Restrictions Attachment No. 8 Request for Notice of Default Attachment No. 9 Memorandum of Agreement Attachment No. 10 Federal Requirements Attachment No. 11 TCAC Standstill Agreement 6 AFFORDABLE HOUSING AGREEMENT Blackstone Senior Apartments This AFFORDABLE HOUSING AGREEMENT (Agreement) is entered into as of _______________ (Effective Date) by and among the City of Fresno, a municipal corporation (City) and [ A to be formed Limited Partnership] (Developer). A. City is the fee owner of the land located at 4323-4333 N. Blackstone Avenue, Fresno, California (APN 426-253-19), and legally described in Attachment 1 and the existing improvements located thereon (the Subject Property). B. On March 30, 2023, pursuant Resolution 2023-070, the City declared the Subject Property as Surplus Exempt, pursuant to Government Code section 54221(f)(1)(A) because the Subject Property will be disposed for development based upon Government Code section 37364(a) which requires (1) Minimum of 80% of the area of any parcel shall be used for the development of housing (remaining 20% may be ancillary commercial or park/open space use); (2) Not less than 40% of the total number of housing units developed on any parcel pursuant to this section shall be affordable to households whose incomes are equal to, or less than, 75% of the maximum income of lower income households (80% of area median income), and at least half of which (20% of the units) shall be affordable to very low-income households (50% of area median income); and (3) Dwelling units shall be restricted by regulatory agreement to remain continually affordable to those persons and families for the longest feasible time, but not less than 30 years and shall be recorded against the property. C. In order to expand and improve the supply of affordable housing for Very Low-Income Households and Low-Income Households, to develop viable urban communities by providing decent, safe housing and a suitable living environment, and to expand economic opportunities for Very Low-and Low-Income households, City desires for the Subject Property be developed as a senior affordable rental housing project in accordance with the terms of this Agreement. D. On May 26, 2023, the City issued a Request for Qualifications (RFQ) for the development of the Subject Property up to 100-unit senior affordable housing development. E. On June 1, 2023, California Department of Housing and Community Development (HCD) confirmed and approved the City’s determination that the Subject Property qualifies as exempt surplus land under Government Code section 54221(f)(1)(A). F. WHEREAS, pursuant to the RFQ, Developer submitted a bid proposal responsive to the RFQ and Developer’s Proposal was selected to develop, entitle and construct its proposed senior affordable housing project on the Subject Property, as more fully described herein, upon the fulfillment of certain conditions precedent as set forth herein (the Project). G. It is the intent of the parties to enter into this Agreement, and a Ground Lease, in order for the Developer to develop the Project. It is the Developer’s intent to serve the needs of low-income senior residents. H. City desires to convey a ground leasehold interests in the Subject Property Developer; all for the construction and long-term operation of a senior affordable rental housing project thereon in accordance with the terms of this Agreement. 7 I. Pursuant to the National Environmental Policy Act (NEPA) guidelines, a Phase I Environmental Site Assessment was completed and summarized in a report dated January 27, 2022. The NEPA review concluded a Finding of No Significant Impact. The Housing and Community Development Division received authorization to use grant funds from the U.S. Department of Housing and Urban Development for acquisition of the Subject Property on May 27, 2022. J. Council adopted the Mitigated Negative Declaration for the acquisition of the property for the Senior Activity Center and Affordable Housing Project pursuant to the California Environmental Quality Act (CEQA) guidelines on July 25, 2022. Since the time the original environmental document was approved, the number of housing units proposed to be included in the project has increased from 70 units to up to 100 units. An assessment of new significant effects was completed in April 2023 and determined that the revised project would not have a significant impact. Council adopted the Addendum to a Mitigated Negative Declaration as prepared for Environmental Assessment No. P 23-02319, dated April 21, 2023, for the Senior Activity Center and Affordable Housing Project on July 20, 2023. K. Capitalized terms used in this Agreement are defined in these Recitals and in Section 100, et seq. L. As used herein, “Developer” refers to either Corporation for Better Housing and/or Integrated Community Development, LLC which is duly organized under the laws of the State of California. Developer is experienced in the construction, development, operation, and management of first quality housing which is affordable to persons, families, and seniors of Low to Moderate Income, including Very Low-and Low-Income Households. M. Developer desires to (i) ground lease the Subject Property, which shall be in a form and content that shall be approved by the applicable Developer and City, in their reasonable discretion (Ground Lease), (ii) develop, entitle, construct, and operate the Subject Property with 82 senior affordable housing units along with onsite and offsite improvements (Project) as set forth in its Proposal for qualified Senior Very Low Income Households and Low Income Households, of which one unit, in the Project, will be occupied by on-site management staff (which unit shall be unrestricted as to income, but the rent charged, if any, for such manager unit(s) shall be restricted to an Affordable Rent for a Low Income Household), (iii) and operate the Project as affordable housing throughout the Affordability Period pursuant to the requirements of this Agreement. N. Developer intends to file an application with the California Tax Credit Allocation Committee (TCAC) to obtain allocations of federal 9% Low Income Housing Tax Credits (Tax Credits) for the Project. If Developer does not receive such allocations of 9% Tax Credits after its first TCAC Application, Developer may submit an Application for 9% Tax Credits in the next round following notification that Developer’s first Application was not successful. If Developer’s second round Application is not successful, Developer and City may agree to submit additional Tax Credit Applications for the Project or may agree to seek other funding or financing sources for the Project. O. The parties acknowledge and agree that the financing and other terms set forth in this Agreement may require adjustment to ensure the Project is developed and operated in a manner reasonably acceptable to City and financially feasible for Developer. In the event Developer is required to find alternate financing sources for the development 8 and operation of the Project and/or to the extent necessary or appropriate to implement and clarify the terms of this Agreement as to the Project, the parties will negotiate in good faith and reasonably consider entering into one or more additional Implementation Agreements for the Project to set forth more specifically the terms, conditions, and restrictions imposed by or which otherwise become appropriate because of the inclusion of additional or different funding sources for the Project. P. The Project is vital to and in the best interest of the City and the health, safety and welfare of its residents, and are in accordance with the public purposes of applicable state and local laws and requirements. Q. Notwithstanding any provision of this Agreement (or any Implementation Agreements), the parties hereto agree and acknowledge that this Agreement does not constitute a commitment of federal funds, and that such commitment of funds may occur only upon satisfactory completion of environmental review and receipt by City of a release of funds from the U.S. Department of Housing and Urban Development under 24 CFR Part 58. The parties hereto are further prohibited from undertaking or committing any federal funds to physical or choice-limiting actions, including property acquisition, demolition, movement, rehabilitation, conversion, repair or construction prior to the environmental clearance; the parties understand that the violation of this provision may result in the denial of any federal funds under this Agreement. NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows: 100. DEFINITIONS 101. Defined Terms. The defined terms set forth in this Section 101 shall be used to interpret this Agreement and all attachments hereto except to the extent such terms are otherwise defined in the attachments hereto. “Affiliate” shall mean any person or entity directly or indirectly, through one or more intermediaries, controlling, controlled by or under common control with Developer, which shall include each of the constituent partners or members of Developer’s limited partnership. The term “control,” as used in the immediately preceding sentence, means, with respect to a person that is a corporation, the right to the exercise, directly or indirectly, at least 50% of the voting rights attributable to the shares of the controlled corporation, and, with respect to a person that is not a corporation, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the controlled person. “Affordability Period” shall mean the 55-year duration of the affordable housing and operational covenants, conditions, restrictions, and requirements which are set forth in this Agreement, including the Ground Lease and Regulatory Agreement, as set forth in Section 403. “Affordable Rent” shall mean the maximum amount of out-of-pocket housing cost to be charged monthly by Developer and paid by each of the eligible Very Low Income Households and Low Income Households for each of the Housing Units at the Project as determined and calculated pursuant to the affordable rent and the rent limitations according to TCAC, the Tax Credit Rules, the Tax Credit Regulatory Agreement applicable to the Project, Community Development Block Grant program, and any other federal resources used in the development of the Project. For purposes of Affordable Rent, the monthly 9 housing payment shall mean the total of monthly payments by each tenant household of a Housing Unit for use and occupancy of a Housing Unit and facilities associated therewith, including a reasonable allowance for utilities for an adequate level of service, as set forth in more detail in Section 402 hereof. “Agreement” shall mean this Affordable Housing Agreement, including all attachments hereto, between City and Developer. “Annual Financial Statement” shall mean the certified financial statement of Developer for the Project using generally accepted accounting principles (GAAP), including Operating Expenses and Annual Project Revenue, prepared at Developer’s expense, by an independent certified public accountant reasonably acceptable to City, once every three years or sooner as and when requested by the City, by the City Manager, along with and as a part of the Annual Financial Statement, Developer shall submit true, legible, and complete copies of the source documentation supporting the Annual Financial Statement for the Project. “Annual Project Revenue” shall mean all gross income and all revenues of any kind from the Project in a calendar year, of whatever form or nature, whether direct or indirect, with the exception of the items excluded below, received by, paid to, or for the account or benefit of Developer or any Affiliate of Developer or any of their agents or employees (provided, in no event shall amounts counted as Annual Project Revenue be double counted if paid by a Developer to one or more of its Affiliates), from any and all sources, resulting from or attributable to the operation, leasing and occupancy of the Project, determined on the basis of GAAP applied on a consistent basis, and shall include, but not be limited to: (i) gross rentals paid by tenants of the applicable Project under leases, and payments and subsidies of whatever nature, including without limitation any payments, vouchers or subsidies from HUD or any other person or organization, received on behalf of tenants under their leases; (ii) amounts paid to Developer or any Affiliate of Developer on account of Operating Expenses for further disbursement by Developer or such Affiliate to a third party or parties, including, without limitation, grants received to fund social services or other housing supportive services at the applicable Project; (iii) late charges and interest paid on rentals; (iv) rents and receipts from licenses, concessions, vending machines, coin laundry, and similar sources; (v) other fees, charges, or payments not denominated as rental but payable to Developer in connection with the rental of office, retail, storage, or other space in the Project; (vi) consideration received in whole or in part for the cancellation, modification, extension or renewal of leases; and (vii) interest and other investment earnings on security deposits, reserve accounts and other Project accounts to the extent disbursed. Notwithstanding the foregoing, Annual Project Revenue shall not include the following items: (a) security deposits from tenants (except when applied by Developer to rent or other amounts owing by tenants); (b) capital contributions to Developer by its members, partners or shareholders (including capital contributions required to pay the portion of the Deferred Developer Fee permitted to be included in eligible basis pursuant to the Tax Credit Rules); (c) condemnation or insurance proceeds; (d) there shall be no line item, expense, or revenue shown allocable to vacant unit(s) at the applicable Project; (e) receipt by an Affiliate of management fees or other bona fide arms-length payments for reasonable and necessary Operating Expenses associated with the applicable Project. “Application” shall mean, Developer’s Tax Credit applications to be submitted to TCAC to obtain an allocation of 9% Tax Credits for the Project or such other financing as 10 may be applied for pursuant to Section 310. All Applications submitted by Developer shall be consistent with the terms of this Agreement. “Applicable Federal Rate” shall mean the interest rate set by the United States Treasury from time to time for the purpose of determining applicable Low Income Housing Tax Credit interest rates. The Applicable Federal Rate is published by the Internal Revenue Service in monthly revenue rulings. “Area Median Income” and “AMI” shall mean the area median household income set forth for each county in California (and for this Agreement for Fresno County), adjusted for household size , as set forth by regulation of TCAC. “Basic Concept Drawings” shall mean the plans and drawings to be submitted and approved by City, as set forth in Section 302.1 hereof. “Best Knowledge” shall mean the actual knowledge or constructive knowledge of the party’s employees and agents who manage the Subject Property or have participated in the preparation of this Agreement, and all documents and materials in the possession of such party, and shall not impose a duty of investigation, except as to documents of record or actually provided to such party or its employees or agents, whether actually known or not. “Capital Replacement Reserve” shall mean a separate reserve fund account to be established upon closing of the permanent Primary Loan for the Project and maintained by Developer for the Project, which shall equal not less than Two Hundred Fifty Dollars ($250) per year for each Housing Unit (i.e. 82 units in the Project (82 times $250 equals $20,500)), to be used as the primary resource to fund capital improvements and replacement improvements for the Project. The amount of $250 for each Housing Unit that is set aside by the partnership (or its Property Manager) shall be allocated from the gross rents received from the applicable portion of the Subject Property and deposited into a separate interest bearing trust account for capital replacements to the Subject Property fixtures and equipment that are normally capitalized under generally accepted accounting principles and shall include common areas. The non-availability of funds in the Capital Replacement Reserve does not in any manner relieve or lessen Developer’s obligation to undertake any and all necessary capital repairs and improvements and to continue to maintain the Projects in the manner prescribed herein. Not less than once per year, Developer, at its expense, shall submit to City Manager an accounting for the Capital Replacement Reserve for the Project. Capital repairs to and replacement of the Project shall include only those items with a long useful life, including without limitation the following: carpet and drape replacement; appliance replacement; exterior painting, including exterior trim; hot water heater replacement; plumbing fixtures replacement, including tubs and showers, toilets, lavatories, sinks, faucets; air conditioning and heating replacement; asphalt repair and replacement, and seal coating; roofing repair and replacement; landscape tree replacement; irrigation pipe and controls replacement; sewer line replacement; water line replacement; gas line pipe replacement; lighting fixture replacement; elevator replacement and upgrade work; miscellaneous motors and blowers; common area furniture replacement; and common area repainting. Pursuant to the procedure for submittal of each Annual Budget for the Project to City Manager by Developer, City Manager may evaluate the cumulative amount on deposit in the Capital Replacement Reserve account for the Project and exercise her sole, reasonable discretion to determine if existing balance(s) in, proposed deposits to, shortfalls, 11 if any, and/or a cumulative unexpended/unencumbered account balance in such Capital Replacement Reserve account are adequate to provide for necessary capital repairs and improvement to the Subject Property and the Project (provided that required annual deposits thereto are not required to exceed $250/per Housing Unit). “City” shall mean the City of Fresno, a California municipal corporation and charter city. “City Covenants” shall mean the affordable housing, and related land use/zoning covenants imposed by and as condition(s) of approval of the land use entitlement for the Project. Pursuant to the requirements of the land use entitlement for the Project, the City Covenants are and shall remain a senior, non-subordinate lien against the Subject Property and shall not be subordinated to the Primary Loan or any other liens. “City Manager” shall mean and include the City of Fresno’s City Manager and her authorized designees. Whenever consent, approval or other actions of the “City Manager” is required, such consent may be provided by City Manager or her authorized designees. The City Manager, in her sole discretion may submit to City Council for action to approve or disapprove such request. “Closing” shall mean the close of escrow for the Project, whereby City shall convey a ground leasehold interest in the Subject Property, as applicable, to Developer pursuant to Section 205.4, and such applicable Ground Lease becomes effective and the Term thereof commences. “Closing Date” shall mean, the date the Memorandum of Ground Lease is recorded against the Subject Property as more specifically set forth in Section 205.4 hereof. “Conditions Precedent” shall mean the conditions precedent to the execution, effectiveness and commencement of each of the Ground Lease. “Construction Contract” shall mean each and every contract between Developer, the Contractor, and/or any Subcontractor for the construction of the Project, or any part thereof, including construction of any on-site or off-site improvements included in the Scope of Development, the land use entitlement approved by the City, and the Development Plans. The Construction Contract between Developer and the Contractor shall be for a fixed fee to complete all work to be performed or caused to be performed by the Contractor under such Construction Contract. Developer shall provide the City with copies of all agreements it has entered into with any and all general contractors or subcontractors for this Project. Developer shall require that each such general contractor agreement contain a provision whereby the party(ies) to the agreement, other than the Developer, agree to: (i) notify the City immediately of any event of default by the Developer thereunder, (ii) notify the City immediately of the filing of a mechanic’s lien, (iii) notify the City immediately of termination or cancellation of the construction agreement on the Project, and (iv) provide the City, upon the City’s request, an Estoppel Certificate certifying that the agreement is in full force and effect and the Developer is not in default thereunder. The Developer agrees to notify the City immediately of termination or cancellation of any such agreement(s), notice of filing of a mechanic’s lien, or breach or default by other party(ies) thereto. Developer shall also require each contract to include a full recitation of Section 3 and the Section 3 Clause with an express acknowledgement and agreement by the Contractor and each Subcontractor, as applicable, 12 to fully comply with the Section 3 Clause, (ii) an express acknowledgement and agreement that as a condition precedent to the final payment under its contract, the Contractor or Subcontractor, as applicable, shall provide written evidence, in form reasonably satisfactory to the City that it and all its subcontractor(s) have complied with the Section 3 Clause in completing the development of the Project, and (iii) reference to all other applicable federal regulations and laws based on the final federal funding sources, if any, to which such Contractor or Subcontractor, as applicable, must comply in undertaking the construction and development of the applicable Project; provided it is understood by the parties that it is and shall remain primarily the Developer’s obligation to obtain and submit all required Section 3 Clause documentation. “Construction Drawings” shall mean the construction plans and drawings to be submitted and approved by City for the Project, as set forth in Section 302.3 hereof. “Contractor” shall mean one or more general contractors hired by Developer to perform and complete, or to engage and supervise others to perform and complete, the construction of the Project and all other on-site and off-site improvements required to be constructed in connection with the Project, in accordance with the Scope of Development, the land use entitlement as and when approved by City, and the Development Plans. Developer shall submit to City evidence regarding the entity serving as the Contractor for the construction of the Project and all other on-site and off-site improvements required to be constructed in connection therewith in accordance with the Scope of Development, the land use entitlement as and when approved by City, and the Development Plans, including all required licenses, certifications, insurance, etc., as reasonably requested by the City. The parties acknowledge that the Contractor is an Affiliate of the Administrative General Partner; however, City wishes to ensure that the costs of constructing the Project are at all times reasonable and that the scope of the construction to be performed is adequate and appropriate. To that end, City shall have the ongoing right to review (i) a detailed scope of work for the construction of the Project, (ii) the construction of the Project as such work is performed by Contractor (and its subcontractors), and (iii) invoices, inspection reports, testing, and other evidence showing the work undertaken, to be undertaken, and progress on the construction, and the cost thereof. “Contractor Fee” shall mean a fee to be paid by Developer to the Contractor pursuant to the Partnership Agreement and Construction Contract, which fee is compensation to perform and complete, or to engage and supervise others to perform and complete, the construction of the Project and all other on-site and off-site improvements required to be constructed in connection therewith in accordance with the Scope of Development, the land use entitlement as and when approved by City, and the Development Plans, and all other Improvements required to be constructed in connection with the Project, all in accordance with the Scope of Development, the land use entitlement, and the approved Development Plans. Payment and disbursement of the Contractor Fee shall be postponed, as provided in Section 203, et seq., and pursuant to the Partnership Agreement. The parties acknowledge the amount of the Contractor Fee may increase or decrease in the event the cost of the construction of the Project and all other on-site and off-site improvements required to be constructed in connection therewith increase or decrease and a change order subject to City (approval is issued reflecting such increased or decreased costs; provided, however, Developer represents and warrants to City that the Contractor Fee shall not exceed the amount allowed pursuant to the Tax Credit Rules. 13 “Corporation for Better Housing” shall mean the CBH a California nonprofit public benefit corporation. “County” shall mean the County of Fresno, California. “CUAC” shall mean the California Utility Allowance Calculator which may be used to set the tenant utility allowance. “Debt Service” shall mean payments made in a calendar year pursuant to the approved Primary Loans obtained for the lease, construction/development, and operation of the Project pursuant to Section 310. “Default” or “Event of Default” shall mean the failure of a party to perform any action or comply with any covenant required by this Agreement, including the attachments hereto, within the time periods provided herein following notice and opportunity to cure, as set forth in Section 501 hereof. “Deferred Contractor Fee” shall mean any deferred Contractor Fee allowable under the financing and the Construction Contract which has been approved by City pursuant to Section 310.2. In no event shall the Contractor be eligible for disbursement of the Deferred Contractor Fee or any part thereof for the Project prior to completion of construction for such Project, including all on-site and off-site improvements, as approved by the City and as evidenced by the issuance by City of the Release of Construction Covenants for such Project. “Deferred Developer Fee” shall mean any deferred Developer Fee allowable under the financing which has been approved by City pursuant to Section 310. In no event shall Developer be eligible for disbursement of the Deferred Developer Fee or any part thereof for an applicable Project prior to completion of construction for the Project, including all on-site and off-site improvements, as approved by the City and as evidenced by the issuance by City of the Release of Construction Covenants. “Design Development Drawings” shall mean the plans and drawings for the Project to be submitted to and approved by City, as set forth in Section 302.2 hereof. “Developer(s)” shall mean, Corporation for Better Housing, a California non-profit public benefit corporation and/or Integrated Community Development, LLC a for-profit limited liability company, and their permitted successors and assigns. “Developer Fee” shall mean a fee for the Project to be paid by the entity to Developer that will develop the Project pursuant to this Agreement, which fee is compensation to perform, or to engage and supervise others to perform, services in connection with the negotiating, coordinating, and supervising the planning, architectural, engineering and construction activities necessary to cause completion and complete the Project, including all other on-site and off-site improvements required to be constructed in connection therewith, in accordance with the Scope of Development, the land use entitlement, and the Development Plans, as set forth in the Final Budget and approved as a part of the evidence of financing pursuant to Section 310 herein. “Development Impact Fees” shall mean amounts required to be paid to or through the City prior to and as a condition to issuance of building permits for the Project, including, without limitation, sanitation district, traffic signal assessment, schools, public works/drainage, public works/sewer connection, and/or public works/sewer assessment. 14 “Development Plans” shall mean the Basic Concept Drawings, Design Development Drawings and Construction Drawings for the Project to be submitted to City for review and approval, pursuant to Section 302. “Environmental Claim” shall mean (i) any judicial or administrative enforcement actions, proceedings, claims, orders (including consent orders and decrees), directives, notices (including notices of inspection, notices of abatement, notices of non-compliance or violation and notices to comply), requests for information or investigation instituted or threatened by any governmental authority pursuant to any Governmental Requirements, or (ii) any suits, arbitrations, legal proceedings, actions or claims instituted, made or threatened that relate, in the case of either (i) or (ii), to any damage, contribution, cost recovery, compensation, loss or injury resulting from the release or threatened release (whether sudden or non-sudden or accidental or non-accidental) of, or exposure to, any Hazardous Materials, or the violation or alleged violation of any Governmental Requirements, or the general, manufacture, use, storage, transportation, treatment, or disposal of Hazardous Materials. “Environmental Laws” shall mean all laws, ordinances and regulations relating to Hazardous Materials, including, without limitation: the Clean Air Act, as amended, 42 U.S.C. Section 7401, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901, et seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980, as amended (including the Superfund Amendments and Reauthorization Act of 1986, “CERCLA”), 42 U.S.C. Section 9601, et seq.; the Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651, the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, as amended, 30 U.S.C. Section 801 et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300f et seq.; all comparable state and local laws, laws of other jurisdictions or orders and regulations; and all laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the State, the County, the City, or any other political subdivision in which the Site is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over City, Developer, or the Site. “Environmental Reports” shall mean the Phase I and Phase II reports regarding the Subject Property, which have been delivered by City to Developer. “Escrow” shall have the meaning set forth in Section 205, et seq. “Escrow Agent” shall have the meaning set forth in Section 205, et seq. “Final Budget” shall mean the final budget for the construction and development of the Project, as approved by City pursuant to Section 310 hereof. “Governmental Requirements” shall mean all laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County, the City, or any other political subdivision in which the Site is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over Developer or the Site, as may be amended from time to time. “Ground Lease” shall mean, the Ground Lease to be entered into for the Project 15 by City and the Developer which shall be in a form reasonably acceptable to Developer and City in their reasonable discretion. “Hazardous Material” or “Hazardous Materials” shall mean and include any substance, material, or waste which is or becomes regulated by any local governmental authority, including the County, Fresno County Health Care Agency, the Regional Water Quality Control Board, the State of California, or the United States Government, including, but not limited to, any material or substance which is: (i) defined as a “hazardous waste,” “acutely hazardous waste,” “restricted hazardous waste,” or “extremely hazardous waste” under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140, of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined as a “hazardous substance” under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter Presley Tanner Hazardous Substance Account Act); (iii) defined as a “hazardous material,” “hazardous substance,” or “hazardous waste” under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (iv) defined as a “hazardous substance” under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (v) petroleum; (vi) asbestos and/or asbestos containing materials; (vii) lead based paint or any lead based or lead products; (viii) polychlorinated biphenyls, (ix) designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act (33 U.S.C. Section 1317); (x) defined as a “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903); (xi) Methyl tert Butyl Ether; (xii) defined as “hazardous substances” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601,et seq. (42 U.S.C. Section 9601); (xiii) any other substance, whether in the form of a solid, liquid, gas or any other form whatsoever, which by any “Governmental Requirements” (as defined in Paragraph (c) of this Section 308) either requires special handling in its use, transportation, generation, collection, storage, handling, treatment or disposal, or is defined as “hazardous” or harmful to the environment; and/or (xiv) lead based paint pursuant to and defined in the Lead Based Paint Poisoning Prevention Act, Title X of the 1992 Housing and Community Development Act, 42 U.S.C. § 4800, et seq., specifically §§ 4821–4846, and the implementing regulations thereto. Notwithstanding the foregoing, “Hazardous Materials” shall not include such products in quantities as are customarily used in the construction, maintenance, rehabilitation, management, operation and residence of residential developments or associated buildings and grounds, or typically used in residential activities in a manner typical of other comparable residential developments, or substances commonly ingested by a significant population living within the applicable Project, including without limitation alcohol, aspirin, tobacco and saccharine. “Hazardous Materials Contamination” shall mean the contamination (whether presently existing or hereafter occurring) of the improvements, facilities, soil, groundwater, air or other elements on, in, or under the Subject Property by Hazardous Materials, or the contamination of the buildings, facilities, soil, groundwater, air or other elements on, in or of any other property as a result of Hazardous Materials at any time (whether before or after the Date of Agreement) emanating from the Subject Property. “HCD” shall mean the State of California Department of Housing and Community Development. 16 “Housing Unit” and “Housing Units” shall mean, one of the 82 housing units in the Project to be constructed and operated by Developer on the Subject Property as senior affordable rental housing for the Affordability Period. “HUD” shall mean the United States Department of Housing and Urban Development. “Implementation Agreement” and “Implementation Agreements” shall mean, individually and collectively, agreements entered into by City and Developer (or its permitted successors and/or assigns) in order to implement and/or clarify the terms of this Agreement, in accordance with the terms of this Agreement. “Improvements” shall mean the affordable housing units and any other improvements to be constructed on the Subject Property as part of the Project pursuant to this Agreement and as approved by the City. “Indemnitees” is defined in Section 204.4. “Integrated Community Development, LLC” shall mean ICD, California for-profit limited liability company. “Investor Limited Partner” shall mean each Tax Credit limited partner of Developer for the Project and their successors/assigns. “Legal Description” shall mean the description of the Subject Property which is attached hereto as Attachment No. 1 and incorporated herein. “Lender” shall mean each of the responsible financial lending institutions or persons or entities approved by City in its reasonable discretion, which provide the Primary Loans, including acquisition loan(s), construction loan(s) or permanent loan(s) for the construction, development, and/or operation of the applicable Project, as set forth in Section 310 hereof. “Low Income,” “Lower Income,” “Low Income Households” or “Lower Income Households” shall have the same meaning as prescribed in Section 405.1 hereof and shall mean and include both: (i) lower income households as defined in the Tax Credit Rules and (ii) 60% AMI Low Income Households. Lower Income Households include Very Low-Income Households and Extremely Low-Income Households, as defined in the Tax Credit Rules. “Marketing Program” shall mean the marketing plan and tenant selection program to be prepared by Developer and submitted to City for its review and approval as a Condition Precedent to obtaining a Certificate of Occupancy as further described in Section 408. “Memorandum of Agreement” shall mean the Memorandum of Affordable Housing Agreement to be executed by the parties in substantially the form attached hereto as Attachment No. 9 and fully incorporated by this reference, which Memorandum of Agreement shall include notice of this Agreement and the obligations of Developer to enter into the Ground Lease, complete the construction of the Project, and operate the Project as affordable rental housing pursuant to the terms of this Agreement. “Memorandum of Ground Lease” shall mean, collectively, the Memorandum of Ground Lease for the Project to be executed by the Developer in a form to be reasonably approved by City in its reasonable discretion, which Memorandum of Ground Lease shall include notice of the Ground Lease for the Project and the terms and provisions contained therein, and shall state that in no event shall City’s fee interest in the Subject Property be subordinated to deeds of trust or any other liens for financing recorded against the Subject 17 Property. “Notice” shall mean a notice in the form prescribed by Section 602 hereof. “Notice of Affordability Restrictions” shall mean, collectively, the notices to be executed by the parties in substantially the forms attached hereto as Attachment No. 7 and incorporated herein, which shall recite the affordability restrictions and restrictions on transfer imposed on the Subject Property by this Agreement, the Ground Lease, and the Regulatory Agreement, and which shall be recorded against the Subject Property, as applicable, at the Closing for the Project. “Official Records” shall mean the official land records of the County. “Operating Budget” and “Annual Budget” shall mean the annual operating budget for the Project that sets forth the projected Operating Expenses for the upcoming year that is subject to and shall be submitted for review and approval by City, through its Planning and Development Director, each year during the Affordability Period as set forth in Section 413 hereof. “Operating Expenses” shall mean actual, reasonable and customary (for comparable first quality rental housing developments in Fresno County) costs, fees and expenses directly incurred, paid, and attributable to the operation, maintenance and management of the Project in a calendar year, which are in accordance with the annual Operating Budget for the Project approved by City pursuant to Section 413 hereof, including but not limited to: painting, cleaning, repairs, alterations, landscaping, utilities, refuse removal, certificates, permits and licenses, sewer charges, real and personal property taxes, assessments, insurance, security, advertising and promotion, janitorial services, cleaning and building supplies, purchase, repair, servicing and installation of appliances, equipment, fixtures and furnishings, fees and expenses of property management, fees and expenses of accountants, attorneys and other professionals, the cost of social services and other housing supportive services provided at the Project consistent with Developer’s approved Application to TCAC for the Project and rules imposed by HUD with respect to the provision of Project Based Section 8 assistance, if any, repayment of any completion or operating loans made to Developer, deferred developer fee payments, and other actual, reasonable and customary operating costs and capital costs which are directly incurred and paid by Developer, but which are not paid from or eligible to be paid from the Capital Replacement Reserve or any other reserve accounts for the Project. To the extent the Operating Expenses for a Project are not reasonably consistent with the annual Operating Budget for a given year, the City shall reasonably review and approve to confirm such Operating Expenses are reasonable and actually incurred; provided, no approval shall be required for emergency expenditures reasonably necessary or appropriate to preserve life, limb, or property. Operating Expenses shall exclude all of the following: (i) salaries of employees of Developer or Developer’s general overhead expenses, or expenses, costs and fees paid to an Affiliate of Developer, to the extent any of the foregoing exceed the expenses, costs or fees that would be payable in a bona fide arms’ length transaction between unrelated parties in the Fresno County area for the same work or services; (ii) any amounts paid directly by a tenant of the Project to a third party in connection with expenses which, if incurred by Developer, would be Operating Expenses; (iii) optional or elective payments with respect to the Primary Loan (unless made with the consent of the City Manager in her reasonable discretion); (iv) any payments with respect to any Project-related loan or financing other than 18 the Primary Loan (unless made with the consent of the City Manager in her sole discretion); (v) expenses, expenditures, and charges of any nature whatsoever arising or incurred by Developer prior to completion of the applicable Project with respect to the development, maintenance and upkeep of the Project, or any portion thereof, including, without limitation, all costs and capitalized expenses incurred by Developer in connection with the lease of the Subject Property from the City (e.g. not leasing to low income tenants), all predevelopment and preconstruction activities conducted by Developer in connection with the Project, including, without limitation, the preparation of all plans and the performance of any tests, studies, investigations or other work, and the construction of the Project and any on-site or off-site work in connection therewith; (vi) depreciation, amortization, and accrued principal and interest expense on deferred payment debt; and (vii) any Partnership Related Fees to the extent they are not paid as capitalized expenses. “Operating Reserve” shall mean the Operating Reserve for the Project, which shall be funded by an installment of Tax Credit equity in a target amount equal to three (3) months of (i) Debt Service on the permanent Primary Loan and (ii) Operating Expenses pursuant to an approved Annual Budget for the applicable Project (Target Amount). The Operating Reserve shall thereafter be replenished from later installments of Tax Credit Equity and from Annual Project Revenue to maintain the Operating Reserve balance of the Target Amount. The operating reserve shall be used in compliance with Tax Credit Regulations and the Partnership Agreement. “Partnership Agreement” shall mean the agreement(s) which set(s) forth the terms of Developer’s (or its approved Affiliate(s)) limited partnership, as such agreement(s) may be amended from time to time, so long as consistent with the requirements of this Agreement. “Postponed Fees” is defined in Section 203. “Preliminary Budget” shall mean, budget, for the construction and development of the Subject Property, which are attached hereto as Attachment No. 3A and incorporated herein. “Primary Loan” shall mean, the permanent and construction financing obtained by Developer for the Project from one or more institutional lender(s) other than an Affiliate of Developer, as approved by City, which loan(s) shall be senior to City’s Regulatory Agreement, but subordinate to City’s fee interest in the Subject Property and the land use entitlement obtained by Developer, including the City Covenants. “Project” shall mean, 82 Housing Units and associated (on-site and off-site) and appurtenant improvements, upon the Subject Property as senior affordable rental housing development to be made available to Low Income Households and Very Low Income Households at an Affordable Rent, as more particularly described in Section 301 hereof and in the Scope of Development attached hereto as Attachment No. 4 and incorporated herein. “Property Management Plan” shall mean the management plan required to be created by Developer and submitted to City for approval, which approval shall not be unreasonably withheld, which shall include a detailed plan and strategy for long term marketing, operation, maintenance, repair and security of the Project, inclusive of on-site social services to the residents of the Project, and the method of selection of tenants, rules and regulations for tenants, and other rental policies and procedures for the applicable Project as set forth in Section 411.2. “Property Manager” shall mean the individual property manager or property 19 management company contracted by and with Developer, after obtaining City’s written approval of such individual or company, to perform the operation, maintenance, and management of the Project pursuant to Section 411. “Regulatory Agreement” shall mean, the Regulatory Agreement for the Project which shall be entered into by City and Developer concurrently with the Closing for the Project and which will be recorded as an encumbrance to the Subject Property in substantially the form attached hereto as Attachment No. 6 and incorporated herein, in accordance with Section 416 hereof. The Regulatory Agreement for the Project may be subordinate to the Primary Loan and the Tax Credit Regulatory Agreement for that Project subject to the requirements of this Agreement. “Release of Construction Covenants” shall mean the documents which shall evidence Developer’s satisfactory completion of the Project, as set forth in Section 305 hereof, substantially in the form of Attachment No. 5 hereto. “Request for Notice” or “Request for Notice of Default” shall mean the requests for notice of default pursuant to Civil Code Section 2924b to be recorded against the Subject Property in connection with the Escrow substantially in the form attached hereto as Attachment No. 8 and fully incorporated by this reference. “Reservation” means collectively, the reservations of Tax Credits by TCAC for the Project. “Reserve Deposits” shall mean any payments to the Capital Replacement Reserve and Operating Reserve accounts pursuant to Sections 412 and 413 hereof. “Schedule of Performance” shall mean (1) that certain Schedule of Performance attached hereto as Attachment No. 3 and incorporated herein, which sets forth the time for performing the various obligations of this Agreement and shall include (2) each supplemental Schedule of Performance to be attached to and incorporated into each Implementation Agreement for the Project, as the context dictates. It is understood the Schedule of Performance is subject to all of the terms and conditions set forth in this Agreement. The summary of the items of performance set forth in the Schedule of Performance is not intended to supersede or modify the more complete description in this Agreement; in the event of any inconsistency between the Schedule of Performance and this Agreement, this Agreement shall govern. The time periods set forth in the Schedule of Performance for City’s approval of submittals, including, without limitation, any plans and drawings, submitted to City by Developer shall only apply and commence upon Developer’s complete submittal of all the required information. In no event shall an incomplete submittal by Developer trigger any of City obligations of review and/or approval hereunder; provided, however, that the City shall notify Developer of an incomplete submittal as soon as is practicable and in no event later than the applicable time set forth for City’s action on the particular item in question. The Schedule of Performance is subject to revision from time to time as mutually agreed upon in writing between Developer and City Manager. Any and all extensions hereunder shall be by mutual written agreement of the City Manager and the Developer, which shall not cumulatively exceed 180 days without City Council approval. “Scope of Development” shall mean that certain Scope of Development attached 20 hereto as Attachment No. 4 and incorporated herein, which describes the scope and quality of the Project to be constructed by Developer pursuant to the terms and conditions of this Agreement. “Section 3” shall mean and refer to Section 3 of the Housing and Urban Development Act of 1968, 12 U.S.C. § 1701u, as amended. City has prepared a Section 3 “checklist” and other forms related to Section 3 compliance; and as provided by City to the Developer, its Contractor, Subcontractors, or other contractor(s) or subcontractor(s), as applicable, such forms shall be utilized in all contracts and subcontracts to which Section 3 applies. “Section 3 Clause” shall mean the language, set forth below, which is required to be included in each and every Construction Contact entered into by Developer, the Contractor, each Subcontractor and/or any other contractor(s) or subcontractor(s), as applicable, for the development of the Project. For purposes of this Section 3 Clause and compliance therewith, whenever the word “contractor” is used it shall mean and include, as applicable, the Developer, Contractor, any and all Subcontractors, and any other contractor(s) and subcontractor(s) performing work on the Project. Developer hereby acknowledges and agrees to take all responsibility for compliance with all Section 3 Clause federal requirements and further acknowledges and agrees that compliance with all Section 3 Clause requirements by Developer, the Contractor, all Subcontractors, and/or other contractor(s), subcontractor(s), and other agents, is the primary obligation of Developer. Developer shall provide or cause to be provided to its Contractor and each Subcontractor, and each of its other contractor(s),subcontractor(s) and agents, a checklist for compliance with the Section 3 Clause federal requirements, to obtain from the Contractor, each Subcontractor, and other contractor(s), subcontractor(s), and agents, all applicable items, documents, and other evidence of compliance with the items, actions, and other provisions within the checklist, and to submit all such completed Section 3 Clause documentation and proof of compliance to the City. The particular text to be utilized in any and all contracts of the Contractor or any Subcontractor doing work covered by Section 3 shall be in substantially the form of the following Section 3 Clause, as reasonably determined by City, or as directed by HUD or its representative, and shall be executed by the applicable contractor under penalty of perjury: “(i) The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (“Section 3”). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low and very low income persons (inclusive of Very Low Income Persons, Very Low Income Households, and Very Low Income Tenants served by the Project), particularly persons who are recipients of HUD assistance for housing. “(ii) The parties to this contract agree to comply with HUD’s regulations in 24 CFR Part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the Part 135 regulations. “(iii) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement 21 or other understanding, if any, a notice advising the labor organization or workers’ representative of the contractor’s commitments under this Section 3 clause, and will post copies of notices in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number of job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of person(s) taking applications for each of the positions; and the anticipated date the work shall begin. “(iv) The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR Part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR Part 135. “(v) The contractor will certify that any vacant employment positions, including training positions, that are filled (a) after the contractor is selected but before the contract is executed, and (b) with persons other than those to whom the regulations of 24 CFR Part 135 require employment opportunities to be directed, were not filled to circumvent the contractor’s obligations under 24 CFR Part 135. “(vi) Noncompliance with HUD’s regulations in 24 CFR Part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. “(vii) With respect to work performed in connection with Section 3 covered Indian Housing assistance, section 7(b) of the Indian Self Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible, (a) preference and opportunities for training and employment shall be given to Indians, and (b) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian owned Economic Enterprises. Parties to this contract that are subject to the provisions of Section 3 and section 7(b) agree to comply with Section 3 to the maximum extent feasible, but not in derogation of compliance with section 7(b).” After the foregoing Section 3 Clause, each Developer as to its Project shall add the signature block of the Contractor, Subcontractor, or other contractor(s) and subcontractor(s), as applicable, and shall add the following text immediately above the signature block: “The contractor/provider by this his signature affixed hereto declares under penalty of perjury that contractor has read the requirements of this Section 3 Clause and accepts all its requirements contained therein for all of his operations related to this contract.” “Senior” shall refer to persons 62 years or older. “Site Map” shall mean the map of the Site which is attached hereto as Attachment No. 22 2 and incorporated herein. “Subcontractor” and “Subcontractors” shall mean, individually and collectively, one or more subcontractors hired by Developer’s Contractor for the Project to perform and complete, or to engage and supervise others to perform and complete, the construction of the Project and all other on-site and off-site improvements required to be constructed in connection with the Project, all of which shall be in accordance with the Scope of Development, the land use entitlement to be approved by City, and the Development Plans. Developer shall submit to City information regarding the entity serving as the Subcontractor for any portion of the construction of the Project and all other on-site and off-site improvements required to be constructed in connection therewith in accordance with the Scope of Development, the land use entitlement to be approved by City, and the Development Plans, including all required licenses, certifications, insurance, etc., as reasonably requested by City Manager. “Subject Property” shall mean the real property consisting of approximately 1.21 acres of land located at 4323-4333 N. Blackstone Avenue (APN: 426-253-19) as more particularly described in Attachment 1. Whenever the term “Subject Property” is used in this Agreement it shall mean and include the land and all Improvements. “Tax Credit Regulatory Agreement” shall mean, collectively, the regulatory agreement(s) which may be required to be recorded against the Subject Property, as applicable, with respect to the issuance of Tax Credits for the Project. The Tax Credit Regulatory Agreement shall be subordinate and junior to the Ground Lease and City Covenants and land use entitlement. “Tax Credit Rules” shall mean Section 42 of the Internal Revenue Code and/or California Revenue and Taxation Code Sections 17057.5, 17058, 23610.4 and 23610.5 and California Health and Safety Code Section 50199, et seq., as applicable, as the foregoing may be amended from time to time, and the rules and regulations implementing the foregoing. “Tax Credits” shall mean federal 9% Low Income Housing Tax Credits granted pursuant to Section 42 of the Internal Revenue Code and/or California Revenue and Taxation Code Sections 17057.5, 17058, 23610.4 and 23610.5 and California Health and Safety Code Section 50199, et seq., as applicable. “TCAC” shall mean the California Tax Credit Allocation Committee, the allocating agency for Tax Credits in California. “Term” shall mean the 57-year Term of each Ground Lease, as defined therein, as it may be earlier terminated or extended according to the terms thereof. “Third Party Costs” is defined in Section 616. “Transfer Net Proceeds” shall mean the proceeds of any transfer, in whole or in part, of Developer’s leasehold interest in the Subject Property or any sale, assignment, sublease, or other transfer, in whole or in part of the Developer’s interests in the Subject Property, net reasonable and customary costs and expenses incurred in connection with such transfer. “Very Low Income” and/or “Very Low-Income Households” shall mean and include: (i) very low-income households as defined in the Tax Credit Rules; (ii) 30% AMI Very Low-Income Households; (iii) 45% AMI Very Low-Income Households; and (iv) 50% AMI Very Low-Income Households. Very Low-Income Households include Extremely Low-Income 23 Households, as defined in the Tax Credit Rules. “30% AMI Very Low-Income Households” shall mean those households earning not greater than 30% of Fresno County Area Median Income, adjusted for household size, which is set forth by regulation of TCAC. “45% AMI Very Low-Income Households” shall mean those households earning not greater than 45% of Fresno County Area Median Income, adjusted for household size, which is set forth by regulation of TCAC. “50% AMI Very Low-Income Households” shall mean those households earning not greater than 50% of Fresno County Area Median Income, adjusted for household size, which is set forth by regulation of TCAC. 60% AMI Low-Income Households” shall mean those households earning not greater than 60% of Fresno County Area Median Income, adjusted for household size, which is set forth by regulation of TCAC. 200. GROUND LEASE OF THE SUBJECT PROPERTY 201. Ground Lease. Subject to the terms and conditions set forth in this Agreement, City agrees to lease the Subject Property to Developer and Developer agrees to lease the Subject Property from City pursuant to the terms of the Ground Lease, which shall be in a form and content reasonably acceptable to the Developer and to the City, subject to approval as to legal form by City Attorney, in their reasonable discretion. 201.1 Term. The Term of the Ground Lease shall commence on the date of recordation of Memorandum of Ground Lease in the Official Records (Commencement Date) and shall continue thereafter until the earlier to occur of (a) the 55th anniversary of the recordation of the Release of Construction Covenants for the Project in the Official Records or (b) upon earlier termination as set forth in this Agreement or the Ground Lease. The Term of Ground Lease shall not commence in any event until the Conditions Precedent set forth in Section 202 have been satisfied as to the Project and the Closing shall have occurred. 201.2 Rent. Developer shall pay to City an amount equal to One Dollar ($1.00) on or before the first day of each calendar year during the Term of the Ground Lease (together with the advance rental payment, “Rent”), subject to payment of Additional Rent and the Rent adjustment set forth in subdivisions (a) and (b) of this Section 201.2. (a) Additional Rent. In addition to the Rent required by Section 201.2 above, Developer shall also pay to City as “Additional Rent” under the Ground Lease any amounts required to be paid by Developer to reimburse City for any payments made by City that are required to be paid by Developer pursuant to the Ground Lease, such as taxes and other impositions, insurance premiums, or costs of maintaining the Subject Property and the Project, all with interest, as shall be set forth in more detail in the Ground Lease. 201.3 Title to Improvements. Upon execution of Ground Lease for the Project, fee title to all Improvements located at the Project shall be held by the Developer for the Project. Upon expiration or earlier termination of the Ground Lease for the Project, the Improvements located on the Subject Property shall automatically vest in City; provided, in the event of a foreclosure of Developer’s interest in the Ground Lease, title to the 24 Improvements shall vest in the successor tenant under the Ground Lease, subject to the terms of the Ground Lease (or a new Ground Lease approved by City) entered into after such foreclosure, which shall provide that upon ultimate termination or expiration of the Ground Lease or such new Ground Lease entered into upon foreclosure or deed in lieu of foreclosure, title to such Improvements shall automatically vest in City. 202. Conditions Precedent to Commencement of Ground Lease. The commencement of the Term of the Ground Lease and City’s obligation to make the conditioned upon the satisfaction (or waiver by the benefited party) of the following terms and conditions within the times designated below (each, a “Condition Precedent,” collectively, “Conditions Precedent”). 202.1 City’s Conditions Precedent to the Closing. The commencement of the Term and effectiveness of the Ground Lease is subject to the fulfillment by Developer (or written waiver by City) of each and every one of the Conditions Precedent (a) through (q), inclusive, described below, which are solely for the benefit of City, and which shall be fulfilled by the Developer entity or waived by City within the time periods provided herein: (a) Execution and Recording of Documents. Developer shall have duly executed and delivered to Escrow Agent the Regulatory Agreement, Ground Lease, Memorandum of Ground Lease, Memorandum of Agreement, Notice of Affordability Restrictions, Request for Notice, City Covenants, and any other documents required hereunder for the Project, and such documents shall be ready for and meet all conditions to the Closing pursuant to the requirements of this Agreement, including any Implementation Agreement(s). The City Regulatory Agreement, Memorandum of Ground Lease, Memorandum of Agreement, Notice of Affordability Restrictions, Request for Notice, and City Covenants, shall be ready to record in the Official Records at Closing. (b) Grading Permits and Building Plans/Permits. Developer shall have obtained City approval of its Construction Drawings and all final grading and building plans for all of the Improvements to be constructed during the Project as required by Section 304. Grading permits shall be ready to issue upon payment of fees and any and all conditional building permits shall be ready to be issued concurrently with the grading permits upon payment of all necessary fees and all required security shall have been posted in order to commence and complete construction of both Projects. The conditional building permits shall state that final unconditional building permits shall be issued upon satisfactory completion of grading, subject to the sole discretion of City’s Building and Planning Departments. (c) Land Use Entitlements; City Covenants. Developer shall have obtained City approval of the Basic Concept Drawings and Design Development Drawings pursuant to Section 302 herein, and shall have received all land use entitlements for the Project (but for payment of fees associated therewith) from the City, including conditional use permit(s) or variance(s), if required, and including approval of all documentation, studies, and other reports required by the California Environmental Quality Act and the National 25 Environmental Policy Act (NEPA), as applicable. In connection therewith, the land use entitlements require that Developer cause to be recorded the City Covenants in a senior, non-subordinate lien position with respect to the Project; and, in this regard, the City Covenants shall be ready for recording concurrently and in a first, senior lien position. (d) Final Budget. Developer shall have submitted to City for its approval the detailed Final Budget for the Project of the construction and development of the Project, and City shall have approved the Final Budget for the Project in its reasonable discretion. (e) Evidence of Financing. Developer shall have provided written proof reasonably acceptable to City that Developer has obtained commitments for equity contributions, reservation of Tax Credits, and other approved affordable housing subsidies and/or loans, and Primary Loans (including the construction and permanent financing) for the Project, all subject to customary conditions, and City shall have reasonably approved such financing commitments pursuant to Section 310. (f) Partnership Agreement; Organizational Documents; Resolution. Developer shall have duly executed or, shall execute concurrently with Closing, a Partnership Agreement reasonably acceptable to City in accordance with Section 310 and a Certificate of Limited Partnership shall have been filed with the California Secretary of State, under which the limited partners are committed to make equity contributions in an amount, which together with the proceeds of the Primary Loan, the Tax Credits, and any additional affordable housing subsidies and loans are sufficient to finance the construction and development of the Project. In addition, Developer shall have certified in writing to City that the Primary Loan, Tax Credits, any additional affordable housing subsidies, Postponed Fees, Deferred Developer Fee, Deferred Contractor Fee, and required equity contributions, are together projected to be sufficient to pay for the completion of development of the Project. City shall have received and approved the Partnership Agreement and any other relevant organizational documents of Developer, including a resolution authorizing a representative of Developer to enter into this Agreement, the Regulatory Agreement, the Ground Lease, any Implementation Agreement(s) and to execute all of their documents required under the terms of this Agreement, all on behalf of Developer. (g) Construction Contract. Developer shall provide the City with copies of all agreements it has entered into with any and all general contractors or subcontractors for this Project. Developer shall require that each such general contractor agreement contain a provision whereby the party(ies) to the agreement, other than the Developer, agree to: (i) notify the City immediately of any event of default by the Developer thereunder, (ii) notify the City immediately of the filing of a mechanic’s lien, (iii) notify the City immediately of termination or cancellation of the construction agreement on the Project, and (iv) provide the City, upon the City’s request, an Estoppel Certificate certifying that the agreement is in full force and effect and the Developer is not in default thereunder. The Developer agrees to notify the City immediately of termination 26 or cancellation of any such agreement(s), notice of filing of a mechanic’s lien, or breach or default by other party(ies) thereto. Each Construction Contract shall include the Section 3 Clause, as applicable. The Construction Contract with the Contractor shall be for a fixed, all-inclusive fee to complete all work to be performed by the Contractor to construct the Project, subject to approved change orders. (h) Construction Security. If required by the construction lender and if city funds are used for and during the course of construction then the developer or its General Contractor shall obtain, pay for and deliver good and sufficient payment and performance bonds along with a Primary Obligee, Co- Obligee, or Multiple Obligee Rider in a form acceptable to the City from a corporate surety, admitted by the California Insurance Commissioner to do business in the State of California and Treasury-listed, in a form satisfactory to the City and naming the City as Obligee. (i) The “Faithful Performance Bond” shall be at least equal to 100% of the Developer’s estimated construction costs as reflected in the Developer’s budget, attached hereto as Attachment 3A, to the guarantee faithful performance of the Project, within the time prescribed, in a manner satisfactory to the City, consistent with this Agreement, and that all material and workmanship will be free from original or developed defects. (ii). The “Payment Bond” shall be at least equal to 100% of construction costs approved by the City to satisfy claims of material supplies and of mechanics and laborers employed for this Project. The bond shall be maintained by the Developer in full force and effect until the Project is completed and until all claims for materials and labor are paid and as required by the applicable provisions of Chapter 7, Title 15, Part 4, Division 3 of the California Civil Code. (iii). The “Material and Labor Bond” shall be at least equal to 100% of the Developer’s estimated construction costs as reflected in the Developer’s budget, attached hereto as Attachment 3A, to satisfy claims of material supplies and of mechanics and laborers employed for this Project. The bond shall be maintained by the Developer in full force and effect until the Project is completed, and until all claims for materials and labor are paid, released, or time barred, and shall otherwise comply with any applicable provision of the California Code. (i) Review and Approval of Title. Developer shall not have elected to terminate this Agreement due to the condition of title to the Subject Property pursuant to Section 205.7. (j) City’s Title Policy. The Title Company (as hereinafter defined) shall have unconditionally committed to issue the City Title Policy for the Subject Property, as applicable, to City pursuant to Section 205.8. (k) Environmental Condition of the Site. The environmental condition of the entire Subject Property shall be reasonably acceptable to 27 Developer, and Developer shall not have elected to terminate this Agreement pursuant to Section 204.3. (l) Proof of Insurance. Developer shall have provided to City certificates of insurance and endorsements which satisfy all requirements of Section 306 hereof as to the Project. (m) Property Management Plan. Developer shall have submitted to City, and City shall have reasonably approved, the Property Management Plan for the Project. (n) No Default; Representations and Warranties. Developer shall not be in Default of any of its obligations under the terms of this Agreement. All representations and warranties of Developer contained herein shall be true and correct in all material respects on and as of the Closing Date for the Project as though made at that time, and all covenants of Developer which are required to be performed prior to the Closing shall have been performed by such date. 202.2 Developer Conditions Precedent to the Closing. For the Project, Developer’s obligations to proceed with the commencement of the Term and effectiveness of Ground Lease are subject to the fulfillment or waiver by Developer as applicable, of each and all of the Conditions Precedent (a) through (j), inclusive, described below, which are solely for the benefit of the Developer entity, and which shall be fulfilled or waived by the time periods provided for herein: (a) Land Use Entitlement. Developer shall have obtained City and City approval of the Basic Concept Drawings and Design Development Drawings and shall have received the necessary land use entitlement for the Project from City, including conditional use permit(s) or variance(s), if required. (b) Grading Permits and Building Plans/Permits. Developer shall have obtained City approval of its Construction Drawings and all final grading and building plans for the Project. Initial rough grading as well as complete grading permits shall be ready to issue upon payment of fees and any and all conditional building permits shall be ready to be issued concurrently with such grading permits upon payment of all necessary fees and all required security shall have been posted in order to commence and complete construction of the Project. The conditional building permits shall state that final unconditional building permits shall be issued upon satisfactory completion of all rough and complete grading subject to the sole discretion of City’s Building and Planning Departments. (c) Condition of Site. City shall have fulfilled its obligations pursuant to Section 301.2 hereof to deliver the Subject Property to Developer clear of occupants and improvements. (d) Final Budget. City shall have approved a detailed Final Budget for the construction and development of the Project, and City shall have approved 28 the Final Budget for the Project in its reasonable discretion. (e) Evidence of Financing. Developer shall have obtained, and City shall have approved, a commitment for equity contributions, a reservation of Tax Credits, and other affordable housing subsidies and/or loans, and the Primary Loan, including the construction financing and permanent financing commitment for the applicable Project in form and substance acceptable to Developer, all subject to customary conditions, and City shall have reasonably approved such financing pursuant to Section 310. (f) Review and Approval of Title. Developer shall have reviewed and approved the condition of title to the Subject Property as provided herein. (g) Developer’s Title Policy. The Title Company shall have unconditionally committed to issue the Developer Title Policy for the Subject Property, as applicable, to Developer pursuant to Section 205.8. (h) Environmental Condition of the Site. The environmental condition of the Subject Property shall be reasonably acceptable to Developer and Developer shall not have elected to terminate this Agreement pursuant to Section 204.3. (i) No Default; Representations and Warranties. City shall not be in Default of any of its obligations under the terms of this Agreement. All representations and warranties of City contained herein shall be true and correct in all material respects on and as of the Closing Date for the Project as though made at that time, and all covenants of Developer which are required to be performed prior to Closing for the Project shall have been performed by such date. 203. Payment of Developer Fee and Contractor Fee The Developer Fee and the Contractor Fee shall be paid pursuant to Developer’s Limited Partnership Agreement and Construction Contract so long as both agreements have been provided to the City for review and are in compliance Tax Credit Regulations. 204. Environmental Condition of the Subject Property. 204.1 Environmental Condition of the Subject Property. True copies of Phase I and Phase II reports regarding the Subject Property, have been delivered by City to Developer (collectively, “Environmental Reports”). Except for the foregoing, City represents to Developer that it is not aware of, to its Best Knowledge, and it has not received any additional or unrelated notice or communication from any governmental agency having jurisdiction over the Subject Property, notifying it of the presence of Hazardous Materials in, on, or under the Subject Property, or any portion thereof. At all times relevant to this Agreement or the Ground Lease, Developer agrees to provide City with any additional supplemental or updated documents relating to the physical and/or environmental condition of the Subject Property, including those relating to the soils and groundwater, which are received by Developer. 204.2 Studies and Reports. Prior to the commencement of the Ground Lease, Developer may obtain data and make any other or additional surveys, tests, 29 studies, and reports necessary to evaluate the suitability of the Subject Property for the Project to carry out this Agreement, including the investigation of the environmental condition of the Subject Property (collectively, the “Studies”). Any studies undertaken on the Subject Property by Developer prior to the commencement of the applicable Ground Lease shall be done at the sole expense of Developer, and Developer shall execute a Right of Entry and License Agreement in a form reasonably acceptable to City prior to undertaking such work and entering the Subject Property. Any studies shall be undertaken only after all insurance required by and conforming to the requirements of such Right of Entry and License Agreement has been issued and is in full force and effect, and Developer has secured any necessary permits therefor from the appropriate governmental agencies. Developer hereby agrees to promptly provide City with any and all Studies relating to the environmental condition of the Subject Property upon Developer’s acquisition thereof. 204.3 Approval of Environmental Condition of the Site. Prior to the Closing, and within the time set forth in the Schedule of Performance attached to each Implementation Agreement, Developer shall approve or disapprove the environmental condition of the Subject Property by written notice to City. In the event that Developer disapproves the environmental condition of the Subject Property, this Agreement shall be terminated as provided in Section 504 hereof prior to the Closing for the Project. In the event Developer disapproves the condition of the Subject Property because it determines that environmental remediation is required to place the Subject Property in a condition suitable for use as required hereunder and subject to Developer’s termination right set forth in the immediately preceding sentence, City and Developer shall negotiate in good faith regarding the remediation of the Subject Property, and the allocation of the cost of performing such environmental remediation. If after such negotiation the parties are unable to reach agreement upon the remediation of the Subject Property, any party may terminate this Agreement as provided herein prior to the Closing. 204.4 Indemnification. Developer shall save, protect, pay for, defend (with counsel acceptable to City), indemnify and hold harmless City, and its respective elected and appointed officials, officers, employees, attorneys, representatives, volunteers, contractors and agents (collectively, “Indemnitees”) from and against any and all liabilities, suits, actions, claims, demands, penalties, damages (including, without limitation, penalties, fines and monetary sanctions), losses, costs or expenses (including, without limitation, consultants’ fees, investigation and laboratory fees, attorneys’ fees and remedial and response costs and third-party claims or costs) (the foregoing are hereinafter collectively referred to as “Liabilities”) that may now or in the future be incurred or suffered by Indemnitees by reason of, resulting from, in connection with or arising in any manner whatsoever as a direct or indirect result of: (i) the presence, use, release, escape, seepage, leakage, spillage, emission, generation, discharge, storage, or disposal of any Hazardous Materials in, on, under, or about, or the transportation of any such Hazardous Materials to or from, the Site; (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, leakage, spillage, emission, escape, discharge, storage, disposal, or transportation of Hazardous Materials in, on, under, or about, or to or from, the Site; (iii) the physical and environmental condition of the Site, and (iv) any Liabilities relating to any Environmental Laws and other Governmental Requirements relating to Hazardous Materials and/or the environmental and/or physical 30 condition of the Site; provided, however, that the foregoing indemnity shall not apply to any Liabilities arising or occurring (a) prior to the commencement of the Ground Lease, (b) after the expiration or earlier termination of the Term of the Ground Lease or the date Developer vacates the property, whichever occurs later, or (c) as a result of the grossly negligent or wrongful acts or omissions of City. The foregoing indemnification shall continue in full force and effect regardless of whether such condition, liability, loss, damage, cost, penalty, fine, and/or expense shall accrue or be discovered before or after the termination of the applicable Ground Lease. This indemnification supplements and in no way limits the indemnification set forth in Section 307. 204.5 Duty to Prevent Hazardous Material Contamination. During the construction, development, operation and management of the Project, Developer shall take all necessary precautions to prevent the release of any Hazardous Materials into the environment on or under the Subject Property. Such precautions shall include, but not be limited to, compliance with all Environmental Laws and other Governmental Requirements. Developer shall notify City, and provide to City a copy or copies of any notices of violation, notices to comply, citations, inquiries, clean-up or abatement orders, cease and desist orders, reports filed pursuant to self-reporting requirements and reports filed or applications made pursuant to all Environmental Laws and other Governmental Requirements, and Developer shall report to City, as soon as possible after each incident, any unusual or potentially important incidents in the event of a release of any Hazardous Materials into the environment. 204.6 Release of City by Developer. With the exception of the obligations of City under the Ground Lease, the land use entitlements for the Project, Environmental Laws and Government Requirements (except to the extent the responsibility for compliance with Environmental Laws and Governmental Requirements has been assumed by Developer hereunder), Developer hereby waives, releases and discharges forever the Indemnitees from all present and future claims, demands, suits, legal and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses, including attorney’s fees, court and litigation costs and fees of expert witnesses, present and future, arising out of or in any way connected with Developer’s possession or use of the Subject Property pursuant to the Ground Lease, improvement of the Subject Property in accordance with this Agreement, the Scope of Development, and the land use entitlements obtained by Developer for the Project, and for the operation of the Project at the Subject Property, of any Hazardous Materials on the Subject Property, or the existence of Hazardous Materials contamination in any state on, under, or about the Subject Property, however they came to be located there. In connection with the foregoing, Developer acknowledges that it is aware of and familiar with the provisions of Section 1542 of the California Civil Code that provides as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” 31 As such relates to this Section 204.6, Developer hereby waives and relinquishes all rights and benefits that it may have under Section 1542 of the California Civil Code. Notwithstanding the foregoing, this waiver, discharge, and release shall not be effective in the event the presence or release of Hazardous Materials on the Subject Property occurs as a result of the gross negligence or willful misconduct of City or their officers, employees, representatives and agents. 204.7 Environmental Inquiries. Developer shall notify City upon receipt, and provide to City a copy or copies, of the following environmental permits, disclosures, applications, entitlements or inquiries relating to the Subject Property and the Project: notices of violation, notices to comply, citations, inquiries, clean up or abatement orders, cease and desist orders, reports filed pursuant to self-reporting requirements and reports filed or applications made pursuant to any Environmental Laws and other applicable Governmental Requirements relating to Hazardous Materials and underground tanks, and Developer shall report to City, as soon as possible after each incident, all material information relating to or arising from such incident, including, but not limited to, the following: (a) All required reports of releases of Hazardous Materials, including notices of any release of Hazardous Materials as required by any Governmental Requirements; (b) All notices of suspension of any permits relating to Hazardous Materials; (c) All notices of violation from federal, state or local environmental authorities relating to Hazardous Materials; (d) All orders under the State Hazardous Waste Control Act and the State Hazardous Substance Account Act and corresponding federal statutes, concerning investigation, compliance schedules, clean up, or other remedial actions; (e) All orders under the Porter Cologne Act, including corrective action orders, cease and desist orders, and clean up and abatement orders; (f) Any notices of violation from OSHA or Cal OSHA concerning employees’ exposure to Hazardous Materials; (g) All complaints and other pleadings filed against Developer relating to Developer’s storage, use, transportation, handling or disposal of Hazardous Materials on or about the Subject Property; and Any and all other notices, citations, inquiries, orders, filings or any other reports containing information which would have a materially adverse effect on the 32 Subject Property or City’s liabilities or obligations relating to Hazardous Materials. In the event of a release of any Hazardous Materials into the environment, Developer shall, as soon as possible after the release, furnish to City a copy of any and all reports relating thereto and copies of all correspondence with governmental agencies relating to the release. Upon request of City, but subject to any limitations imposed by law or by court order, Developer shall furnish to City a copy or copies of any and all other environmental entitlements or inquiries relating to or affecting the Subject Property in Developer’s possession and/or shall notify City of any environmental entitlements or inquiries relating to or affecting the Subject Property within Developer’s actual or constructive knowledge if Developer is not in possession of same, including, but not limited to, all permit applications, permits and reports including, without limitation, those reports and other matters which may be characterized as confidential. 205. Escrow. W ithin the time set forth in the Schedule of Performance (or any revised Schedule of Performance appended to each Implementation Agreement, if any) for the Project, the parties shall open an escrow (each an “Escrow”) for the Closing for the conveyance by City to Developer (or Developer’s approved Affiliate assignee) of a ground leasehold interest in the Subject Property, with TICOR Title or another escrow company mutually satisfactory to both parties (Escrow Agent). “Closing” the Project refers to the close of Escrow, including the execution of the Ground Lease and the execution and recordation of the City Covenants, Regulatory Agreement, Memorandum of Agreement, Memorandum of Ground Lease, Notice of Affordability Restrictions and Request for Notice of Default and the commencement of the Ground Lease Term. 205.1 Costs of Escrow. Developer shall pay all Escrow charges, the premium for Developer’s Title Policy, City’s Title Policy (including both an owner’s policy and a lender’s policy, both with requested endorsements), all recording fees and documentary transfer taxes, if any, due with respect to the Closing, and all other fees, charges, and costs which arise from Escrow. 205.2 Escrow Instructions. This Agreement constitutes the joint escrow instructions of Developer and City, and the Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties agree to do all acts reasonably necessary to close each Escrow within the time set forth in the Schedule of Performance. All funds received in each Escrow shall be deposited with other escrow funds in a general escrow account(s) and may be transferred to any other such escrow trust account in any state or national bank doing business in the State of California. If in the opinion of any party it is necessary or convenient in order to accomplish the Closing of the Project’s Escrow, a party may require that the parties sign supplemental escrow instructions; provided that if there is any inconsistency between this Agreement and the supplemental escrow instructions, then the provisions of this Agreement shall control, unless the supplemental escrow instructions expressly state the intent to amend this Agreement. The parties agree to execute such other and further documents as may be reasonably necessary, helpful or appropriate to effectuate the provisions of this Agreement. The Project’s Closing shall take place within five days after the date when the Conditions Precedent set forth in Section 202 have been satisfied or waived (or authorized by City to be postponed until a date 33 certain post-Closing) by the respective parties as the Project. Escrow Agent is instructed to release City’s Escrow Closing statement and Developer’s Escrow Closing statement to the respective parties. 205.3 Authority of Escrow Agent. Escrow Agent is authorized to, and shall: (a) Pay and charge Developer for the premium of the Developer’s Title Policy and the City’s Title Policy (including both an owner’s policy and a lender’s policy, both with requested endorsements), and any endorsements thereto requested by Developer and/or City and any amount necessary to place title in the condition necessary to satisfy this Agreement; (b) Pay and charge Developer for all Escrow fees and charges; (c) Verify proper and complete execution of the City Covenants, Memorandum of Ground Lease, Regulatory Agreement, Memorandum of Agreement, Notice of Affordability Restrictions, and Request for Notice of Default upon Closing; and (d) Do such other actions as necessary, including obtaining any Developer and City title insurance, required to fulfill parties’ obligations under this Agreement. 205.4 Escrow Closing. The Closing for the conveyance of the ground leasehold estate in the Subject Property, as applicable, by City to Developer, and commencement of the Term of the Ground Lease, pursuant to the Ground Lease shall occur within five days of the parties’ satisfaction of all of the Conditions Precedent set forth in Section 202 hereof and within 180 days from the award of tax credits (unless extended by TCAC), but in no event later than [ , 20 ] (Closing Date). The Closing Date may be extended by the mutual written agreement of Developer and the City (through its City Manager). 205.5 Termination of Escrow. If Escrow is not in condition to close by the Closing Date, then any party who is not in material default under this Agreement may, in writing, demand the return of money or property and proceed under the default and/or termination provisions of this Agreement. If any party makes a written demand for return of documents or properties, the Escrow shall not cancel until five (5) days after Escrow Agent shall have delivered copies of such demand to all other parties at the respective addresses shown in this Agreement. If any objections are raised within said five (5) day period, Escrow Agent is authorized to hold all papers and documents until instructed by a court of competent jurisdiction or by mutual written instructions of the parties. Termination of this Agreement shall be without prejudice as to whatever legal rights any party may have against the other arising from this Agreement. If no demands are made, the Escrow Agent shall proceed with the Closing as soon as possible. 205.6 Closing Procedure. Escrow Agent shall close Escrow as follows: 34 (a) Accept receipt of fully and duly executed City Covenants, Ground Lease, Memorandum of Ground Lease, Regulatory Agreement, Memorandum of Agreement, Notice of Affordability Restrictions, and Request for Notice of Default; (b) Record documents in the following order: (i) Record first the Memorandum of Ground Lease in the Official Records, with instructions for the Recorder of Fresno County, California to deliver the Memorandum of Ground Lease to City; (ii) Record the City Covenants in the Official Records with instructions for the Recorder of Fresno County, California, to deliver the City Covenants to the City Clerk (unless required to be subordinated by the Primary Loan); (iii) Record the Primary Loan lien instrument, including the deed of trust securing the Primary Loan, in the Official Records; (iv) Record the Memorandum of Agreement in the Official Records, with instructions for the Recorder of Fresno County, California to deliver the Memorandum of Agreement to City; (v) Record the Regulatory Agreement in the Official Records, with instructions for the Recorder of Fresno County, California to deliver the Regulatory Agreement to City; (vi) Record the Notice of Affordability Restrictions in the Official Records, with instructions for the Recorder of Fresno County, California to deliver the Notice of Affordability Restrictions to City; (vii) Record the Request for Notice of Default in the Official Records, with instructions for the Recorder of Fresno County, California to deliver the Request for Notice of Default to City; (c) Instruct the Title Company to deliver Developer’s Title Policy to Developer and City’s Title Policy to City; (d) File any informational reports required by Internal Revenue Code Section 6045(e), as amended, and any other applicable requirements; and (e) Forward to both Developer and City a separate accounting of all funds received and disbursed for each party and copies of all executed and recorded or filed documents deposited into Escrow, with such recording and filing date and information endorsed thereon. 205.7 Review of Title. For the Project, City shall be responsible for obtaining a preliminary title report (Title Report) from TICOR Title or another title company mutually satisfactory to both parties (Title Company) with respect to the title to the Subject 35 Property. Developer and City each shall have the right to reasonably approve or disapprove the exceptions to title set forth in the Title Report (Exceptions); provided, however, that the following Exceptions are hereby approved by the parties: (a) The lien of any non-delinquent property taxes and assessments (to be prorated at the time of Closing); and (b) The provisions to be set forth in the City Covenants, Memorandum of Ground Lease (which shall incorporate by reference the terms of the Ground Leases), Regulatory Agreements, Memorandum of Agreement (which incorporates by reference the terms of this Agreement), and Notices of Affordability Restrictions. Each party shall have thirty (30) days from the date of its receipt of the Title Report and legible copies of all back-up documents listed as Exceptions therein or shown on any Survey to give written notice to the other party and to Escrow Agent of approval or disapproval of any of such Exceptions; provided, however, that if following review of the Title Report, the Title Company adds additional exceptions to coverage for matters not caused by a party, each party shall have the right to approve or disapprove any such exceptions (such new exceptions shall likewise be included within the definition of the term “Exceptions”). Except for deed(s) of trust and regulatory agreement(s) approved as part of the financing for the Project pursuant to Section 310, City and Developer shall not voluntarily create any new exceptions to title following the Date of Agreement and prior to the Closing, including without limitation any liens or stop notices related to any studies or other work at the Subject Property. City and Developer shall use good faith efforts to attempt to remove or modify any Exceptions which are unacceptable. If any Exceptions disapproved by Developer are not removed, insured, or endorsed around, by the Title Company, each party shall have the option to either proceed to Closing and accept title in its existing condition, or to terminate this Agreement. 205.8 Title Insurance. Concurrently with the Closing for the Project, there shall be issued to Developer at Developer’s sole cost, a CLTA or, if requested by Developer, an ALTA leasehold policy of title insurance, together with all endorsements Developer may reasonably require (collectively, the “Developer Title Policy”), issued by the Title Company insuring that Developer holds proper interest in the Subject Property, as tenant under the Ground Lease and that the title to the Subject Property, is vested in City in the condition required by this Agreement. The Title Company shall provide Developer and City with copies of the Developer Title Policy. Concurrently with the Closing for the Project, there shall be issued to City an ALTA owner’s policy and an ALTA lender’s policy of title insurance, together with all endorsements City may reasonably require (collectively, the “City Title Policy”), issued by the Title Company insuring that City continues to hold proper fee interest in the Subject Property, as fee owner. The Title Company shall provide Developer and City with copies of the City Title Policy. The City Title Policy insuring City’s fee interest in the Subject Property shall be for the estimated fair market value of the to be improved Subject Property, including both the land and improvements. 36 300. DEVELOPMENT OF THE PROJECT. 301. Development of the Project. Subject to the terms of this Agreement, Developer agrees to construct and develop or cause construction and development through completion of the Project, including all on-site and off-site improvements required to be constructed in accordance with the Scope of Development and in compliance with the land use entitlement approved by the City and all applicable local codes, development standards, ordinances and zoning ordinances, other applicable Governmental Requirements, and the Development Plans which are approved by the City pursuant to Section 302 hereof. The Project shall include eighty-two (82) Housing Units (seventy-three (73) of which shall be one-bedroom Housing Units and the remaining nine (9) shall be two- bedroom Housing Units, inclusive of one unrestricted manager unit), a community room, management office, central laundry facilities, elevators, on-site covered parking, and passive recreational areas. Each Housing Unit shall include a range, frost-free refrigerator, dishwasher, garbage disposal, central heating and air conditioning, granite countertops, coat closets, mini blinds, vinyl flooring in kitchens and bathrooms, carpeting in living areas and shall include CAT 5 wiring. All of the Housing Units shall be designed for energy efficiency and include energy efficient appliances. The project shall comply with 24 CFR Part 8 , which implements Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), including, without limitation, the construction of the Project so that it meets the applicable accessibility requirements, including, but not limited to, the following: A. At least 5% of the dwelling units, or at least three, whichever is greater, must be constructed to be accessible for persons with mobility disabilities. An additional 2% of the dwelling units, or at least two unit, whichever is greater, must be accessible for persons with hearing or visual disabilities. These units must be constructed in accordance with the Uniform Federal Accessibility Standards (U.F.A.S.) or a standard that is equivalent or stricter. B. The design and construction requirements of the Fair Housing Act (Title VIII of the Civil Rights Act of 1968, as amended), including the following seven requirements of the Fair Housing Accessibility Guidelines: a. Provide at least one accessible building entrance on an accessible route. b. Construct accessible and usable public and common use areas. c. Construct all doors to be accessible and usable by persons in wheelchairs. d. Provide an accessible route into and through the covered dwelling unit. e. Provide light switches, electrical outlets, thermostats and other environmental controls in accessible locations. f. Construct reinforced bathroom walls for later installation of grab bars around toilets, tubs, shower stalls and shower seats, where such facilities are provided. 37 g. Provide usable kitchens and bathrooms such that an individual who uses a wheelchair can maneuver about the space. C. Title III of the Americans with Disability Act of 1990 (ADA) as it relates to the required accessibility of public and common use area of the Project. D. The design and construction requirements as required by the CITY’s Universal Design Ordinance pursuant to Fresno Municipal Code 11-110, including, but not limited to the following requirements: a. No step accessible entryway; b. All interior doorways and passageways at least 32 inches wide; c. One downstairs “flex room” and accessible bathroom with reinforcements for grab bars; d. Six square feet of accessible kitchen counter space; and e. Hallways at least 42 inches wide. 301.1 RESERVED. Management. 301.2 Delivery of Clear Site. Prior to the Closing, City shall have cleared the Subject Property of existing improvements, if any, located at the Subject Property. 302. Design Review. 302.1 Basic Concept Drawings. Withing the time set forth in the Schedule of Performance, Developer shall submit to City and City shall review and approve, disapprove, or conditionally approve basic concept drawings for the Project and all appurtenant improvements, including materials, color board, elevations of all four sides of the Project, preliminary landscape plans (both hardscape and softscape and other amenities of common areas) consistent with the City of Fresno Municipal Code, a traffic and circulation plan as applicable or as may be required, and a rendered perspective, and all appurtenant improvements (collectively, “Basic Concept Drawings”). In the event Developer wishes to in any way alter or modify such Basic Concept Drawings, Developer shall re-submit such modified Basic Concept Drawings to City for its reasonable review and approval of such modifications. 302.2 Design Development Drawings. Within the time set forth in the Schedule of Performance attached to each Implementation Agreement for the Project, Developer shall submit to City, and City shall review and approve, disapprove, or conditionally approve, the plans and drawings with respect to the Project (“Design Development Drawings”) consistent with the City of Fresno Municipal Code, including each of the following: (a) Applicable accessibility requirements including, but not limited to the design and construction requirements as required by the City’s Universal Design Ordinance pursuant to Fresno Municipal Code section 11-110, including but not limited to the following requirements 38 i. No step accessible entryway; ii. All interior doorways and passageways at least 32 inches wide; iii. One downstairs “flex room” and accessible bathroom with reinforcements for grab bars; iv. Six square feet of accessible kitchen counter space; and v. Hallways at least 42 inches wide (b) A fully dimensioned Site Plan which complies with the City’s land use entitlement and site plan submittal process for review by the City (through City’s Planning Director, administrative approval of the land use entitlement, or as applicable, the Planning Commission or City Council approval of same all pursuant to applicable local, state and federal laws and regulations), which includes a landscape plan, with hardscape and softscape plans, sections and elevations, including lighting, equipment, furnishings and planting schedules, materials, and color board for all such improvements. (c) Floor plans. (d) Roof plans. (e) Elevations and project sections. (f) Tabulation of areas/uses. (g) Elevations of major public spaces. (h) Graphics and signage plans, together with schedules and samples or manufacturer’s literature. (i) Parking areas, both for tenants and guests. (j) Common area amenities, including all recreational or leisure areas or improvements. (k) Lighting schedules with samples or manufacturer’s literature for exterior lighting and lighting on building exteriors. Lighting locations are to be shown on landscape plans and elevations. In the event Developer wishes to in any way alter or modify the Design Development Drawings, Developer shall re-submit such modified Design Development Drawings, including provision for each of the above elements set forth in subsections (a) through (k) above, to City for its reasonable review and approval of such modifications. 302.3 Construction Drawings and Related Documents. W ithin the time set forth in the Schedule of Performance attached to the Implementation Agreement for the Project, Developer shall submit to City, and City shall review and approve, disapprove, 39 or conditionally approve, detailed construction plans/working drawings with respect to the Project, including without limitation a grading plan, which shall have been prepared by a registered civil engineer (Construction Drawings). Standards for Disapproval. City shall have the right to disapprove the Basic Concept Drawings in its sole and complete discretion. City shall have the right to disapprove in its reasonable discretion any of the Design Development Drawings if (a) the Design Development Drawings do not conform to the approved Basic Concept Drawings, or (b) the Design Development Drawings do not conform to the City guidelines, or (c) the Design Development Drawings do not conform to this Agreement, or (d) the Design Development Drawings are incomplete. City shall have the right to disapprove in its reasonable discretion any of the Construction Drawings if (a) the Construction Drawings do not conform to the approved Design Development Drawings, or (b) the Construction Drawings do not conform to the Scope of Development or this Agreement, or (c) the Construction Drawings are incomplete. City review and subsequent approval or disapproval shall be conducted within the time periods set forth in the Schedule of Performance attached to each Implementation Agreement for its Project, and an City disapproval, if any, shall include a written statement of the reasons for such disapproval. Developer, upon receipt of any such disapproval, shall revise such portions and resubmit the disapproved Basic Concept Drawings, Design Development Drawings, or Construction Drawings, as the case may be, by the time established therefor in the Schedule of Performance attached to the Implementation Agreement for the Project; provided, however, in no event shall any such drawings be deemed approved. Developer acknowledges and agrees that City is entitled to approve or disapprove the Basic Concept Drawings, Design Development Drawings and Construction Drawings (collectively, “Development Plans”) in order to satisfy City’s obligation to promote the sound development of the Subject Property, to promote a high level of design which will impact the surrounding development, and to provide an environment for the social, economic and psychological growth and well-being of the citizens of the City and all residents of the Project. 302.4 Consultation and Coordination. During the preparation of the Development Plans and throughout construction of the Project, City staff and authorized representatives of Developer shall hold joint progress meetings with City staff to coordinate the preparation of, submission to, and review of the Development Plans by City. City staff and authorized Developer representatives shall communicate and consult informally as frequently as is necessary to ensure that the formal submittal of any documents to City can receive prompt and thorough consideration. City shall designate a City staff member to serve as the project manager for the Project, who shall be responsible for the coordination of City’s activities under this Agreement and for coordinating the permitting process. 302.6 Revisions and Change Orders. In the event City disapproves 40 or conditionally approves the Development Plans, or any part(s) thereof, or if Developer desires to propose any substantial revisions to the approved Development Plans, or any part(s) thereof, Developer shall submit its revisions or proposed changes thereto to City and shall also proceed in accordance with any and all Governmental Requirements regarding such revisions, within the time frame set forth in the Schedule of Performance attached to each Implementation Agreement for the Project for the resubmittal of such Development Plans, or any part(s) thereof. Any revision or change to such Development Plans proposed by Developer may be approved through the City Manager in her sole and absolute discretion. Any and all change orders or revisions required by the City and its inspectors that are required under the Fresno Municipal Code and all other applicable Uniform Codes (e.g. Building, Plumbing, Fire, Electrical, etc.) and under other Governmental Requirements shall be included by Developer in its Development Plans and completed during the construction of the Project. In the event Developer requests revisions, alterations, or modifications to the Development Plans, or any part(s) thereof, for any reason including increased construction costs because of unforeseen occurrences or conditions relating to the construction of the Project, said changes shall be covered using Developer’s 5% hard cost contingency. Developer shall be responsible for any changes orders in the event there are no funds available in the 5% hard cost contingency, however, Developer shall have the ability to reallocate soft cost savings subject to the approval of the construction lender. 302.7 Defects in Development Plans. City shall not be responsible to Developer or to any third parties in any way for (a) any defects in the Development Plans, (b) any structural or other defects in any work done according to the approved Development Plans, nor (c) any delays caused by the review and approval processes established by this Section 302.7. Developer shall hold harmless, indemnify and defend the Indemnitees from and against any claims or suits for damages to property or injuries to persons (including death) arising out of or in any way relating to defects, latent or patent, in the Development Plans, or the actual construction work and improvements comprising the Project, including, without limitation, the violation of any Governmental Requirements, or arising out of or in any way relating to any defects in any work done and/or improvements completed according to the approved Development Plans. 303. Timing of Development of Project. Developer hereby covenants and agrees to commence the construction and development of the Project within the time set forth in the Schedule of Performance attached and appended to and included in each Implementation Agreement for the Project (subject to force majeure pursuant to Section 503 hereof). Developer further covenants and agrees to diligently prosecute to completion the construction and development of the Project in accordance with the approved Development Plans (as the same may be modified in accordance herewith) and to file a notice of completion therefor pursuant to California Civil Code Section 3093 within the time set forth in the Schedule of Performance attached to the Implementation Agreement for the Project. 304. City and Other Governmental Permits. As a Condition Precedent to Closing for the Project pursuant to Section 202, Developer shall have received, or shall be ready to receive upon payment of required fees, all required final grading permits and conditional 41 building permits for the construction of the Project. Before commencement of construction of the Project or any environmental remediation required for the Project, if any, Developer shall secure or cause its Contractor (and subcontractors) to secure any and all permits and approvals which may be required by City or any other governmental agency affected by such construction, including, without limitation, rough grading permits, final grading permits, conditional building permits, final building permits. The conditional building permits may state that the final unconditional building permits shall be issued upon satisfactory completion of rough and complete grading, subject to the sole discretion of the City’s Building and Planning Departments. Developer shall pay all necessary fees and timely submit to the City final drawings with final corrections to the Development Plans to obtain any and all such permits. City staff will, without obligation to incur liability or expense therefor, use their reasonable efforts to expedite the City’s issuance of final building permits and certificates of occupancy that meet Governmental Requirements and this Agreement. 305. Release of Construction Covenants. Promptly after the completion of the Project in conformity with this Agreement (as reasonably determined by the City Manager or her designee) and as determined completed by the City’s building official, upon the written request of Developer, City shall furnish Developer with a Release of Construction Covenants for the Project as applicable (substantially in the form attached hereto as Attachment No. 5 incorporated herein) which evidences and determines the satisfactory completion of the construction and development of the Project in accordance with this Agreement. The issuance and recordation of the Release of Construction Covenants with respect to the Project shall not supersede, cancel, amend or limit the continued effectiveness of any obligations relating to the maintenance, operation, uses, payment of monies, or any other obligations, except for the obligation to complete the development of the Project as of the time of the issuance of the Release of Construction Covenants as to the Project. 306. Insurance Requirements. (a) Throughout the life of this Agreement, DEVELOPER shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, DEVELOPER or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to DEVELOPER shall be withheld until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve DEVELOPER of its 42 responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by DEVELOPER shall not be deemed to release or diminish the liability of DEVELOPER, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by DEVELOPER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of DEVELOPER, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. MINIMUM LIMITS OF INSURANCE DEVELOPER shall procure and maintain for the duration of the contract, and for 5 years thereafter, insurance with limits of liability not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY (i) $2,000,000 per occurrence for bodily injury and property damage; (ii) $2,000,000 per occurrence for personal and advertising injury; (iii) $4,000,000 aggregate for products and completed operations; and, (iv) $4,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY 43 $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation Insurance as required by the State of California with statutory limits and EMPLOYER’S LIABILITY with limits of liability not less than: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 4. CONTRACTORS POLLUTION LEGAL LIABILITY with coverage for bodily injury, property damage or pollution clean-up costs that could result from of pollution condition, both sudden and gradual. Including a discharge of pollutants brought to the work site, a release of pre-existing pollutants at the site, or other pollution conditions with limits of liability of not less than the following: (i) $1,000,000 per occurrence or claim; and, (ii) $2,000,000 general aggregate per annual policy period. (a) In the event this Agreement involves the transportation of hazardous material, either the Commercial Automobile policy or other appropriate insurance policy shall be endorsed to include Transportation Pollution Liability insurance covering materials to be transported by DEVELOPER pursuant to the Agreement. UMBRELLA OR EXCESS INSURANCE In the event DEVELOPER purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS DEVELOPER shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and DEVELOPER shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared on the Certificate of Insurance, and approved by, the CITY’S Risk Manager or his/her designee. At the option of the CITY’S Risk Manager or his/her designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects CITY, its officers, officials, employees, agents and volunteers; or (ii) DEVELOPER shall provide a financial guarantee, satisfactory to CITY’S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall CITY be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS (i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to CITY, except ten (10) days for nonpayment of premium. DEVELOPER is also responsible for providing written notice to the CITY under 44 the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, DEVELOPER shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, DEVELOPER shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. (ii) The Commercial General, Automobile, and Pollution Liability insurance policies shall be written on an occurrence form. (iii) The Commercial General, Automobile and Contractors Pollution Liability insurance policies shall be endorsed to name City, its officers, officials, agents, employees and volunteers as an additional insured. DEVELOPER shall establish additional insured status for the City and for all ongoing and completed operations under both Commercial General and Commercial Pollution Liability policies by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37. (iv) All such policies of insurance shall be endorsed so the DEVELOPER’S insurance shall be primary and no contribution shall be required of City. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents and volunteers. If DEVELOPER maintains higher limits of liability than the minimums shown above, City requires and shall be entitled to coverage for the higher limits of liability maintained by DEVELOPER. (v) Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. (vi) For any claims related to this Agreement, DEVELOPER’S insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, agents, employees and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, agents, employees and volunteers shall be excess of the DEVELOPER’S insurance and shall not contribute with it. (vii) The Workers’ Compensation insurance policy shall contain, or be endorsed to contain, a waiver of subrogation as to CITY, its officers, officials, agents, employees and volunteers. PROVIDING OF DOCUMENTS - DEVELOPER shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required herein All certificates and applicable endorsements are to be received and approved by the CITY’S Risk Manager or his/her designee prior to CITY’S execution of the Agreement and before work commences. All non- ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, DEVELOPER shall immediately furnish CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All subcontractors working under the direction of DEVELOPER shall also be required to provide all documents noted herein. 45 SUBCONTRACTORS -If DEVELOPER subcontracts any or all of the services to be performed under this Agreement, DEVELOPER shall require, at the discretion of the CITY Risk Manager or designee, subcontractor (s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractors must be reviewed and preapproved by CITY Risk Manager or designee. If no Side Agreement is required, DEVELOPER shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and DEVELOPER shall ensure that CITY, its officers, officials, employees, agents and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with DEVELOPER, and CITY, prior to commencement of any work by the subcontractors. 307. Indemnity. To the furthest extent allowed by law, including California Civil Code section 2782, DEVELOPER shall indemnify, defend and hold harmless CITY and each of its officers, officials, employees, agents, and volunteers from any and all claims, demands, actions in law or equity, loss, liability, fines, penalties, forfeitures, interest, costs including legal fees, and damages (whether in contract, tort, or strict liability, including but not limited to personal injury, death at any time, property damage, or loss of any type) arising or alleged to have arisen directly or indirectly out of (1) any voluntary or involuntary act or omission, (2) error, omission or negligence, or (3) the performance or non-performance of this Contract . DEVELOPER'S obligations as set forth in this section shall apply regardless of whether CITY or any of its officers, officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of CITY or any of its officers, officials, employees, agents or volunteers. To the fullest extent allowed by law, and in addition to the express duty to indemnify, DEVELOPER, whenever there is any causal connection between the DEVELOPER’s performance or non-performance of the work or services required under this Contract and any claim or loss, injury or damage of any type, DEVELOPER expressly agrees to undertake a duty to defend CITY and any of its officers, officials, employees, agents, or volunteers, as a separate duty, independent of and broader that the duty to indemnify. The duty to defend as herein agreed to by DEVELOPER expressly includes all costs of litigation, attorneys fees, settlement costs and expenses in connection with claims or litigation, whether or not the claims are valid, false or groundless, as long as the claims could be in any manner be causally connected to DEVELOPER as reasonably determined by CITY. Upon the tender by CITY to DEVELOPER, DEVELOPER shall be bound and obligated to assume the defense of CITY and any of its officers, officials, employees, agents, or volunteers, including the a duty to settle and otherwise pursue settlement negotiations, and shall pay, liquidate, discharge and satisfy any and all settlements, judgments, awards, or expenses resulting from or arising out of the claims without reimbursement from CITY or any of its officers, officials, employees, agents, or volunteers. It is further understood and agreed by DEVELOPER that if CITY tenders a defense of a claim on behalf of CITY or any of its officers, officials, employees, agents, or volunteers and DEVELOPER fails, refuses or neglects to assume the defense thereof, CITY and its officers, officials, employees, agents, or volunteers may agree to compromise and settle or defend any such claim or action and DEVELOPER shall be bound and obligated to reimburse CITY and its officers, officials, employees, agents, or volunteers for the amounts 46 expended by each in defending or settling such claim, or in the amount required to pay any judgment rendered therein. The defense and indemnity obligations set forth above shall be direct obligations and shall be separate from and shall not be limited in any manner by any insurance procured in accordance with the insurance requirements set forth in this Contract. In addition, such obligations remain in force regardless of whether CITY provided approval for, or did not review or object to, any insurance DEVELOPER may have procured in a accordance with the insurance requirements set forth in this Contract. The defense and indemnity obligations shall arise at such time that any claim is made, or loss, injury or damage of any type has been incurred by CITY, and the entry of judgment, arbitration, or litigation of any claim shall not be a condition precedent to these obligations. The defense and indemnity obligations set forth in this section shall survive termination or expiration of this Contract. If DEVELOPER should subcontract all or any portion of the work to be performed under this Contract, DEVELOPER shall require each subcontractor to Indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms as set forth above. 308. Entry by City. From the date of the Closing and thereafter, Developer (and its successor and assigns) shall permit City and their officers, employees, consultants, and agents at all reasonable times, and in compliance with the reasonable safety policies and procedures of Developer and its contractor, to enter onto the Subject Property and inspect the work of development of the Project to determine that the same is in conformity with the Development Plans and all the requirements hereof. Developer acknowledges that City is under no obligation to supervise, inspect, or inform Developer of the progress of construction, and Developer shall not rely upon City therefor. Any inspection by City is entirely for its purposes in determining whether Developer is in compliance with this Agreement and is not for the purpose of determining or informing Developer of the quality or suitability of construction or any other work at the Subject Property. Developer shall rely entirely upon its own supervision and inspection in determining the quality and suitability of the materials and work, and the performance of architects, subcontractors, and material suppliers. 309. Compliance with Laws. Developer shall carry out the design, construction, development and operation thereof in conformity with all applicable federal, state and local laws, including, without limitation, all applicable state labor standards, City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the Fresno Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq., and any other applicable Governmental Requirements. Developer (and its Affiliates and successors and assigns) shall pay prior to delinquency all ad valorem real estate taxes, possessory interest taxes, and assessments as to the Project, subject to Developer’s (and its Affiliates and successors and assigns) right to contest in good faith any such taxes. Developer may apply for and receive any exemption from the payment of property taxes or assessments on any interest in or as to the Project without the prior 47 approval of City. 309.1 Prevailing Wage Laws. Developer shall carry out the construction through completion of the Project and the overall development of the Subject Property in conformity with all applicable federal, state and local labor laws and regulations, including, without limitation, as applicable, the requirements to pay prevailing wages under federal law (the Davis-Bacon Act, 40 U.S.C. Section 3141, et seq., and the regulations promulgated thereunder set forth at 29 CFR Part 1 (collectively, “Davis-Bacon”)) and California law (Labor Code Section 1720, et seq.). The Council of the City of Fresno has adopted Resolution No. 82-297 ascertaining the general prevailing rate of per diem wages and per diem wages for holidays and overtime in the Fresno area for each craft, classification or type of workman needed in the execution of contracts for the CITY. A copy of the resolution is on file at the Office of the City Clerk, City Hall, second floor. Actual wage schedules are available upon request at the City’s Construction Management Office, 1721 Van Ness Avenue. Developer shall be solely responsible, expressly or impliedly, for determining and effectuating compliance with all applicable federal, state and local public works requirements, prevailing wage laws, labor laws and standards, and City makes no representation, either legally and/or financially, as to the applicability or non-applicability of any federal, state and local laws to the Projects, either onsite or offsite. Developer expressly, knowingly and voluntarily acknowledges and agrees that City has not previously represented to Developer or to any representative, agent or Affiliate of Developer, or its Contractor or any subcontractor(s) for the construction or development of the Project, in writing or otherwise, in a call for bids or otherwise, that the work and construction undertaken pursuant to this Agreement is (or is not) a “public work,” as defined in Section 1720 of the Labor Code or under Davis-Bacon. Developer knowingly and voluntarily agrees that Developer shall have the obligation to provide any and all disclosures or identifications as required by Labor Code Section 1781 and/or by Davis-Bacon, as the same may be amended from time to time, or any other similar law or regulation. Developer shall indemnify, protect, pay for, defend (with legal counsel chosen by City) and hold harmless the Indemnitees, from and against any and all loss, liability, damage, claim, cost, expense and/or “increased costs” (including reasonable attorney’s fees, court and litigation costs, and fees of expert witnesses) which, in connection with the development, construction (as defined by applicable law) and/or operation of the Project, including, without limitation, any and all public works (as defined by applicable law), results or arises in any way from any of the following: (i) the noncompliance by Developer with any applicable local, state and/or federal law or regulation, including, without limitation, any applicable federal and/or state labor laws or regulations (including, without limitation, if applicable, the requirement to pay state and/or federal prevailing wages); (ii) the implementation of Section 1781 of the Labor Code and/or of Davis-Bacon, as the same may be amended from time to time, or any other similar law or regulation; and/or (iii) failure by Developer to provide any required disclosure or identification as required by Labor Code Section 1781 and/or by Davis- Bacon, as the same may be amended from time to time, or any other similar law or regulation. It is agreed by the parties that, in connection with the development and construction (as defined by applicable law or regulation) of the Project, without limitation, any and all public works (as defined by applicable law or regulation), Developer shall bear 48 all risks of payment or non-payment of prevailing wages under applicable federal, state and local law or regulation and/or the implementation of Labor Code Section 1781 and/or by Davis-Bacon, as the same may be amended from time to time, and/or any other similar law or regulation. “Increased costs,” as used in this Section 309.1, shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be amended from time to time. The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the construction and development of both Projects by Developer. 309.2 Section 3 Compliance. Developer agrees to comply with and to cause the Contractor, each Subcontractor, and any other contractors and/or subcontractors or agents of Developer to comply with the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. § 1701u, and the implementing regulations, in connection with the construction of the Project. Developer shall submit to City each Construction Contract with appropriate provisions providing for the construction of the Project in conformance with the terms of this Agreement, including the Section 3 Clause. The Contractor, each Subcontractor, and any other contractors or subcontractors or agents of Developer shall have provided to City the certification in appendix B of 24 CFR Part 24 that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation from the Project, and City shall be responsible for determining whether each contractor has been debarred. 310. Financing of the Project. 310.1 Preferred Financing Structure. Developer shall use its reasonable and best efforts to apply for and secure an allocation of 9% Tax Credits and additional gap financing for the Project pursuant to Title 4, California Code of Regulations Section 10323(c)(2). The parties acknowledge and agree that the specific financing for the Project is not assured, and that the possible financing structures and varied funding sources and scenarios for the Project shall be pursued in the following order of preference and priority. (a) Project. (i) Developer shall submit a complete 9% Tax Credit Application for the Project (which Application shall be consistent with the terms of this Agreement) to TCAC on or before the TCAC deadline for such submission next following the Date of Agreement. (ii) In the event Developer does not receive an allocation of 9% Tax Credits for the Project based on its first Application submittal to TCAC, City and Developer shall meet and confer in good faith to determine if another method of financing the Project is available and preferable to the method set forth herein. After such meeting(s) with Developer, City shall, at its reasonable discretion but sole option, either: (i) allow Developer to submit a second Application to TCAC for 9% Tax Credits for the Project, on or before the deadline immediately following the notice from TCAC that Developer has not received an allocation of 9% Tax Credits for the Project, (ii) negotiate with Developer regarding alternative financing methods and sources of funding for the Project, or (iii) terminate this Agreement pursuant to Section 505. Upon such termination 49 Developer shall deliver true and legible copies or originals of all Development Plans, architectural drawings, and other plans and documents related to planning, design, and construction of the Project. (iii) If, pursuant to subsection (ii) of Section 310.1(a) above, City directs Developer to submit a second 9% Tax Credit Application and Developer does not receive an allocation of federal 9% Tax Credits in response to such Application, Developer and City shall again meet and confer in good faith regarding alternate financing methods and/or the reasonable potential of a submission by Developer of an additional Application for an allocation of 9% Tax Credits and City shall, in its reasonable discretion but sole option, determine whether to permit Developer to submit a third Application for 9% Tax Credits. If Developer is permitted to submit an Application for an allocation of 9% Tax Credits pursuant to the immediately preceding sentence but does not obtain an allocation of 9% Tax Credit for the Project after such Application, either Developer or City may terminate this Agreement. Upon such termination Developer shall deliver true and legible copies or originals of all Development Plans, architectural drawings, and other plans and documents related to planning, design, and construction of the Project. (iv) In the event City terminates this Agreement as permitted by subdivisions (ii) and (iii) above, Developer shall deliver, convey and assign to City all of Developer’s right and interest in and to all Development Plans and all planning, architectural, design and construction plans, drawings, specifications or other related documents prepared for the Project. (v) Developer’s Tax Credit Applications for the Project shall each incorporate the maximum possible points, including readiness points, to maximize the likelihood of an allocation of 9% Tax Credits for the Project. (b) No Additional City Subsidy. In no event shall City be obligated to provide any financial assistance or subsidy to the Project other than the leasehold interest in the Subject Property pursuant to the Ground Lease (as set forth in Section 201) under this Agreement. To the extent that any future City financial assistance or subsidy (City Assistance) is awarded to Developer, the City Assistance shall be addressed in a separate funding agreement consistent with any and all applicable funding requirements. 310.2 Submission of Evidence of Financing. Prior to and as a Condition Precedent to the Closing, Developer shall submit to City, and City (and its financial consultant(s) and legal counsel(s)) shall review and approve evidence that Developer has obtained sufficient equity capital and firm and binding commitments for financing necessary to undertake the construction, completion and operation of the Project in accordance with this Agreement. Developer shall not create or incur, or suffer to be created or incurred, or to exist, any additional mortgage, pledge, lien, charge or other security interest of any kind on the Subject Property, other than those related to the Project’s construction, consistent with the Financing Plan, without the prior written consent of the City. (a) Required Financing Submittals; Submittal of Construction Contract. Such evidence of financing for the Project and readiness to commence construction of the Project shall include all of the following: 50 (i) An updated pro forma and Final Budget for the applicable Project showing the projected costs of construction of the applicable Project, including all onsite and offsite improvements to be constructed in connection therewith. (ii) A copy of the Lender’s binding commitment obtained by Developer for the Primary Loan for the Project and, when available, copies of all loan documents evidencing the Primary Loan therefor. The Primary Loan commitments for financing shall be in such form and content acceptable to City and its financial advisor(s) and its legal advisor(s) and as such reasonably evidences a legally binding, firm and enforceable commitment, subject only to the Lender’s customary and normal conditions and terms and subject to the requirements of this Section 310. The commitment also shall state the specific terms and requirements, if any, by the Lender relating to subordination of the Regulatory Agreement (but in no event the Ground Lease or City Covenants). Developer shall provide written certification to City that the loan documents submitted are correct copies of the actual loan documents to be executed by Developer concurrently with the Closing. If the Lender requires a subordination agreement between or among Lender, City and/or Developer, City shall review the form of subordination subject to the reasonable review and approval of City Manager and legal counsel(s), subject to one or more of the conditions set forth in Section 310.9 necessary for the Primary Loan to be a title insured first monetary lien on the applicable Project; provided, however, in no event shall City’s fee interest in the Subject Property be subordinated to the Primary Loan or any other financing obtained by Developer or any other encumbrance or lien against the Subject Property. All costs incurred for the review and completion of each subordination agreement (except and excluding the first subordination agreement entered into at the Closing for the Project) and any amendment, modification or other reaffirmation thereof shall be expressly subject to Developer (or another person or entity other than City) paying all Third Party Costs (as defined in Section 716) incurred by City in connection therewith, with payment of such incurred costs a condition precedent to any obligation of City to sign such subordination or reaffirmation document, except as to the first subordination agreement pre-Closing for the Project for which City will assume the costs. (iii) A current certified financial statement of Developer (and all partners and members thereof, except the Investor Limited Partner) and/or other documentation satisfactory to City as evidence of other sources of capital sufficient to demonstrate that Developer has adequate funds to cover the difference, if any, between construction and completion costs, and the financing authorized by the Tax Credits, Primary Loan, and any additional subsidies, sources of funding, or financing obtained by Developer for the development of the applicable Project. (iv) Copies of the Construction Contract(s) and all other contracts between Developer and its Contractor for the construction of the Project and any other on-site or off-site improvements required to be constructed for such Project, certified by Developer to be a true, correct, and fully executed copy thereof, and which shall include reference to this Agreement and Contractor’s specific obligation to carry out the construction and completion of the applicable Project (or part thereof) in conformity with the approved Development Plans, Section 3, all applicable federal and state 51 prevailing wage laws, applicable Environmental Laws, and all applicable Governmental Regulations. The scope of work in the Construction Contracts shall conform in all respects to the Scope of Development, the land use entitlement, and the approved Development Plans, and such scope of work shall be subject to the City Manager’s sole and absolute approval. City shall have the right to approve or disapprove such evidence of financing within 30 days of submission by Developer to City of all complete items required by this Section 310 or as otherwise reasonably imposed by Developer’s financing and such approval or disapproval shall be not less than ten days prior to the date scheduled for the Closing (so long as City has had not fewer than 30 days for review of a complete submittal). In this regard, Developer agrees it shall use best efforts to cause its Lender to timely provide complete drafts of documents for review by City and its legal counsel(s) to perform within such time frames. Approval shall not be unreasonably withheld or conditioned. If City disapproves any such evidence of financing, City shall do so by written notice to Developer stating the reasons for such disapproval and Developer shall promptly obtain and submit to City new evidence of financing within reset but equal time periods. If Developer’s submission of new evidence of financing is timely and complete and provides City with adequate time to review such evidence within the times established in this Section 310, City shall approve or disapprove such new evidence of financing in the same manner and within the same times established in this Section 310 for the approval or disapproval of the evidence of financing as submitted to City initially. The evidence of financing shall be deemed to be an ongoing representation by Developer that the sum total of all sources of financing are equal to and not greater than the amount of the approved Project costs as set forth in the Final Budget for the Project and that such Final Budget conforms to the Tax Credit Application, Tax Credit Reservation, and any and all updates thereto submitted by Developer to TCAC. Once the complete evidence of financing is approved by City, Developer shall promptly notify City in writing of any change in, additional conditions to, or additional sources of financing, including without limitation, the award of state or federal Tax Credits, and any updates or additional information material or relevant to such financing and/or the Tax Credits. The representations made by Developer with respect to the budgets and costs for the Project and the sources of funding and method of financing for the Project, inclusive of all submittals and information related to the Tax Credits, were and remain the basis used by City to negotiate the financial terms of this Agreement and any change in such budgets and sources of Project funding or financing for the Project shall, at the sole discretion of City, because to renegotiate the financial terms hereof for the Project. 310.3 Alternate Financing Sources. It is the intent of the parties to make every effort to secure sources of non-local subsidies for the Project. Developer shall apply for an allocation of federal 9% Tax Credits for the Project, in accordance with Section 310.1(a) and (b), and shall attempt to increase the chance of obtaining an award of Tax Credits by maximizing the points maintained by the Project, including readiness points, and shall re-apply for Tax Credits within the times set forth in Section 310.1(a) and (b) and in the Schedule of Performance attached to the Implementation Agreement for the Project in the event the Project does not receive an allocation of Tax Credits in response to the first Tax Credit Application submitted by Developer. 310.4 Required Submissions. Developer shall submit the 52 following documents as evidence of Tax Credit financing: (a) The Partnership Agreement or equivalent funding commitment letter from the equity investors in the applicable Project which demonstrates that Developer has sufficient funds and committed capital/equity for commencement through completion of construction, and that such funds have been committed to construction of the applicable Project, and a current financial statement of Developer. (b) A complete copy of each Application and supporting documentation submitted to TCAC by each Developer, within five (5) days following Developer’s submission thereof to TCAC. (c) A copy of a preliminary Reservation letter from TCAC notifying Developer that an allocation of 9% Tax Credits, has been reserved for construction of the Project, and further documentation demonstrating that Developer remains eligible and qualified to receive such allocation, along with certification that there have not been any material changes to the information provided by Developer in the Application, as defined and referenced in such Reservation letters, and that if there are material changes then such information will be provided to TCAC (and City) forthwith. 310.5 Holder Performance of Development of the Project. The holder of any mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions of this Agreement to develop the Project or any portion thereof, or to guarantee such construction or completion; nor shall any covenant or any other provision in this Agreement be construed so to obligate such holder. 310.6 Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Developer as provided herein, whenever City may deliver any notice or demand to Developer with respect to any breach or default by Developer hereunder or under any other document executed pursuant to this Agreement, City shall at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement a copy of such notice or demand. Each holder shall (insofar as the rights granted by City are concerned) have the right, but not the obligation, at its option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any default and to add the cost thereof to the mortgage debt and the lien of its mortgage. Nothing contained in this Agreement shall be deemed to permit or authorize any holder to undertake or continue the construction or completion of the Project, or any portion thereof (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed Developer’s obligations to City under this Agreement as to such Project by a written assumption agreement reasonably satisfactory to City and its legal counsel(s). The holder, in that event, must agree to complete, or cause to be completed by a party which is reasonably acceptable to City, in the manner provided in this Agreement, the improvements to which the lien or title of holder relates. Any holder (or assignee approved by City) properly completing the improvements for the Project shall be entitled, upon compliance with the requirements of Section 305 of this Agreement, to 53 a Release of Construction Covenants as to such Project. It is understood that a holder (or assignee approved by City) shall be deemed to have satisfied the sixty (60) day time limit set forth above for commencing to cure or remedy a Developer default which requires possession of the Subject Property, as applicable (or portion thereof), if and to the extent any holder (or assignee approved by City) has within the sixty (60) day period commenced proceedings to obtain possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default. 310.7 Notice of Default to Limited Partner; Right to Cure. Whenever City shall deliver any notice to Developer with respect to any Default by Developer hereunder, City shall at the same time deliver a copy of such Notice to the limited partner(s) of Developer at the notice address provided by Developer to City. No Notice of Default shall be effective as to such limited partner(s) unless such notice is given. Each limited partner shall (insofar as the rights of City are concerned) have the right, at its option, within 60 days after the receipt of the copy of the Notice, to cure or remedy or commence to cure or remedy any such Default. Any cure of any Default hereunder made or tendered by the limited partner shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by the Developer. 310.8 Failure of Holder to Complete Applicable Project. In any case where, 90 days after the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Subject Property, as applicable, or any part thereof receives a notice from City of a default by Developer in completion of construction of all or any part of the Project under this Agreement, and the holder has not exercised the option to construct or cause to be constructed the Project as set forth in Section 310.8, or if it has exercised the option but has defaulted hereunder and failed to timely cure such default, City may fully assume the mortgage or deed of trust by assuming all payment and performance obligations due to the holder for and in the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust. If the possession of the Subject Property, as applicable, or any part thereof has vested in the holder, City, if it so desires, shall be entitled to a conveyance from the holder to City upon payment to the holder of an amount equal to the sum of the following: (a) The unpaid mortgage or deed of trust debt at the time the Ground Lease and possession of the Project became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (b) All reasonable and customary expenses with respect to foreclosure, including reasonable attorneys’ fees; (c) The net expense, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Project or part thereof; (d) The costs of any necessary improvements made by the holder (or assignee approved by City) pursuant to the requirements of this Agreement or as otherwise approved by City; 54 (e) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by City; and (f) Any reasonable and customary prepayment charges imposed by the Lender pursuant to its Primary Loan documents and agreed to by Developer. 310.9 Right of City to Cure Mortgage or Deed of Trust Default. In the event of Developer’s default or breach of the Primary Loan, including the loan agreement, promissory note, mortgage or deed of trust, or a default under the terms of Developer’s Partnership Agreement for the Project, Developer shall immediately deliver to City a copy of any default notice pertaining thereto. If the holder of the Primary Loan, including the loan agreement, promissory note, mortgage or deed of trust has not exercised its option to construct prior to the issuance of the Release of Construction Covenants as to such Project, pursuant to Section 310.8, City shall have the right but not the obligation to cure the default of the Primary Loan, including the loan agreement, promissory note, mortgage or deed of trust. City shall likewise have the right but not the obligation to cure any Partnership Agreement default. In such event, City shall be entitled to reimbursement from Developer of all proper costs and expenses incurred by City in curing any default. 310.10 Subordination of Affordability Covenants; Non- Subordination of City’s Fee Interest. In the event City finds that an economically feasible method of financing for the construction and operation of the Project without the subordination of the Affordable Housing Agreement and/or Regulatory Agreement City may agree to subordinate the necessary covenants contained in either Agreements to the Primary Loan and/or the Tax Credit Regulatory Agreement, subject to the terms of this Section 310.9. Each and any subordination agreement evidencing or affirming City’s subordination of the Regulatory Agreement (but not, and in no event, City’s fee interest in the Subject Property, or the City Covenants) entered into by City shall contain written commitments which City Manager finds are reasonably designed to protect City’s investment in the Project in the event of default; any such subordination agreement(s) shall contain (a) concurrent delivery to City of a true copy of each and any notice provided by the Lender for the Project to Developer (as its borrower) during the term of the Primary Loan for the Project; (b) a reasonably extended cure period (a period of not fewer than 60 additional days beyond and after the Developer’s cure period) and right to City to cure and assume the Primary Loan, and/or other senior lien(s) for the Project upon the same terms to Developer pursuant to the loan documents thereto with such right, but with no obligation, to the City being available both from the date of issuance of any notice of default through and after the recordation of a formal Notice of Default by the Lender for the Project pursuant to applicable California Code of Civil Procedure foreclosure requirements, and (c) a right of City to cure a default on each of the senior loan(s) for the Project prior to foreclosure and after recordation of a Notice of Default pursuant to applicable California Code of Civil Procedure requirements; and such cure rights may also include: (d) a right of City to negotiate with the senior lender(s) for the Project after notice of default from the senior Lender (or lender(s)) and prior to foreclosure, (e) an 55 agreement that if prior to foreclosure of the senior loan for the Project, City takes title to the Subject Property, and cures the default on the senior loan(s) for the Project, the senior Lender (or lender(s)) will not exercise any right it may have to accelerate the senior loan by reason of the transfer of title to City, and (f) a right of City to acquire the applicable portion of the Subject Property from Developer at any time after a material default on the senior loan for the Project. Notwithstanding the foregoing, the Ground Lease shall be senior and non-subordinate to the Primary Loan, including any and all construction and permanent financing for the Project. The city is aware that it will be required to sign a TCAC Standstill Agreement and record against the leasehold interest. 310.11 Failure to Obtain Financing. In the event Developer, despite exercising its reasonable and best efforts to obtain required construction financing for the Project, fails to obtain financing as specified in the Agreement by the time required in Section 310.1(a) and (b) and in the Schedule of Performance attached hereto and as appended to each Implementation Agreement for the Project, either Developer or City may terminate this Agreement as provided in Sections 504 and 505 hereof, respectively. 400. OPERATION OF HOUSING. 401. Number of Housing Units. Developer covenants and agrees to make available, restrict occupancy to, and rent the Housing Units in the Project to seniors that are Very Low - and Low-Income Households, in accordance with this Section 401 and the Regulatory Agreement for the Project as follows: (i) Eight (8) of the one-bedroom Housing Units to 30% AMI Very Low- Income Households at an Affordable Rent. (ii) Fifteen (15) of the one-bedroom Housing Units to 45% AMI Very Low- Income Households at an Affordable Rent. (iii) Twenty-Nine (29) of the one-bedroom Housing Units to 50% AMI Very Low-Income Households at an Affordable Rent. (iv) Twenty (20) of the one-bedroom Housing Units to 60% AMI Low-Income Households at an Affordable Rent. (v) One (1) of the two-bedroom Housing Units to 30% AMI Very Low-Income Households at an Affordable Rent. (vi) Two (2) of the two-bedroom Housing Units to 45% AMI Very Low-Income Households at an Affordable Rent. (vii) Four (4) of the two-bedroom Housing Units to 50% AMI Very Low-Income Households at an Affordable Rent. (viii) Two (2) of the one-bedroom Housing Units to 60% AMI Low-Income Households at an Affordable Rent. 401.2 On-Site Manager. One additional one-bedroom unrestricted Housing Unit will be occupied by an on-site manager. The on-site manager is not required to income qualify as a Very Low Income Household or Low Income Household; provided, however, the monthly housing payment charged for the on-site managers’ Housing Unit 56 shall not exceed the Affordable Rent that may be charged to a 60% AMI Low Income Household. 402. Affordable Rent. Affordable Rent shall be charged for all Housing Units for the Affordability Period. The maximum Affordable Rent chargeable for the Housing Units shall be annually determined by Developer (and as charged and implemented by Developer) in accordance with the following requirements: (i) The Affordable Rent for the Housing Units to be rented to 30% AMI Very Low-Income Households shall not exceed thirty percent (30%) of 30% AMI for Fresno County as determined and published annually by TCAC for a family size appropriate to the Housing Unit. (ii) The Affordable Rent for the Housing Units to be rented to 45% AMI Very Low-Income Households shall not exceed thirty percent (30%) of 45% AMI for Fresno County as determined and published annually by TCAC for a family size appropriate to the Housing Unit. (iii) The Affordable Rent for the Housing Units to be rented to 50% AMI Very Low-Income Households shall not exceed thirty percent (30%) of 50% AMI for Fresno County as determined and published annually by TCAC for a family size appropriate to the Housing Unit. (iv) The Affordable Rent for the Housing Units to be rented to 60% AMI Low- Income Households shall not exceed thirty percent (30%) of 60% AMI for Fresno County as determined and published annually by TCAC for a family size appropriate to the Housing Unit. Developer shall, and shall cause its Property Manager to, operate the Project and cause occupancy of all Housing Units thereon in conformity with these covenants and this Agreement. For purposes of this Agreement, “Affordable Rent” shall mean the total of monthly payments for (a) use and occupancy of each Housing Unit and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by Developer which are required of all tenants, other than security deposits, (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuels, but not including telephone service, or cable TV or internet services, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and facilities associated therewith by a public or private entity other than Developer. No additional charge shall be assessed against tenant households of the Housing Units for any social or supportive services provided at the Subject Property. 403. Duration of Affordability Requirements; Affordability Period for the Project. The Project and all the Housing Units thereon shall be subject to the requirements of this Section 400, et seq. for the full term of not less than 55-years from the date that the Release of Construction Covenants for the applicable Project is recorded against the Subject Property, in the Official Records. The duration of these covenants and this requirement for the Project shall be known as the “Affordability Period.” 57 404. Selection of Tenants. Developer shall be responsible for the selection of tenants for the Housing Units in compliance with all lawful and reasonable criteria, and shall adopt a tenant selection system which shall be approved by City Manager in her reasonable discretion, which establishes a chronological waiting list system for selection of tenants, which shall be set forth in the Marketing Program and the Property Management Plan, both of which are required to be submitted by Developer and approved by City pursuant to Sections 202, 408 and 411.2 hereof for the Project and as a Condition Precedent to the Closing. Developer shall not refuse to lease to a holder of a certificate of family participation under 24 CFR part 882 (Rental Certificate Program) or a rental voucher under 24 CFR part 887 (Rental Voucher Program) or to the holder of a comparable document evidencing participation in a program pursuant to the HOME Investment Partnership Act, 42 U.S.C. §12701, et seq. and the implementing regulations located at 24 CFR part 92, as such now exist and as may hereafter be amended, a Section 8 voucher program or other tenant-based assistance program, who is otherwise qualified to be a tenant in accordance with the approved tenant selection criteria (collectively “Voucher Programs”). 405. Household Income Requirements. Developer covenants and agrees with the City that it shall comply with the procedures for annual income determination. Developer shall obtain, complete, and maintain on file, immediately prior to initial occupancy, and annually thereafter, income certifications from the tenants of the Housing Units. Developer shall make a good faith effort to verify that the income provided by an applicant or occupying household in an income certification is accurate by taking one or more of the following steps as part of the verification process: (1) obtain a pay stub for the most recent three pay periods; (2) obtain an income verification form from the applicant’s current employer; (3) obtain an income verification form from the Social Security Administration and California Department of Social Services if the applicant receives assistance from either of such agencies; (4) obtain income tax return for the most recent three years; or (5) if the applicant is unemployed, obtain another form of independent verification. Copies of household income certification and verification must be available for review and approval by the City prior to initial lease up. Developer further warrants, covenants and agrees that it will cooperate with City in the City’s income certification/affordability monitoring activities. On or before 120 days following the end of Developer’s fiscal year, commencing the first year after issuance of the first certificate of occupancy for the Project, and annually thereafter, Developer shall prepare and submit to City, at Developer’s expense, a written summary of the income, household size, and rent payable by each of the tenants of the Housing Units and, upon the written request of the City, copies of each and all leases or rental agreements and the current rules and regulations for the Project. At City’s request, Developer shall also provide to City completed income computation and certification forms, all in a form reasonably acceptable to City, for each and all tenants. Developer shall obtain, or shall cause to be obtained by the Property Manager, a certification from each household leasing a Housing Unit demonstrating that such household is a 30% AMI Very Low Income 58 Household, 45% AMI Very Low Income Household, 50% AMI Very Low Income Household, or 60% AMI Low Income Household, as applicable and according to the Area Median Income annually determined and published by TCAC for Fresno County, and meets the eligibility and occupancy requirements established for the Housing Unit. Developer shall verify, or shall cause to be verified by the Property Manager, the income and household size certification of the tenant household. 405.1 Income Categories. (i) “30% AMI Very Low-Income Households” shall mean those households not earning greater than thirty percent (30%) of Fresno County Area Median Income, adjusted for household size, which is set forth annually by regulation of TCAC. (ii) “45% AMI Very Low-Income Households” shall mean those households not earning greater than forty-five percent (45%) of Fresno County Area Median Income, adjusted for household size, which is set forth annually by regulation of TCAC. (iii) “50% AMI Very Low-Income Households” shall mean those households not earning greater than fifty percent (50%) of Fresno County Area Median Income, adjusted for household size, which is set forth annually by regulation of TCAC. (iv) “60% AMI Low-Income Households” shall mean those households not earning greater than sixty percent (60%) of Fresno County Area Median Income, adjusted for household size, which is set forth annually by regulation of TCAC. (v) “Very Low -Income” or “Very Low-Income Households” shall mean and include (i) very low-income households as defined in the Tax Credit Rules and (ii) 30% AMI Very Low-Income Households, (iii) 45% AMI Very Low-Income Households, and (iv) 50% AMI Very Low-Income Households. Very Low-Income Households include Extremely Low-Income Households, as defined in the Tax Credit Rules. (vi) “Low -Income” or “Lower-Income Households” shall mean and include both: (i) lower-income households as defined in the Tax Credit Rules, and (ii) 60% AMI Low-Income Households, as defined in the Tax Credit Rules. 406. Intentionally Omitted 407. Leases; Rental Agreements for Housing Units. Developer shall submit a standard lease form, which shall comply with the requirements of this Agreement, including all applicable provisions of the Act and the HAL, to City for its approval. City shall reasonably approve such lease form upon finding that such lease form is consistent with this Agreement. Developer shall enter into a written lease, in the form approved by City, with each tenant/tenant household of the Project. During the Affordability Period, any material changes to the lease form are subject to the reasonable review and approval of the City Manager. 408. Marketing Program. Prior to and as a Condition Precedent to the issuance of the Certificate of Occupancy, Developer shall prepare and obtain City’s approval, which approval shall not be unreasonably withheld, of the Marketing Program. During the Affordability Period, any material changes to an approved Marketing Program are subject to reasonable review and approval by the City Manager. The rental of the Housing Units, 59 as and when they are vacated by the existing tenants, shall be conducted in accordance with the approved Marketing Program and any affirmative marketing and minority outreach activity requirements to attract eligible persons from all racial, ethnic and gender groups in the housing market in the rental of the Housing Units. The availability of Housing Units shall be marketed in accordance with the Marketing Program as the same may be amended from time to time with City’s prior written approval, which approval shall not unreasonably be withheld. Developer shall provide City with periodic reports with respect to the marketing for lease of the Housing Units. City agrees to exercise reasonable efforts to assist Developer in connection with the implementation of the Marketing Program; provided, however, City shall not be under any obligation to incur any out-of-pocket expenses in connection therewith. Developer shall maintain records of actions taken to affirmatively market Housing Units constructed in the future, and to assess the results of these actions. 409. Reserved 410. Maintenance. 410.1 General Maintenance. Developer shall maintain the Subject Property and all improvements thereon, including lighting and signage, in good condition, free of debris, waste and graffiti, and in compliance with all applicable provisions of the Fresno Municipal Code. Developer shall maintain in accordance with the Maintenance Standards (as hereinafter defined) the improvements and landscaping on the Subject Property. Such Maintenance Standards shall apply to all buildings, signage, common amenities, lighting, landscaping, irrigation of landscaping, architectural elements identifying the Subject Property and any and all other improvements on the Subject Property and the Project. To accomplish the maintenance, Developer shall either staff or contract with and hire licensed and qualified personnel to perform the maintenance work, including the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Agreement. Developer and its maintenance staff, contractors or subcontractors shall comply with the following standards as to the Project (collectively, “Maintenance Standards”): (i) The Subject Property shall be maintained in conformance and in compliance with the approved final as-built plans, and reasonable maintenance standards which comply with the industry standard for comparable first quality affordable housing projects in the County, including but not limited to painting and cleaning of all exterior surfaces and other exterior facades comprising all private improvements and public improvements to the curbline. The Subject Property shall be maintained in good condition and in accordance with the industry custom and practice generally applicable to comparable first quality affordable housing projects in the County. (ii) Landscape maintenance shall include, but not be limited to: watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance and safe road conditions and visibility, and irrigation coverage; replacement, as needed, of all plant 60 materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees. (iii) Clean-up maintenance shall include, but not be limited to: maintenance of all sidewalks, paths and other paved areas in clean and weed-free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers. City agrees to notify Developer in writing if the condition of the Subject Property does not meet with the Maintenance Standards and to specify the deficiencies and the actions required to be taken by Developer to cure the deficiencies. Upon notification of any maintenance deficiency, Developer shall have 30 days within which to correct, remedy or cure the deficiency. If the written notification states the problem is urgent relating to the public health and safety, then Developer shall have 48 hours to rectify the problem. In the event Developer does not maintain the Subject Property, as applicable, in the manner set forth herein and in accordance with the Maintenance Standards, City shall have, in addition to any other rights and remedies hereunder, the right to maintain the Subject Property, as applicable, or to contract for the correction of such deficiencies, after written notice to Developer, and Developer shall be responsible for the payment of all such costs incurred by City. 410.2 Program Maintenance. In addition to the routine maintenance and repair required pursuant to Section 410.1 Developer shall perform the following minimum programmed maintenance of the Improvements to the Subject Property: (i) Interior painting and window covering replacement at least every seven (7) years; (ii) Exterior painting at least every ten (10) years; (iii) Repair and resurfacing of parking areas and walkways at least every ten (10) years; and (iv) Replacement of all deteriorated or worn landscaping and play equipment at least every five (5) years. Notwithstanding the foregoing, if City Manager reasonably determines that the Project suffers from excess unexpected wear and tear requiring any of the above items of maintenance to be performed sooner than as set forth above, City may require that such maintenance actions be performed within a reasonable time, even if sooner than the time periods set forth above. Upon the request of Developer, the City Manager, at her sole and absolute discretion, may grant a waiver or deferral of any program maintenance requirement. Developer shall keep such records of maintenance and repair as are necessary to prove performance of the program maintenance requirements. 410.3 Occupancy Limits. The maximum occupancy of the Housing Units in the Project shall not exceed more than such number of persons as is equal to two persons per bedroom, plus one. Thus, for the two (2) bedroom Housing Units, the 61 maximum occupancy shall not exceed five (5) persons. For the three (3) bedroom Housing Units, the maximum occupancy shall not exceed seven (7) persons. 411. Management of the Project. 411.1 Property Manager. Developer shall manage or cause the Project, and all appurtenances thereto that are a part of the Project, to be managed in a prudent and business-like manner, consistent with good property management standards for other comparable first quality, well-managed affordable rental housing projects in the City. Developer may contract with a property management company or property manager, to operate and maintain the Project in accordance with the terms of this Section 410 (Property Manager); provided, however, the selection and hiring of the Property Manager (and each successor or assignee), including any Affiliate, is and shall be subject to prior written approval of City Manager (or designee) in her sole and reasonable discretion. The Property Manager shall manage the Project in accordance with the definitions of Affordable Rent contained in Section 402 hereof, the tenant selection requirements contained in Section 404, and the definitions relating to income contained in Section 405. Any fee paid to the Property Manager for social services provided to the tenants shall be exclusive of the fee paid to the Property Manager relating to the management of the Project. Developer shall conduct due diligence and background evaluation of any potential third-party property manager or property management company to evaluate experience, references, credit worthiness, and related qualifications as a property manager. Any proposed property manager shall have significant and relevant prior experience with affordable housing projects and properties comparable to the Project and the references and credit record of such property manager/company shall be investigated (or caused to be investigated) by Developer prior to submitting the name and qualifications of such proposed property manager to the City Manager for review and approval. A complete and true copy of the results of such background evaluation shall be provided to the City Manager. Approval of a Property Manager by City Manager shall not be unreasonably delayed but shall be in her sole reasonable discretion, and City Manager shall use good faith efforts to respond as promptly as practicable in order to facilitate effective and ongoing property management of the Project. The replacement of a Property Manager by Developer and/or the selection by Developer of any new or different Property Manager during the Term of the Ground Lease shall also be subject to the foregoing requirements. 411.2 Property Management Plan. Prior to and as a Condition Precedent to Closing, Developer shall prepare and submit to the City Manager for review and approval, a management plan for the Project which includes a detailed plan and strategy for long-term marketing, operation, maintenance, repair and security of the Project, inclusive of social services for the residents of the Housing Units, and the method of selection of tenants, rules and regulations for tenants, and other rental policies for the Project (Property Management Plan). City Manager approval of the Property Management Plan shall not be unreasonably withheld or delayed. Subsequent to approval of the Property Management Plan by the City Manager the ongoing management and operation of the Project shall be in compliance with the approved Property Management Plan. During the Affordability Period, Developer and its Property Manager may from time to time submit to the City Manager proposed amendments to 62 the Property Management Plan, the implementation of which shall also be subject to the prior written approval of the City Manager. 411.3 Gross Mismanagement. During the Affordability Period, and in the event of “Gross Mismanagement” (as defined below), City Manager and/or City shall have and retain the authority to direct and require any condition(s), acts, or inactions of Gross Mismanagement to cease and/or be corrected immediately, and further to direct and require the immediate removal of the Property Manager and replacement with a new qualified and approved Property Manager, if such condition(s) is/are not ceased and/or corrected after expiration of 30 days from the date of written notice from City Manager. If Developer or Property Manager has commenced to cure such Gross Mismanagement condition(s) on or before the 20th day from the date of written notice (with evidence of such submitted to the City Manager), but has failed to complete such cure by the 30th day (or such longer period if the cure cannot reasonably be accomplished in 30 days as reasonably determined by the non- defaulting party), then Developer and its Property Manager shall have an additional 10 days to complete the cure of Gross Mismanagement condition(s). In no event shall any condition of Gross Mismanagement continue uncured for a period exceeding forty-five (45) days from the date of the initial written notice of such condition(s), except that the conditions described in subdivisions (d) and(e) below may exist for up to, but no longer than, seventy-five (75) days without triggering City’s right to remove the Property Manager as described in the immediately following sentence as long as Developer is diligently working to cure such conditions of Gross Mismanagement. If such condition(s) do persist beyond such period, City Manager shall have the sole and absolute right to immediately and without further notice to Developer (or to Property Manager or any other person/entity) to remove the Property Manager and replace the Property Manager with a new property manager of the City Manager’s selection at the sole cost and expense of Developer. If Developer takes steps to select a new Property Manager that selection is subject to the requirements set forth above for selection of a Property Manager. For purposes of this Agreement, the term “Gross Mismanagement” shall mean management of the Project in a manner which violates the terms and/or intention of this Agreement to operate a first quality affordable housing complex, and shall include, but is not limited to, any one or more of the following: (a) Leasing to tenants who exceed the prescribed income levels; (b) Allowing tenants to exceed the prescribed occupancy levels without taking immediate action to stop such overcrowding; (c) Under-funding required reserve accounts; (d) Failing to timely maintain Project in accordance with the Property Management Plan and Maintenance Standards; as required herein; (e) Failing to submit timely and/or adequate annual reports to City (f) Fraud or embezzlement of Project funds, including without limitation funds in the reserve accounts; (g) Failing to fully cooperate with the Fresno Police Department or other local law enforcement agency(ies) with jurisdiction over the Project, in 63 maintaining a crime- free environment within the Project; (h) Failing to fully cooperate with the Fresno Fire Department or other local public safety agency(ies) with jurisdiction over the Project, in maintaining a safe and accessible environment within the Project; (i) Failing to fully cooperate with the Fresno Planning & Building Department, including the Code Enforcement Division, or other local health and safety enforcement agency(ies) with jurisdiction over the Project, in maintaining a decent, safe and sanitary environment within the Project; and (j) Spending funds from the Capital Replacement Reserve account for items that are not defined as eligible costs, including eligible capital and/or replacement costs, under the standards imposed by GAAP (and/or, as applicable, generally accepted auditing principles). Notwithstanding the requirements of the Property Manager to correct any condition of Gross Mismanagement as described above, Developer is obligated and shall use its best efforts to correct any defects in property management or operations at the earliest feasible time and, if necessary, to replace the Property Manager as provided above. Developer shall include advisement and provisions of the foregoing requirements and requirements of this Agreement within any contract between Developer and its Property Manager for the Project. 411.4 Code Enforcement. Developer acknowledges and agrees that City, and their employees and authorized agents, shall have the right to conduct code compliance and/or code enforcement inspections of the Project and the individual Housing Units for the Project, both exterior and interior, at reasonable times and upon reasonable notice (not less than 48 hours prior notice, except in an emergency) to Developer and/or an individual tenant. If such notice is provided by City representative(s) to Developer, then Developer (or its Property Manager) shall immediately and directly advise any affected tenant of such upcoming inspection and cause access to the area(s) and/or Housing Units at the applicable Project to be made available and open for inspection. Developer shall include express advisement of such inspection rights within the lease/rental agreements for each Housing Unit in the Project in order for each and every tenant and tenant household to be aware of this inspection right. 412. Capital Reserve Requirements. Commencing upon the closing for the permanent Primary Loan for the applicable Project, Developer shall annually set aside an amount of not less than Two Hundred Fifty Dollars ($250.00) per Housing Unit (82 units times $250 equals $20,500) or such increased amount required by TCAC or the Partnership Agreement or the Lender under the Primary Loan for the Project) from the gross rents received from the applicable Project, into a separate interest-bearing trust account defined as the Capital Replacement Reserve. Funds in the Capital Replacement Reserve shall be used only for capital repairs, improvements and replacements to the applicable Project, including fixtures and equipment, which are normally capitalized under generally accepted accounting principles. The non-availability of funds in the Capital Replacement Reserve does not in any manner relieve or lessen Developer’s obligation to undertake any and all necessary capital repairs, improvements, 64 or replacements and to continue to maintain the Project in the manner prescribed herein for the applicable Project. Not less than once per year, Developer, at its expense, shall submit to City Manager an accounting for the Capital Replacement Reserve for the applicable Project. Capital improvements and repairs to, and replacements at the applicable Project shall include only those items with a long useful life, including without limitation the following: carpet and drapery replacement; appliance replacement; exterior painting, including exterior trim; hot water heater replacement; plumbing fixtures replacement, including tubs and showers, toilets, lavatories, sinks, faucets; air conditioning and heating replacement; asphalt repair and replacement, and seal coating; roofing repair and replacement; landscape tree replacement; irrigation pipe and controls replacement; sewer line replacement; water line replacement; gas line replacement; lighting fixture replacement; elevator replacement and upgrade work; miscellaneous motors and blowers; common area furniture replacement; and common area repainting. Pursuant to the procedure for submittal of each Annual Budget for the Project to City Manager by Developer, City Manager may evaluate the cumulative amount on deposit in the Capital Replacement Reserve account and exercise her sole, reasonable discretion to determine if existing balance(s) in, proposed deposits to, shortfalls, if any, and/or a cumulative unexpended/unencumbered account balance in such Capital Replacement Reserve account are adequate to provide for necessary capital repairs and improvement for the Project (provided that required annual deposits thereto are not required to exceed $250/per Housing Unit). 413. Operating Budget and Operating Reserve. W ithin twelve (12) months after commencement of construction of such Project, but in no event later than ninety (90) days prior to the completion of construction of such Project, and not less than annually thereafter on or before November 1 of each year following the issuance of the first certificate of occupancy issued by the City’s building official for such Project, Developer shall submit to City on not less than an annual basis an operating budget for the applicable Project (“Operating Budget” or “Annual Budget”), which budget shall be subject to the written approval of City Manager or her designee, which approval shall not be unreasonably withheld. The City Manager’s discretion in review and approval of each proposed annual Operating Budget shall include, without limitation, authority to review individual categories, line items, and accounts, such as the following: extent, type, and amount for social services at or associated with the applicable Project; existing balance(s) in and proposed deposits to the Capital Replacement Reserve for such Project to evaluate shortfalls and/or cumulative unexpended/unencumbered deposits (provided that required annual deposits thereto are not required to exceed $250/per unit); conformity of any annual increases in the Partnership Related Fees for such Project with the increases permitted in the definition of “Partnership Related Fees”; reasonableness and conformity to prevailing market rates in Fresno County and rates and fees for goods and services to be provided Developer or any of its parent, affiliated, or subsidiary entities, etc. for such Project. Developer shall, or shall cause the Property Manager to, set aside an “Operating Reserve” in a separate interest bearing trust account a target amount equal to three (3) months of (i) Debt Service on the Primary Loan and (ii) Operating Expenses for the applicable Project (“Target Amount”), which shall be funded by Tax Credit equity. The 65 Operating Reserve shall thereafter be replenished from Tax Credit equity and from Annual Project Revenue to maintain the Operating Reserve balance at the Target Amount. The Target Amount shall be retained in the Operating Reserve to cover shortfalls between Annual Project Revenue and actual Operating Expenses, but shall in no event be used to pay for capital items or capital costs properly payable from the Capital Replacement Reserve. Developer shall, not less than once per every twelve (12) months, submit to the City Manager evidence reasonably satisfactory to City of compliance herewith. The operating reserve shall be held by Developer and shall be in compliance with the requirements outlined in the Partnership Agreement. 414. Non-Discrimination Covenants. Developer covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Subject Property, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Subject Property. The foregoing covenants shall run with the land. Developer shall refrain from restricting the rental or lease of the Subject Property on any of the bases listed above. All leases or contracts relating to the Subject Property shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (i) In deeds: “The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.” (ii) In leases: “The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: “That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of 66 subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased.” (iii) In contracts: “There shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises which are the subject of this Agreement, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.” The covenants established in this Section 414 shall, without regard to technical classification and designation, be binding for the benefit and in favor of City and its successors and assigns, and shall remain in effect in perpetuity. 415. Monitoring and Recordkeeping. Throughout the Affordability Period for the Project, Developer will maintain books and records for the Project using generally accepted accounting principles, and shall comply with all applicable recordkeeping and monitoring requirements. Developer shall complete and submit to City a Certification of Continuing Program Compliance in a form provided by City. Representatives of City shall be entitled to enter the Subject Property, upon at least twenty-four (24) hours’ notice, to monitor compliance with this Agreement, to inspect the records of the Subject Property, and to conduct an independent audit or inspection of such records. The City may audit any conditions relating to this Agreement at the City’s expense, unless such audit shows a significant discrepancy in information reported by the Developer, in which case Developer shall bear the cost of such audit. Records shall be made available for review and inspection and/or audit in Fresno County, California. Developer agrees to maintain all records relating to the Project in a businesslike manner, and to maintain such records for the term of this Agreement. This section shall survive the termination of this Agreement. 416. Regulatory Agreement. The requirements of this Agreement that shall remain applicable after the Closing Date for the Project are set forth in the City Regulatory Agreement for the Subject Property, which is attached hereto as Attachment No. 6 and incorporated herein (Regulatory Agreement). The execution and recordation of the Regulatory Agreement for the Project is a Condition Precedent to the Closing, as set forth in Section 202 hereof. 67 500. DEFAULT AND REMEDIES. 501. Events of Default. An “Event of Default” or “Default” shall occur under this Agreement when there shall be a breach of any condition, covenant, warranty, promise or representation contained in this Agreement and the breach shall continue for a period of thirty (30) days after written notice thereof to the defaulting party without the defaulting party curing such breach, or if the breach cannot reasonably be cured within a thirty (30) day period, commencing the cure of the breach within the thirty (30) day period and thereafter diligently proceeding to cure the breach; provided, however, that if a different period or notice requirement is specified for any particular breach under any other paragraph of this Agreement, the specific provision shall control. 502. Remedies. The occurrence of any Event of Default shall give the non- defaulting party the right to proceed with any and all remedies set forth in this Agreement, including an action for damages, an action or proceeding at law or in equity to require the defaulting party to perform its obligations and covenants under the documents executed pursuant hereto or to enjoin acts or things which may be unlawful or in violation of the provisions of such documents, and the right to terminate this Agreement (as to the applicable Project). In addition, the occurrence of any Event of Default by Developer will relieve City of any obligation to further perform hereunder and shall result in City’s right to terminate the Ground Lease subject to the provisions therein. 503. Force Majeure. It shall be the responsibility of the Developer to coordinate and schedule the work to be performed so that the commencement of the construction and issuance of the Release of Construction Covenants will take place in accordance with the provisions of the Agreement and Project Schedule. The time for performance contained in the Project Schedule shall be automatically extended upon the following: A. The time for performance of provisions of the Agreement by either party shall be extended for a period equal to the period of any delay directly affecting the Project or this Agreement which is caused by: war, insurrection, strike or other labor disputes, lock-outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of a public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, suits filed by third parties concerning or arising out of this Agreement, or unseasonable weather conditions (force majeure). An extension of time for any of the above specified causes will be granted only if written notice by the party claiming such extension is sent to the other party within ten calendar days from the date the affected party learns of the commencement of the cause and the resulting delay and such extension of time is accepted by the other party in writing. In any event, the Project must be completed no later than 180 calendar days after the scheduled completion date specified in this Agreement, notwithstanding any delay caused by that included in this section. B. Any and all extensions hereunder shall be by mutual written agreement of the City Manager and the Developer, which shall not cumulatively exceed 180 days without City Council approval. Subject to the timing and provisions of Section 310.1, Developer’s difficulty or inability to obtain and secure the Primary Loan or other financing shall in no event become an event of 68 force majeure. 504. Termination by Developer. Subject to the timing and provisions of Section 310.1, in the event that Developer is not in Default under this Agreement and: (a) Developer is unable to obtain sufficient financing for the development and operation of the Project in accordance with the provisions of Section 310; or (b) Developer fails to receive an allocation of Tax Credits for the Project, subject to the restrictions contained in Section 310.1(a) and (b); or (c) Developer disapproves of the environmental condition of the Subject Property pursuant to Section 204.3; or (d) Developer disapproves the condition of title to the Subject Property pursuant to Section 205.7; or (e) One or more of the Conditions Precedent set forth in Section 202.2 is not satisfied (or waived by Developer) on or before the time set forth in the Schedule of Performance attached to each Implementation Agreement for the Project, and such Condition Precedent is not satisfied after notice and an opportunity to satisfy as provided in Section 601 hereof, and such failure is not caused by Developer; or (f) City is otherwise in Default of this Agreement and fails to cure such Default within the time set forth in Section 601 hereof; then this Agreement and any rights of City or any assignee or transferee with respect to or arising out of this Agreement shall, at the option of Developer, be terminated by Developer by written notice thereof to City with respect to the Project. From the date of the written notice of termination of this Agreement with respect to the Project by Developer to City and thereafter this Agreement shall be deemed terminated subject to the rights of the Lender pursuant to the approved financing for the Primary Loan(s), Developer shall have the option to terminate the Ground Lease, as provided in more detail therein, and there shall be no further rights or obligations between the parties as to such Project, except that if City is in default hereunder Developer, after delivery of notice of default and expiration of the cure period ‘provided in Section 601 hereof, may pursue any remedies it has at law or equity. 505. Termination by City. Subject to the timing and provisions of Section 310.1, in the event that City is not in Default under this Agreement, and: (a) Developer is unable to obtain sufficient financing for the development and operation of the Project in accordance with the provisions of Section 310; or 69 (b) Developer fails to receive an allocation of Tax Credits for the Project, subject to the restrictions contained in Section 310.1(a) and (b); or (c) One or more of the Conditions Precedent set forth in Section 202.1 is not satisfied (or waived by City) on or before the time set forth in the Schedule of Performance attached to each Implementation Agreement for the Project, and such Condition Precedent is not satisfied after notice and an opportunity to satisfy as provided in Section 501 hereof, and such failure is not caused by City; or (d) Developer is otherwise in Default of this Agreement and fails to cure such Default within the time set forth in Section 601 hereof; then this Agreement and any rights of Developer or any assignee or transferee with respect to or arising out of this Agreement shall, at the option of City, be terminated by City by written notice thereof to Developer. From the date of the written notice of termination of this Agreement by City to Developer and thereafter this Agreement shall be deemed terminated, City shall have the option to terminate the Ground Lease, as provided in more detail therein, and there shall be no further rights or obligations between the parties (except as provided in Section 310 as to Developer’s delivery and assignment of Development Plans and other materials to City, if applicable), except that if Developer is in default hereunder City, after delivery of notice of default and expiration of the cure period provided in Section 501 hereof, may pursue any remedies it has at law or equity. 506. Attorneys’ Fees. In addition to any other remedies provided hereunder or available pursuant to law, if any party brings an action or proceeding to enforce, protect or establish any right or remedy hereunder or under any of the documents executed pursuant hereto, the prevailing party shall be entitled to recover from the other party its costs of suit, including without limitation expert witness fees, and reasonable attorneys’ fees. 507. Remedies Cumulative. No right, power, or remedy given to City by the terms of this Agreement is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to City by the terms of any such instrument, or by any statute or otherwise against Developer and any other person. 508. Waiver of Terms and Conditions. City may, in its sole discretion, waive in writing any of the terms and conditions of this Agreement. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term, or condition. 600. GENERAL PROVISIONS. 601. Time is of the Essence. Time is expressly made of the essence with respect to the performance by City and Developer of each and every obligation and condition of this Agreement. 70 602. Notices. Any approval, disapproval, demand, document or other notice (Notice) which any party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, (iii) facsimile transmission, or (vi) mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below, or at any other address as that party may later designate by Notice. Service shall be deemed conclusively made at the time of service if personally served; upon confirmation of receipt if sent by facsimile transmission; the next business day if sent by overnight courier and receipt is confirmed by the signature of an agent or employee of the party served; the next business day after deposit in the United States mail, properly addressed and postage prepaid, return receipt requested, if served by express mail; and three days after deposit thereof in the United States mail, properly addressed and postage prepaid, return receipt requested, if served by certified mail. Developer: Corporation for Better Housing 20750 Ventura Blvd, Suite 155 Woodland Hills, CA 91364 Attention: Executive Director (Lori Koester) Integrated Community Development, LLC 20750 Ventura Blvd., Suite 155 Woodland Hills, CA 91364 Attention: Benjamin Lingo With a Copy to: Chernove & Associates 74710 Highway 111, Suite 114 Palm Desert, CA 92260 Attention: Sheldon Chernove Tax Credit Investor: (to be determined) City: Georgeanne A. White, City Manager City of Fresno 2600 Fresno Street Fresno, CA 93721 With Copies To: Such addresses may be changed by Notice to the other party(ies) given in the same manner as provided above. 603. Representations and Warranties of Developer. Developer hereby represents and warrants to City as follows: 71 (a) Organization. Developer is a California limited partnership duly organized, validly existing, formed, and in good standing under the laws of the State of California that have the power and authority to own property and carry on business as is now being conducted. (b) Authority of Developer. Developer has full power and authority to execute and deliver this Agreement to execute and deliver as to the Project, the Regulatory Agreement, Ground Lease, Memorandum of Ground Lease, Memorandum of Agreement, Notice of Affordability Restrictions, Request for Notice and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above. (c) Valid Binding Agreements. This Agreement, the Regulatory Agreement, the Ground Lease, Memorandum of Ground Lease, Memorandum of Agreement, Request for Notice, Notice of Affordability Restrictions, and all other documents or instruments which have been executed and delivered pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute, legal, valid and binding obligations of Developer enforceable against it in accordance with their respective terms, as to the Project. (d) Pending Proceedings. Developer is not in default under any law or regulation or under any order of any federal, state, or local court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of Developer, threatened against or affecting Developer or the Subject Property, as applicable, at law or in equity, before or by any federal, state, or local court, board, commission or agency whatsoever which might, if determined adversely to Developer, materially affect Developer’s ability to perform its obligations hereunder, as to the Project. (e) Tax Credits. All information included or to be included within and provided to TCAC in the Application submitted by Developer upon which TCAC issues its preliminary Reservation letters shall be true and correct in all material respects as of the date of the Application. In the event any information or representation made by Developer to TCAC related, directly or indirectly, to the Tax Credits is not true, complete, and correct in all material respects, Developer shall, and acknowledges it has an obligation to, inform TCAC and City of such changes and to provide updated information to TCAC, City, and its Lender(s), as necessary. (f) Commercial or Private Funding Review. Developer agrees to notify City in the event that it applies for or proposes to use other sources of funds for the Project prior to the issuance of the Release of Construction Covenants as to the Project. 604. Limitation Upon Change in Ownership, Management and Control of Developer. 72 604.1 Prohibition. The identity and qualification of Developer, as an experienced and successful developer and operator of affordable apartment complexes is of particular concern to City. It is because of this identity and these qualifications that City has entered into this Agreement with Developer. No voluntary or involuntary successor in interest of Developer shall acquire any rights or powers under this Agreement by assignment, assumption or otherwise, nor shall Developer make any total or partial transfer, conveyance, encumbrance to secure financing or refinancing, assignment or sublease of the whole or any part of the leasehold interest in the Subject Property, as applicable, nor shall there be any change in the general or limited partners of Developer, without the prior written approval of City Manager pursuant to Section 604.3 below, except as expressly set forth herein, which approval shall not be unreasonably withheld or delayed. 604.2 Permitted Transfers. Developer shall not sell, lease, transfer, assign, or otherwise dispose (Transfer) all or any material part of any interest it might hold in the Subject Property or Project without written consent of the City, which consent shall not be unreasonably withheld or delayed. Notwithstanding other provisions of this Agreement to the contrary, City approval of an assignment or transfer of this Agreement or conveyance of Developer’s leasehold interest in the Subject Property, as applicable, or any part thereof, shall not be required in connection with any of the following (Permitted Transfers): (a) The granting of temporary easements or permits to facilitate the construction and development of the Project. (b) A transfer by and/or to the Subject Property, as applicable, as to such Developer’s rights under this Agreement to enter into a Ground Lease for the Subject Property, as applicable, and thereafter develop and operate the Project in accordance with this Agreement as follows: (c) A transfer of a limited partnership interest in either Developer entity to the approved Investor Limited Partner and subsequent transfers of such interests to an entity controlled by such Investor Limited Partner. (d) Subject to the restrictions of Section 400, et seq., including the Ground Lease and the Regulatory Agreement, the rental or lease for occupancy of each of the Housing Units to qualified Very Low Income and Low Income Households. (e) Assignment for approved financing purposes, subject to such financing being considered and approved by City pursuant to Section 310 hereof. In the event of an assignment or transfer by Developer pursuant to this Section 604.2 not requiring City’s prior approval, Developer nevertheless agrees that at least 10 days prior to such pre-approved assignment or transfer it shall give written notice to City of such assignment or transfer along with a true and complete copy of the assignment or transfer document conforming to the requirements of this Agreement as to the Project. 73 604.3 City Consideration of Requested Transfer. City agrees that it will not unreasonably withhold approval of a request for an assignment or transfer made pursuant to this Section 604.3, provided (a) Developer delivers written notice to City requesting such approval, (b) the proposed assignee or transferee possesses a reasonable level of operational experience and capability with respect to the operation of similar first quality affordable rental housing projects, (c) the proposed assignee or transferee possesses a reasonable level of net worth and resources as necessary to develop, operate, and manage the Project, and (d) the assignee(s) or transferee(s) completely and fully assume(s) the obligations of Developer under this Agreement pursuant to an assignment and assumption agreement(s) in a form which is reasonably acceptable to City and its legal counsel(s). Such notice shall be accompanied by evidence regarding the proposed assignee’s or purchaser’s qualifications and experience and its financial commitments and resources sufficient to enable City to evaluate the proposed assignee or purchaser pursuant to the criteria set forth in this Section 604.3 and other criteria as reasonably determined by City. City shall approve or disapprove the request within 30 days of its receipt of Developer’s notice and submittal of complete information and materials required herein. City approval shall not be required for transfers or assignments for City approved financing purposes including foreclosure or deed in lieu of foreclosure; provided, there shall be no deemed approval of a transfer or assignment for financing that will increase the outstanding principal amount of or extend the term of a monetary lien against the Subject Property. In no event, however, shall City be obligated to approve the assignment or transfer of the Ground Lease, Regulatory Agreement, or City Covenants pursuant to this Section 604.3, except to an approved transferee or assignee of Developer’s rights in and to the Subject Property, based on City’s reasonable determination that such transferee or assignee has the experience, financial strength, knowledge, and overall capability to own, operate and manage the Project in accordance with the terms, conditions, and restrictions contained in this Agreement. In addition, City shall not be required to grant its approval of any proposed transfer or assignment unless all information reasonably requested by City relating to the proposed transferee or assignee entity and all general and limited partners of such entity, including true and correct copies of an executed Partnership Agreement, if the proposed assignee/transferee is a partnership, true and correct copies of articles of incorporation if the proposed assignee/transferee is a corporation, plus current certified financial statements of the entity and financial statements relating to other affordable rental housing projects developed and/or operated by such entity(ies) and reporting and compliance documentation for such projects submitted for public entities providing funding to such projects, etc., as applicable. (a) Addition of Limited Partner(s) to Developer Entity as Tax Credits Investment Entity. City acknowledges that Developer anticipates that one of the limited partner(s) to be added to each Developer entity will be the Investor Limited Partner for the Project. As of the Date of Agreement, Developer has not solicited bids for or selected its Investor Limited Partner for the Project. 604.4 Approval of Refinancing of Primary Loan. City Manager shall have the right to review all documents related to and to approve or disapprove any refinancing of the Primary Loan or any other debt secured by Developer’s leasehold 74 interest in the Subject Property, as applicable, which refinancing will increase the interest rate or increase the outstanding principal amount of such debt or cause or require the release or withdrawal of cash or equity from any part of the Project. City Manager shall reasonably consider any such proposed refinancing based on an economic evaluation conducted by City’s economic consultant that analyzes the effect of the proposed refinancing on (i) the ability of Developer to repay in full the Primary Loan and any other debt or other liens against the Subject Property as such payment becomes due. The City shall not unreasonably withhold its consent and shall work with Developer in good faith while negotiating the proposed refinance and related loan documents. 605. Successors and Assigns. This Agreement shall run with the land, and all of the terms, covenants and conditions of this Agreement shall be binding upon Developer and the permitted successors and assigns of Developer. Whenever the term “Developer” is used in this Agreement, such term shall include any of Developer’s approved Affiliate assignee(s) or transferee(s), or any other permitted successors and assigns as herein provided. 606. Non-Liability of Officials and Employees of City. No member, elected or appointed official, or employee of the City shall be personally liable to Developer or any successor in interest in the Event of Default or other breach by City or for any amount which may become due to Developer or its successors, or for performance of any obligations under the terms of this Agreement. 607. Relationship between City and Developer. It is hereby acknowledged and agreed that the relationship between City and Developer is not that of a partnership or joint venture or other investor partner and that City and Developer shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided in this Agreement, City shall have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Project. 608. City Manager; City Approvals and Actions. City shall maintain authority of this Agreement and the authority to implement this Agreement through the City Manager (or her duly authorized representative). The City Manager and her duly authorized representative(s) shall have the authority to make approvals, issue interpretations, waive provisions, request issuance of warrants and make payments authorized hereunder, make and execute further agreements (including Implementation Agreements) and/or enter into amendments of this Agreement on behalf of City so long as such actions do not materially or substantially change or modify the uses or development permitted on the Subject Property, or materially or substantially add to the costs, responsibilities, or liabilities incurred or to be incurred by City as specified herein, and such interpretations, waivers and/or amendments may include extensions of time to perform as specified in the Schedule of Performance attached hereto and the Schedule of Performance attached to each Implementation Agreement for the Project. All material and/or substantive interpretations, waivers, or amendments shall require the consideration, action and written consent of the City Council. Further, City Manager shall maintain the right to submit to the City Council for consideration and action any non- material or non-substantive interpretation, waiver or amendment, if in her reasonable judgment she desires to do so. 75 609. Counterparts. This Agreement may be signed in multiple counterparts all of which together shall constitute an original binding agreement. This Agreement is executed in three originals, each of which is deemed to be an original. 610. Integration. This Agreement contains the entire understanding between the parties relating to the transaction contemplated by this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each party is entering this Agreement based solely upon the representations set forth herein and upon each party’s own independent investigation of any and all facts such party deems material. This Agreement constitutes the entire understanding of the parties, notwithstanding any previous negotiations, approved terms and conditions, or agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. 611. Real Estate Brokerage Commission. City and Developer each represent and warrant to the other that no broker or finder is entitled to any commission or finder’s fee in connection with this transaction, and Developer and City agree to defend and hold harmless each other from any claim to any such commission or fee resulting from any action on its part. 612. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms. References to Section and Paragraph numbers are to sections and paragraphs in this Agreement, unless expressly stated otherwise. 613. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word “including” shall be construed as if followed by the words “without limitation.” This Agreement shall be interpreted as though prepared jointly by both parties. 614. No Waiver. A waiver by any party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Agreement or the Attachments hereto. 615. Intentionally Omitted 616. Developer’s Payment and Reimbursement of City’s Post-Date of Agreement Third Party Costs. 616.1 Third Party Costs Defined; Obligation. Developer shall pay for and reimburse City for all costs reasonably incurred by City for any and all out of pocket, third party costs, fees, and expenses incurred by City (but not in-house staff time) for attorneys, economic consultants, appraisers, engineers, affordable housing consultants, escrow company fees, title company fees, and other consulting and/or professional services incurred by City arising from and/or related in any respect to the 76 implementation of this Agreement or the Project from the period of time commencing upon the Closing for the Project through the term of the Affordability Period for the Project (together, “Third Party Costs”). The Third-Party Costs may include costs incurred in connection with (a) drafting, negotiation, and execution of post-Closing Implementation Agreements, if any, (b) post-Closing enforcement of the Regulatory Agreement, Ground Lease, or other documents for the Project (collectively, “Project Documents”), including the following: (i) commencement of, appearance in, or defense of any action or proceeding purporting to affect the rights or obligations of the parties to any Project Documents, and (ii) all claims, demands, causes of action, liabilities, losses, commissions and other costs against which City are indemnified under the Project Documents, provided as to defense of any action which City have tendered the defense to Developer and Developer fails to defend any such action; and (c) other costs incurred related to requests for or provision of estoppel certificates, subordination agreements, affordable housing documents, escrow instructions, advisory assistance, any other documentation, legal advice, redevelopment/affordable housing advice, or other third party contracts for consulting or professional services necessitated by City’s or Developer’s post-Closing implementation of this Agreement, and/or requested by Developer, and/or its Lender or other independent contractor or consultant to Developer post-Closing arising from or related in any manner to this Agreement. 616.2 Payment of Third Party Costs. Within 15 days of the submittal by City staff of copies of invoices or billings for Third Party Costs incurred, it is and shall be the obligation of Developer to reimburse and pay to City 100% of these Third Party Costs. (a) This reimbursement obligation shall bear interest from the date occurring ten (10) days after City gives written demand to Developer at the lesser rate of five percent (5%), or the maximum rate then permitted by law. (b) This reimbursement obligation shall survive the issuance of the final Release of Construction Covenants, and termination of this Agreement. 616.3 Exception to Payment of Post-Date of Agreement Third Party Costs. Notwithstanding Section 616, 616.1, and 616.2 above, Developer shall not be responsible to pay and reimburse for Third Party Costs if the costs incurred are attributable to one or more of the following events: (a) City Council, Planning Commission, Zoning Administrator, or other City official with discretionary approval and/or disapproval rights over the Project or the implementation of this Agreement disapproves, denies, or refuses to take action on an application for a permit or other discretionary application necessary to commence and complete the Project; or (b) Default by City under this Agreement. 617. Implementation of Agreement. The parties acknowledge that, due to the long term nature of the Project and the implementation of the Project under this 77 Agreement, it may be necessary and/or appropriate at some time in the future, or from time to time, for City and Developer (or Affiliates of Developer) to enter into various Implementation Agreements or to otherwise execute additional documentation to clarify and implement the provisions of this Agreement and provide for the incorporation of additional or different funding and/or financing sources for the development and operation of the Project, as may become necessary or appropriate for the successful development of the Project and implementation of this Agreement. Each party agrees to cooperate in good faith to negotiate and enter into such various Implementation Agreement for the Project as may be determined to be reasonably necessary and/or appropriate by Developer or City Manager, in their reasonable discretion. 618. Amendments. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed by a duly authorized representative on behalf of each party. 619. Severability. If any term, provision, condition or covenant of this Agreement or its application to any party or circumstances or Project shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 620. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term “holiday” shall mean all holidays as specified in Section 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Time Zone time. 621. Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. 622. Cooperation. Each party agrees to cooperate with the other in this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful or appropriate to carry out the purposes and intent of this Agreement including, but not limited to, Implementation Agreements, releases or other agreements. 623. Conflicts of Interest. No member elected or appointed public official or City employee shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, elected or appointed public official or employee participate in any decision relating to the Agreement which affects his personal interests, his economic interests, or the interests of any corporation, partnership or association in which he is 78 directly or indirectly interested. 624. Non-recourse Liability of Developer. Notwithstanding anything to the contrary in this Agreement or any other Project Document, neither Developer nor any of its partners shall be personally liable for any default, loss, claim, damage, expense or liability to any person and the sole remedy against Developer hereunder shall be limited to its interest in the Project. [Agreement continues on next page] 79 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day and year first above written. CITY OF FRESNO, A California municipal corporation By: Georgeanne A. White, City Manager APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Tracy N. Parvanian Date Supervising Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy [DEVELOPER NAME], [Legal Identity] By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Page 1 of 1 ATTACHMENT NO. 1 LEGAL DESCRIPTION APN 426-253-19 All that portion of the North half of the Southeast quarter of the Southeast quarter of Section 16, Township 13 South, Range 20 East, Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California, according to the Official Plat thereof, described as follows: COMMENCING at the Southeast corner of the said North half of the Southeast quarter of the Southeast quarter of Section 16; thence South 88° 57' West, along the South line of the said North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 366.0 feet; thence North 00° 07' 30" West, parallel with the East line of said Section 16, a distance of 30.00 feet to the TRUE POINT OF BEGINNING this description; thence from said point, South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 107.31 feet to a point 32.00 feet east of the Southeast corner of Lot 1 of Tract No. 1145, Del Mar Homesites No. 2, as shown on the map thereof recorded in Book 15, of Plats, at Page 22, Fresno County Records; thence North 00° 07' West along a line 32.00 feet east of and parallel with the East line of said Tract No. 1145, a distance of 200.00 feet; thence North 88° 57' East, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 418.28 feet; thence South 00° 07' 30" East, along a line 55.00 feet west of and parallel with the said East line of Section 16, a distance of 100.00 feet; thence South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 311.00 feet; thence South 00° 07' 30" East, parallel with the said East line of Section 16, a distance of 100.00 feet to the TRUE POINT OF BEGINNING. Page 1 of 1 ATTACHMENT NO. 2 SITE MAP Page 1 of 2 ATTACHMENT NO. 3 SCHEDULE OF PERFORMANCE Provide a detailed timeline for completion of major milestones related to the project. Identify all key aspects as well as the dates when all funding sources will be secured. If awarded, prepare to enter into an agreement by June 2024. The project schedule should indicate that all proposed and conditional funds will be committed within 10 months of the award of City funding and that the project must commence construction within one year of the City funding agreement execution and must be completed within four years of the agreement execution. List each task in chronological order, the projected completion date, and the responsible party to complete the task. At a minimum, show the projected dates for commitment of all funding sources, any land use approvals, and date of property acquisition and construction commencement. Schedule of Milestones Task Projected Completion Date Responsible Party Sample: submit City application for funding July 14, 2023 Developer City awards funds 10/2023 City Land Use 12/2023 Developer & City Submit for 9% Credits 4/2024 - 7/2024 Developer City funding Agreement Execution, if awarded 6/2024 Developer & City Close Construction Financing 12/2024 Developer / Lenders / City Commence Construction 12/2024 Developer Construction Completion 6/2025 Developer 100% Leased 9/2025 Developer Perm Loan Conversion 1/2026 Developer / City SECTION 5 - PROJECT SCHEDULE Page 2 of 2 Describe any aspects of the project that may lead to delays and how the schedule will be adapted to respond. All affordable housing finance in California is extremely competitive. We believe that the 9% tax credit program is the most expeditious funding source currently. We have structured an application with the highest probability for success; however, the process is competitive and we do not have data on all the potential competition. It is possible that we are unsuccessful in the first round of tax credit applications. If this occurs, we would respond by re-applying in the second round of tax credit applications delaying the project by approximately four months. Page 3 of 2 ATTACHMENT NO. 3A PRELIMINARY BUDGET 1 Sources and Uses Budget IV. SOURCES AND USES BUDGET - SECTION 1: SOURCES AND USES BUDGET TOTAL PROJECT COST RES. COST COM'L. COST TAX CREDIT EQUITY 1)Pacific Western Bank 2)City of Fresno Land 3)City of Fresno Loan 4)Solar Tax Credits 5)Deferred Developer Fee 6)7)8)9)10)11)12) SUBTOTAL 70% PVC for New Const/Rehab 30% PVC for Acquisition LAND COST/ACQUISITION 1Land Cost or Value $2,584,000 $2,584,000 $2,584,000 $2,584,000 2Demolition $600,000 $600,000 $600,000 $600,000 Legal $0 $0 Land Lease Rent Prepayment $0 $0 1Total Land Cost or Value $3,184,000 $3,184,000 $0 $600,000 $0 $2,584,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $3,184,000 Existing Improvements Cost or Value $0 $0 2Off-Site Improvements $0 $0 $0 Total Acquisition Cost $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 Total Land Cost / Acquisition Cost $3,184,000 $3,184,000 $0 $600,000 $0 $2,584,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $3,184,000 Predevelopment Interest/Holding Cost $0 $0 Assumed, Accrued Interest on Existing Debt (Rehab/Acq) $0 $0 Excess Purchase Price Over Appraisal $0 $0 REHABILITATION Site Work $0 $0 Structures $0 $0 General Requirements $0 $0 Contractor Overhead $0 $0 Contractor Profit $0 $0 Prevailing Wages $0 $0 General Liability Insurance $0 $0 Third-party Construction Management $0 $0 Other : (Specify)$0 $0 Total Rehabilitation Costs $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 Total Relocation Expenses $0 $0 NEW CONSTRUCTION Site Work $1,500,000 $1,500,000 $239,000 $1,261,000 $1,500,000 $1,500,000 Structures $16,003,389 $16,003,389 $1,002,534 $15,000,855 $16,003,389 $16,003,389 General Requirements $1,111,703 $1,111,703 $1,111,703 $1,111,703 $1,111,703 Contractor Overhead $741,135 $741,135 $741,135 $741,135 $741,135 Contractor Profit $741,135 $741,135 $741,135 $741,135 $741,135 Prevailing Wages $0 $0 $0 General Liability Insurance $0 $0 $0 Third-party Construction Management $0 $0 $0 Solar Pv $1,025,000 $1,025,000 $805,160 $219,840 $1,025,000 $1,025,000 Total New Construction Costs $21,122,362 $21,122,362 $0 $4,640,667 $1,261,000 $0 $15,000,855 $219,840 $0 $0 $0 $0 $0 $0 $0 $0 $21,122,362 $21,122,362 $0 ARCHITECTURAL FEES Design $574,000 $574,000 $574,000 $574,000 $574,000 Supervision $0 $0 Total Architectural Costs $574,000 $574,000 $0 $574,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $574,000 $574,000 $0 Total Survey & Engineering $557,900 $557,900 $557,900 $0 $557,900 $557,900 CONSTRUCTION INTEREST & FEES Construction Loan Interest $2,906,250 $2,906,250 $2,906,250 $2,906,250 $1,453,125 Origination Fee $250,000 $250,000 $250,000 $250,000 $250,000 Credit Enhancement/Application Fee $0 $0 Bond Premium $0 $0 Title & Recording $55,000 $55,000 $55,000 $55,000 $55,000 Taxes $5,000 $5,000 $5,000 $5,000 $5,000 Insurance $452,000 $452,000 $452,000 $452,000 $452,000 Other: (Specify)$0 $0 Total Construction Interest & Fees $3,668,250 $3,668,250 $0 $3,668,250 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $3,668,250 $2,215,125 $0 PERMANENT FINANCING Loan Origination Fee $0 $0 Credit Enhancement/Application Fee $0 $0 Title & Recording $35,000 $35,000 $35,000 $35,000 Taxes $0 $0 Insurance $0 $0 Other: (Specify)$0 $0 Total Permanent Financing Costs $35,000 $35,000 $0 $35,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $35,000 Subtotals Forward $29,141,512 $29,141,512 $0 $10,075,817 $1,261,000 $2,584,000 $15,000,855 $219,840 $0 $0 $0 $0 $0 $0 $0 $0 $29,141,512 $24,469,387 $0 LEGAL FEES AND THIRD-PARTY CONSULTING FEES Lender Legal Paid by Applicant $150,000 $150,000 $150,000 $150,000 $90,000 Financial Consulting, Application Preparation/Review $0 $0 Entitlement Services, Building Permit Expediting $0 $0 Tenant File Review Services $0 $0 Other: (Specify)$0 $0 Total Legal and Consulting Costs $150,000 $150,000 $0 $150,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $150,000 $90,000 $0 RESERVES Rent Reserves $0 $0 Capitalized Rent Reserves $0 $0 Required Capitalized Replacement Reserve $0 $0 3-Month Operating Reserve $155,600 $155,600 $155,600 $155,600 Permanent Sources 2 Sources and Uses Budget IV. SOURCES AND USES BUDGET - SECTION 1: SOURCES AND USES BUDGET TOTAL PROJECT COST RES. COST COM'L. COST TAX CREDIT EQUITY 1)Pacific Western Bank 2)City of Fresno Land 3)City of Fresno Loan 4)Solar Tax Credits 5)Deferred Developer Fee 6)7)8)9)10)11)12) SUBTOTAL 70% PVC for New Const/Rehab 30% PVC for Acquisition Permanent Sources Other: (Specify)$0 $0 Total Reserve Costs $155,600 $155,600 $0 $155,600 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $155,600 CONTINGENCY COSTS Construction Hard Cost Contingency $1,056,118 $1,056,118 $1,056,118 $1,056,118 $1,056,118 Soft Cost Contingency $400,000 $400,000 $400,000 $400,000 $400,000 Total Contingency Costs $1,456,118 $1,456,118 $0 $1,456,118 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $1,456,118 $1,456,118 $0 OTHER PROJECT COSTS CTCAC App/Allocation/Monitoring Fees $113,380 $113,380 $113,380 $113,380 Environmental Audit $20,000 $20,000 $20,000 $20,000 $20,000 Local Development Impact Fees $535,529 $535,529 $535,529 $535,529 $535,529 Permit Processing Fees $246,000 $246,000 $246,000 $246,000 $246,000 Capital Fees $0 $0 $0 $0 Marketing $98,400 $98,400 $98,400 $98,400 Furnishings $50,000 $50,000 $50,000 $50,000 $50,000 Market Study $20,000 $20,000 $20,000 $20,000 $20,000 Accounting/Reimbursable $15,000 $15,000 $15,000 $15,000 $15,000 Appraisal Costs $10,000 $10,000 $10,000 $10,000 $10,000 Security $65,000 $65,000 $65,000 $65,000 $65,000 Prevailing Wage Monitoring $48,000 $48,000 $48,000 $48,000 $48,000 Other: (Specify)$0 $0 Total Other Costs $1,221,309 $1,221,309 $0 $1,221,309 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $1,221,309 $1,009,529 $0 SUBTOTAL PROJECT COST $32,124,539 $32,124,539 $0 $13,058,844 $1,261,000 $2,584,000 $15,000,855 $219,840 $0 $0 $0 $0 $0 $0 $0 $0 $32,124,539 $27,025,034 $0 DEVELOPER COSTS Developer Overhead/Profit $2,200,000 $2,200,000 $2,068,106 $131,894 $2,200,000 $2,200,000 Processing Agent $0 $0 $0 Broker Fees Paid to a Related Party $0 $0 Construction Oversight by Developer $0 $0 Other: (Specify)$0 $0 Total Developer Costs $2,200,000 $2,200,000 $0 $2,068,106 $0 $0 $0 $0 $131,894 $0 $0 $0 $0 $0 $0 $0 $2,200,000 $2,200,000 $0 TOTAL PROJECT COST $34,324,539 $34,324,539 $0 $15,126,950 $1,261,000 $2,584,000 $15,000,855 $219,840 $131,894 $0 $0 $0 $0 $0 $0 $0 $34,324,539 $29,225,034 $0 Note: Syndication Costs shall NOT be included as a project cost. Bridge Loan Expense During Construction: Calculate Maximum Developer Fee using the eligible basis subtotals. Total Eligible Basis:$29,225,034 $0 DOUBLE CHECK AGAINST PERMANENT FINANCING TOTALS:$15,126,950 $1,261,000 $2,584,000 $15,000,855 $219,840 $131,894 $0 $0 $0 $0 $0 $0 $0 Funding sources and costs should be aligned appropriately. For example, public funding sources for land purchase or construction costs should be shown as paying for these costs. Do not randomly select funding sources for line item costs if they have a dedicated source of payment. 1 Required: evidence of land value (see Tab 1). Land value must be included in Total Project Cost and Sources and Uses Budget (includes donated or leased land). Except for non-competitive projects with donated land, CTCAC will not accept a budget with a nominal land value. Please refer to the CTCAC website for additional information and guidance. 2 Required: include a detailed explanation of Demolition and Offsite Improvements requirements as well as a cost breakdown in Attachment 12, Construction and Design Description. Note: The conditional formatting embedded in this Sources and Uses Budget workbook tests only for mathematical errors, i.e. whether sum total of Sources (Column R) matches Total Project Cost (Column B) and whether each source listed in the Sources and Uses Budget workbook (Row 104) matches that of Permanent Financing in the Application workbook (Row 107). The conditional formatting does NOT test for any regulatory threshold or feasibility requirements. Applicants are advised to conduct their own due diligence and not rely upon the conditional formatting in this workbook. FOR PLACED IN SERVICE APPLICATION SUBMISSIONS: SYNDICATION (Investor & General Partner) Organizational Fee Bridge Loan Fees/Exp. Legal Fees Consultant Fees Accountant Fees Tax Opinion Other Date Total Syndication Costs $0 CERTIFICATION OF CPA/TAX PROFESSIONAL: As the tax professional for the above-referenced low-income housing project, I certify under penalty of perjury, that the percentage of aggregate basis financed by tax-exempt bonds is: Date Signature of Owner/General Partner CERTIFICATION BY OWNER: Signature of Project CPA/Tax Professional As owner(s) of the above-referenced low-income housing project, I certify under penalty of perjury, that the project costs contained herein are, to the best of my knowledge, accurate and actual costs associated with the construction, acquisition and/or rehabilitation of this project and that the sources of funds shown are the only funds received by the Partnership for the development of the project. I authorize the California Tax Credit Allocation Committee to utilize this information to calculate the low-income housing tax credit. Printed Name of Signatory Title of Signatory ATTACHMENT NO. 4 SCOPE OF DEVELOPMENT ATTACHMENT NO. 5 RELEASE OF CONSTRUCTION COVENANTS This document is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. RELEASE OF CONSTRUCTION COVENANTS This RELEASE OF CONSTRUCTION COVENANTS (Release) is hereby made as of , 20__ , by the CITY OF FRESNO, a municipal corporation (City) in favor of _______________________________ (Developer). RECITALS A. City and Developer have entered into an Affordable Housing Agreement dated as of _______________ (Agreement), (as amended and implemented by that certain Implementation Agreement by and between City and Developer, dated as of , 20 ), which Agreement provides for the development of a senior affordable rental housing project, consisting of an 82 unit senior rental apartment units, in which all but one of the Housing Units will be made available to Very-Low Income and Low-Income Households at an Affordable Rent and one Housing Unit will be an unrestricted unite rented to on-site manager who shall not be required to qualify as Low or Very Low Income but who will pay an Affordable Rent calculated for a Low-Income Household, on certain real property (Subject Property) generally located at 4323 – 4333 N. Blackstone Ave.in the City of Fresno, California. B. The Project consists of the construction of eighty-two Housing Units (seventy- three (73) of which shall be one-bedroom Housing Units and the remaining nine (9) shall be two-bedroom Housing Units, inclusive of one unrestricted manager unit), a community room, management office, central laundry facilities, elevators, on-site covered parking, and passive recreational areas, on that portion of the Subject Property which is legally described on Exhibit “A” attached hereto and made a part hereof by this reference (subject Property). As required in the Agreement, City shall furnish Developer with a Release of Construction Covenants upon completion of the Development of the Project, which Release shall be in RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Attention: such form as to permit it to be recorded in the Official Records of Fresno County, California. C. City has conclusively determined that the Development of the Project as required by the Agreement has been satisfactorily completed at the Subject Property. NOW, THEREFORE, City hereto certifies as follows: 1. As provided in the Agreement, City does hereby certify that the development of the Project has been fully and satisfactorily performed and completed in accordance with the Agreement. 2. After the recordation of this Release, any person or entity then owning or thereafter purchasing, or otherwise acquiring any interest in the Subject Property will not (because of such ownership, purchase, or acquisition) incur any obligation or liability under the Agreement, except that such party shall be bound by any and all of the covenants, conditions, and restrictions which survive such recordation, including without limitation, the Ground Lease, and the Regulatory Agreement; provided the recordation of this Release shall not alter in any way the order of priority of any liens or encumbrances against the Subject Property, including the Primary Loan for the Subject Property, which shall not in any event have priority over City’s fee interest in the Subject Property. 3. This Release is not a notice of completion as referred to in Section 3093 of the California Civil Code. 4. The recitals above are incorporated in full as part of the substantive text of this Release. [Signatures appear on following page.] IN WITNESS WHEREOF, City has executed this Release of Construction Covenants as of the date first set forth above. CITY: CITY OF FRESNO, a municipal corporation By:______________________________ Georgeanne A. White City Manager APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Tracy N. Parvanian Date Supervising Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy EXHIBIT A TO ATTACHMENT NO. 5 LEGAL DESCRIPTION APN 426-253-19 All that portion of the North half of the Southeast quarter of the Southeast quarter of Section 16, Township 13 South, Range 20 East, Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California, according to the Official Plat thereof, described as follows: COMMENCING at the Southeast corner of the said North half of the Southeast quarter of the Southeast quarter of Section 16; thence South 88° 57' West, along the South line of the said North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 366.0 feet; thence North 00° 07' 30" West, parallel with the East line of said Section 16, a distance of 30.00 feet to the TRUE POINT OF BEGINNING this description; thence from said point, South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 107.31 feet to a point 32.00 feet east of the Southeast corner of Lot 1 of Tract No. 1145, Del Mar Homesites No. 2, as shown on the map thereof recorded in Book 15, of Plats, at Page 22, Fresno County Records; thence North 00° 07' West along a line 32.00 feet east of and parallel with the East line of said Tract No. 1145, a distance of 200.00 feet; thence North 88° 57' East, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 418.28 feet; thence South 00° 07' 30" East, along a line 55.00 feet west of and parallel with the said East line of Section 16, a distance of 100.00 feet; thence South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 311.00 feet; thence South 00° 07' 30" East, parallel with the said East line of Section 16, a distance of 100.00 feet to the TRUE POINT OF BEGINNING. ATTACHMENT NO. 6 CITY REGULATORY AGREEMENT/DECLARATION OF RESTRICTIONS This document is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. REGULATORY AGREEMENT This REGULATORY AGREEMENT (Regulatory Agreement) is entered into as of , 202 , by and between the CITY OF FRESNO, a municipal corporation (City), and ____________________ , (Developer). RECITALS A. City is the owner of certain real property located at 4323 – 4333 N. Blackstone Ave within the City of Fresno, a portion of which is legally described in the Legal Description attached hereto as Exhibit A, which is incorporated herein by reference, and is the subject of this Regulatory Agreement (Subject Property). B. Developer, and City entered into that certain “Affordable Housing Agreement” dated as of _______________; in implementation of the Affordable Housing Agreement, City and Developer entered into that certain Ground Lease dated as of , 20 (together, the Affordable Housing Agreement and the Ground Lease are referred to as the “AHA.”) Subject to the terms and conditions therein, City has agreed to ground lease the Subject Property to Developer, respectively, pursuant to a Ground Lease and construct a senior affordable rental housing project (Project) and operate the Project as a 82 unit senior affordable apartment complex on the Subject Property to be made available to Low Income Households, and Very Low Income Households, and one on-site manager unit to be made available to and occupied by on-site property manager whose income shall not be restricted, although the monthly housing payment for the on-site manager units shall be restricted to an Affordable Rent as determined for a Low-Income Household (collectively, Housing Units). C. Pursuant to the AHA, City agreed to ground lease the Subject Property to Developer pursuant to the Ground Lease and Developer agreed to develop and operate the Project thereon. RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Fresno 2600 Fresno Street Fresno, CA 93721 Attention: City Manager D. The Project will consist of 82 Housing Units, twenty-two (22) which will be made available to Low Income Households, fifty-nine (59) which will be made available to Very Low Income Households, and one (1) of which will be made available to and occupied by an on-site property manager. E. The execution and recording of this Regulatory Agreement is a requirement of the AHA. Terms used herein have the meanings set forth in the AHA unless otherwise specifically defined herein. NOW, THEREFORE, in exchange for the mutual covenants, restrictions, and agreements set forth herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. Development of the Project. Developer agrees to develop the Subject Property subject to the terms and in accordance with the provisions of the AHA, the Scope of Development which is attached to the Affordable Housing Agreement as Attachment No. 4, the Ground Lease, the Entitlement as approved by the City, the Fresno Municipal Code, and all other applicable federal, state and local codes, regulations, and ordinances. 2. Housing Units. a. Number of Housing Units. Developer covenants and agrees to make available, restrict occupancy to, and rent: (i) Eight (8) of the one-bedroom Housing Units to 30% AMI Very Low- Income Households at an Affordable Rent. (ii) Fifteen (15) of the one-bedroom Housing Units to 45% AMI Very Low-Income Households at an Affordable Rent. (iii) Twenty-Nine (29) of the one-bedroom Housing Units to 50% AMI Very Low-Income Households at an Affordable Rent. (iv) Twenty (20) of the one-bedroom Housing Units to 60% AMI Low- Income Households at an Affordable Rent. (v) One (1) of the two-bedroom Housing Units to 30% AMI Very Low- Income Households at an Affordable Rent. (vi) Two (2) of the two-bedroom Housing Units to 45% AMI Very Low- Income Households at an Affordable Rent. (vii) Four (4) of the two-bedroom Housing Units to 50% AMI Very Low- Income Households at an Affordable Rent. (viii) Two (2) of the one-bedroom Housing Units to 60% AMI Low- Income Households at an Affordable Rent. b. Affordable Rent. Affordable Rent shall be charged for all Housing Units for the applicable Affordability Period. The maximum Affordable Rent chargeable for the Housing Units shall be annually determined by City (and as charged and implemented by Developer) in accordance with the following requirements: (i) The Affordable Rent for the Housing Units to be rented to 30% AMI Very Low Income Households shall not exceed thirty percent (30%) of 30% of AMI for Fresno County as determined and published by TCAC for a family of a size appropriate to the Housing Unit. (ii) The Affordable Rent for the Housing Units to be rented to 45% AMI Very Low Income Households shall not exceed thirty percent (30%) of 45% of AMI for Fresno County as determined and published by TCAC for a family of a size appropriate to the Housing Unit. (iii) The Affordable Rent for the Housing Units to be rented to 50% AMI Very Low Income Households shall not exceed thirty percent (30%) of 50% of AMI for Fresno County as determined and published by TCAC for a family of a size appropriate to the Housing Unit. (iv) The Affordable Rent for the Housing Units to be rented to 60% AMI Low Income Households shall not exceed thirty percent (30%) of 60% of AMI for Fresno County as determined and published by TCAC for a family of a size appropriate to the Housing Unit. Developer shall, and shall cause its Property Manager to, operate the Project and cause occupancy of the Project and all Housing Units thereon in conformity with these covenants and this Agreement. For purposes of this Regulatory Agreement, “Affordable Rent” means the total of monthly payments for (a) use and occupancy of each Housing Unit and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by Developer which are required of all tenants, other than security deposits, (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuels, but not including telephone service, or cable TV or internet services, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and facilities associated therewith by a public or private entity other than Developer. No additional charge shall be assessed against tenant households of the Housing Units for any social or supportive services provided at the Subject Property and/or as a part of Developer’s compliance with the legal requirements imposed in connection with any Project Based Section 8 assistance pursuant to Section 4 below. c. Duration of Affordability Requirements; Affordability Period. The Project and all the Housing Units thereon shall be subject to the requirements of this Section 2, et seq. for the full term of not less than fifty-five (55) years from the date that the Release of Construction Covenants – is recorded against the Subject Property in the Official Records. The duration of these covenants and this requirement shall be known as the “Affordability Period.” d. Selection of Tenants. Developer shall be responsible for the selection of (senior) tenants for the Housing Units in compliance with all lawful and reasonable criteria, and shall adopt a tenant selection system which shall be approved by City Manager in her reasonable discretion, which establishes a chronological waiting list system for selection of tenants, which shall be set forth in the Marketing Program and the Property Management Plan, both of which are required to be submitted by Developer and approved by City pursuant to Sections 408 and 411 of the Affordable Housing Agreement. Subject to applicable Fair Housing Laws, the City shall be afforded a first right of refusal in referring eligible tenants to Housing Units, in the following order of priority (in accordance with all applicable laws): (i) Low Income Households or Very Low Income Households, as applicable, who have been displaced from their residences due to programs or projects implemented by the Fresno Planning & Development Department; (ii) Low Income Households or Very Low Income Households, as applicable, who have applied for and have received rental vouchers from Fresno Housing Authority; (iii) Low Income Households or Very Low Income Households, as applicable, who are listed on Fresno Housing Authority’s waiting list for affordable housing and who live and/or work in Fresno; and (iv) Low Income Households or Very Low Income Households, as applicable, who live and/or work in Fresno. Developer shall not refuse to lease to a holder of a certificate of family participation under 24 CFR part 882 (Rental Certificate Program) or a rental voucher under 24 CFR part 887 (Rental Voucher Program) or to the holder of a comparable document evidencing participation in a program pursuant to the HOME Investment Partnership Act, 42 U.S.C. §12701, et seq. and the implementing regulations located at 24 CFR part 92, as such now exist and as may hereafter be amended, a Section 8 voucher program or other tenant-based assistance program, who is otherwise qualified to be a tenant in accordance with the approved tenant selection criteria (collectively, “Voucher Programs.”) e. Household Income Requirements. On or before 120 days following the end of Developer’s fiscal year, commencing the first year after issuance of the first certificate of occupancy for the Project, and annually thereafter, Developer shall prepare and submit to City, at Developer’s expense, a written summary of the income, household size, and rent payable by each of the tenants of the Housing Units at the Project and, upon the written request of City, copies of each and all leases or rental agreements and the current rules and regulations for the Project. At City’s request, Developer shall also provide to City completed income computation and certification forms, all in a form reasonably acceptable to City, for each and all tenants at the Project. Developer shall obtain, or shall cause to be obtained by the Property Manager, a certification from each household leasing a Housing Unit at the Project demonstrating that such household is a 30% AMI Very Low Income Household, 45% AMI Very Low Income Household, 50% AMI Very Low Income Household, or 60% AMI Low Income Household, as applicable and according to the Area Median Income annually determined and published by TCAC for Fresno County, and meets the eligibility and occupancy requirements established for the Housing Unit. Developer shall verify, or shall cause to be verified by the Property Manager, the income and household size certification of the tenant household. f. [Intentionally omitted.] g. Affordable Rent; Household Income Categories/Definitions. “30% AMI Very Low Income Households” means those households earning not greater than thirty percent (30%) of Fresno County Area Median Income, adjusted for household size, which is set forth annually by regulation of TCAC. “45% AMI Very Low Income Households” means those households earning not greater than forty percent (45%) of Fresno County Area Median Income, adjusted for household size, which is set forth annually by regulation of TCAC. “50% AMI Very Low Income Households” means those households earning not greater than fifty percent (50%) of Fresno County Area Median Income, adjusted for household size, which is set forth annually by regulation of TCAC. “60% Low Income Households” means those households earning not greater than sixty percent (60%) of Fresno County Area Median Income, adjusted for household size, which is set forth annually by regulation of TCAC. “Very Low Income” and/or “Very Low Income Households” shall mean and include: (i) very low income households as defined in the Tax Credit Rules, (ii) 30% AMI Very Low Income Households, (iii) 45% AMI Very Low Income Households, and (iv) 50% AMI Very Low Income Households. Very Low Income Households include Extremely Low Income Households, as defined in the Tax Credit Rules. “Lower Income,” “Low Income,” and/or “Lower Income Households” shall mean and include both: (i) lower income households as defined in the Tax Credit Rules, and (ii) 60% AMI Low Income Households. Lower Income Households include Very Low Income households and Extremely Low Income households, as defined in the Tax Credit Rules. h. Occupancy Limits. The maximum occupancy of the Housing Units in the Project shall not exceed more than such number of persons as is equal to two persons per bedroom, plus one. Thus, for the two (2) bedroom Housing Units, the maximum occupancy shall not exceed five (5) persons. For the three (3) bedroom Housing Units, the maximum occupancy shall not exceed seven (7) persons. 3. Marketing Program. Prior to and as a Condition Precedent to a Certificate of Occupancy, Developer shall have prepared and obtained City’s approval, which approval shall not be unreasonably withheld, of a marketing program for the leasing of the Housing Units at the Project (“Marketing Program”). During the Affordability Period, any material changes to an approved Marketing Program are subject to reasonable review and approval by the City Manager. The rental of the Housing Units, as and when they are vacated by the existing tenants, shall be conducted in accordance with the approved Marketing Program and any affirmative marketing requirements which have been adopted by the City prior to the date hereof. The availability of Housing Units shall be marketed in accordance with the Marketing Program as the same may be amended from time to time with City’s prior written approval, which approval shall not unreasonably be withheld. Developer shall provide City with periodic reports with respect to the marketing for lease of the Housing Units. City agrees to exercise reasonable efforts to assist Developer in connection with the implementation of the Marketing Program; provided, however, City shall not be under any obligation to incur any out-of-pocket expenses in connection therewith. 4. Leases; Rental Agreements for Housing Units. Developer shall submit a standard lease form, which shall comply with the requirements of this Regulatory Agreement, including all applicable provisions of the Act, to City for its approval. City shall reasonably approve such lease form upon finding that such lease form is consistent with this Regulatory Agreement, including all applicable provisions of the Act. Developer shall enter into a written lease, in the form approved by City, with each tenant/tenant household of the Project. During the Affordability Period, any material changes to the lease form are subject to the reasonable review and approval of the City Manager. 5. Maintenance. a. General Maintenance. Developer shall maintain the Subject Property and all improvements thereon, including lighting and signage, in good condition, free of debris, waste and graffiti, and in compliance with the terms of the Redevelopment Plan and all applicable provisions of the City of Fresno Municipal Code. Developer shall maintain in accordance with the “Maintenance Standards,” as hereinafter defined, the improvements and landscaping on the Subject Property. Such Maintenance Standards shall apply to all buildings, signage, common amenities, lighting, landscaping, irrigation of landscaping, architectural elements identifying the Subject Property and any and all other improvements on the Subject Property. To accomplish the maintenance, Developer shall either staff or contract with and hire licensed and qualified personnel to perform the maintenance work, including the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Regulatory Agreement. Developer and its maintenance staff, contractors or subcontractors shall comply with the following standards as to the Project (the “Maintenance Standards”): (i) The Subject Property shall be maintained in conformance and in compliance with the approved final as-built plans, and reasonable maintenance standards which comply with the industry standard for comparable first quality affordable housing projects in the County, including but not limited to painting and cleaning of all exterior surfaces and other exterior facades comprising all private improvements and public improvements to the curbline. (ii) Landscape maintenance shall include, but not be limited to: watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance and safe road conditions and visibility, and irrigation coverage; replacement, as needed, of all plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees. (iii) Clean-up maintenance shall include, but not be limited to: maintenance of all sidewalks, paths and other paved areas in clean and weed- free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers. City agrees to notify Developer in writing if the condition of the Subject Property does not meet with the Maintenance Standards and to specify the deficiencies and the actions required to be taken by Developer to cure the deficiencies. Upon notification of any maintenance deficiency, Developer shall have 30 days within which to correct, remedy or cure the deficiency. If the written notification states the problem is urgent relating to the public health and safety of the City, then Developer shall have 48 hours to rectify the problem. In the event Developer does not maintain the Subject Property in the manner set forth herein and in accordance with the Maintenance Standards, City shall have, in addition to any other rights and remedies hereunder, the right to maintain the Subject Property, or to contract for the correction of such deficiencies, after written notice to Developer, and Developer shall be responsible for the payment of all such costs incurred by City. b. Program Maintenance. In addition to the routine maintenance and repair required pursuant to Section 5(a), Developer shall perform the following programmed maintenance on the Improvements: (i) Interior painting and window covering replacement at least every five (5) years. (ii) Exterior painting at least every ten (10) years; (iii) Repair and resurfacing of parking areas and walkways at least every five (5) years. (iv) Replacement of all deteriorated or worn landscaping and play equipment at least every five (5) years Upon the request of Developer, the City Manager, at her sole and absolute discretion, may grant a waiver or deferral of any program maintenance requirement. Developer shall keep such records of maintenance and repair as are necessary to prove performance of the program maintenance requirements. 6. Management of the Project. a. Property Manager. Developer shall manage or cause the Project, and all appurtenances thereto that are a part of the Project, to be managed in a prudent and business-like manner, consistent with good property management standards for other comparable first quality, well-managed affordable rental housing projects in the County. Developer may contract with a property management company or individual property manager to operate and maintain the Project in accordance with the terms of this Section 6.a. (Property Manager); provided, however, the selection and hiring of the Property Manager (and each successor or assignee) is and shall be subject to the prior written approval of City Manager (or designee) in her sole reasonable discretion and a single Property Manager shall be contracted with for the Project. The Property Manager shall manage the Subject Property in accordance with the definitions of Affordable Rent contained in Section 2.b., the tenant selection requirements contained in Section 2.d., and the definitions relating to income contained in Section 2.g. Any fee paid to the Property Manager for social services provided to the tenants shall be exclusive of the fee paid to the Property Manager relating to the management of the Subject Property. Developer shall conduct due diligence and background evaluation of any potential third party property manager or property management company to evaluate experience, references, credit worthiness, and related qualifications as a property manager. Any proposed property manager shall have significant and relevant prior experience with affordable housing projects and properties comparable to the Project and the references and credit record of such property manager/company shall be investigated (or caused to be investigated) by Developer prior to submitting the name and qualifications of such proposed property manager to the City Manager for review and approval. A complete and true copy of the results of such background evaluation shall be provided to the City Manager. Approval of a Property Manager by City Manager shall not be unreasonably delayed but shall be in her sole reasonable discretion, and City Manager shall use good faith efforts to respond as promptly as practicable in order to facilitate effective and ongoing property management of the Project by one qualified Property Manager. The replacement of the Property manager by Developer and/or the selection by Developer of any new or different Property Manager during the Term of the Ground Lease shall also be subject to the foregoing requirements. b. Property Management Plan. Prior to and as a Condition Precedent to the commencement of the Ground Lease, Developer prepared and submitted to the City Manager for review and approval, a management plan which includes a detailed plan and strategy for long term marketing, operation, maintenance, repair and security of the Project, inclusive of social services for the residents of the Housing Units, and the method of selection of tenants, rules and regulations for tenants, and other rental policies for the Project (Property Management Plan). Topics to be covered in these procedures shall include at a minimum, the following: interviewing procedures for prospective tenants; previous rental history of tenants with references; credit reports, criminal background checks; deposit amounts, purpose, use and refund policy; employment/income verification; occupancy restrictions, income limits; equal housing opportunity statement; restrictions on use of the premises; and tenant/landlord dispute resolution procedures. The Property Management Plan shall contain copies of all standardized forms associated with the above listed topics. The ongoing management and operation of the Project shall be in compliance with the approved Property Management Plan. During the Affordability Period, Developer and its Property Manager may from time to time submit to the City Manager proposed amendments to the Property Management Plan, the implementation of which shall be subject to the prior written approval of the City Manager. c. Gross Mismanagement. During the Affordability Period, and in the event of “Gross Mismanagement” (as defined below) of the Project, City Manager shall have and retain the authority to direct and require any condition(s), acts, or inactions of Gross Mismanagement to cease and/or be corrected immediately, and further to direct and require the immediate removal of the Property Manager and replacement with a new qualified and approved Property Manager, if such condition(s) is/are not ceased and/or corrected after expiration of thirty (30) days from the date of written notice from City Manager. If Developer or Property Manager has commenced to cure such Gross Mismanagement condition(s) on or before the 20th day from the date of written notice (with evidence of such submitted to the City Manager), but has failed to complete such cure by the 30th day (or such longer period if the cure cannot reasonably be accomplished in thirty (30) days as reasonably determined by the non-defaulting party), then Developer and its Property Manager shall have an additional 10 days to complete the cure of Gross Mismanagement condition(s). In no event shall any condition of Gross Mismanagement continue uncured for a period exceeding forty-five (45) days from the date of the initial written notice of such condition(s), except that the conditions described in subdivisions (d) and (e) below may exist for up to, but no longer than, seventy-five (75) days without triggering City’s right to remove the Property Manager as described in the immediately following sentence as long as Developer is diligently working to cure such conditions of Gross Mismanagement. If such condition(s) do persist beyond such period, City Manager shall have the sole and absolute right to immediately and without further notice to Developer (or to Property Manager or any other person/entity) to remove the Property Manager and replace the Property Manager with a new property manager of the City Manager’s selection at the sole cost and expense of Developer. If Developer takes steps to select a new Property Manager that selection is subject to the requirements set forth above for selection of a Property Manager. For purposes of this Regulatory Agreement, the term “Gross Mismanagement” shall mean management of the Project in a manner which violates the terms and/or intention of this Regulatory Agreement to operate a high quality affordable housing complex, and shall include, but is not limited to, any one or more of the following: (a) Leasing to tenants who exceed the prescribed income levels; (b) Allowing tenants to exceed the prescribed occupancy levels without taking immediate action to stop such overcrowding; (c) Under-funding required reserve accounts; (d) Failing to timely maintain the Project in accordance with the Property Management Plan and Maintenance Standards; (e) Failing to submit timely and/or adequate annual reports to City as required herein; (f) Fraud or embezzlement of Project funds, including without limitation funds in the reserve accounts; (g) Failing to fully cooperate with the Fresno Police Department or other local law enforcement agency(ies) with jurisdiction over the Project, in maintaining a crime- free environment within the Project; (h) Failing to fully cooperate with the Fresno Fire Department or other local public safety agency(ies) with jurisdiction over the Project, in maintaining a safe and accessible environment within the Project; (i) Failing to fully cooperate with the Fresno Planning & Building Department, including the Code Enforcement Division, or other local health and safety enforcement agency(ies) with jurisdiction over the Project, in maintaining a decent, safe and sanitary environment within the Project; and (j) Spending funds from the Capital Replacement Reserve account for items that are not defined as eligible costs, including eligible capital and/or replacement costs, under the standards imposed by generally accepted accounting principles (“GAAP”) (and/or, as applicable, generally accepted auditing principles). Notwithstanding the requirements of the Property Manager to correct any condition of Gross Mismanagement as described above, Developer is obligated and shall use its best efforts to correct any defects in property management or operations at the earliest feasible time and, if necessary, to replace the Property Manager as provided above. Developer shall include advisement and provisions of the foregoing requirements and requirements of this Agreement within any contract between Developer and its Property Manager for the Project. d. Code Enforcement. Developer acknowledges and agrees that City and their employees and authorized agents, shall have the right to conduct code compliance and/or code enforcement inspections of the Project and the individual Housing Units, both exterior and interior, at reasonable times and upon reasonable notice (not less than forty-eight (48) hours prior notice, except in an emergency) to Developer and/or an individual tenant. If such notice is provided by City to Developer, then Developer (or its Property Manager) shall immediately and directly advise any affected tenant of such upcoming inspection and cause access to the area(s) and/or Housing Units at the Project to be made available and open for inspection. Developer shall include express advisement of such inspection rights within the lease/rental agreements for each Housing Unit in the Project in order for each and every tenant and tenant household to be aware of this inspection right. 7. Capital Reserve Requirements. Commencing upon the closing of the permanent Primary Loan, Developer shall annually set aside an amount of not less than Two Hundred Fifty Dollars ($250.00) per Housing Unit ($20,500 per year or such increased amount by TCAC or Partnership Agreement of Lender under Primary Loan), from the gross rents received from the Project into a separate interest-bearing trust account (Capital Replacement Reserve). Funds in the Capital Replacement Reserve shall be used only for capital repairs, improvements and replacements to the Project, including fixtures and equipment, which are normally capitalized under GAAP. The non- availability of funds in the Capital Replacement Reserve does not in any manner relieve or lessen Developer’s obligation to undertake any and all necessary capital repairs, improvements, or replacements and to continue to maintain the Project in the manner prescribed herein. Not less than once per year, Developer, at its expense, shall submit to City Manager an accounting for the Capital Replacement Reserve. Capital improvements and repairs to, and replacements at the Project shall include only those items with a long useful life, including without limitation the following: carpet and drapery replacement; appliance replacement; exterior painting, including exterior trim; hot water heater replacement; plumbing fixtures replacement, including tubs and showers, toilets, lavatories, sinks, faucets; air conditioning and heating replacement; asphalt repair and replacement, and seal coating; roofing repair and replacement; landscape tree replacement; irrigation pipe and controls replacement; sewer line replacement; water line replacement; gas line replacement; lighting fixture replacement; elevator replacement and upgrade work; miscellaneous motors and blowers; common area furniture replacement; and common area repainting. Pursuant to the procedure for submittal of each Annual Budget for the Project to City Manager by Developer, City Manager may evaluate the cumulative amount on deposit in the Capital Replacement Reserve account for the Project and exercise his/her sole, reasonable discretion to determine if existing balance(s) in, proposed deposits to, shortfalls, if any, and/or a cumulative unexpended/unencumbered account balance in such Capital Replacement Reserve account are adequate to provide for necessary capital repairs and improvement to the Subject Property and the Project (provided that required annual deposits thereto are not required to exceed $250/per Housing Unit). 8. Operating Budget. Within twelve (12) months after commencement of construction of the Project, but in no event later than ninety (90) days prior to the completion of construction of the Project, and not less than annually thereafter on or before November 1 of each year following the issuance of the first certificate of occupancy issued by the City’s building official for the Project, Developer shall submit to City on not less than an annual basis an operating budget for the Project (“Operating Budget” or “Annual Budget”), which budget shall be subject to the written approval of City Manager or designee, which approval shall not be unreasonably withheld. The City Manager’s discretion in review and approval of each proposed annual Operating Budget shall include, without limitation, authority to review individual categories, line items, and accounts, such as the following: extent, type, and amount for social services at or associated with the Project; existing balance(s) in and proposed deposits to the Capital Replacement Reserve for the Project to evaluate shortfalls and/or cumulative unexpended/unencumbered deposits (provided that required annual deposits thereto are not required to exceed $250/per unit); conformity of any annual increases in the Partnership Related Fees for the Project with the increases permitted in the definition of “Residual Receipts”; reasonableness and conformity to prevailing market rates in Fresno County and rates and fees for goods and services to be provided Developer or any of its parent, affiliated, or subsidiary entities, etc. for the Project. Developer shall, or shall cause the Property Manager to, set aside an “Operating Reserve” for the Project in a separate interest bearing trust account a target amount equal to three (3) months of (i) Debt Service on the Primary Loan for the Project and (ii) Operating Expenses for the Project (“Target Amount”), which shall be funded by Tax Credit equity for the Project. The Project Operating Reserve shall thereafter be replenished from Tax Credit equity and from Annual Project Revenue for the Project to maintain the Project Operating Reserve balance at the Target Amount. The Target Amount shall be retained in the Project Operating Reserve to cover shortfalls between Annual Project Revenue and actual Operating Expenses for the Project, but shall in no event be used to pay for capital items or capital costs properly payable from the Capital Replacement Reserve. Developer shall, not less than once per every twelve (12) months, submit to the City Manager evidence reasonably satisfactory to City of compliance herewith. 9. Duty to Prevent Hazardous Material Contamination. During the development and operation of the Project, Developer shall take all necessary precautions to prevent the release of any Hazardous Materials into the environment on or under the Subject Property. Such precautions shall include compliance with all Governmental Requirements with respect to Hazardous Materials. Developer shall notify City, and provide to City a copy or copies, of any notices of violation, notices to comply, citations, inquiries, clean-up or abatement orders, cease and desist orders, reports filed pursuant to self-reporting requirements and reports filed or applications made pursuant to any Governmental Requirement relating to Hazardous Materials and underground tanks, and Developer shall report to City, as soon as possible after each incident, any unusual, potentially important incidents in the event of a release of any Hazardous Materials into the environment. For purposes of this Section, “Governmental Requirements” shall mean all laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the state, the county, the City, or any other political subdivision in which the Subject Property is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over City, Developer or the Subject Property. For purposes of this Section, “Hazardous Materials” means any substance, material, or waste which is or becomes regulated by any local governmental authority, the County, including the Fresno County Health Care Agency, the Regional Water Quality Control Board, the State of California (including the Department of Toxic Substances Control), other state, regional or local governmental authority, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a “hazardous waste,” “extremely hazardous waste,” or “restricted hazardous waste” under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a “hazardous substance” under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a “hazardous material,” “hazardous substance,” or “hazardous waste” under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a “hazardous substance” under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated biphenyls, (viii) designated as “hazardous substances” pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317), (ix) defined as a “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903) or (x) defined as “hazardous substances” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601, et seq. Notwithstanding the foregoing, “Hazardous Materials” shall not include such products in quantities as are customarily used in the construction, maintenance, rehabilitation, management, operation and residence of residential developments or associated buildings and grounds, or typically used in residential activities in a manner typical of other comparable residential developments, or substances commonly ingested by a significant population living within the Project, including without limitation alcohol, aspirin, tobacco and saccharine. 10. Compliance With Laws. Developer shall carry out the design, development and operation of the Project in conformity with all applicable laws, including all applicable state labor standards, City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the Fresno Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq. (a) Non-Discrimination Covenants. Developer covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Subject Property, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Subject Property. The foregoing covenants shall run with the land. Developer shall refrain from restricting the rental or lease of the Subject Property on any of the bases listed above. All leases or contracts relating to the Subject Property shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: a. In deeds. “The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.” b. In leases: “The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: “That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased.” c. In contracts: “There shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises which are the subject of this Agreement, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.” The covenants established in this Section 10 shall, without regard to technical classification and designation, be binding for the benefit and in favor of City and its successors and assigns, and shall remain in effect in perpetuity. (b) Monitoring and Recordkeeping. Throughout the Affordability Period, Developer shall comply with all applicable recordkeeping and monitoring requirements of the Act and shall annually complete and submit to City a Certification of Continuing Program Compliance for the Project in a form provided by City. Representatives of City shall be entitled to enter the Subject Property, upon at least forty-eight (48) hours’ notice, to monitor compliance with this Regulatory Agreement, to inspect the records of the Subject Property, and to conduct an independent audit or inspection of such records. Developer agrees to cooperate with Subject Property in making all of its records for the Project and making the Subject Property and all Housing Units thereon available for inspection or audit. Records shall be made available for review and inspection and/or audit in Fresno County, California. Developer agrees to maintain all records relating to the Project in a businesslike manner, and to maintain such records for the term of this Regulatory Agreement. (c) Defaults and Remedies. Defaults of this Regulatory Agreement and remedies therefor shall be governed by the provisions of Section 500, et seq., of the Affordable Housing Agreement. (d) Waiver of Terms and Conditions. Any party may, in its sole discretion, waive in writing any of the terms and conditions of this Regulatory Agreement. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term, or condition. (e) Non-Liability of City and Employees. No member, official, employee or agent of City shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Developer or its successors, or on any obligations under the terms of this Regulatory Agreement. (f) Time. Time is of the essence in this Regulatory Agreement. (g) Notices. Any approval, disapproval, demand, document or other notice (Notice) which either party may desire to give to the other party under this Regulatory Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, (iii) facsimile transmission, or (iv) mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below, or at any other address as that party may later designate by Notice. Service shall be deemed conclusively made at the time of service if personally served; upon confirmation of receipt if sent by facsimile transmission; the next business day if sent by overnight courier and receipt is confirmed by the signature of an agent or employee of the party served; the next business day after deposit in the United States mail, properly addressed and postage prepaid, return receipt requested, if served by express mail; and three (3) days after deposit thereof in the United States mail, properly addressed and postage prepaid, return receipt requested, if served by certified mail. Developer: With a Copy to: City: Georgeanne A. White, City Manager City of Fresno 2600 Fresno Street Fresno, CA 93721 With Copies To: Such addresses may be changed by Notice to the other party given in the same manner as provided above. (h) Successors and Assigns. This Regulatory Agreement shall run with the land, and all of the terms, covenants and conditions of this Regulatory Agreement shall be binding upon Developer and City and the permitted successors and assigns of Developer and City. Whenever the term “Developer,” or “City” is used in this Regulatory Agreement, such term shall include any other successors and assigns as herein provided. (i) No Third Parties Benefited. This Regulatory Agreement is made and entered into for the sole protection and benefit of City and their successors and assigns and Developer and its successors and assigns, and no other person or persons shall have any right of action hereon. (j) Partial Invalidity. If any provision of this Regulatory Agreement shall be declared invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired. (k) Governing Law. This Regulatory Agreement and other instruments given pursuant hereto shall be construed in accordance with and be governed by the laws of the State of California. Any references herein to particular statutes or regulations shall be deemed to refer to successor statutes or regulations, or amendments thereto. (l) Amendment. This Regulatory Agreement may not be changed orally, but only by agreement in writing signed by Developer and City. IN WITNESS WHEREOF, the parties hereto have executed this Regulatory Agreement as of the date and year first set forth below. DEVELOPER: [Signatures continue on following page.] [Signatures continue from previous page] CITY: CITY OF FRESNO, a municipal corporation By:______________________________ Georgeanne A. White City Manager APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Tracy N. Parvanian Date Supervising Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy Page 1 of 1 EXHIBIT A TO ATTACHMENT NO. 6 LEGAL DESCRIPTION APN 426-253-19 All that portion of the North half of the Southeast quarter of the Southeast quarter of Section 16, Township 13 South, Range 20 East, Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California, according to the Official Plat thereof, described as follows: COMMENCING at the Southeast corner of the said North half of the Southeast quarter of the Southeast quarter of Section 16; thence South 88° 57' West, along the South line of the said North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 366.0 feet; thence North 00° 07' 30" West, parallel with the East line of said Section 16, a distance of 30.00 feet to the TRUE POINT OF BEGINNING this description; thence from said point, South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 107.31 feet to a point 32.00 feet east of the Southeast corner of Lot 1 of Tract No. 1145, Del Mar Homesites No. 2, as shown on the map thereof recorded in Book 15, of Plats, at Page 22, Fresno County Records; thence North 00° 07' West along a line 32.00 feet east of and parallel with the East line of said Tract No. 1145, a distance of 200.00 feet; thence North 88° 57' East, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 418.28 feet; thence South 00° 07' 30" East, along a line 55.00 feet west of and parallel with the said East line of Section 16, a distance of 100.00 feet; thence South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 311.00 feet; thence South 00° 07' 30" East, parallel with the said East line of Section 16, a distance of 100.00 feet to the TRUE POINT OF BEGINNING. 1 Note: Health and Safety Code Section 33334.3(f)(3)(B) requires this Notice of Affordability Restrictions to be printed in 14 point type or larger. ATTACHMENT NO. 7 NOTICE OF AFFORDABILITY RESTRICTIONS This document is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY This Notice of Affordability Restrictions on Transfer of Property (or Notice of Affordability Restrictions) is executed and recorded pursuant to Section 33334.3(f)(3)(B) of the California Health and Safety Code as amended by AB 987, Chapter 690, Statutes of 2007 (herein, Chapter 690), and affects a portion of that certain real property generally located at in the City of Fresno, California (City) as legally described in Exhibit “A” hereto (Subject Property). The City and ____________ , a California limited partnership (Developer),) have previously entered into an Affordable Housing Agreement dated as of _________________ (Affordable Housing Agreement). 1. The AHA provides for affordability restrictions and restrictions on the transfer of the Subject Property, as more particularly set forth in the AHA. A copy of the AHA is on file with City as a public record and is deemed incorporated herein. Reference is made to the AHA with regard to the complete text of the provisions of such agreement and all defined terms therein, which provides for affordability restrictions and restrictions on the transfer of the Subject Property. 2. The AHA provides for City to convey a leasehold interest in the Subject Property to Developer and for Developer to (a) construct 82 senior affordable Housing Units at the Subject Property and (b) rent a specified number of such dwelling units to households of limited income, paying an affordable rent; such restrictions are set forth at greater length in a document entitled the City Regulatory Agreement, substantially in the form of Attachment No. 6 to the Affordable Housing Agreement (Regulatory Agreement), which has been entered into by and between City and Developer, and which is expected to be recorded substantially concurrently herewith among the Official Records of Fresno County, California. The Regulatory Agreement and the AHA are deemed to be incorporated herein by reference. 3. Section 2 of the Regulatory Agreement provides as follows: RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Fresno 2600 Fresno Street Fresno, CA 93721 Attention: City Manager 1 Note: Health and Safety Code Section 33334.3(f)(3)(B) requires this Notice of Affordability Restrictions to be printed in 14 point type or larger. a. Number of Housing Units. Developer covenants and agrees to make available, restrict occupancy to, and rent: (i) Eight (8) of the one-bedroom Housing Units to 30% AMI Very Low- Income Households at an Affordable Rent. (ii) Fifteen (15) of the one-bedroom Housing Units to 45% AMI Very Low-Income Households at an Affordable Rent. (iii) Twenty-Nine (29) of the one-bedroom Housing Units to 50% AMI Very Low-Income Households at an Affordable Rent. (iv) Twenty (20) of the one-bedroom Housing Units to 60% AMI Low- Income Households at an Affordable Rent. (v) One (1) of the two-bedroom Housing Units to 30% AMI Very Low- Income Households at an Affordable Rent. (vi) Two (2) of the two-bedroom Housing Units to 45% AMI Very Low- Income Households at an Affordable Rent. (vii) Four (4) of the two-bedroom Housing Units to 50% AMI Very Low- Income Households at an Affordable Rent. (viii) Two (2) of the one-bedroom Housing Units to 60% AMI Low- Income Households at an Affordable Rent. b. Affordable Rent. Affordable Rent shall be charged for all Housing Units for the applicable Affordability Period. The maximum Affordable Rent chargeable for the Housing Units shall be annually determined by City (and as charged and implemented by Developer) in accordance with the following requirements: (i) The Affordable Rent for the Housing Units to be rented to 30% AMI Very Low Income Households shall not exceed thirty percent (30%) of 30% of AMI for Fresno County as determined and published by TCAC for a family of a size appropriate to the Housing Unit. (ii) The Affordable Rent for the Housing Units to be rented to 45% AMI Very Low Income Households shall not exceed thirty percent (30%) of 45% of AMI for Fresno County as determined and published by TCAC for a family of a size appropriate to the Housing Unit. (iii) The Affordable Rent for the Housing Units to be rented to 50% AMI Very Low Income Households shall not exceed thirty percent (30%) of 50% of AMI for Fresno County as determined and published by TCAC for a family of a size appropriate to the Housing Unit. (iv) The Affordable Rent for the Housing Units to be rented to 60% AMI Low Income Households shall not exceed thirty percent (30%) of 60% of AMI for Fresno County as determined and published by TCAC for a family of a size appropriate to the Housing Unit. Developer shall, and shall cause its Property Manager to, operate the 1 Note: Health and Safety Code Section 33334.3(f)(3)(B) requires this Notice of Affordability Restrictions to be printed in 14 point type or larger. Subject Property and cause occupancy of the Subject Property and all Housing Units thereon in conformity with these covenants and this Agreement. For purposes of this Regulatory Agreement, “Affordable Rent” means the total of monthly payments for (a) use and occupancy of each Housing Unit and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by Developer which are required of all tenants, other than security deposits, (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuels, but not including telephone service, or cable TV or internet services, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and facilities associated therewith by a public or private entity other than Developer. No additional charge shall be assessed against tenant households of the Housing Units for any social or supportive services provided at the Subject Property and/or as a part of Developer’s compliance with the legal requirements imposed in connection with any Project Based Section 8 assistance pursuant to Section 4 below. c. Duration of Affordability Requirements; Affordability Period. the Subject Property and all the Housing Units thereon shall be subject to the requirements of this Section 2, et seq. for the full term of not less than fifty- five (55) years from the date that the Release of Construction Covenants is recorded against the Subject Property in the Official Records. The duration of these covenants and this requirement shall be known as the “Affordability Period.” d. Selection of Tenants. Developer shall be responsible for the selection of tenants for the Housing Units in compliance with all lawful and reasonable criteria, and shall adopt a tenant selection system which shall be approved by City Manager in her reasonable discretion, which establishes a chronological waiting list system for selection of tenants, which shall be set forth in the Marketing Program and the Property Management Plan, both of which are required to be submitted by Developer and approved by City pursuant to Sections 408 and 410 of the Affordable Housing Agreement. Subject to applicable Fair Housing Laws, the City shall be afforded a first right of refusal in referring eligible tenants to Housing Units, in the following order of priority: (i) Low Income Households or Very Low Income Households, as applicable, who have been displaced from their residences due to programs or projects implemented by the Fresno Planning & Development Department; (ii) Low Income Households or Very Low Income Households, as applicable, who have applied for and have received rental vouchers from Fresno Housing Authority; (iii) Low Income Households or Very Low Income Households, as applicable, who are listed on Fresno Housing Authority’s waiting list for affordable housing and who live and/or work in Fresno; and (iv) Low Income Households or Very Low Income Households, as applicable, who live and/or work in Fresno. 1 Note: Health and Safety Code Section 33334.3(f)(3)(B) requires this Notice of Affordability Restrictions to be printed in 14 point type or larger. Developer shall not refuse to lease to a holder of a certificate of family participation under 24 CFR part 882 (Rental Certificate Program) or a rental voucher under 24 CFR part 887 (Rental Voucher Program) or to the holder of a comparable document evidencing participation in a program pursuant to the HOME Investment Partnership Act, 42 U.S.C. §12701, et seq. and the implementing regulations located at 24 CFR part 92, as such now exist and as may hereafter be amended, a Section 8 voucher program or other tenant-based assistance program, who is otherwise qualified to be a tenant in accordance with the approved tenant selection criteria (collectively, “Voucher Programs.”) e. Household Income Requirements. On or before one hundred twenty (120) days following the end of Developer’s fiscal year, commencing the first year after issuance of the first certificate of occupancy for the Subject Property, and annually thereafter, Developer shall prepare and submit to City, at Developer’s expense, a written summary of the income, household size, and rent payable by each of the tenants of the Housing Units at the Subject Property and, upon the written request of City, copies of each and all leases or rental agreements and the current rules and regulations for the Subject Property. At City’s request, Developer shall also provide to City completed income computation and certification forms, all in a form reasonably acceptable to City, for each and all tenants at the Subject Property. Developer shall obtain, or shall cause to be obtained by the Property Manager, a certification from each household leasing a Housing Unit at the Subject Property demonstrating that such household is a 30% AMI Very Low Income Household, 45% AMI Very Low Income Household, 50% AMI Very Low Income Household, or 60% AMI Low Income Household, as applicable and according to the Area Median Income annually determined and published by TCAC for Fresno County, and meets the eligibility and occupancy requirements established for the Housing Unit. Developer shall verify, or shall cause to be verified by the Property Manager, the income and household size certification of the tenant household. f. [Intentionally omitted.] g. Affordable Rent; Household Income Categories/Definitions. “30% AMI Very Low Income Households” means those households earning not greater than thirty percent (30%) of Fresno County Area Median Income, adjusted for household size, which is set forth annually by regulation of TCAC. “45% AMI Very Low Income Households” means those households earning not greater than forty percent (45%) of Fresno County Area Median Income, adjusted for household size, which is set forth annually by regulation of TCAC. “50% AMI Very Low Income Households” means those households earning not greater than fifty percent (50%) of Fresno County Area Median Income, adjusted for household size, which is set forth annually by regulation of TCAC. “60% Low Income Households” means those households earning 1 Note: Health and Safety Code Section 33334.3(f)(3)(B) requires this Notice of Affordability Restrictions to be printed in 14 point type or larger. not greater than sixty percent (60%) of Fresno County Area Median Income, adjusted for household size, which is set forth annually by regulation of TCAC. “Very Low Income” and/or “Very Low Income Households” shall mean and include: (i) very low income households as defined in the Tax Credit Rules, (ii) 30% AMI Very Low Income Households, (iii) 45% AMI Very Low Income Households, and (iv) 50% AMI Very Low Income Households. Very Low Income Households include Extremely Low Income Households, as defined in the Tax Credit Rules. “Lower Income,” “Low Income,” and/or “Lower Income Households” shall mean and include both: (i) lower income households as defined in the Tax Credit Rules, and (ii) 60% AMI Low Income Households. Lower Income Households include Very Low Income households and Extremely Low Income households, as defined in the Tax Credit Rules. 4. Occupancy Limits. The maximum occupancy of the Housing Units in the Project shall not exceed more than such number of persons as is equal to two persons per bedroom, plus one. Thus, for the two (2) bedroom Housing Units, the maximum occupancy shall not exceed five (5) persons. For the three (3) bedroom Housing Units, the maximum occupancy shall not exceed seven (7) persons. The restrictions contained in the Regulatory Agreement expire fifty-five (55) years following the date the Release of Construction Covenants is recorded against the Subject Property in the Official Records of Fresno County, California. The Regulatory Agreement is being submitted for recordation contemporaneously with this Notice of Affordability Restrictions. 5. The commonly known address for the Subject Property is 4323 – 4333 N. Blackstone Ave in the City of Fresno. 6. The Assessor’s parcel number for the Subject Property is 426-253-19; such number are subject to change. 7. The legal description for the Subject Property is attached hereto as Exhibit A and is incorporated herein by reference. 8. The Regulatory Agreement, which includes the affordability restrictions referenced above, is expected to be submitted for recordation in the Office of the Fresno County Recorder contemporaneously with this Notice of Affordability Restrictions. 9. The AHA and the Regulatory Agreement both remain in full force and effect and are not amended or altered in any manner whatsoever by this Notice of Affordability Restrictions. 10. Capitalized terms shall have the meaning established under the AHA (including all Attachments thereto) excepting only to the extent as otherwise expressly provided under this Notice of Affordability Restrictions. 11. Persons having questions regarding this Notice of Affordability Restrictions, the AHA or the Attachments thereto (including the Regulatory Agreement) should contact City at its offices (2600 Fresno Street, Fresno, California 93721 or such other address as 1 Note: Health and Safety Code Section 33334.3(f)(3)(B) requires this Notice of Affordability Restrictions to be printed in 14 point type or larger. may be designated by City from time to time). [Signatures appear on following pages.] DEVELOPER: 1 Note: Health and Safety Code Section 33334.3(f)(3)(B) requires this Notice of Affordability Restrictions to be printed in 14 point type or larger. [Signatures continue on following page.] 1 Note: Health and Safety Code Section 33334.3(f)(3)(B) requires this Notice of Affordability Restrictions to be printed in 14 point type or larger. [Signatures continue from previous page.] CITY: CITY OF FRESNO, A California municipal corporation By: __________________________ Georgeanne A. White, City Manager APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Tracy N. Parvanian Date Supervising Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy EXHIBIT A TO ATTACHMENT NO. 7 LEGAL DESCRIPTION APN 426-253-19 All that portion of the North half of the Southeast quarter of the Southeast quarter of Section 16, Township 13 South, Range 20 East, Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California, according to the Official Plat thereof, described as follows: COMMENCING at the Southeast corner of the said North half of the Southeast quarter of the Southeast quarter of Section 16; thence South 88° 57' West, along the South line of the said North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 366.0 feet; thence North 00° 07' 30" West, parallel with the East line of said Section 16, a distance of 30.00 feet to the TRUE POINT OF BEGINNING this description; thence from said point, South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 107.31 feet to a point 32.00 feet east of the Southeast corner of Lot 1 of Tract No. 1145, Del Mar Homesites No. 2, as shown on the map thereof recorded in Book 15, of Plats, at Page 22, Fresno County Records; thence North 00° 07' West along a line 32.00 feet east of and parallel with the East line of said Tract No. 1145, a distance of 200.00 feet; thence North 88° 57' East, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 418.28 feet; thence South 00° 07' 30" East, along a line 55.00 feet west of and parallel with the said East line of Section 16, a distance of 100.00 feet; thence South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 311.00 feet; thence South 00° 07' 30" East, parallel with the said East line of Section 16, a distance of 100.00 feet to the TRUE POINT OF BEGINNING. ATTACHMENT NO. 8 REQUEST FOR NOTICE OF DEFAULT This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. REQUEST FOR NOTICE UNDER CIVIL CODE SECTION 2924B In accordance with California Civil Code Section 2924b request is hereby made that a copy of any Notice of Default and a copy of any Notice of Sale under the Deeds of Trusts recorded as Instrument Nos. ________________ and _________________ on ____________________, 202___ in the Official Records of Fresno County, California, and describing land therein as set forth in the legal description Exhibit A attached hereto and incorporated herein, executed by ______________________, a California limited partnership, as Trustor/Borrower in which ______________________, a ________________ is/are named as Beneficiary (ies), an __________________, ______________, is named as Trustee, be mailed to: City of Fresno, a municipal corporation, 2600 Fresno Street, Fresno, California 93721, Attention: City Manager. [Request continues on following page] RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Fresno 2600 Fresno Street Fresno, CA 93721 Attention: City Manager NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE WILL BE SENT ONLY TO THE ADDRESS CONTAINED IN THIS RECORDED REQUEST. IF ADDRESS CHANGES, A NEW REQUEST MUST BE RECORDED. DEVELOPER: [Signatures continue on following page.] [Signatures continue from previous page.] CITY: CITY OF FRESNO, A California municipal corporation By: __________________________ Georgeanne A. White, City Manager APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Tracy N. Parvanian Date Supervising Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy EXHIBIT A TO ATTACHMENT NO. 8 LEGAL DESCRIPTION APN 426-253-19 All that portion of the North half of the Southeast quarter of the Southeast quarter of Section 16, Township 13 South, Range 20 East, Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California, according to the Official Plat thereof, described as follows: COMMENCING at the Southeast corner of the said North half of the Southeast quarter of the Southeast quarter of Section 16; thence South 88° 57' West, along the South line of the said North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 366.0 feet; thence North 00° 07' 30" West, parallel with the East line of said Section 16, a distance of 30.00 feet to the TRUE POINT OF BEGINNING this description; thence from said point, South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 107.31 feet to a point 32.00 feet east of the Southeast corner of Lot 1 of Tract No. 1145, Del Mar Homesites No. 2, as shown on the map thereof recorded in Book 15, of Plats, at Page 22, Fresno County Records; thence North 00° 07' West along a line 32.00 feet east of and parallel with the East line of said Tract No. 1145, a distance of 200.00 feet; thence North 88° 57' East, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 418.28 feet; thence South 00° 07' 30" East, along a line 55.00 feet west of and parallel with the said East line of Section 16, a distance of 100.00 feet; thence South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 311.00 feet; thence South 00° 07' 30" East, parallel with the said East line of Section 16, a distance of 100.00 feet to the TRUE POINT OF BEGINNING. ATTACHMENT NO. 9 MEMORANDUM OF AGREEMENT This document is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. MEMORANDUM OF AFFORDABLE HOUSING AGREEMENT This MEMORANDUM OF AFFORDABLE HOUSING AGREEMENT (Memorandum) is hereby entered into as of , 20 _ by and between the CITY OF FRESNO, a municipal corporation (City), and ________________ (Developer). RECITALS A. City and Developer have entered into that certain “Affordable Housing Agreement,” dated as of __________________; in implementation of the Affordable Housing Agreement, City and Developer entered into that certain Ground Lease each dated as of ___________ (together, the “AHA”). Pursuant to the AHA, City agreed to convey a ground leasehold interest in that certain parcel of real property, which is legally described in Exhibit A attached hereto and incorporated herein by reference (Subject Property). Developer has agreed to lease the Subject Property from City therefor and to construct, develop and operate an affordable senior rental project thereon. Copies of the Affordable Housing Agreement are available for public inspection at City’s office at 2600 Fresno Street, Suite _____, Fresno, California. The Affordability Period (defined in the AHA) for the Project commences the date the Memorandum of Ground Lease for the Project is recorded in the Official Records of Fresno County, California, and expires on the fifty-fifth (55th) anniversary of the recordation of the Certificate of Completion for the Project against the Subject Property according to Section 305 of the Affordable Housing Agreement. B. The AHA provides that a short form memorandum of the AHA shall be executed and recorded in the Official Records of Fresno County, California. NOW, THEREFORE, the parties hereto certify as follows: Pursuant to the AHA, the parties have certain rights and obligations relating to the development and operation of an affordable senior rental project on the Subject Property RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Fresno 2600 Fresno Street Fresno, CA 93721 Attention: City Manager by Developer in the AHA for a term of over 55-years. This Memorandum is not a complete summary of the AHA and shall not be used to interpret the provisions of the AHA. CITY: CITY OF FRESNO, a municipal corporation By: Georgeanne A. White City Manager APPROVED AS TO FORM: ANDREW JANZ City Attorney By:_________________________ Tracy N. Parvanian Date Supervising Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy [Signatures continue on following page.] [Signatures continue from previous page.] DEVELOPER: EXHIBIT A TO ATTACHMENT NO. 9 LEGAL DESCRIPTION That real property located in the State of California, County of Fresno, City of Fresno, and described as follows: APN 426-253-19 All that portion of the North half of the Southeast quarter of the Southeast quarter of Section 16, Township 13 South, Range 20 East, Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California, according to the Official Plat thereof, described as follows: COMMENCING at the Southeast corner of the said North half of the Southeast quarter of the Southeast quarter of Section 16; thence South 88° 57' West, along the South line of the said North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 366.0 feet; thence North 00° 07' 30" West, parallel with the East line of said Section 16, a distance of 30.00 feet to the TRUE POINT OF BEGINNING this description; thence from said point, South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 107.31 feet to a point 32.00 feet east of the Southeast corner of Lot 1 of Tract No. 1145, Del Mar Homesites No. 2, as shown on the map thereof recorded in Book 15, of Plats, at Page 22, Fresno County Records; thence North 00° 07' West along a line 32.00 feet east of and parallel with the East line of said Tract No. 1145, a distance of 200.00 feet; thence North 88° 57' East, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 418.28 feet; thence South 00° 07' 30" East, along a line 55.00 feet west of and parallel with the said East line of Section 16, a distance of 100.00 feet; thence South 88° 57' West, parallel with the said South line of the North half of the Southeast quarter of the Southeast quarter of Section 16, a distance of 311.00 feet; thence South 00° 07' 30" East, parallel with the said East line of Section 16, a distance of 100.00 feet to the TRUE POINT OF BEGINNING. ATTACHMENT NO. 10 Federal Requirements False Information Bidder is advised that providing false, fictitious or misleading information with respect to CDBG funds may result in criminal, civil or administrative prosecution under 18 U.S.C. § 1001, 18 U.S.C. § 1343, 31 U.S.C. § 3729, 31 U.S.C. § 3801 or another applicable statute. Bidder shall promptly refer to City and HUD’s Office of the Inspector General any credible evidence that a principal, employee, agent, subcontractor, or other person has submitted a false claim under the False Claims Act or has committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct involving CDBG funds. Bidder shall ensure that contractual language in third party contracts enforces these provisions. Access to Project Site and Records Bidder will provide access to the City, HUD, the Comptroller General of the United States, or any of their duly authorized representatives to any books, documents, papers, and records of the contractor which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions. Contractor will retain all required records for three years after final payments are made and all other pending matters are closed. Bidder will provide suitable access to the project site at all reasonable times during construction to the City, HUD, the Comptroller General of the United States, or any of their duly authorized representatives. Contractor shall also meet all reporting requirements to allow City to comply with the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109–282). Equal Employment Opportunity Bidder shall abide by all Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor. All contracts and subcontracts entered into will contain the following equal opportunity clause: During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. (3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. (4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance. Reporting Requirements Bidder and any proposed subcontractor shall comply with the filing requirements of 41 CFR §60-1.7 by filing Standard Form 100 (EEO-1) only if (1) the bidder has 50 or more employees; and (2) the contract value will be greater than $50,000. Bidder and any proposed subcontractor shall complete the Affirmative Action Program Certification of Compliance only if (1) the bidder has 50 or more employees; (2) the work is for non-construction supply or service; and (2) the contract value will be greater than $50,000. Elimination of Segregated Facilities Bidder shall ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensuring that its employees are not assigned to perform their services at any location, under the contractor's control, where the facilities are segregated. This obligation extends to all contracts containing the equal opportunity clause regardless of the amount of the contract. The term “facilities,” as used in this section, means waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, wash rooms, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees; Provided, That separate or single- user restrooms and necessary dressing or sleeping areas shall be provided to assure privacy between the sexes. Suspension and Debarment By submitting a bid/proposal under this solicitation, the Bidder certifies that neither it nor any person or firm who has an interest in the Bidder’s firm is a person or firm ineligible to be awarded Government contracts, contracts or participate in programs pursuant to 2 CFR Part 180. The Bidder agrees that no part of this work shall be subcontracted to any person or parties listed on the government-wide Excluded Parties List System in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR Part 1986 Comp., p. 189) and 12689 (3 CFR Part 1989 Comp., p. 235). In addition, bidders shall ensure that contractual language in third party contracts enforce this provision. Subcontracting The Bidder shall take the following steps to ensure that, whenever possible, subcontracts are awarded to small business firms, minority firms, women's business enterprises, and labor surplus area firms described in Executive Orders 11625, 12432 and 12138, and 2 CFR part 200: 1. Placing qualified small and minority businesses and women's business enterprises on solicitation lists; 2. Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; 3. Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises; 4. Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises; and 5. Using the services and assistance of the U.S. Small Business Administration, the Minority Business Development Agency of the U.S. Department of Commerce, and State and local governmental small business agencies. Definitions: Disadvantaged business enterprise (DBE) means an entity owned or controlled by a socially and economically disadvantaged individual as described by Public Law 102-389 (42 U.S.C. 4370d) or an entity owned and controlled by a socially and economically disadvantaged individual as described by Title X of the Clean Air Act Amendments of 1990 (42 U.S.C. 7601 note); a Small Business Enterprise (SBE); a Small Business in a Rural Area (SBRA); or a Labor Surplus Area Firm (LSAF), a Historically Underutilized Business (HUB) Zone Small Business Concern, or a concern under a successor program. Labor surplus area firm (LSAF) means a concern that together with its first-tier subcontractors will perform substantially in labor surplus areas (as identified by the Department of Labor in accordance with 20 CFR part 654). Performance is substantially in labor surplus areas if the costs incurred under the contract on account of manufacturing, production or performance of appropriate services in labor surplus areas exceed 50 percent of the contract price. Minority business enterprise (MBE) means a business enterprise that is at least 51 percent owned by a minority group or groups including: a Disadvantaged Business Enterprise (DBE) other than a Small Business Enterprise (SBE), a Labor Surplus Area Firm (LSAF), a Small Business in Rural Areas (SBRA), or a Women's Business Enterprise (WBE). Small business, small business concern or small business enterprise (SBE) means a concern, including its affiliates, that is independently owned and operated, not dominant in the field of operation in which it is bidding, and qualified as a small business under the criteria and size standards in 13 CFR part 121. Women's business enterprise (WBE) means a business concern which is at least 51% owned or controlled by women. Determination of ownership by a married woman in a community property jurisdiction will not be affected by her husband's 50 percent interest in her share. Similarly, a business concern which is more than 50 percent owned by a married man will not become a qualified WBE by virtue of his wife's 50 percent interest in his share. PROCUREMENT OF RECOVERED MATERIALS Bidder must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. ENERGY EFFICIENCY Bidder will comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation (42 U.S.C. 6201). ATTACHMENT NO. 11 TCAC Standstill Agreement City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1077 Agenda Date:7/20/2023 Agenda #: 1.-Z. REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, PE, Director Public Works Department BY:RANDALL W. MORRISON, PE, Assistant Director Public Works Department, Engineering Division JASON A. CAMIT, PLS, Chief Surveyor Public Works Department, Engineering Division, Right of Way Section SUBJECT Actions pertaining to Resolution of Intention Number 1152-D to vacate a portion of North Hayes Avenue, south of West Bullard Avenue (Council District 2): 1. Adopt a finding of Categorical Exemption per Environmental Assessment Number P22-02007, pursuant to Section 15304/Class 4 of the California Environmental Quality Act (CEQA) Guidelines 2. Adopt the attached Resolution of Intention Number 1152-D to vacate a portion of North Hayes Avenue, south of West Bullard Avenue RECOMMENDATIONS Staff recommends the City Council adopt a finding of Categorical Exemption per Environmental Assessment Number P22-02007 and adopt Resolution of Intention Number 1152-D for the proposed vacation of a portion of North Hayes Avenue, south of West Bullard Avenue and set the required public hearing at 10:00 a.m. on August 10, 2023. EXECUTIVE SUMMARY The Butler Investment Group, LLC is proposing to vacate a portion of North Hayes Avenue, south of West Bullard Avenue. The purpose of this vacation is to accommodate the construction for Development Permit Number P19-03659, which is a 185-unit apartment complex. BACKGROUND This portion of North Hayes Avenue was originally dedicated to Fresno County by map of J.C. Forkner Fig Gardens - Subdivision Number 2, recorded January 9, 1920 in Volume 8 of Plats, at Page 66, Fresno County Records. The City of Fresno annexed this area on December 29, 1981 by Annexation Number 1004. This public street was originally dedicated in 1920, but was never constructed or used as a public street. The proposed public street vacation is to dispose of excess City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT ROI.1152-D APPROVED ON CONSENT File #:ID 23-1077 Agenda Date:7/20/2023 Agenda #: 1.-Z. constructed or used as a public street.The proposed public street vacation is to dispose of excess right of way and accommodate the construction for Development Permit Number P19-03659,which is a 185-unit apartment complex consisting of one,two,and three bedroom units.The apartment complex will include onsite parking facilities,storage units,recreational facilities,and open space areas for residents to utilize.Recreational facilities include a swimming pool,basketball court (half court), and barbeque areas. The Public Works Department,other City departments and utility agencies have reviewed the proposed vacation and determined that the public street easement proposed for vacation is unnecessary for present or prospective public street purposes,as described in Exhibit A and as shown on Exhibit B,subject to the reservation of a public utility easement over the entire area proposed to be vacated and conditions of approval as listed in Exhibit C,said exhibits are included in the attached Resolution of Intent. The City is not disposing of any land and therefore the Surplus Land Act is not applicable. The City Attorney’s Office has approved the attached Resolution of Intent as to form. The vacation,if approved by the Council at the public hearing,will become effective when the vacating resolution is recorded in the office of the Fresno County Recorder,but not until the City Engineer determines that the conditions listed in the attached resolution have been satisfied and accepted by the City. ENVIRONMENTAL FINDINGS The California Environmental Quality Act (Public Resource Code Section 21000 et seq.)permits a public agency to determine whether a particular project is exempt from CEQA.Staff has determined that this project is Categorical Exempt pursuant to Sections 15304/Class 4 of the California Environmental Quality Act (CEQA) Guidelines. Under Section 15304/Class 4,the proposed project is exempt from CEQA requirements when the project consists of minor public or private alterations in the condition of land,water,and/or vegetation which do not involve removal of healthy,mature,scenic trees except for forestry or agricultural purposes. The area proposed to be vacated is comprised of unimproved land that will be returned to the adjacent private property owner.The vacation will remove approximately 7,891 square feet of North Hayes Avenue.No significant effects would occur as a result of the proposed project.None of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines,Section 15300.2 apply to the project.Furthermore,the proposed project is not expected to have a significant effect on the environment.A categorical exemption,as noted above,has been prepared for the project and the area is not environmentally sensitive. LOCAL PREFERENCE Local preference does not apply because the vacation of a public street easement does not involve bidding or contracting. City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1077 Agenda Date:7/20/2023 Agenda #: 1.-Z. FISCAL IMPACT This vacation is located in Council District 2 and there will be no impact to the General Fund.The Butler Investment Group,LLC has paid all processing fees to cover staff costs in accordance with the Master Fee Schedule. Attachment(s): PWF12937 Hayes Vacation Vicinity Map EA P22-02007 Resolution of Intent Number 1152-D City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ Whites Bridge MapleBrawleyHerndon Bullard Shaw ClovisFowlerTemperanceWestPalmClovisFowlerTemperanceDe WolfShields McKinley Belmont ChestnutPeachAmerican CedarGrantlandHayesElmEastMarksWestWalnutCorneliaNorth California Jensen Ashlan GrantlandHayesCorneliaBrawleyMarksShaw Bullard Herndon Nees De WolfShields McKinley Belmont California Jensen North Kings Canyon AshlanPeachBehymer Copper Shepherd NeesBlackstoneFirstCedarChestnutGarfieldBryanPolkBlytheValentineVan NessFruitMaroaFresnoMillbrookMapleWillowDakota Clinton Olive Gettysburg Barstow Sierra Alluvial Nielsen Kearney Muscat Annadale Church WillowMinnewawaMalaga OrangeBryanSunnysideArmstrongLocanFigCherryHughesFruitPolkValentineBlytheAlluvial Sierra Barstow Perrin SunnysideArmstrongLocanClinton Olive Tulare Butler Church Annadale DakotaMinnewawaInternational Teague NORTH ANNADALEBLACKSTONEFRESNOFIRSTMILLBROOK OLIVEFRUITWESTPALMBRYANOLIVE JENSEN BUTLER CHURCH TULARE MUSCAT BLYTHECHATEAU FRESNOHAYESGRANTLANDCHATEAUFRESNOHIGHLANDCENTRAL PROJECT SITE Project ID: PWF12937 Council District: 2 PROPOSED VACATION OF A PORTION OF NORTH HAYES AVENUE, SOUTH OF WEST BULLARD AVENUEN 01.530.75 Miles DEPARTMENT OF PUBLIC WORKS VICINITY MAP Legend City Limits District 2 CITY OF FRESNO CATEGORICAL EXEMPTION ENVIRONMENTAL ASSESSMENT NO. P22-02007 THE PROJECT DESCRIBED HEREIN IS DETERMINED TO BE CATEGORICALLY EXEMPT FROM THE PREPARATION OF ENVIRONMENTAL DOCUMENTS PURSUANT TO ARTICLE 19 OF THE STATE CEQA GUIDELINES. APPLICANT: Eric Tange Galloway & Company 9477 North Fort Washington Suite 105 Fresno, CA 93730 PROJECT LOCATION: Portion of North Hayes Avenue south of West Bullard Avenue adjacent to 6271 North Hayes Avenue S/A, which is located on the south side of West Bullard Avenue between North Veterans Boulevard and North Hayes Avenue, north of the West Escalon Alignment, (APN: 504-081-56S), See Exhibit A PROJECT DESCRIPTION: Environmental Assessment No. P22-02007 was filed by Eric Tange of Galloway & Company, on behalf of Butler Investment Group LLC, and pertains to 11.45 acres of property. The project proposes the vacation of approximately 7,891 square feet of a portion of North Hayes Avenue south of West Bullard Avenue to be returned to the private property owner. This application is associated with Development Permit Application No. P19- 03659/Planned Development Permit Application No. P19-04153 approved on July 23, 2020. The City of Fresno Department of Public Works prepared a vacation feasibility study that concluded the proposed vacation is feasible following conditions outlined in a letter dated January 5, 2022. This project is exempt under Section 15304/Class 4 of the California Environmental Quality Act (CEQA) Guidelines as follows: Under Section 15304/Class 4, the proposed project is exempt from CEQA requirements when the project consists of minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry or agricultural purposes. The area proposed to be vacated is comprised of unimproved land that will returned to the adjacent private property owner. The vacation will remove approximately 7,891 square feet of North Hayes Avenue. No significant effects would occur as a result of the proposed project. None of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines, Section 15300.2 apply to the project. Furthermore, the proposed project is not expected to have a significant effect on the environment. A categorical exemption, as noted above, has been prepared for the project and the area is not environmentally sensitive. Date: June 28, 2022 Prepared By: Elizabeth Salazar, Planner Submitted by: McKencie Perez Supervising Planner City of Fresno Planning & Development Department (559) 621-8277 Exhibit A 2 of 3 NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Fresno as follows: 1. The hour of 10:00 a.m. on August 10, 2023, in the Council Chambers in Fresno City Hall, 2600 Fresno Street, Fresno 93721, is hereby fixed as the time and place when and where all persons interested in or objecting to the proposed vacation may appear before the Council and be heard in relation thereto. 2. The Council elects to proceed under the provisions of Chapter 3, commencing with Section 8320, of the Public Streets, Highways, and Service Easements Vacation Law of the State of California (California Street and Highways Code Sections 8300 et seq.). 3. The Public Works Director of the City is directed to cause notices of the proposed vacation to be published and posted for the time and in the manner prescribed by the provisions of Sections 8322 and 8323 of the California Streets and Highways Code. 4. The Council preliminarily determines that the public street proposed to be vacated is not useful as a bicycle path or route under applicable general, specific, or community plans and policies. If the Council does not rescind such preliminary determination, based on evidence or public testimony presented to it, orally or in writing, at or before the August 10, 2023, hearing, the Council may proceed to make a final determination, at the public hearing, that the public alley be vacated as provided herein. * * * * * * * * * * * * * * 3 of 3 STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of 2023. AYES : NOES : ABSENT : ABSTAIN : TODD STERMER, CMC City Clerk By: Date Deputy APPROVED AS TO FORM: ANDREW JANZ City Attorney By : Kelsey Seib Date Deputy City Attorney Attachments: Exhibit A – Street Easement Vacation Legal Description Exhibit B – Street Easement Vacation Exhibit C – Vacation Conditions of Approval PW File No. 12937 EXHIBIT “C” VACATION CONDITION OF APPROVAL 1. The proposed vacation area lies within the Fresno Metropolitan Flood Control District’s Drainage Area “EH”. There are no existing or proposed Master Plan facilities within the proposed vacation area as detailed on the Exhibit “B” provided to the District. The District requires that the Master Plan drainage patterns remain as designed for the proposed vacation area. The District will need to review and approve any improvement plans associated with the project (i.e. grading plan and street plans), for conf ormance with the Master Plan drainage patterns prior to implementation. Should you have any questions regarding this matter, please do not hesitate to contact us at (559) 456-3292. FID previously reviewed Site Plan P21-00192 on March 9, 2021, those comments and conditions still apply. For more details, please contact and Chris Lundeen at (559) 233-7161. 2. Pacific Gas and Electric Company has ex isting land rights in this area and are requesting a public utility easement be reserved contiguous to the southerly right of way line of West Bullard Avenue and contiguous to the new westerly right of way line of North Hayes Avenue. If you have any question regarding this condition, please contact Salvador Graciliano at (661) 865-2319. PW File 12937 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1101 Agenda Date:7/20/2023 Agenda #: 1.-AA. REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, PE, Director Public Works Department BY:ANDREW J. BENELLI, PE, City Engineer/Assistant Director Public Works Department, Traffic Operations and Planning Division ADRIAN GONZALEZ, Senior Engineering Technician Public Works Department, Land Planning Section SUBJECT RESOLUTION - Of Intention to Annex Final Tract Map Number 6383 as Annexation Number 146 to the City of Fresno Community Facilities District Number 11 and to Authorize the Levy of Special Taxes; and setting the Public Hearing for Thursday, August 10, 2023, at 10:05 am (Located on the northeast corner of North Armstrong Avenue and East Floradora Avenue) (Council District 7) RECOMMENDATION Adopt Resolution of Intention to Annex Final Tract Map No. 6383 to City of Fresno Community Facilities District No. 11 (CFD No. 11). EXECUTIVE SUMMARY The landowner (Wilson Premier Homes Inc) has petitioned the City of Fresno to have Final Tract Map No. 6383 (99 Lot Single-Family Home Subdivision) annexed to CFD No. 11 to provide funding for the Services (as hereafter defined) pertaining to certain required above ground public improvements associated with this subdivision. The cost for the Services for these improvements is $637.21 per lot annually for Fiscal Year 2022-2023. Final Tract Map No. 6383 is located entirely within City limits. The Resolution of Intention begins the process, sets the required public hearing for Thursday, August 10, 2023, at 10:05 am, and defines the steps required to complete the annexation. (See attached Location and Feature Maps.) BACKGROUND Subdivision: 6383 Developer: Wilson Premier Homes Inc Number of Lots: 99 Maximum Special Tax Per Lot: $637.21 City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT R. 2023-208 APPROVED ON CONSENT File #:ID 23-1101 Agenda Date:7/20/2023 Agenda #: 1.-AA. Features: Landscaping, concrete, and hardscaping On November 15,2005,the Council of the City of Fresno adopted Council Resolution No.2005-490 forming CFD No.11 to fund public maintenance of landscaping,open spaces,local streets,local street lights and street furniture,curbs,gutters,sidewalks,street trees and other public facilities and services as defined by the City of Fresno Special Tax Financing Law,Chapter 8,Division 1,Article 3 of the Fresno Municipal Code (City Law). The landowner has made a request to the City of Fresno to have Final Tract Map No.6383 annexed to CFD No.11 to provide the funding for the operation and reserves for maintenance (Services) pertaining to certain required above ground public improvements within the dedicated City public easements and Outlots;this includes the landscaping,trees and irrigation systems;concrete curbs, gutters,valley gutters,sidewalks and curb ramps,street name signage,street lighting,and local street paving associated with this subdivision. (See attached Location and Feature Maps.) Final Tract Map No.6383 is the second phase of Tentative Tract Map 6201 (TT6201),is located entirely within City limits,and is to share equally in the maintenance of all facilities associated with TT6201 and pay for additional facilities which have been added since Phase I (Annexation No. 129. The attached Resolution initiates the annexation process,sets the public hearing on this matter for Thursday,August 10,2023,at 10:05 am,sets the Maximum Special Tax at $637.21 annually per residential lot for Fiscal Year 2022-2023 and sets the annual adjustment of the Special Tax to be adjusted upward annually by 2%or by the rise of the Construction Cost Index (CCI),if it exceeds 2% for the San Francisco Region. Annexations to existing community facilities districts are permitted under City Law.The legislative body must follow certain prescribed procedures as outlined below: ·Adoption of a Resolution of Intention to Annex to CFD No. 11 ·Required 7-day minimum Notice of Public Hearing ·Public hearing on Annexation and Levy of Special Tax ·Call a Special Mailed-Ballot Election on the proposed Special Tax ·Declare the Results of the Election ·Formal Adoption of Special Tax Levy (if election passes) The attached Resolution has been approved as to form by the City Attorney’s Office. ENVIRONMENTAL FINDINGS Pursuant to the definition in California Environmental Quality Act Guidelines Section 15378,this action is not a project. LOCAL PREFERENCE Local preference was not implemented,as this item does not include a bid or award of a construction or services contract. City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1101 Agenda Date:7/20/2023 Agenda #: 1.-AA. FISCAL IMPACT No City funds will be involved.All costs for services will be borne by the property owners within the subject tract. Attachment(s): Location Map Feature Map Resolution of Intention City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ BARSTOW GARFIELDBRYANPOLKBLYTHEVALENTINEVAN NESSFRUITSIERRA ALLUVIAL GETTYSBURG DAKOTA CLINTON OLIVE NIELSON KEARNEY ANNADALE INTERNATIONAL PERRIN TEAGUE ALLUVIALMAROAFRESNOMILLBROOKMAPLEWILLOW MINNEWAWASUNNYSIDEARMSTRONGMAPLEORANGECHERRYFIGCHURCH BUTLER TULARE LOCANDAKOTA CLINTON OLIVE FRUITHUGHESVALENTINEBLYTHEPOLKBRYANN LAND PLANNING SECTION FINAL TRACT MAP NO. 6383 DISTRICT 7 ANNEXATION NO. 146 COMMUNITY FACILITIES DISTRICT NO. 11 NORTHPEARWOOD AVENORTHARMSTRONGAVENUEE. WEATHERMAKER AVE NORTHFILBERT AVENUENORTHAPRICOTAVENUEEAST OSLIN AVENUE EAST WEATHERMAKER AVENUE EAST CARMEN AVENUE NORTHPEARWOOD AVEBUFFERS/PARKWAYS TREES & SHRUBS = 13,722 SF FEATURES TO BE ADDED BY ANNEXATION NO. 146 COMMUNITY FACILITIES DISTRICT NO. 11 LAND PLANNING SECTION CONCRETE IMPROVEMENTS: LANDSCAPE AND IRRIGATION: CURB & GUTTER = 8,645 LF VALLEY GUTTER = 2,300 SF CURB RAMPS = 1,234 SF NFINAL TRACT MAP NO. 6383 "PHASE 2 OF VTM 6201" SIDEWALK = 25,184 SF STREET LIGHTS: LOCAL STREET PAVEMENT: TOTAL = 29 EACHSMALL TREES = 34 EACH LARGE TREES = 34 EACH TURF & BEDS = 29,566 SF OUTLOT HARDSCAPE AND AMENITIES: RESIDENTIAL = 106,958 SF TRAIL = 13,470 SF *CONCRETE WALKS & PADS = 1,593 SF *SHADE STRUCTURE = 1 EACH *PICNIC TABLES = 2 EACH *BENCHES = 1 EACH *TRASH RECEPTACLES = 1 EACH *DECOMPOSED GRANITE = 740 CF 1 of 6 Date Adopted: Date Approved: Effective Date: City Attorney Approval: HT Resolution No. RESOLUTION NO. ____________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, OF INTENTION TO ANNEX FINAL TRACT MAP NO. 6383 AS ANNEXATION NO. 146 TO THE CITY OF FRESNO COMMUNITY FACILITIES DISTRICT NO. 11 AND TO AUTHORIZE THE LEVY OF SPECIAL TAXES WHEREAS, the City of Fresno (City) is a charter city and municipal corporation duly created and existing under the Constitution and laws of the State of California; and WHEREAS, under the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code (City Law), this Council, as the legislative body for the community facilities district and any annexation thereto, has the authority to establish a community facilities district and annex property to the community facilities district; and WHEREAS, on November 15, 2005, the Council of the City of Fresno (Council) adopted Council Resolution No. 2005-490 establishing the City of Fresno Community Facilities District No. 11 (CFD No. 11); and WHEREAS, the original boundaries of CFD No. 11 are shown on the Boundary Map of City of Fresno Community Facilities District No. 11, recorded November 8, 2005, at Book 41, Page 61 of Assessment and Community Facilities Districts in the Office of the Recorder, County of Fresno, California, a copy of which is on file in the Office of the City Clerk of the City of Fresno (City Clerk); and WHEREAS, the territory encompassing the existing CFD No. 11 is attached hereto as Exhibit A and incorporated herein by this reference; and 2 of 6 WHEREAS, the landowner of Final Tract Map No. 6383 has formally petitioned the City to annex Final Tract Map No. 6383 to CFD No. 11, and the area proposed for annexation to CFD No. 11 is attached hereto as Exhibit B and incorporated herein by this reference; and WHEREAS, the types of public services provided in the existing CFD No. 11 (Services) are specified in the document attached hereto as Exhibit C, Page C-2, and incorporated herein by this reference; and WHEREAS, the types of Services to be provided to Annexation No. 146 by CFD No. 11, are specified in the document attached hereto as Exhibit C, Page C-1, and incorporated herein by this reference; and WHEREAS, Annexation No. 146, Final Tract Map No. 6383 is located entirely within the limits of the City of Fresno; and WHEREAS, CFD No. 11 and Annexation No. 146 will share costs proportionately for Services provided by the City; and WHEREAS, Annexation No. 146 is Phase 2 of a larger area represented by Vesting Tentative Map No. 6201 (TT6201), shown in Exhibit B, and will share Services in common with all areas within TT6201; and WHEREAS, other areas within TT6201, concurrently with becoming final maps, have been or may be annexed to CFD No. 11, and the taxable property within Annexation No.146 and the taxable property within the other annexed final maps within TT6201 will share the costs of Services provided by CFD No. 11. 3 of 6 NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Fresno as follows: 1. Recitals. The forgoing recitals are true and correct. 2. Proposed Annexation No. 146 Boundaries. The proposed boundaries of Annexation No. 146 are as shown on the map (copy attached as Exhibit B) on file with the City Clerk. The boundaries, shown in Annexation Map No. 146, for the territory proposed to be annexed, are preliminarily approved. The City Clerk is directed to record Annexation Map No. 146, or cause it to be recorded, in the Office of the Recorder, Fresno County, California within ten days after the adoption date of this resolution. 3. Services. The operation and reserves for maintenance (Services) proposed to be financed in Annexation No. 146 are listed on Page C-1 of Exhibit C, attached hereto and incorporated herein by this reference. 4. Special Taxes. Except to the extent that funds are otherwise available to CFD No. 11 to pay for the Services in Annexation No. 146, and Annexation No. 146’s share of services for Vesting Tentative Tract Map No. 6201, a special tax sufficient to pay the costs (Special Tax) thereof, secured by recording a continuing lien against all nonexempt real property in Annexation No. 146 will be levied annually within Annexation No. 146, and collected in the same manner as ordinary ad valorem property taxes, or in any other manner as this Council or its designee shall determine, including direct billing of the affected property owners. The proposed rate and method of apportionment of th e Special Tax among the real property parcels within Annexation No. 146 are described in sufficient detail for each landowner within Annexation No. 146to estimate the maximum 4 of 6 amount each owner will have to pay, in Exhibit D, attached hereto and incorporated herein by this reference. 5. District Annexation Report. The Director of Public Works Department, as the officer having charge and control of the Services in and for CFD No. 11, or designee, is directed to study the proposed Services and to make, or cause to be made, and filed with the City Clerk a report of CFD No. 11, Annexation No. 146 (District Report), in writing presenting the following: a. A description of the Services by type required to adequately meet the needs of CFD No. 11, Annexation No. 146. b. An estimate of the fair and reasonable cost of the Services including the cost of acquiring land, rights-of-way and easements, costs of any physical services required in conjunction therewith, and incidental expenses in connection therewith. c. Describe any plan for Services that will be provided in common with the existing district and/or any territory that may be annexed. d. If the Special Tax levied within the territory proposed to be annexed is higher or lower than the existing CFD No. 11, identify the extent and reasons why the costs to provide Services in that territory are higher or lower than those provided in the existing CFD No. 11. Specify any alteration in the special tax rate levied within the existing CFD No. 11 because of the proposed annexation. e. The CFD No. 11, Annexation No. 146 District Report shall be made a part of the record of the public hearing specified below. 5 of 6 6. Single Ballot. The propositions to set the appropriations limit and to approve the levy of the Special Tax shall be combined into a single ballot and submitted to the voters pursuant to City Law. 7. Public Hearing. Thursday, August 10, 2023 at 10:05 a.m., is fixed as the date and time, in the City Council Chambers, 2600 Fresno Street, Fresno, California, that this Council, the legislative body for CFD No. 11, will conduct a public hearing on the annexation of Final Tract Map No. 6383 and will consider and finally determine whether the public interest, convenience and necessity require the annexation and the levy of the Special Tax. 8. Public Notice. The City Clerk is directed to cause notice of the public hearing to be given by publication once in a newspaper of general circulation published in the area of CFD No. 11. The publication shall be complete at least seven days before the hearing date set herein. The notice shall be in the form specified by Sections 53339.4 and 53322 of Chapter 2.5 of the California Government Code. 9. This resolution shall be effective upon final approval. Attachments: Exhibit A: Original Boundaries of CFD No. 11 Exhibit B: Annexation Map No. 146 Exhibit C: Description of Services Exhibit D: Rate and Method of Apportionment of Special Tax 6 of 6 * * * * * * * * * * * * * * STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the _________ day of ______________ 2023. AYES : NOES : ABSENT : ABSTAIN : TODD STERMER, CMC City Clerk BY: Date Deputy APPROVED AS TO FORM: ANDREW JANZ City Attorney BY: Heather Thomas Date Deputy City Attorney BlackstoneNees Herndon Bullard Shaw Ashlan Shields McKinley Belmont Whites Bridge Alluvial Sierra Barstow Gettysburg Dakota Clinton Olive GarfieldBryanGrantlandChateau FresnoHayesPolkCorneliaBlytheBrawleyValentineMarksVan NessWestFruitPalmFresnoFirstMillbrookCedarMapleChestnutWillowPeachAshlan Dakota Shields Clinton McKinley Olive Belmont Tulare Butler California Church Jensen Annadale North Kings CanyonMaroaInternational Copper Behymer Shepherd Nees Herndon Bullard Shaw Gettysburg Teague Alluvial Sierra Barstow Perrin ClovisSunnysideFowlerArmstrongTemperanceLocanClovisFowlerTemperanceSunnysideLocanArmstrongChestnutPeachWillowMinnewawaMalaga American CedarOrangeMapleElmEastFigCherryMarksWestWalnutHughesFruitGrantlandHayesCorneliaBryanPolkBrawleyValentineBlytheKearney Muscat North Annadale Muscat Central California Jensen Church Central Nielsen ·|}þ41 CITY OF FRESNOMAINTENANCECFD11 ANNEXATION ·|}þ41 ·|}þ180 ·|}þ168 ·|}þ99 ·|}þ99 ·|}þ180 Legend State Routes Rail Road Street Centerline CFD11 City Boundary Limits µ Exhibit A Date: 3/13/2015 FINAL TRACT MAP NO. 6383 E. WEATHERMAKER AVE NORTHFILBERT AVENUEEAST OSLIN AVENUE EAST WEATHERMAKER AVENUE EAST CARMEN AVENUE NORTHPEARWOOD AVENORTHARMSTRONG AVENUEEAST FLORADORA AVENUE NORTHMcKELVEYAVENUEEAST HOME AVENUE EAST PINE AVENUE EAST SOONER AVENUE NORTHPEARWOOD AVENORTHCARRIAGE AVENUEEAST PINE AVENUE EAST OSLIN AVENUE NORTHAPRICOTAVENUE NORTHPEARWOOD AVECITY OF FRESNO - Public Works Department ANNEXATION MAP NO. 146 OF COMMUNITY FACILITIES DISTRICT NO. 11 OF THE CITY OF FRESNO, FRESNO COUNTY, CALIFORNIA CFD11 146 A1 1-P-1488 REFERENCE: BOUNDARY MAP OF CITY OF FRESNO COMMUNITY FACILITIES DISTRICT NO. 11, RECORDED NOVEMBER 8, 2005 AT BOOK 41, PAGE 61 OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS IN THE OFFICE OF THE RECORDER IN THE COUNTY OF FRESNO, STATE OF CALIFORNIA DOC. FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF FRESNO THIS DAY OF , 2023. ATTEST: TODD STERMER, CMC CITY CLERK OF THE CITY OF FRESNO BY: DEPUTY I HEREBY CERTIFY THAT THE ANNEXATION MAP NO. 146 OF THE COMMUNITY FACILITIES DISTRICT NO. 11, CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA WAS ADOPTED BY THE COUNCIL OF THE CITY OF FRESNO BY RESOLUTION NO. 2023- ON , 2023. ATTEST: TODD STERMER, CMC CITY CLERK OF THE CITY OF FRESNO BY: DEPUTY THIS ANNEXATION MAP NO. 146 OF THE CITY OF FRESNO COMMUNITY FACILITIES DISTRICT NO. 11, WAS FILED THIS DAY OF , 2023 AT THE HOUR OF O'CLOCK M AT BOOK 46, PAGE OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS IN THE OFFICE OF THE COUNTY RECORDER IN THE COUNTY OF FRESNO, STATE OF CALIFORNIA PAUL DICTOS, C.P.A. COUNTY RECORDER OF THE COUNTY OF FRESNO BY: NTERRITORY TO BE ANNEXED TO THE CITY CFD NO. 11 BOUNDARY LINE OF NEW TERRITORY NOTE: FOR PARCEL DIMENSIONS, SEE ASSESSOR'S MAP BOOK PAGES EXEMPT FROM SB2 FEES PER GOVERNMENT CODE SECTION 27388.1(a)(2)(D) EXHIBIT B EXHIBIT C C-1 City of Fresno Community Facilities District No. 11 Annexation No. 146 Description of Services to be Financed by Community Facilities District No. 11 for Annexation No. 146 (Final Tract Map No. 6383) The operations and reserves for the maintenance of certain required improvements (Services) that are to be financed by Community Facilities District No. 11 (CFD No. 11) for Final Tract Map No. 6383, Annexation No. 146 are generally as described below. The Services will include all costs (including reserves for replacement) attributable to maintaining, servicing, cleaning, repairing and/or replacing landscaped areas and trees in public street rights-of-way, public landscape easements, public open spaces and other similar landscaped areas officially dedicated for public use. General maintenance will include, without limitation, mowing, edging, fertilizing, aerating and watering grass areas, repairing and replacing irrigation systems as necessary; staking, pruning, replacing and spraying of trees and shrubs; removing litter, debris, and garbage. Services shall include all costs attributable to cleaning, maintaining, servicing, repairing and/or replacing all ground level infrastructure (including reserves for replacement) within dedicated public easements and outlots. Such facilities include, without limitation, concrete curbs, gutters, valley gutters, curb ramps and sidewalks, street name signage , street lighting, and local street paving associated with this subdivision. Such facilities may also include, without limitation, all hardscaping and park amenities and structures associated with the subdivision. Services shall include all costs attributable to street lighting services. Maintenance costs will include a proportionate share of all other expenses that the City of Fresno (City) may incur in administering CFD No. 11. All Services shall be provided by the City, with its own forces or by contract with third parties, or any combination thereof, to be determined entirely by the City. Nothing in this exhibit or any other exhibit or provision of this Resolution shall be construed as committing the City or CFD No. 11 to provide all of the authorized Services or to provide for the payment of or reimbursement for all of the authoriz ed incidental expenses. The provision of Services and/or payment or reimbursement of incidental expenses shall be subject to the successful annexation of Annexation No. 146 to CFD No. 11 and the availability of sufficient proceeds of Special Taxes within CFD No. 11. EXHIBIT C C-2 City of Fresno Community Facilities District No. 11 Formation Description of Services currently financed by Community Facilities District No. 11 The services that are to be financed (Services) by Community Facilities District No. 11 (CFD No. 11) are any and all Services defined by City of Fresno Speci al Tax Financing Law (Chapter 8, Division 1, Article 3 of the Fresno Municipal Code) and the Mello-Roos Community Facilities Act of 1982 (Chapter 2.5 commencing with Section 53311 , of Part 1, Division 2, Title 5 of the California Government Code.) I. Services may include all costs attributable to maintaining, servicing, cleaning, repairing and/or replacing all facilities, including hardscaping, in landscaped areas (may include reserves for replacement) in public street rights-of-way, public landscape easements, public trail areas, parkways, and other similar landscaped areas officially dedicated for public use. II. General maintenance will include, without limitation, mowing, edging, fertilizing, seeding, aerating, and watering grass areas; repairing and replacing irrigation systems as necessary; staking, pruning, replacing and spraying of trees and shrubs; repairing and replacing paths, walkways and trails; removing litter, debris, and garbage. II. Services may include all costs attributable to cleaning, maintaining, servicing, repairing and/or replacing all local ground level street infrastructure (may include reserves for replacement) within local street rights-of-way. Such facilities may include, without limitation, street paving, curbs and gutters, sidewalks, street lighting, hydrants, inlets, street trees and street furniture. III. Services may include costs attributable to police, fire, traffic control, street lighting and recreational services. Maintenance costs will also include a proportionate share of all other expenses that the City of Fresno (City) may incur in administering the CFD No. 11. All Services shall be provided by the City, with its own forces or by contract with third parties, or any combination thereof, to be determined entirely by the City. Nothing in this exhibit or any other exhibit or provision of this resolution shall be construed as committing the City or CFD No. 11 to provide all of the authorized Services or to provide for the payment of or reimbursement for all of the authorized incidental expenses. The provision of Services and/or payment or reimbursement of incidental expenses shall be subject to the continued existence of CFD No. 11 and the availability of sufficient proceeds of special taxes within the CFD No. 11. EXHIBIT D D-1 City of Fresno Community Facilities District No. 11 Annexation No. 146 Rate and Method of Apportionment of Special Tax Cost Estimate The estimate breaks down the costs of providing 1 year’s service for FY 2022-2023 for Final Tract Map No. 6383 (99 lots), Phase II of Vesting Tentative Tract Map No. 6201. Final Tract Map No. 6383’s costs include services for Final Tract Map No. 6383 and Final Tract Map No. 6383’s share of services provided to Vesting Tentative Tract Map No. 6201. Vesting Tentative Tract Map No. 6201 totals 257 lots (counting the 99 from Tract No. 6383). The final maps within Vesting Tentative Tract Map No. 6201 are to share equally for a portion of the cost of Services by Community Facilities District No. 11 as calculated with Final Tract Map No. 6201 (Annexation No. 129) and Phase III of VTTM 6201. Final Tract Map No. 6383 and Phase III will pay additional costs due to added facilities for those phases. ITEM DESCRIPTION ESTIMATED COST 1 Landscape Operational Costs $32,212.00 2 Other Operational Costs $707.00 3 Reserve for Replacement $28,680.00 4 Incidental Expenses $1,485.00 Total $63,084.00 Subdivision Appropriation Limit FINAL TRACT MAP NO. MAX. SPECIAL TAX PER RESIDENTIAL UNIT TOTAL TAXABLE UNITS APPROPRIATION LIMIT SUBDIVIDER 6383 $637.21 99 $500,000.00 Wilson Premier Homes Inc. EXHIBIT D D-2 City of Fresno Community Facilities District No. 11 Annexation No. 146 Rate and Method of Apportionment of Special Tax A Special Tax applicable to each assessor’s parcel in Community Facilities District No. 11 (CFD No. 11) shall be levied and collected according to the tax liability determined by the City Council of the City of Fresno, through the application of the appropriate amount or rate for taxable property, as described below. All of the property in CFD No. 11, unless exempted by law or by the provisions of Section E below, shall be taxed for the purposes, to the extent, and in the manner herein provided, including property su bsequently annexed to CFD No. 11 unless a separate Rate and Method of Apportionment of Special Tax is adopted for the annexation area. A. DEFINITIONS The terms hereinafter set forth have the following meanings: “Assessor’s Parcel” or “Parcel” means a lot or parcel shown on an assessor’s parcel map with an assigned assessor’s parcel number. “Assessor’s Parcel Map” means an official map of the County Assessor of the County of Fresno designating parcels by assessor’s parcel number. “City” means the City of Fresno. “City Law” means the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code. “Council” means the City Council of the City of Fresno, acting as the legislative body of CFD No. 11. “Developable Lot” means a lot that is anticipated development of residential or non - residential uses, and which is not an outlot, remainder parcel or other parcel which is not intended to be developed or which must be further subdivided before being developed. “Excluded Parcels” means those assessor’s parcels identified as ineligible for inclusion in CFD No. 11 as shown in “Attachment 1” of this Rate and Method of Apportionment of Special Tax. “Final Map” means a final map, or portion thereof, approved by the Council of the City of Fresno pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) that creates individual developable lots for which building permits may be issued. The term “Final Map” shall not include any assessor’s parcel map or subdivision map or EXHIBIT D D-3 portion thereof that does not create individual developable lots for which a building permit may be issued, including assessor’s parcels that are designated as remainder parcels. “Fiscal Year” means the period starting April 1 and ending on the following March 31. “Maximum Special Tax” means the maximum special tax, determined in accordance with Section C, which can be levied in any Fiscal Year. “Proportionately” means, in any fiscal year, that the ratio of the actual Special Tax to the Maximum Special Tax is equal for all assessor’s parcels in CFD No. 11. “Public Property” means any property within the boundaries of CFD No. 11 that is owned by the federal government, the State of California or other local governments or public agencies. “Reserve for Replacement” means a reasonable reserve pursuant to Fresno Municipal Code 8-1-303(e) (4), as a service cost or expense and not as payment for public facilities under Government Code Section 53321(d). “Residential Unit” means a residential dwelling unit and shall include single-family unattached homes, condominiums, town homes, duplex, triplex and fourplex units, and individual apartment units in a multi-family building. For purposes of the levy of special taxes pursuant to Section C below, “Residential Units” shall include dwelling units already built on taxable property in CFD No. 11, as well as dwelling units planned, but not yet built, when the special tax is levied each fiscal year. “Shared Services” means the costs of services are paid equally by the property owners of two or more subdivisions. “Special Tax” means any special tax to be levied each fiscal year on assessor’s parcels of taxable property to fund the Special Tax Requirement as defined below. “Special Tax Requirement” means the amount necessary in any fiscal year to (i) pay authorized maintenance and improvement expenses, (ii) pay administrative expenses of CFD No. 11, and (iii) cure any delinquencies in the payment of special taxes levied in prior fiscal years or (based on delinquencies in the payment of special taxes which have already taken place) are expected to occur in the fiscal year in which the tax will be collected. “Subdivision” means the division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, shown on the latest equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease, or financing whether immediate or future. Property shall be considered as contiguous units, even if it is separated by roads, streets, utility easement or railroad rights -of-way. “Subdivision” includes a condominium project, as defined in Section 4125 of the Civil Code, a community apartment project, as defined in Section 4105 of the Civil Code. EXHIBIT D D-4 “Taxable Property” means all of the assessor’s parcels within the boundaries of CFD No. 11 which are not exempt from the special tax pursuant to law or Section E below. B. CALCULATION OF RESIDENTIAL UNITS On April 1 of each fiscal year, the City of Fresno (City) or its designee shall determine how many residential units are built, or allowed to be built, on assessor’s parcels within CFD No. 11. For parcels of undeveloped property zoned for development of single-family units attached, the number of residential units shall be determined by referencing the condominium plan, apartment plan site plan or other development plan, or by assigning the maximum allowable units permitted based on the underlying zoning for the parcel. Once a single-family attached building or buildings have been built on an assessor’s parcel, the City or its designee shall determine the actual number of residential units contained within the building or buildings, and the special tax levied against the parcel in the next fiscal year shall be calculated by dividing the Special Tax Requirement by the actual number of residential units not to exceed the Maximum Special Tax per residential unit identified for the final map in Section C, Table 1 below. C. MAXIMUM SPECIAL TAX The Maximum Special Tax (MST) applicable to each assessor’s parcel in CFD No. 11 shall be specific to each final map within CFD No. 11. When additional property is annexed to CFD No. 11, the rate and method adopted for the annexed property shall reflect the MST for the final map or final maps then annexed. The Maximum Special Tax for Fiscal Year 2022-2023 for a residential unit within Final Tract Map No. 6383 is identified in Table 1 below: Table 1 Maximum Special Tax (Fiscal Year 2022-2023)* Final Tract Map Number** Maximum Special Tax 6383 $637.21 per Residential Unit *Beginning in January of each year, the MST will be adjusted upward annually by 2% or by the rise of the Construction Cost Index (CCI), if it exceeds 2%, for the San Francisco Region for the prior 12-month period (December through December) as published in the Engineering News Record, or published in a comparable index if the Engineering News Record is discontinued or otherwise not available. Each annual adjustment of the MST shall become effective on the subsequent July 1. ** A Special Tax shall be levied on all parcels within an identified final map except excluded parcels as identified in Attachment 1. EXHIBIT D D-5 D. METHOD OF LEVY AND COLLECTION OF THE SPECIAL TAX Commencing with Fiscal Year 2022-2023, the Special Tax shall be levied on all taxable parcels as follows: Step 1: Determine the Special Tax Requirement (as defined in Section A above) for the fiscal year in which the Special Tax will be collected; Step 2: Calculate the total special tax revenues that could be collected from taxable property within CFD No. 11 based on applying the Maximum Special Tax rates determined pursuant to Section C above to the number of residential units on each parcel of taxable property in CFD No. 11; If the amount determined in Step 1 is greater than or equal to the amount calculated in Step 2, levy the Maximum Special Tax set forth in Table 1 above on all parcels of taxable property in CFD No. 11; If the amount determined in Step 1 is less than the amount calculated in Step 2, levy the Special Tax proportionately against all parcels of taxable property up to 100% of the Maximum Special Tax for each subdivision as identified in Table 1, until the amount of the Special Tax levy equals the Special Tax Requirement for that fiscal year. The Special Tax for CFD No. 11 shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, provided, however, that CFD No. 11 may (under the authority of Government Code 53340), in any particular case, bill the taxes directly to the property owner off of the County of Fresno tax roll, and the Special Taxes will be equally subject to penalties and foreclosure if delinquent. E. EXEMPTIONS Notwithstanding any other provision of this Rate and Method of Apportionment of Special Tax, no Special Tax shall be levied on parcels that have been conveyed to a public agency, except as otherwise provided in City Law, and properties receiving a welfare exemption under subdivision (g) of Section 214 of the Revenue and Taxation Code. In addition, no Special Tax shall be levied on excluded parcels or parcels that are determined not to be developable lots. EXHIBIT D D-6 ATTACHMENT 1 City of Fresno Community Facilities District No. 11 Annexation No. 146 Excluded Parcels THERE ARE NO EXCLUDED PARCELS IN FINAL TRACT MAP NO. 6383 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1095 Agenda Date:7/20/2023 Agenda #: 1.-BB. REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, PE, Director Public Works Department BY:WILLIAM C. HERR, Assistant Director Public Works Department, Construction Management Division SUBJECT BILL - (For introduction) - Amending Section 4-117 to the Fresno Municipal Code relating to National Targeted Hiring in contracts for any Public Work of Improvement not covered by a Project Labor Agreement and increasing median income levels for National Economically Disadvantaged Area RECOMMENDATION: It is recommended that the Council amend Section 4-117 to the Fresno Municipal Code (FMC) relating to National Target Hiring in Contracts for any Public Work of Improvement not covered by a Project Labor Agreement EXECUTIVE SUMMARY: On April 21, 2016, the Council adopted National Targeted Hiring (NTH) requirements into Section 4- 117 of the Fresno Municipal Code. Recognizing that the City of Fresno awards numerous contracts to private firms to construct Public Works of Improvement, these changes to the FMC sought to advance the interests of the City by encouraging employment and training opportunities to create a trained workforce for safe construction of any Public Work of Improvement to mitigate the harms caused by geographically concentrated poverty, unemployment and underemployment in economically disadvantaged areas throughout the United States, including in the City of Fresno. By using provisions of this FMC section, it allowed the City to use local, state, and federal funds to promote hiring of workers in economically disadvantaged areas across the nation. On September 29, 2021, the City entered into a Community Workforce Agreement with the Fresno, Madera, Kings and Tulare Counties Building and Construction Trades Council, also known as a Project Labor Agreement (PLA). The PLA covers work with an Engineer’s Estimate for construction costs in excess of $1,000,000. The National Targeted Hiring ordinance is still in effect for Public Works of Improvement under $1,000,000, but the 2016 ordinance adopted by the Council did not include a cost-of-living adjustment for the $35,000 average median income threshold listed in the NTH ordinance. This has resulted in NTH compliance becoming infeasible as income levels have risen over the past seven years. Staff is therefore returning to Council with a recommendation to introduce an amendment to the ordinance to redefine a National Economically Disadvantaged Area City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT B-25 APPROVED ON CONSENT File #:ID 23-1095 Agenda Date:7/20/2023 Agenda #: 1.-BB. introduce an amendment to the ordinance to redefine a National Economically Disadvantaged Area with the average median income level under $55,000 rather than $35,000,and for the threshold to be adjusted each year on July 2nd to the nearest $1,000,increasing with the Consumer Price Index (CPI). This will allow for the NTH ordinance to be effective and to achieve the desired goal. BACKGROUND: As noted in the April 21, 2016, report to Council, areas throughout the United States have experienced both historically high rates of unemployment and underemployment, including the City of Fresno which has been experiencing substantially higher rates of unemployment than other areas of the United States. The City of Fresno continues to face poverty in southern and central Fresno neighborhoods as generational concentrations of poverty continue to hurt our local economy. The City desires to increase the number of pathways to technical education training programs in areas across the United States. More recently in September 2021, the City entered into the Community Workforce Agreement with the Building Trades Council in an effort to build upon those pathways to careers as journey-level, skilled construction tradespeople. The April 2016 Council action amended the FMC to require the City of Fresno to incorporate NTH provisions on all Contracts for any Public Work of Improvement in excess of $200,000, adjusted annually on the first of July to the nearest $1,000 in response to changes in the National Consumer Price Index. These provisions obligate Contractors to follow targeted hiring procedures, including an obligation to make reasonable good faith efforts, as defined in the implementing Administrative Order, to meet specific hiring requirements for Nationally Targeted Workers, as defined in subsection (c). “National Economically Disadvantaged Area” is currently defined by the following: i. A zip code outside of the City of Fresno that includes a census tract, or portion thereof, in which the median annual household income is less than $35,000 per year, as measured and reported by the U.S. Census Bureau in the most recent U.S. Census; or A zip code, or any portion of, which falls inside the City of Fresno, the average median income of which census tracts is less than $35,000 per year, as measured and reported by the U.S. Census Bureau in the most recent U.S. Census. Staff is recommending that the Council amend this provision of the NTH ordinance to update the threshold from $35,000 per year up to $55,000 per year, to bring this current for 2023, and to have this threshold automatically increase on July 2nd of each year by the Consumer Price Index (CPI) adjustment, rounded to the nearest $1,000. All other provisions of the NTH ordinance as previously adopted by the Council will remain in effect. The mandatory participation level for National Targeted Workers is currently 40% of the total construction project worker hours. City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1095 Agenda Date:7/20/2023 Agenda #: 1.-BB. For projects covered by the Community Workforce Agreement (Project Labor Agreement), the NTH Ordinance provisions do not apply. ENVIRONMENTAL FINDINGS This is not a project for CEQA purposes. LOCAL PREFERENCE This proposed FMC ordinance amendment does not provide a direct local preference as defined by our current FMC. FISCAL IMPACT There will be no impact to the General Fund from the recommended action. Full costs for each capital improvement project, including compliance with the NTH ordinance during the construction phase, are included in the adopted budget for the City of Fresno. Attachment: Ordinance City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1076 Agenda Date:7/20/2023 Agenda #: 1.-CC. REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, P.E., Director Public Works Department BY:BRIAN E. RUSSELL, Assistant Director Public Works Department, Streets, Landscape, and Graffiti Divisions MARK A. RIVAS, Senior Management Analyst Public Works Department, Streets, Landscape, and Graffiti Divisions SUBJECT Award a requirements contract to Allied Rodent Control in the amount of $83,420.00 per year to provide rodent control services at various facilities and parks (Bid File 12301318) (City Wide) RECOMMENDATION Staff recommends that the City Council award a requirements contract in the amount of $83,420.00 plus 20% contingency per year for one-year with the option for four, one-year extensions to Allied Rodent Control of Madera, California as the best value for rodent control services and to authorize the Public Works Director or designee to sign the contract on the City’s behalf. EXECUTIVE SUMMARY The Landscape Division of Public Works is seeking a requirements contract to procure rodent control services to maintain various City facilities and parks. The Landscape Maintenance Division of Public Works outsources rodent control services to help maintain various City facilities and parks, which includes baiting, backfilling holes, and when required, removal. The Landscape Division works with the outside vendor to ensure effective results while maintaining humane practices and standards. BACKGROUND On April 7th, the City posted a new RFP on PlanetBids for qualified vendors to bid on rodent control services at various City facilities and parks. Following the receipt of 2 bids on May 16th, a committee was formed which was comprised of the Landscape Division’s Public Works Manager, Landscape Superintendent and Senior Management Analyst as well as a Parks Supervisor II representing the City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1076 Agenda Date:7/20/2023 Agenda #: 1.-CC. PARCS Department, a Management Analyst II representing FAX, and the Procurement Specialist assigned to the project. The goal of the committee was to thoroughly review each proposal in order to recommend the best value to Council. As part of the review, the committee members evaluated the proposers on 1) cost as shown on the proposal form, 2) ability to meet the stated service requirements, including possessing all necessary pesticide applicator licenses and or certifications, 3) past performance and experience based on references and experience, 4) conformance to the terms and conditions of the RFP. In addition to the established criteria, the committee also reviewed references and information collected from follow-up questionnaires requested of the two vendors. The committee met twice over the course of three weeks to evaluate bids submitted by Allied Rodent Control of Madera, California and EagleShield Pest Control of Clovis, California. Both vendors submitted bids deemed to be complete by Purchasing. The bids were competitive in many respects, however, after lengthy discussion, research and analysis regarding the two proposals and questionnaires, the committee unanimously voted to recommend the proposal from Allied Rodent Control based on their strength in the following two key areas: ·Price - While this was not a low bid contract, Allied Rodent Control’s overwhelming advantage in price, a 58% discount over EagleShield Pest Control’s proposal, was one of the biggest determining factors. ·Familiarity - As the current City vendor, staff feels confident Allied Rodent Control would continue to provide dependable service. These areas represented what were ultimately the key differentiators between the two proposals and drove the committee to determine that Allied Rodent Control’s proposal represented the best value for the City. The new contract represents a 19% decrease in pricing relative to the previous contract. The City Attorney’s Office has reviewed and approved to form. Staff recommends that the City Council award a requirements contract in the amount of $83,420.00 plus 20% contingency per year for one-year with the option for four, one-year extensions to Allied Rodent Control of Madera, California as the best value for rodent control services and to authorize the Public Works Director or designee to sign the contract on the City’s behalf. ENVIRONMENTAL FINDINGS Pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15378, awarding of this contract is not a project for the purposes of CEQA. LOCAL PREFERENCE Local Preference does not pertain to RFPs. FISCAL IMPACT Appropriations for rodent control services consist of General Fund and Measure P within the adopted FY2024 budget. Attachment(s): City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1076 Agenda Date:7/20/2023 Agenda #: 1.-CC. Bid Evaluation - Listing of Proposers Committee Evaluation Report - Pricing Comparison City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ REPORT FROM EVALUATION COMMITTEE CITY OF FRESNO REQUEST FOR PROPOSAL FOR RODENT CONTROL SERVICES AT VARIOUS FACILITIES AND PARKS - RFP NO. 12301318 (Committee Meetings held on 05-31-23 and 06-15-23) COMMITTEE MEMBERS: • Sherri Cuadros, Procurement Specialist/Facilitator, City of Fresno, General Services Department - Purchasing • Vince Patlan, Public Works Manager, City of Fresno, DPW - Landscape Maintenance • Michael Flores, Landscape Superintendent, City of Fresno, DPW - Landscape Maintenance • Brendan Mills, Parks Supervisor II, City of Fresno, PARCS • Sarah Lambeth, Management Analyst II, City of Fresno, FAX • Mark Rivas, Senior Management Analyst, City of Fresno, DPW - Streets, Landscape and Graffiti Divisions BACKGROUND The goal of this Request for Proposal (RFP) was to solicit proposals to provide Rodent Control Services to the City of Fresno’s Public Works Department, Landscape Maintenance Division. The proposer will provide all labor, materials, equipment, insurance, etc., to provide Rodent Control Services at Various Facilities and Parks as specified. This RFP was advertised in both the Business Journal and on Plant Bids on April 7, 2023. Proposals were submitted by the following two vendors according to the Request for Proposal May 16, 2023, deadline. There was a subsequent Questionnaire requested by the two candidates on June 6, 2023. Responses to the Questionnaires are attached. Detailed pricing proposals submitted by the top two candidates are included below: ITEM DESCRIPTION UOM QTY UNIT PRICE LINE TOTAL UNIT PRICE LINE TOTAL 1 Weekly Rodent Control Service Roeding Park – Exhibit “A"WEEK 52 $250.00 $13,000.00 $197.00 $10,244.00 2 Weekly Rodent Control Service Kahlra Park – Exhibit “B"WEEK 52 $45.00 $2,340.00 $197.00 $10,244.00 3 Weekly Rodent Control Service Service Veterans Memorial Auditorium – Exhibit “C"WEEK 52 $35.00 $1,820.00 $197.00 $10,244.00 4 Weekly Rodent Control Service Neilsen Park – Exhibit “D"WEEK 52 $35.00 $1,820.00 $197.00 $10,244.00 5 Weekly Rodent Control Service Chandler Park – Exhibit “E"WEEK 52 $35.00 $1,820.00 $197.00 $10,244.00 6 Weekly Rodent Control Service Hinton Park – Exhibit “F"WEEK 52 $35.00 $1,820.00 $197.00 $10,244.00 7 Weekly Rodent Control Service Inspiration Park – Exhibit “G"WEEK 52 $35.00 $1,820.00 $197.00 $10,244.00 8 Weekly Rodent Control Service Regional Sports Complex – Exhibit “H"WEEK 52 $250.00 $13,000.00 $197.00 $10,244.00 9 Weekly Rodent Control Service Logan Park – Exhibit “I"WEEK 52 $35.00 $1,820.00 $197.00 $10,244.00 10 Weekly Rodent Control Service Spano Park – Exhibit “J"WEEK 52 $45.00 $2,340.00 $197.00 $10,244.00 11 Weekly Rodent Control Service Eaton Plaza Park – Exhibit “K"WEEK 52 $35.00 $1,820.00 $197.00 $10,244.00 12 Weekly Rodent Control Service Figarden Loop Park – Exhibit “L"WEEK 52 $45.00 $2,340.00 $197.00 $10,244.00 13 Weekly Rodent Control Service Orchid Park – Exhibit “M"WEEK 52 $35.00 $1,820.00 $197.00 $10,244.00 14 Rodent Control Service - Section I 1/4 ACRE 12 $85.00 $1,020.00 $75.00 $900.00 SECTION I:$48,600.00 $134,072.00 15 Weekly Rodent Control Service Woodward Park – Exhibit “N"WEEK 52 $250.00 $13,000.00 $197.00 $10,244.00 16 Weekly Rodent Control Service Al Radka Park – Exhibit “O"WEEK 52 $35.00 $1,820.00 $197.00 $10,244.00 17 Weekly Rodent Control Service Sunnyside Park & Buffer – Exhibit “P"WEEK 52 $35.00 $1,820.00 $197.00 $10,244.00 18 Weekly Rodent Control Service Robinson Park – Exhibit “Q"WEEK 52 $35.00 $1,820.00 $197.00 $10,244.00 19 Weekly Rodent Control Service Jensen River Ranch – Exhibit “R"WEEK 52 $250.00 $13,000.00 $197.00 $10,244.00 20 Weekly Rodent Control ServiceEinstein Park – Exhibit “S"WEEK 52 $45.00 $2,340.00 $197.00 $10,244.00 21 Rodent Control Service - Section II 1/4 ACRE 12 $85.00 $1,020.00 $75.00 $900.00 SECTION II:$34,820.00 $62,364.00 TOTALS:$83,420.00 $196,436.00 Allied Rodent Control EagleShield Pest Control COMMITTEE NOTES The committee members evaluated the proposers on 1) Cost as shown on the proposal form, 2) Ability to meet the stated service requirements, including possessing all necessary pesticide applicator licenses and or certifications, 3) Past Performance and Experience based on references and experience, 4) Conformance to the terms and conditions of the RFP. Allied Rodent Control (Total Bid Amount: $83,420.00) – The quote was in line with expectations and because Allied Rodent Control is the City’s current vendor, most of the committee was familiar with their performance. EagleShield Pest Control Inc. (Total Bid Amount: $196,436.00) – The consensus among the committee members was that while EagleShield Pest Control provided an impressive overall proposal, the pricing proposed was potentially cost prohibitive. The first committee meeting took place on Wednesday May 31st and was held primarily to confirm both bidders had submitted complete and acceptable proposals, to evaluate and compare the two submissions, and discuss the findings. Allied Rodent Control is the current vendor and several of the committee members reported that they have had positive experience and good results with Allied’s service. The committee was unfamiliar with EagleShield Pest Control. Both vendors met the proposal requirements, however, each vendor excelled in different areas of the bid packages. The committee was impressed by the overall professionalism and thoroughness of the EagleShield Pest Control proposal. While Allied Rodent Control was able to provide customized site by site estimates, which resulted in pricing more in line with the Division’s expectations in comparison. The consensus from the committee was that a second meeting was required to review feedback from references the two vendors had provided as well as to give both vendors a chance to answer some follow up questions, which the committee decided would be beneficial before a final decision was made. The second committee meeting took place on Thursday, June 15th. The committee reviewed reference feedback as well as the vendor follow-up questionnaires. Purchasing was able to get three reference checks complete for Allied Rodent Control and two for EagleShield Pest Control. Both vendors were able to supply references with current rodent control service agreements. All references supplied by the vendors provided positive feedback. The follow-up questionnaires were returned by both vendors and the committee was satisfied by the answers provided. There were no red flags that would prohibit either vendor from servicing the City. The committee determined that both vendors provided strong proposals, but the pricing provided by Allied Rodent Control proved to be the key differentiator. Summary Recommendation – After carefully reviewing both proposals and conducting proper follow-up, the committee unanimously voted to recommend Allied Rodent Control’s proposal. Considering all four of the criteria outlined in the RFP, it was clear that both proposals represented a solid solution for the City. However, while this was not a low bid contract, Allied Rodent Control’s overwhelming advantage price, a 58% discount over EagleShield Pest Control’s proposal, was just too much to overlook. Also, because Allied Rodent Control is the City’s current vendor and has provided good service, the committee felt like they provided little risk relative to performance. It’s because of these two reasons that the committee feels Allied Rodent Control represents the best value for the City. City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1024 Agenda Date:7/20/2023 Agenda #: 1.-DD. REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, PE, Director Public Works Department BY:WILLIAM C. HERR, Assistant Director Public Works Department, Construction Management Division DARDEN P. ROCHE, Chief Engineering Inspector Public Works Department, Construction Management Division SUBJECT Approve Contract Change Order No. 03 in the amount of an estimated $174,390.40 for increases in unit cost amounts to Dave Christian Construction Co., Inc. for the North Abby Street HMA Pavement Overlay from Divisadero Street to Olive Avenue, Project ID PW00784 (Bid File 3785) (Council District 3). RECOMMENDATION Staff recommends that the City Council approve Contract Change Order No. 03 with Dave Christian Construction Co., Inc for a total estimated increase in Contract Amount of $174,390.40 for the completion of the project for the North Abby Street HMA Pavement Overlay from Divisadero Street to Olive Avenue. EXECUTIVE SUMMARY On June 10, 2021, a Contract was awarded in the amount of $879,984.00 to Dave Christian Construction Co., Inc. for the North Abby Street HMA Pavement Overlay from Divisadero Street to Olive Ave. City Council Approval of Contract Change Order No. 03 will allow for an additional estimated $174,390.40 to increase multiple unit cost amounts due to price increases in labor, material, equipment and fuel. The repaving had been delayed for two years due to delays on the PG&E Rule 20 Utility Undergrounding District occurring in the same area. The project was originally fully funded with Federal Regional Surface Transportation Program (RSTP) funds. The funding for the contract change order to pay for increased labor, material, equipment and fuel costs was included in the Senate Bill 1 projects list for FY2024 as previously adopted by the Council. BACKGROUND On June 10, 2021, a Contract was awarded in the amount of $879,984.00 to Dave Christian City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1024 Agenda Date:7/20/2023 Agenda #: 1.-DD. Construction Co., Inc. for the North Abby Street HMA Pavement Overlay from Divisadero Street to Olive Ave. The Notice to Proceed was issued with a starting date of October 5, 2021, and a completion date of December 16, 2021. The initial work completed during October 2021 included the required concrete curb ramp work for ADA compliance. The project was suspended on October 26, 2021 due to delays in the PG&E Rule 20 Utility Undergrounding District work within the same project limits. With the suspension days to date and one approved weather day through June 22, 2023, the new date of completion is August 22, 2023, contingent on when date of suspension release has been established. City Council approval of Contract Change Order No. 03 for an additional estimated $174,390.40 is required by Resolution 2017-158, which sets the approval thresholds for Contract Change Orders which in aggregate exceed ten percent of the original contract price. There are two contract change orders that have been approved by the Director in the amount of $2,800.00 which is 0.3% of the original contract. The amount of Contract Change Order No. 03 is an estimated $174,390.40 for a total of 20.1% of the original Contract amount. The North Abby Street HMA Pavement Overlay, from Divisadero Street to Olive Avenue project was initiated in FY2017 when the City was awarded a Federal grant from the RSTP improvement program. The grant funds were obligated, and the project was budgeted in the FY 2018 Capital Budget as adopted by City Council. The scope of the project includes grinding existing asphalt and installing an asphalt-concrete overlay, reconstructing curb ramps to comply with the Americans with Disabilities Act (ADA) requirements, replacement of damaged traffic detector loops, installation of required pedestrian push button posts and the application of new pavement markers and striping. The roadway configuration will remain as it exists today including on-street parking and three travel lanes, however, the lanes were narrowed to accommodate a Class II bike lane. ENVIRONMENTAL FINDINGS Staff performed a preliminary environmental assessment of this project and determined that it falls within the Categorical Exemption set forth in CEQA Guidelines, Section 15301(c) Class 1 which exempts the repair and maintenance of existing facilities that involves negligible or no expansion of an existing use. This exemption applies because this project involves the reconstruction of an existing roadway and does not involve the expansion of the roadway to accommodate additional traffic. The purpose of the project is to replace the surface pavement and provide a smooth riding surface for the motorists. Furthermore, staff has determined that none of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines, Section 15300.2 apply to this project. LOCAL PREFERENCE The local preference was not implemented because this project is funded with a federal grant. FISCAL IMPACT The North Abby Street HMA Pavement Overlay,from Divisadero Street to Olive Avenue project is located in the City of Fresno,Council District 3.The project is primarily funded with a Federal RSTP grant.The overall cost associated with the contract change order is an estimated $174,390.40.Due City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1024 Agenda Date:7/20/2023 Agenda #: 1.-DD. grant.The overall cost associated with the contract change order is an estimated $174,390.40.Due to grant funding limitation,SB1 Road Maintenance and Rehabilitation Account (RMRA)funds were added to cover the cost for the change order,as part of the FY2024 SB1 projects list previously approved by the Council.This project will not have any impact to the General Fund.All funds necessary for the change order are included in the current fiscal year budget as previously adopted by the Council. Attachment(S): Contract Change Order No. 03 City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1132 Agenda Date:7/20/2023 Agenda #: 1.-EE. REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, PE, Director Public Works Department BY:BRIAN E. RUSSELL, Assistant Director Public Works Department, Streets, Landscape, and Graffiti Divisions SUBJECT RESOLUTION - Adopting an amended list of proposed Public Works projects to receive Senate Bill 1 (SB 1) Road Maintenance and Rehabilitation Account funding for City Fiscal Year 2024. RECOMMENDATION [If more than one recommendation pluralize] EXECUTIVE SUMMARY [Brief, 1-2 paragraphs; information stated here must be expanded in Background section; clear and concise so anyone understands action being requested] BACKGROUND [Include: Any prior history; “City Attorney has reviewed and approved to form,” if applicable; source of funding; appropriate regulation summary information] ENVIRONMENTAL FINDINGS [Include CEQA findings or state N/A] LOCAL PREFERENCE [N/A due to State and Federal money; N/A because it is more than ½ of 1%; or yes, state why] FISCAL IMPACT [Funding source, clarify whether General Fund is or is not impacted; appropriation authority already approved or an AAR is attached; if appropriate explain impact on other projects or timing of funding from other agencies; future obligations] City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT R. 2023-209 APPROVED ON CONSENT File #:ID 23-1132 Agenda Date:7/20/2023 Agenda #: 1.-EE. Attachment:[If more than one, pluralize] City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1066 Agenda Date:7/20/2023 Agenda #: 1.-FF. REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, PE, Director Public Works Department BY:RANDALL W. MORRISON, PE, Assistant Director Public Works Department, Engineering Division HARLAVPREET S. BRAR, Professional Engineer Public Works Department, Site Development Project Management Section SUBJECT Actions pertaining to professional on-call architectural and engineering design services for the Public Works Engineering Division on City of Fresno parks capital improvement projects (Citywide) 1. Approve an On-Call Consultant Services Agreement with O’Dell Engineering Inc., of Fresno, California in the amount of $3,000,000 2. Approve an On-Call Consultant Services Agreement with Blair, Church and Flynn Consulting Engineers Inc., of Clovis, California in the amount of $3,000,000 3. Approve an On-Call Consultant Services Agreement with GHD Inc., of Fresno, California in the amount of $3,000,000 RECOMMENDATIONS Staff recommends City Council to approve three (3) On-Call Design Service Agreements (Agreements) between the City of Fresno (City) and 1) O’Dell Engineering Inc., 2) Blair, Church and Flynn Consulting Engineers Inc. (BCF) and 3) GHD Inc., collectively (Consultants), to provide professional architectural and engineering design services for Citywide parks capital improvement projects, for three-year terms, to be reimbursed for hours worked at the hourly rates specified in the Schedule of Fees included in the Consultant’s respective agreement, not to exceed $3,000,000, with no guarantee expressed or implied that the $3,000,000 will be authorized under any of the three respective agreements, and authorize the Public Works Director or designee to execute all three agreements on behalf of the City. EXECUTIVE SUMMARY The Department of Public Works (DPW) Engineering Division manages a large capital improvement program, which includes a significant amount of new capital improvement projects for the Parks, After School, Recreation and Community Services (PARCS) Department. The projects include improvement of the existing park facilities to enhance the guest experience and provide an environment that promotes health and social interaction. With the growing need for park City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1066 Agenda Date:7/20/2023 Agenda #: 1.-FF. environment that promotes health and social interaction.With the growing need for park improvements citywide,an increase in project workload and commonality of the improvement projects,staff recommends the proposed contracts as a feasible solution to efficiently deliver these projects.Staff recommends approval of the three agreements,each with three-year terms and a total compensation not to exceed $3,000,000 individually to provide professional architectural and engineering design and construction support services for the Public Works Engineering Division. Upon approval and execution of the Agreements,improvement projects requiring architectural and engineering design services under this contract will be identified,a Request for Proposal (RFP)will be issued to all three Consultants,and project-by-project Task Orders will be issued based on the most qualified consultant for each project.The funding for these services will come from the allocated project funding sources for each individual task order. BACKGROUND With the ageing park infrastructure and growing need for new park improvement projects that will provide new facilities to promote public health and social interaction,there is an increase in the PARCS capital improvement project workload.The increased workload and commonality of such projects has lead to the need for on-call consultants to effectively design and prepare construction documents.The agreements for On-Call Professional Architecture and Engineering Design Services will allow staff to deliver these types of projects promptly and more efficiently.The consultant’s scope of services will include but are not limited to the following:developing park’s master plan, rehabilitation and/or design of new play structures,tot lot play areas,splash pads,shade structures, playing courts,sports fields,walking paths and trails,dog parks,addition of site amenities including benches,picnic tables,water fountains,trash receptacles,bleachers,fencing,lighting upgrades and restroom facilities,ADA assessment of the existing site,landscape and irrigation design,parking lot and storm water drainage improvements.Hiring consultants to provide these services on a project-by -project basis is time consuming and creates project initiation delays.Staff recommends approval of the proposed agreements to improve project timelines to perform the professional architectural and engineering design services. In accordance with AO 6-19,staff sent out a request for Statements of Qualifications (SOQs)in February 2023 via Planet Bids,email,and published in The Business Journal for On-Call Capital Improvement Project Design Services.Out of the twelve (12)SOQs received,one (1)SOQ was deemed unresponsive.The remaining eleven (11)SOQs were evaluated,ranked,and the top six (6) qualified respondents were interviewed between April 18,2023,and May 2,2023.At the conclusion of the evaluation period O’Dell Engineering,BCF,and GHD were selected as the most qualified consultants for these services. Staff recommends City Council to approve the three Agreements with 1)O’Dell Engineering,2)BCF, and 3)GHD,for professional design and construction support services,each with three-year terms and a total compensation not to exceed $3,000,000 individually,with no guarantee expressed or implied that $3,000,000 will be authorized under any respective agreement,to provide park improvement design support for the Public Works Engineering Division on City’s capital projects,and authorize Public Works Director or designee to sign on behalf of the City. The City Attorney’s Office has reviewed and approved the proposed agreement as to form. City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1066 Agenda Date:7/20/2023 Agenda #: 1.-FF. ENVIRONMENTAL FINDINGS A consultant agreement for the design of plans and cost estimates is not a “project”pursuant to California Environmental Quality Act (CEQA) Guidelines § 15378. LOCAL PREFERENCE Local preference was implemented in the consultant selection process pursuant to the Fresno Municipal Code Section 4-109.O’Dell Engineering Inc.,BCF and GHD Inc.are local firms located in the Fresno area. FISCAL IMPACT These Agreements have no immediate impact to the General Fund and the Agreements will service projects in all Council Districts. All funding necessary for the services of the proposed Agreements will be appropriated under the individual capital projects for each task order. Attachment(s): Consultant Agreement - O’Dell Engineering Inc. Consultant Agreement - Blair, Church and Flynn Consulting Engineers Inc. Consultant Agreement - GHD Inc. City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ DPW-S On Call NonFed Agt. T&M (04-2023) -1- AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANT SERVICES THIS AGREEMENT is made and entered into effective on __________________, 20___, by and between the CITY OF FRESNO, a California municipal corporation (City), and O'DELL ENGINEERING INC., a California Corporation (Consultant). RECITALS WHEREAS, the City desires to obtain professional on-call architectural and engineering services for the Public Works Capital Improvement Program (Program); and WHEREAS, the Consultant is engaged in the business of furnishing services as a licensed architect and engineer and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, the City has conducted a qualification-based selection process to obtain professional civil engineering and architectural firm to be contracted on an on-call basis for services, as defined by this Agreement, that are to be awarded Task Order work as needed by City; and WHEREAS, the City may contract with multiple consultants under the qualification-based selection process and award Task Order work on a competitive basis per the selection criteria defined herein and solicited to the contracted consultants; and WHEREAS, the Consultant acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6- 19; and WHEREAS, this Agreement will be administered for the City by its Public Works Director (Director) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. The Consultant shall perform to the satisfaction of the City the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above (Effective Date) and shall continue in full force and effect for three years, subject to any earlier termination in accordance with this Agreement. The City, in its discretion, may extend the Agreement for up to three additional one-year terms. The Contract Administrator shall have the authority to execute an extension of this Agreement. The services of the Consultant as described in Exhibit A are to commence upon the City’s issuance of a written “Notice to Proceed.” A separate Notice to Proceed will be issued for each of the DPW-S On Call NonFed Agt. T&M (04-2023) -2- awarded Task Orders, following the Consultant’s successful submission of a Proposal, which shall be awarded based on the criteria defined herein. City may, at its discretion, issue concurrent Notices to Proceed, allowing Consultant to perform concurrent Task Orders. By entry into this Agreement and upon City’s issuance of a written "Notice to Proceed," City contracts for the services in the specific Task Order. Consultant shall not perform any other Task Order work of the Agreement, and this Agreement shall not be a contract for any other Task Order, until further performance is authorized by City’s issuance of a written “Notice to Proceed.” It shall, however, remain Consultant’s offer to perform all services described herein. In the event Consultant performs services without City’s prior written authorization, Consultant will not be entitled to compensation for such services. Work shall be undertaken and completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed within the agreed upon duration for each individual Task Order from such authorization to proceed. 3. Compensation. (a) The Consultant will be reimbursed for hours worked at the hourly rates specified in the Consultant’s approved Cost Proposal as described in Exhibit A, Schedule of Fees. The specified hourly rates shall include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates are not adjustable for the performance period set forth in this Agreement. The Consultant will be reimbursed within thirty days upon receipt by the City’s Contract Administrator of itemized invoices in duplicate. (b) In addition, the Consultant will be reimbursed for incurred (actual) direct costs other than salary costs that are in the approved Cost Proposal of the authorized Task Order. (c) Specific projects will be awarded to the Consultant through issuance of Task Orders. (d) After a project to be performed under this Agreement is identified by the City, the City will prepare a Task Order Request For Proposal (RFP) for the specific Task Order. A Task Order RFP will identify the scope of services, expected results, project deliverables and will designate a City Coordinator. If the City contracts with multiple consultants for these services, the RFP will be solicited to the contracted consultants for review. Evaluation criteria will be included in each solicitation. The Task Order RFP will contain evaluation criteria that will identify the best value firm for each task. x The evaluation criteria may include: o Availability of Personnel o Staff Capabilities o Completion Schedule o Experience of Consultant or Sub-Consultants o Cost Proposal o Completeness DPW-S On Call NonFed Agt. T&M (04-2023) -3- o Past Performance (e) The Consultant/s shall return a Proposal and a draft Task Order, per Exhibit D attached hereto, within the timeframe specified in the Task Order RFP. Failure to respond to an RFP may be considered a breach of contract. (f) Proposals will be evaluated and ranked based on the defined criteria within the RFP. (g) Task order cost will be based on wage rates established in the Consultant’s on-call contract, and the time and deliverable requirements in the task order (h) Upon determination of the successful Proposal, City and Consultant will finalize the Task Order. The finalized Task Order shall be signed by both the City and the selected Consultant. The City has the right to not award a Task Order if the Cost Proposal/s are disagreeable to the City. (i) Reimbursement for transportation and subsistence costs shall not exceed State rates. (j) Progress payments for each Task Order will be made monthly in arrears based on services provided and actual costs incurred. (k) The Consultant shall not commence performance of work or services until this Agreement has been approved by the City and notification to proceed has been issued by the City’s Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this Agreement. (l) A Task Order is of no force or effect until returned to the City and signed by an authorized representative of the City. No expenditures are authorized on a project and work shall not commence until a Task Order for that project has been executed by the City and a written Notice to Proceed is issued. (m) The selected Consultant will be reimbursed within thirty days upon receipt by the City’s Contract Administrator of itemized invoices in duplicate. Separate invoices itemizing all costs are required for all work performed under each Task Order. Invoices shall be submitted no later than thirty calendar days after the performance of work for which the selected Consultant is billing, or upon completion of the Task Order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Agreement number, project title and Task Order number. Credits due the City that include any equipment purchased under the provisions of Article XI Equipment Purchase, must be reimbursed by the Consultant prior to the expiration or termination of this Agreement. Invoices shall be mailed to the City’s Contract Administrator at the following address: City of Fresno Attention: Harlavpreet S. Brar, PE 2600 Fresno Street, Room 4016, Fresno, CA, 93721-3620 DPW-S On Call NonFed Agt. T&M (04-2023) -4- (n) The period of performance for Task Orders shall be in accordance with dates specified in the Task Order. No Task Order will be written which extends beyond the expiration date of this Agreement. (o) The total amount payable by the City for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless authorized by amendment. (p) If the Consultant fails to satisfactorily complete a deliverable according to the schedule set forth in a Task Order, no payment will be made until the deliverable has been satisfactorily completed. (q) Task Orders may not be used to amend the language (or the terms) of this Agreement or exceed the scope of work under this Agreement. (r) The total amount payable by the City for all Task Orders resulting from under this Agreement shall not exceed $3,000,000.00. It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this Agreement through Task Orders. 4. Termination, Remedies and Force Majeure. (a) This Agreement shall terminate without any liability of the City to the Consultant upon the earlier of: (i) the Consultants filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the Consultant; (ii) seven calendar days prior written notice with or without cause by the City to the Consultant; (iii) the City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Program; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, the Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the City any and all unearned payments and all properties and materials in the possession of the Consultant that are owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid compensation for services satisfactorily performed prior to the effective date of termination. The Consultant shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of the Consultant to satisfactorily perform in accordance with the terms of this Agreement, the City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the City’s damages caused by such failure. In no event shall any payment by the City pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement which may then exist on the part of the Consultant, nor shall such payment impair or prejudice any remedy available to the City with respect to the breach. (d) Upon any breach of this Agreement by the Consultant, the City may (i) exercise any right, remedy (in contract, law or equity), or privilege which DPW-S On Call NonFed Agt. T&M (04-2023) -5- may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that the City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) The Consultant shall provide the City with adequate written assurances of future performance, upon Director’s request, in the event the Consultant fails to comply with any terms or conditions of this Agreement. (f) The Consultant shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Consultant shall notify Director in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Director of the cessation of such occurrence. (g) Any notice of termination sent to Consultant shall include the reason(s) for such termination or state that it is without cause. 5. Confidential Information, Ownership of Documents and Copyright License. (a) Any reports, information, or other data prepared or assembled by the Consultant pursuant to this Agreement shall not be made available to any individual or organization by the Consultant without the prior written approval of the City. During the term of this Agreement, and thereafter, the Consultant shall not, without the prior written consent of the City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of the City, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the City. i. Permission granted to the Consultant to disclose information on one occasion shall not authorize the Consultant to further disclose such information or any other information or disseminate the same on any other occasion. ii. The Consultant shall not comment publicly to the press or any other media regarding the Agreement or the City’s actions on the same, except to the City’s personnel or the Consultant’s personnel involved DPW-S On Call NonFed Agt. T&M (04-2023) -6- in the performance of this Agreement at public hearings or in response to questions from a Legislative committee. iii. The Consultant shall not issue any news releases or any public relations item of any nature, whatsoever, regarding work performed or to be performed under this Agreement without prior review of the contents thereof by the City and receipt of the City’s written permission. (b) Any and all original sketches, pencil tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by the Consultant pursuant to this Agreement, in any form whatsoever, are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement or default by the Consultant. The Consultant grants the City a copyright license to use such drawings and writings. The Consultant shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. The City may modify the design including any drawings or writings. Any use by the City of the aforesaid sketches, tracings, plans, computations, specifications, computer disk files, writings and other documents in completed form as to other projects or projects of this Program, or in uncompleted form, without specific written verification by the Consultant will be at the City’s sole risk and without liability or legal exposure to the Consultant. The Consultant may keep a copy of all drawings and specifications for its sole and exclusive use. (c) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as the Consultant represents to the City that the Consultant and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, the City relies upon the skill of the Consultant and any subcontractors to do and perform such services in a skillful manner and the Consultant agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by the City shall not operate as a release of the Consultant or any subcontractors from said professional standards. 7. Indemnification. To the furthest extent allowed by law, including California Civil Code section 2782.8, the Consultant shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions DPW-S On Call NonFed Agt. T&M (04-2023) -7- in law or equity (including reasonable attorney's fees, litigation expenses and cost to enforce this agreement) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, the Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by the City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to the City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, the Consultant or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to the Consultant shall be withheld until notice is received by the City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to the City. Any failure to maintain the required insurance shall be sufficient cause for the City to terminate this Agreement. No action taken by the City pursuant to this section shall in any way relieve the Consultant of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by the City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish the liability of the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify the City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. Approval or purchase of any insurance contracts or policies DPW-S On Call NonFed Agt. T&M (04-2023) -8- shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers, agents, employees, persons under the supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with the Consultant and the City prior to the commencement of any services by the subcontractor. The Consultant and any subcontractor/sub-consultant shall establish additional insured status for the City, its officers, officials, employees, agents, and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 9. Conflict of Interest and Non-Solicitation. (a) Prior to the City’s execution of this Agreement, the Consultant shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation and duty to immediately notify the City in writing of any change to the information provided by the Consultant in such statement. (b) The Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written request of City, Consultant shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, Consultant and the respective subcontractor(s) are in full compliance with all laws and regulations. Consultant shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, Consultant shall immediately notify the City of these facts in writing. (c) In performing the work or services to be provided hereunder, the Consultant shall not employ or retain the services of any person while such person either is employed by the City or is a member of any City council, DPW-S On Call NonFed Agt. T&M (04-2023) -9- commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) The Consultant represents and warrants that it has not paid or agreed to pay any compensation, lawful or unlawful, contingent or otherwise, direct or indirect, to any party to solicit or procure this Agreement or any rights/benefits hereunder. The City shall have the right, in its discretion, to deduct from any payment to the Consultant under this Agreement, or otherwise recover the full amount of, any rebate, kickback or other consideration paid by the Consultant in violation of any representation or warranty under this section. (e) Neither the Consultant, nor any firm affiliated with the Consultant, nor any of the Consultant’s subcontractors performing any services on a Task Order, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with a Task Order, with the exception of any subcontractor whose services are limited to providing surveying or materials testing information. The Consultant and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with a Task Order unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. An affiliated firm is one which is subject to the control of the same person(s) through joint- ownership or otherwise. (f) The Consultant shall disclose any financial, business, or other relationship with the City that may have an impact upon the outcome of this Agreement or any ensuing the City construction project/s. The Consultant shall also disclose any current clients who may have a financial interest in the outcome of this Agreement or any ensuing the City construction project/s, which will follow. (g) The Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement. (h) If the Consultant should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, the Consultant shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (i) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event the Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall: (a) Immediately establish and maintain a viable and ongoing recycling program, approved by the City’s Solid Waste Management Division, for DPW-S On Call NonFed Agt. T&M (04-2023) -10- each office and facility. Literature describing the City recycling programs is available from the City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (b) Immediately contact the City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of the City’s Solid Waste Management Division the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or designee. (b) Records of the Consultant’s expenses pertaining to this Agreement shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of Consultant pertaining to this Agreement shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to City until such action is resolved, or until the end of said time period whichever shall later occur. If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by the City, the Consultant shall have provided evidence to the City that the Consultant is licensed to perform the services called for by this Agreement (or that no license is required). If the Consultant should subcontract all or any portion of the work or services to be performed under this Agreement, the Consultant shall require each subcontractor to provide evidence to the City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. (d) The Consultant’s services pursuant to this Agreement shall be provided under the supervision of Chad Kennedy, and he/she shall not assign another to supervise the Consultant’s performance of this Agreement without the prior written approval of the Director. 12. Nondiscrimination. To the extent required by controlling federal, state and local law, the Consultant shall not employ discriminatory practices in the provision of DPW-S On Call NonFed Agt. T&M (04-2023) -11- services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, the Consultant agrees as follows: (a) The Consultant will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) The Consultant will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The Consultant shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to the Consultant’s employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) The Consultant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of the Consultant’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. DPW-S On Call NonFed Agt. T&M (04-2023) -12- (e) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, the Consultant is acting solely as an independent contractor. Neither the Consultant, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of the City for any purpose. The City shall have no right to control or supervise or direct the manner or method by which the Consultant shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify that the Consultant is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between the Consultant and the City. The Consultant shall have no authority to bind the City absent the City’s express written consent. Except to the extent otherwise provided in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, the Consultant and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to the City employees. The Consultant shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, the Consultant shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to employment and tax withholding for and payment of the Consultant’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in the City employment benefits, entitlements, programs and/or funds offered employees of the City whether arising by reason of any common law, de facto, leased, or co- employee rights or other theory. It is acknowledged that during the term of this Agreement, the Consultant may be providing services to others unrelated to the City or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written DPW-S On Call NonFed Agt. T&M (04-2023) -13- notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 16. Assignment. (a) This Agreement is personal to the Consultant and there shall be no assignment by the Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by the Consultant, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) The Consultant hereby agrees not to assign the payment of any monies due the Consultant from the City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all monies due the Consultant directly to the Consultant. 17. Compliance With Law. In providing the services required under this Agreement, the Consultant shall at all times comply with all applicable laws of the United States, the State of California and the City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. DPW-S On Call NonFed Agt. T&M (04-2023) -14- 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both the City and the Consultant. 29. RFQ Document. Any Request for Qualifications and documents issued therewith (collectively RFQ) by the City that resulted in selection of the Consultant for entry into this Agreement are hereby incorporated into and made a part of this Agreement. In the event of a conflict between the RFQ and this Agreement (including any Exhibit hereto), this Agreement (including any exhibit hereto) shall take precedence. [Signatures follow on the next page.] HARLAVPREB Digitally signed by HARLAVPREB DN: E=Harlavpreet.Brar@fresno.gov, CN=HARLAVPREB, OU=Users, OU=PublicWorks, OU=Departments, DC=fresno, DC=gov Date: 2023.06.27 14:55:31-07'00' FRANCISM Digitally signed by FRANCISM DN: E=Francisco.Magos@fresno.gov, CN=FRANCISM, OU=Users, OU=PublicWorks, OU=Departments, DC=fresno, DC=gov Date: 2023.06.27 15:05:35-07'00' SCOTT L. MOZIER Director DPW-S On Call NonFed Agt. T&M (04-2023) -16- Attachments: 1. Exhibit A - Scope of Services 2. Exhibit B - Insurance Requirements 3. Exhibit C - Conflict of Interest Disclosure Form 4. Exhibit D – Task Order Form DPW-S On-Call NonFed Agt. T&M (04-2023) Page 1 of 3 Exhibit A EXHIBIT A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (City) and O'Dell Engineering Inc. (Consultant) Public Works Capital Improvement Program (Program) Services will be on an on-call basis and will include but not limited to providing civil engineering and architectural design services necessary to deliver park improvement projects that are managed by the Public Works Department. The improvement projects include but are not limited to the following: developing park’s master plan, rehabilitation and/or design of new play structures, tot lot play areas, splash pads, shade structures, playing courts, sports fields, walking paths and trails, dog parks, addition of site amenities including benches, picnic tables, water fountains, trash receptacles, bleachers, fencing, lighting upgrades and restroom facilities, ADA assessment of the existing site, landscape and irrigation design, parking lot and storm water drainage improvements. In general: • Participate in coordination meetings with City staff. • Participate, facilitate and/or coordinate community engagement meetings. • Participation In Stakeholder Meetings. • Prepare a preliminary assessment of existing infrastructure conditions and provide recommendations for replacement/repairs, which includes an engineer’s estimate and exhibits. • ADA assessment of the site by CASp Certified Professional. • Evaluation and Plan preparation for on-site fire equipment services. • Develop Master Plan documents and facilitate process with City and stakeholders. • Prepare and maintain design and construction schedule. • The Consultant shall monitor the project progress, maintain project files, and control the quality of the work performed by sub-consultants. • The Consultant shall value engineer the project as necessary to meet the project budget. • Research existing records of utility companies and agencies and coordinate the proposed improvements with existing field conditions. • Prepare utility notification letters and relocation drawings for various utilities and agencies. • Conduct site investigation to prepare construction documents. • Prepare all the documentation required to obtain permits from any and all agencies having jurisdiction over the project. • Coordinate with City’s on-call environmental consultants to comply with all environmental requirements. • Prepare Geometrically Approved Drawing (GAD) including specifications and engineer’s estimate. • Providing any necessary calculation to be submitted for Permit Approvals. • Prepare construction plans, technical specifications, and construction cost. • Submit construction documents for review to City offices, utilities/agencies, and obtaining final signatures on construction documents. • As part of the bidding phase, attend the pre-bid conference, prepare addenda and clarifications if necessary, respond to bid questions and attend bid opening. DPW-S On-Call NonFed Agt. T&M (04-2023) Page 2 of 3 Exhibit A • As part of the construction phase and General construction contract administration, attend the pre-construction conference, review shop drawings and other contractor submittals, provide clarification of construction documents during construction, review and provide technical information for construction contract change order requests if necessary, and perform as many as two site visits during construction. • Prepare record drawings documenting the as-built improvements, have as-built approved, and both Mylars and final CAD drawing provided to City. 2¶'HOO(QJLQHHULQJ,QF )((6&+('8/( IRUSHULRGEHWZHHQ$XJXVW$XJXVW  Classification: Regular Hourly Rate: Principal $310 Senior Civil Engineer $237 Senior Engineer 2 $220 Senior Engineer 1 $204 Engineer 2 $198 Engineer 1 $187 Assistant Engineer 2 $160 Assistant Engineer 1 $143 Senior Landscape Architect 2 $220 Senior Landscape Architect 1 $198 Landscape Architect 2 $187 Landscape Architect 1 $176 Landscape Designer 3 $171 Landscape Designer 2 $160 Landscape Designer 1 $149 Planner $193 Assistant Planner $154 Dry Utility Project Manager 2 $187 Dry Utility Project Manager 1 $165 Utility Engineer $149 CADD Operator 2 $127 CADD Operator 1 $105 Surveyor Manager $226 Senior Land Surveyor $215 Senior Surveyor 2 $210 Senior Surveyor 1 $187 Surveyor 2 $165 Surveyor 1 $154 Assistant Surveyor 2 $143 Assistant Surveyor 1 $127 Survey Crew 2-man/1-man $352/$198 Survey Crew 2-man/1-man (Prevailing Wage) $436/$248 Administrative $106 Outside Services & Reproduction: Actual cost plus 10% Cost of services and expenses charged to O’Dell Engineering by outside consultants, commercial printers, and professional or technical firms engaged in connection with the project. Travel: Actual cost plus 10% Mileage, per diem, and subsistence are not normally charged to the client unless specific prior authorization is negotiated between client and consultant. *Hourly rates noted above include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fees. Page  of 3 DPW-S On-Call NonFed Agt. T&M (04-2023) Page 1 of 4 Exhibit B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (City) and O'Dell Engineering Inc. (Consultant) Public Works Capital Improvement Program (Program) MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to Consultant’s profession. MINIMUM LIMITS OF INSURANCE Consultant, or any party the Consultant subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to City, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1.COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. DPW-S On-Call NonFed Agt. T&M (04-2023) Page 2 of 4 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS Consultant shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Consultant shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to City, its officers, officials, employees, agents and volunteers; or (ii) Consultant shall provide a financial guarantee, satisfactory to City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. City, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. Consultant shall establish additional insured status for the City for all ongoing and completed operations under the Commercial General Liability policy by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured DPW-S On-Call NonFed Agt. T&M (04-2023) Page 3 of 4 status. The Commercial General endorsements must be as broad as that contained in ISO Forms: CG 20 10 11 85 or both CG 20 10 & CG 20 37. 2. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, Consultant’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents and volunteers shall be excess of Consultant’s insurance and shall not contribute with it. Consultant shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: Consultant and its insurer shall waive any right of subrogation against City, its officers, officials, employees, agents and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims- made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by Consultant. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by Consultant, Consultant must purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to City for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to City. Consultant is also responsible for providing written notice to the City under DPW-S On-Call NonFed Agt. T&M (04-2023) Page 4 of 4 the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Consultant shall furnish City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for City, Consultant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by Consultant shall not be deemed to release or diminish the liability of Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Consultant, its principals, officers, agents, employees, persons under the supervision of Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. SUBCONTRACTORS - If Consultant subcontracts any or all of the services to be performed under this Agreement, Consultant shall require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by City Risk Manager or designee. If no Side Agreement is required, Consultant will be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry. VERIFICATION OF COVERAGE Consultant shall furnish City with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to City’s execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of City, consultant shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. DPW-S Non-Fed Eng. On-Call T&M (04-2023) Page 1 of 1 Exhibit D EXHIBIT D TASK ORDER FORM Consultant Service Agreement between City of Fresno (City) and O'Dell Engineering Inc. (Consultant) Public Works Capital Improvement Program (Program) TASK ORDER ___ Title/Project: CONSULTANT: CITY Project ID: Task Order Description (Attach Scope of Work): Task Order Work Plan: Task Order Deliverable: Task Order Staffing: Task Order Cost: Task Order Period of Performance: Consultant Project Manager: City Project Manager: Authorized Signatures Consultant’s Authorized Representative City’s Authorized Representative Signature Name: __________________________ Title: ___________________________ Date: ___________________________ Signature Name: __________________________ Title: ___________________________ Date: ___________________________ Attachments: 1. Scope of Work 2. Cost Proposal DPW-S On Call NonFed Agt. T&M (04-2023) -1- AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANTSERVICES THIS AGREEMENT is made and entered into effective on __________________, 20___, by and between the CITY OF FRESNO, a California municipal corporation (City), and BLAIR, CHURCH & FLYNN CONSULTING ENGINEERS ,1& D &DOLIRUQLD &RUSRUDWLRQ (Consultant). RECITALS WHEREAS, the City desires to obtain professional on-call architectural and engineering services for the Public Works Capital Improvement Program (Program); and WHEREAS, the Consultant is engaged in the business of furnishing services as a licensed architect and engineer and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, the City has conducted a qualification-based selection process to obtain professional civil engineering and architectural firm to be contracted on an on-call basis for services, as defined by this Agreement, that are to be awarded Task Order work as needed by City; and WHEREAS, the City may contract with multiple consultants under the qualification-based selection process and award Task Order work on a competitive basis per the selection criteria defined herein and solicited to the contracted consultants; and WHEREAS, the Consultant acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and WHEREAS, this Agreement will be administered for the City by its Public Works Director (Director) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. The Consultant shall perform to the satisfaction of the City the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above (Effective Date) and shall continue in full force and effect for three years, subject to any earlier termination in accordance with this Agreement. The City, in its discretion, may extend the Agreement for up to three additional one-year terms. The Contract Administrator shall have the authority to execute an extension of this Agreement. The services of the Consultant as described in Exhibit A are to commence upon the City’s issuance of a written DPW-S On Call NonFed Agt. T&M (04-2023) -2- “Notice to Proceed.” A separate Notice to Proceed will be issued for each of the awarded Task Orders, following the Consultant’s successful submission of a Proposal, which shall be awarded based on the criteria defined herein. City may, at its discretion, issue concurrent Notices to Proceed, allowing Consultant to perform concurrent Task Orders. By entry into this Agreement and upon City’s issuance of a written "Notice to Proceed," City contracts for the services in the specific Task Order. Consultant shall not perform any other Task Order work of the Agreement, and this Agreement shall not be a contract for any other Task Order, until further performance is authorized by City’s issuance of a written “Notice to Proceed.” It shall, however, remain Consultant’s offer to perform all services described herein. In the event Consultant performs services without City’s prior written authorization, Consultant will not be entitled to compensation for such services. Work shall be undertaken and completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed within the agreed upon duration for each individual Task Order from such authorization to proceed. 3. Compensation. (a) The Consultant will be reimbursed for hours worked at the hourly rates specified in the Consultant’s approved Cost Proposal as described in Exhibit A, Schedule of Fees. The specified hourly rates shall include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates are not adjustable for the performance period set forth in this Agreement. The Consultant will be reimbursed within thirty days upon receipt by the City’s Contract Administrator of itemized invoices in duplicate. (b) In addition, the Consultant will be reimbursed for incurred (actual) direct costs other than salary costs that are in the approved Cost Proposal of the authorized Task Order. (c) Specific projects will be awarded to the Consultant through issuance of Task Orders. (d) After a project to be performed under this Agreement is identified by the City, the City will prepare a Task Order Request For Proposal (RFP) for the specific Task Order. A Task Order RFP will identify the scope of services, expected results, project deliverables and will designate a City Coordinator. If the City contracts with multiple consultants for these services, the RFP will be solicited to the contracted consultants for review. Evaluation criteria will be included in each solicitation. The Task Order RFP will contain evaluation criteria that will identify the best value firm for each task. x The evaluation criteria may include: o Availability of Personnel o Staff Capabilities o Completion Schedule o Experience of Consultant or Sub-Consultants o Cost Proposal DPW-S On Call NonFed Agt. T&M (04-2023) -3- o Completeness o Past Performance (e) The Consultant/s shall return a Proposal and a draft Task Order, per Exhibit D attached hereto, within the timeframe specified in the Task Order RFP. Failure to respond to an RFP may be considered a breach of contract. (f) Proposals will be evaluated and ranked based on the defined criteria within the RFP. (g) Task order cost will be based on wage rates established in the Consultant’s on-call contract, and the time and deliverable requirements in the task order (h) Upon determination of the successful Proposal, City and Consultant will finalize the Task Order. The finalized Task Order shall be signed by both the City and the selected Consultant. The City has the right to not award a Task Order if the Cost Proposal/s are disagreeable to the City. (i) Reimbursement for transportation and subsistence costs shall not exceed State rates. (j) Progress payments for each Task Order will be made monthly in arrears based on services provided and actual costs incurred. (k) The Consultant shall not commence performance of work or services until this Agreement has been approved by the City and notification to proceed has been issued by the City’s Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this Agreement. (l) A Task Order is of no force or effect until returned to the City and signed by an authorized representative of the City. No expenditures are authorized on a project and work shall not commence until a Task Order for that project has been executed by the City and a written Notice to Proceed is issued. (m) The selected Consultant will be reimbursed within thirty days upon receipt by the City’s Contract Administrator of itemized invoices in duplicate. Separate invoices itemizing all costs are required for all work performed under each Task Order. Invoices shall be submitted no later than thirty calendar days after the performance of work for which the selected Consultant is billing, or upon completion of the Task Order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Agreement number, project title and Task Order number. Credits due the City that include any equipment purchased under the provisions of Article XI Equipment Purchase, must be reimbursed by the Consultant prior to the expiration or termination of this Agreement. Invoices shall be mailed to the City’s Contract Administrator at the following address: City of Fresno Attention: Harlavpreet S. Brar, PE 2600 Fresno Street, Room 4016, Fresno, CA, 93721-3620 DPW-S On Call NonFed Agt. T&M (04-2023) -4- (n) The period of performance for Task Orders shall be in accordance with dates specified in the Task Order. No Task Order will be written which extends beyond the expiration date of this Agreement. (o) The total amount payable by the City for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless authorized by amendment. (p) If the Consultant fails to satisfactorily complete a deliverable according to the schedule set forth in a Task Order, no payment will be made until the deliverable has been satisfactorily completed. (q) Task Orders may not be used to amend the language (or the terms) of this Agreement or exceed the scope of work under this Agreement. (r) The total amount payable by the City for all Task Orders resulting from under this Agreement shall not exceed $3,000,000.00. It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this Agreement through Task Orders. 4. Termination, Remedies and Force Majeure. (a) This Agreement shall terminate without any liability of the City to the Consultant upon the earlier of: (i) the Consultants filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the Consultant; (ii) seven calendar days prior written notice with or without cause by the City to the Consultant; (iii) the City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Program; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, the Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the City any and all unearned payments and all properties and materials in the possession of the Consultant that are owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid compensation for services satisfactorily performed prior to the effective date of termination. The Consultant shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of the Consultant to satisfactorily perform in accordance with the terms of this Agreement, the City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the City’s damages caused by such failure. In no event shall any payment by the City pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement which may then exist on the part of the Consultant, nor shall such payment impair or prejudice any remedy available to the City with respect to the breach. (d) Upon any breach of this Agreement by the Consultant, the City may (i) exercise any right, remedy (in contract, law or equity), or privilege which DPW-S On Call NonFed Agt. T&M (04-2023) -5- may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that the City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) The Consultant shall provide the City with adequate written assurances of future performance, upon Director’s request, in the event the Consultant fails to comply with any terms or conditions of this Agreement. (f) The Consultant shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Consultant shall notify Director in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Director of the cessation of such occurrence. (g) Any notice of termination sent to Consultant shall include the reason(s) for such termination or state that it is without cause. 5. Confidential Information, Ownership of Documents and Copyright License. (a) Any reports, information, or other data prepared or assembled by the Consultant pursuant to this Agreement shall not be made available to any individual or organization by the Consultant without the prior written approval of the City. During the term of this Agreement, and thereafter, the Consultant shall not, without the prior written consent of the City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of the City, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the City. i. Permission granted to the Consultant to disclose information on one occasion shall not authorize the Consultant to further disclose such information or any other information or disseminate the same on any other occasion. ii. The Consultant shall not comment publicly to the press or any other media regarding the Agreement or the City’s actions on the same, except to the City’s personnel or the Consultant’s personnel involved DPW-S On Call NonFed Agt. T&M (04-2023) -6- in the performance of this Agreement at public hearings or in response to questions from a Legislative committee. iii. The Consultant shall not issue any news releases or any public relations item of any nature, whatsoever, regarding work performed or to be performed under this Agreement without prior review of the contents thereof by the City and receipt of the City’s written permission. (b) Any and all original sketches, pencil tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by the Consultant pursuant to this Agreement, in any form whatsoever, are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement or default by the Consultant. The Consultant grants the City a copyright license to use such drawings and writings. The Consultant shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. The City may modify the design including any drawings or writings. Any use by the City of the aforesaid sketches, tracings, plans, computations, specifications, computer disk files, writings and other documents in completed form as to other projects or projects of this Program, or in uncompleted form, without specific written verification by the Consultant will be at the City’s sole risk and without liability or legal exposure to the Consultant. The Consultant may keep a copy of all drawings and specifications for its sole and exclusive use. (c) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as the Consultant represents to the City that the Consultant and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, the City relies upon the skill of the Consultant and any subcontractors to do and perform such services in a skillful manner and the Consultant agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by the City shall not operate as a release of the Consultant or any subcontractors from said professional standards. 7. Indemnification. To the furthest extent allowed by law, including California Civil Code section 2782.8, the Consultant shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions DPW-S On Call NonFed Agt. T&M (04-2023) -7- in law or equity (including reasonable attorney's fees, litigation expenses and cost to enforce this agreement) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, the Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by the City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to the City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, the Consultant or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to the Consultant shall be withheld until notice is received by the City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to the City. Any failure to maintain the required insurance shall be sufficient cause for the City to terminate this Agreement. No action taken by the City pursuant to this section shall in any way relieve the Consultant of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by the City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish the liability of the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify the City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. Approval or purchase of any insurance contracts or policies DPW-S On Call NonFed Agt. T&M (04-2023) -8- shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers, agents, employees, persons under the supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with the Consultant and the City prior to the commencement of any services by the subcontractor. The Consultant and any subcontractor/sub-consultant shall establish additional insured status for the City, its officers, officials, employees, agents, and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 9. Conflict of Interest and Non-Solicitation. (a) Prior to the City’s execution of this Agreement, the Consultant shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation and duty to immediately notify the City in writing of any change to the information provided by the Consultant in such statement. (b) The Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written request of City, Consultant shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, Consultant and the respective subcontractor(s) are in full compliance with all laws and regulations. Consultant shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, Consultant shall immediately notify the City of these facts in writing. (c) In performing the work or services to be provided hereunder, the Consultant shall not employ or retain the services of any person while such person either is employed by the City or is a member of any City council, DPW-S On Call NonFed Agt. T&M (04-2023) -9- commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) The Consultant represents and warrants that it has not paid or agreed to pay any compensation, lawful or unlawful, contingent or otherwise, direct or indirect, to any party to solicit or procure this Agreement or any rights/benefits hereunder. The City shall have the right, in its discretion, to deduct from any payment to the Consultant under this Agreement, or otherwise recover the full amount of, any rebate, kickback or other consideration paid by the Consultant in violation of any representation or warranty under this section. (e) Neither the Consultant, nor any firm affiliated with the Consultant, nor any of the Consultant’s subcontractors performing any services on a Task Order, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with a Task Order, with the exception of any subcontractor whose services are limited to providing surveying or materials testing information. The Consultant and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with a Task Order unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. An affiliated firm is one which is subject to the control of the same person(s) through joint- ownership or otherwise. (f) The Consultant shall disclose any financial, business, or other relationship with the City that may have an impact upon the outcome of this Agreement or any ensuing the City construction project/s. The Consultant shall also disclose any current clients who may have a financial interest in the outcome of this Agreement or any ensuing the City construction project/s, which will follow. (g) The Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement. (h) If the Consultant should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, the Consultant shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (i) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event the Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall: (a) Immediately establish and maintain a viable and ongoing recycling program, approved by the City’s Solid Waste Management Division, for DPW-S On Call NonFed Agt. T&M (04-2023) -10- each office and facility. Literature describing the City recycling programs is available from the City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (b) Immediately contact the City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of the City’s Solid Waste Management Division the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or designee. (b) Records of the Consultant’s expenses pertaining to this Agreement shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of Consultant pertaining to this Agreement shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to City until such action is resolved, or until the end of said time period whichever shall later occur. If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by the City, the Consultant shall have provided evidence to the City that the Consultant is licensed to perform the services called for by this Agreement (or that no license is required). If the Consultant should subcontract all or any portion of the work or services to be performed under this Agreement, the Consultant shall require each subcontractor to provide evidence to the City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. (d) The Consultant’s services pursuant to this Agreement shall be provided under the supervision of Jeff D. Brians, and he/she shall not assign another to supervise the Consultant’s performance of this Agreement without the prior written approval of the Director. 12. Nondiscrimination. To the extent required by controlling federal, state and local law, the Consultant shall not employ discriminatory practices in the provision of DPW-S On Call NonFed Agt. T&M (04-2023) -11- services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, the Consultant agrees as follows: (a) The Consultant will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) The Consultant will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The Consultant shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to the Consultant’s employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) The Consultant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of the Consultant’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. DPW-S On Call NonFed Agt. T&M (04-2023) -12- (e) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, the Consultant is acting solely as an independent contractor. Neither the Consultant, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of the City for any purpose. The City shall have no right to control or supervise or direct the manner or method by which the Consultant shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify that the Consultant is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between the Consultant and the City. The Consultant shall have no authority to bind the City absent the City’s express written consent. Except to the extent otherwise provided in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, the Consultant and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to the City employees. The Consultant shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, the Consultant shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to employment and tax withholding for and payment of the Consultant’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in the City employment benefits, entitlements, programs and/or funds offered employees of the City whether arising by reason of any common law, de facto, leased, or co- employee rights or other theory. It is acknowledged that during the term of this Agreement, the Consultant may be providing services to others unrelated to the City or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written DPW-S On Call NonFed Agt. T&M (04-2023) -13- notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 16. Assignment. (a) This Agreement is personal to the Consultant and there shall be no assignment by the Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by the Consultant, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) The Consultant hereby agrees not to assign the payment of any monies due the Consultant from the City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all monies due the Consultant directly to the Consultant. 17. Compliance With Law. In providing the services required under this Agreement, the Consultant shall at all times comply with all applicable laws of the United States, the State of California and the City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. DPW-S On Call NonFed Agt. T&M (04-2023) -14- 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both the City and the Consultant. 29. RFQ Document. Any Request for Qualifications and documents issued therewith (collectively RFQ) by the City that resulted in selection of the Consultant for entry into this Agreement are hereby incorporated into and made a part of this Agreement. In the event of a conflict between the RFQ and this Agreement (including any Exhibit hereto), this Agreement (including any exhibit hereto) shall take precedence. [Signatures follow on the next page.] SCOTT L. MOZIER Director HARLAVPREB Digitally signed by HARLAVPREB DN: E=Harlavpreet.Brar@fresno.gov, CN=HARLAVPREB, OU=Users, OU=PublicWorks, OU=Departments, DC=fresno, DC=gov Date: 2023.06.27 14:51:43-07'00' FRANCISM Digitally signed by FRANCISM DN: E=Francisco.Magos@fresno.gov, CN=FRANCISM, OU=Users, OU=PublicWorks, OU=Departments, DC=fresno, DC=gov Date: 2023.06.27 15:06:08-07'00' DPW-S On Call NonFed Agt. T&M (04-2023) -16- Attachments: 1. Exhibit A - Scope of Services 2. Exhibit B - Insurance Requirements 3. Exhibit C - Conflict of Interest Disclosure Form 4. Exhibit D – Task Order Form DPW-S On-Call NonFed Agt. T&M (04-2023) Page 1 of 3 Exhibit A EXHIBIT A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (City) and Blair, Church & Flynn Consulting Engineers, Inc. (Consultant) Public Works Capital Improvement Program (Program) Services will be on an on-call basis and will include but not limited to providing civil engineering and architectural design services necessary to deliver park improvement projects that are managed by the Public Works Department. The improvement projects include but are not limited to the following: developing park’s master plan, rehabilitation and/or design of new play structures, tot lot play areas, splash pads, shade structures, playing courts, sports fields, walking paths and trails, dog parks, addition of site amenities including benches, picnic tables, water fountains, trash receptacles, bleachers, fencing, lighting upgrades and restroom facilities, ADA assessment of the existing site, landscape and irrigation design, parking lot and storm water drainage improvements. In general: • Participate in coordination meetings with City staff. • Participate, facilitate and/or coordinate community engagement meetings. • Participation In Stakeholder Meetings. • Prepare a preliminary assessment of existing infrastructure conditions and provide recommendations for replacement/repairs, which includes an engineer’s estimate and exhibits. • ADA assessment of the site by CASp Certified Professional. • Evaluation and Plan preparation for on-site fire equipment services. • Develop Master Plan documents and facilitate process with City and stakeholders. • Prepare and maintain design and construction schedule. • The Consultant shall monitor the project progress, maintain project files, and control the quality of the work performed by sub-consultants. • The Consultant shall value engineer the project as necessary to meet the project budget. • Research existing records of utility companies and agencies and coordinate the proposed improvements with existing field conditions. • Prepare utility notification letters and relocation drawings for various utilities and agencies. • Conduct site investigation to prepare construction documents. • Prepare all the documentation required to obtain permits from any and all agencies having jurisdiction over the project. • Coordinate with City’s on-call environmental consultants to comply with all environmental requirements. • Prepare Geometrically Approved Drawing (GAD) including specifications and engineer’s estimate. • Providing any necessary calculation to be submitted for Permit Approvals. • Prepare construction plans, technical specifications, and construction cost. • Submit construction documents for review to City offices, utilities/agencies, and obtaining final signatures on construction documents. • As part of the bidding phase, attend the pre-bid conference, prepare addenda and clarifications if necessary, respond to bid questions and attend bid opening. DPW-S On-Call NonFed Agt. T&M (04-2023) Page 2 of 3 Exhibit A • As part of the construction phase and General construction contract administration, attend the pre-construction conference, review shop drawings and other contractor submittals, provide clarification of construction documents during construction, review and provide technical information for construction contract change order requests if necessary, and perform as many as two site visits during construction. • Prepare record drawings documenting the as-built improvements, have as-built approved, and both Mylars and final CAD drawing provided to City. 451 Clovis Ave., Suite 200 x Clovis CA 93612 x Tel (559) 326-1400 U:\Active\COF On Call Capital Improvement Design Services Public Works for Parks 2023 - 2026 Prevailing Wage.docx GENERAL CONSULTING FEE SCHEDULE CITY OF FRESNO ON-CALL CAPITAL IMPROVEMENT DESIGN SERVICES FOR PUBLIC WORKS PROJECTS PREVAILING WAGE August 2023 –August 2026 CLASSIFICATION RATE Principal ....................................................................................................$170.00/Hour Program Manager .....................................................................................$165.00/Hour Professional Engineer 3............................................................................$160.00/Hour Professional Engineer 2............................................................................$155.00/Hour Professional Engineer 1............................................................................$145.00/Hour Assistant Engineer 3 .................................................................................$125.00/Hour Assistant Engineer 2 .................................................................................$115.00/Hour Assistant Engineer 1 .................................................................................$105.00/Hour Professional Land Surveyor 3...................................................................$160.00/Hour Professional Land Surveyor 2...................................................................$155.00/Hour Professional Land Surveyor 1...................................................................$145.00/Hour Assistant Surveyor ....................................................................................$110.00/Hour Land Services Technician...........................................................................$98.00/Hour Professional Landscape Architect.............................................................$130.00/Hour Landscape Designer.................................................................................$110.00/Hour Design Technician.....................................................................................$115.00/Hour CAD Technician 3.......................................................................................$98.00/Hour CAD Technician 2.......................................................................................$90.00/Hour CAD Technician 1.......................................................................................$80.00/Hour Environmental Consultant.........................................................................$120.00/Hour Construction Manager...............................................................................$120.00/Hour Construction Inspector..............................................................................$100.00/Hour Construction Administrator..........................................................................$85.00/Hour Analyst.........................................................................................................$90.00/Hour Coordinator .................................................................................................$80.00/Hour Administrative Assistant..............................................................................$65.00/Hour Aide.............................................................................................................$58.00/Hour Survey Party Mobilization............................................................................$85.00/Hour 1-Man Survey Party**................................................................................$190.00/Hour 2-Man Survey Party**................................................................................$360.00/Hour LiDAR Scanner .........................................................................................$200.00/Hour Equipment Rental and Associated Expense................................................ Cost x 1.00 Materials, Printing, Subconsultant Procurement.......................................... Cost x 1.05 Mileage...........................................................................................@ Current IRS Rate ** May be subject to change based upon revisions to the State of California Prevailing Wage Determinations Page  of 3 DPW-S On-Call NonFed Agt. T&M (04-2023) Page 1 of 4 Exhibit B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (City) and Blair, Church & Flynn Consulting Engineers, Inc. (Consultant) Public Works Capital Improvement Program (Program) MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to Consultant’s profession. MINIMUM LIMITS OF INSURANCE Consultant, or any party the Consultant subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to City, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. DPW-S On-Call NonFed Agt. T&M (04-2023) Page 2 of 4 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS Consultant shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Consultant shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to City, its officers, officials, employees, agents and volunteers; or (ii) Consultant shall provide a financial guarantee, satisfactory to City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. City, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. Consultant shall establish additional insured status for the City for all ongoing and completed operations under the Commercial General Liability policy by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured DPW-S On-Call NonFed Agt. T&M (04-2023) Page 3 of 4 status. The Commercial General endorsements must be as broad as that contained in ISO Forms: CG 20 10 11 85 or both CG 20 10 & CG 20 37. 2. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, Consultant’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents and volunteers shall be excess of Consultant’s insurance and shall not contribute with it. Consultant shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: Consultant and its insurer shall waive any right of subrogation against City, its officers, officials, employees, agents and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims- made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by Consultant. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by Consultant, Consultant must purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to City for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to City. Consultant is also responsible for providing written notice to the City under DPW-S On-Call NonFed Agt. T&M (04-2023) Page 4 of 4 the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Consultant shall furnish City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for City, Consultant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by Consultant shall not be deemed to release or diminish the liability of Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Consultant, its principals, officers, agents, employees, persons under the supervision of Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. SUBCONTRACTORS - If Consultant subcontracts any or all of the services to be performed under this Agreement, Consultant shall require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by City Risk Manager or designee. If no Side Agreement is required, Consultant will be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry. VERIFICATION OF COVERAGE Consultant shall furnish City with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to City’s execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of City, consultant shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. DPW-S Non-Fed Eng. On-Call T&M (04-2023) Page 1 of 1 Exhibit D EXHIBIT D TASK ORDER FORM Consultant Service Agreement between City of Fresno (City) and Blair, Church & Flynn Consulting Engineers, Inc. (Consultant) Public Works Capital Improvement Program (Program) TASK ORDER ___ Title/Project: CONSULTANT: CITY Project ID: Task Order Description (Attach Scope of Work): Task Order Work Plan: Task Order Deliverable: Task Order Staffing: Task Order Cost: Task Order Period of Performance: Consultant Project Manager: City Project Manager: Authorized Signatures Consultant’s Authorized Representative City’s Authorized Representative Signature Name: __________________________ Title: ___________________________ Date: ___________________________ Signature Name: __________________________ Title: ___________________________ Date: ___________________________ Attachments: 1. Scope of Work 2. Cost Proposal DPW-S On Call NonFed Agt. T&M (04-2023) -1- AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANTSERVICES THIS AGREEMENT is made and entered into effective on __________________, 20___, by and between the CITY OF FRESNO, a California municipal corporation (City), and GHD ,1&D&DOLIRUQLD&RUSRUDWLRQ(Consultant). RECITALS WHEREAS, the City desires to obtain professional on-call architectural and engineering services for the Public Works Capital Improvement Program (Program); and WHEREAS, the Consultant is engaged in the business of furnishing services as a licensed architect and engineer and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, the City has conducted a qualification-based selection process to obtain professional civil engineering and architectural firm to be contracted on an on-call basis for services, as defined by this Agreement, that are to be awarded Task Order work as needed by City; and WHEREAS, the City may contract with multiple consultants under the qualification-based selection process and award Task Order work on a competitive basis per the selection criteria defined herein and solicited to the contracted consultants; and WHEREAS, the Consultant acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6- 19; and WHEREAS, this Agreement will be administered for the City by its Public Works Director (Director) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. The Consultant shall perform to the satisfaction of the City the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above (Effective Date) and shall continue in full force and effect for three years, subject to any earlier termination in accordance with this Agreement. The City, in its discretion, may extend the Agreement for up to three additional one-year terms. The Contract Administrator shall have the authority to execute an extension of this Agreement. The services of the Consultant as described in Exhibit A are to commence upon the City’s issuance of a written “Notice to Proceed.” A separate Notice to Proceed will be issued for each of the DPW-S On Call NonFed Agt. T&M (04-2023) -2- awarded Task Orders, following the Consultant’s successful submission of a Proposal, which shall be awarded based on the criteria defined herein. City may, at its discretion, issue concurrent Notices to Proceed, allowing Consultant to perform concurrent Task Orders. By entry into this Agreement and upon City’s issuance of a written "Notice to Proceed," City contracts for the services in the specific Task Order. Consultant shall not perform any other Task Order work of the Agreement, and this Agreement shall not be a contract for any other Task Order, until further performance is authorized by City’s issuance of a written “Notice to Proceed.” It shall, however, remain Consultant’s offer to perform all services described herein. In the event Consultant performs services without City’s prior written authorization, Consultant will not be entitled to compensation for such services. Work shall be undertaken and completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed within the agreed upon duration for each individual Task Order from such authorization to proceed. 3. Compensation. (a) The Consultant will be reimbursed for hours worked at the hourly rates specified in the Consultant’s approved Cost Proposal as described in Exhibit A, Schedule of Fees. The specified hourly rates shall include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates are not adjustable for the performance period set forth in this Agreement. The Consultant will be reimbursed within thirty days upon receipt by the City’s Contract Administrator of itemized invoices in duplicate. (b) In addition, the Consultant will be reimbursed for incurred (actual) direct costs other than salary costs that are in the approved Cost Proposal of the authorized Task Order. (c) Specific projects will be awarded to the Consultant through issuance of Task Orders. (d) After a project to be performed under this Agreement is identified by the City, the City will prepare a Task Order Request For Proposal (RFP) for the specific Task Order. A Task Order RFP will identify the scope of services, expected results, project deliverables and will designate a City Coordinator. If the City contracts with multiple consultants for these services, the RFP will be solicited to the contracted consultants for review. Evaluation criteria will be included in each solicitation. The Task Order RFP will contain evaluation criteria that will identify the best value firm for each task. x The evaluation criteria may include: o Availability of Personnel o Staff Capabilities o Completion Schedule o Experience of Consultant or Sub-Consultants o Cost Proposal o Completeness DPW-S On Call NonFed Agt. T&M (04-2023) -3- o Past Performance (e) The Consultant/s shall return a Proposal and a draft Task Order, per Exhibit D attached hereto, within the timeframe specified in the Task Order RFP. Failure to respond to an RFP may be considered a breach of contract. (f) Proposals will be evaluated and ranked based on the defined criteria within the RFP. (g) Task order cost will be based on wage rates established in the Consultant’s on-call contract, and the time and deliverable requirements in the task order (h) Upon determination of the successful Proposal, City and Consultant will finalize the Task Order. The finalized Task Order shall be signed by both the City and the selected Consultant. The City has the right to not award a Task Order if the Cost Proposal/s are disagreeable to the City. (i) Reimbursement for transportation and subsistence costs shall not exceed State rates. (j) Progress payments for each Task Order will be made monthly in arrears based on services provided and actual costs incurred. (k) The Consultant shall not commence performance of work or services until this Agreement has been approved by the City and notification to proceed has been issued by the City’s Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this Agreement. (l) A Task Order is of no force or effect until returned to the City and signed by an authorized representative of the City. No expenditures are authorized on a project and work shall not commence until a Task Order for that project has been executed by the City and a written Notice to Proceed is issued. (m) The selected Consultant will be reimbursed within thirty days upon receipt by the City’s Contract Administrator of itemized invoices in duplicate. Separate invoices itemizing all costs are required for all work performed under each Task Order. Invoices shall be submitted no later than thirty calendar days after the performance of work for which the selected Consultant is billing, or upon completion of the Task Order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Agreement number, project title and Task Order number. Credits due the City that include any equipment purchased under the provisions of Article XI Equipment Purchase, must be reimbursed by the Consultant prior to the expiration or termination of this Agreement. Invoices shall be mailed to the City’s Contract Administrator at the following address: City of Fresno Attention: Harlavpreet S. Brar, PE 2600 Fresno Street, Room 4016, Fresno, CA, 93721-3620 DPW-S On Call NonFed Agt. T&M (04-2023) -4- (n) The period of performance for Task Orders shall be in accordance with dates specified in the Task Order. No Task Order will be written which extends beyond the expiration date of this Agreement. (o) The total amount payable by the City for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless authorized by amendment. (p) If the Consultant fails to satisfactorily complete a deliverable according to the schedule set forth in a Task Order, no payment will be made until the deliverable has been satisfactorily completed. (q) Task Orders may not be used to amend the language (or the terms) of this Agreement or exceed the scope of work under this Agreement. (r) The total amount payable by the City for all Task Orders resulting from under this Agreement shall not exceed $3,000,000.00. It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this Agreement through Task Orders. 4. Termination, Remedies and Force Majeure. (a) This Agreement shall terminate without any liability of the City to the Consultant upon the earlier of: (i) the Consultants filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the Consultant; (ii) seven calendar days prior written notice with or without cause by the City to the Consultant; (iii) the City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Program; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, the Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the City any and all unearned payments and all properties and materials in the possession of the Consultant that are owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid compensation for services satisfactorily performed prior to the effective date of termination. The Consultant shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of the Consultant to satisfactorily perform in accordance with the terms of this Agreement, the City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the City’s damages caused by such failure. In no event shall any payment by the City pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement which may then exist on the part of the Consultant, nor shall such payment impair or prejudice any remedy available to the City with respect to the breach. (d) Upon any breach of this Agreement by the Consultant, the City may (i) exercise any right, remedy (in contract, law or equity), or privilege which DPW-S On Call NonFed Agt. T&M (04-2023) -5- may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that the City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) The Consultant shall provide the City with adequate written assurances of future performance, upon Director’s request, in the event the Consultant fails to comply with any terms or conditions of this Agreement. (f) The Consultant shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Consultant shall notify Director in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Director of the cessation of such occurrence. (g) Any notice of termination sent to Consultant shall include the reason(s) for such termination or state that it is without cause. 5. Confidential Information, Ownership of Documents and Copyright License. (a) Any reports, information, or other data prepared or assembled by the Consultant pursuant to this Agreement shall not be made available to any individual or organization by the Consultant without the prior written approval of the City. During the term of this Agreement, and thereafter, the Consultant shall not, without the prior written consent of the City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of the City, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the City. i. Permission granted to the Consultant to disclose information on one occasion shall not authorize the Consultant to further disclose such information or any other information or disseminate the same on any other occasion. ii. The Consultant shall not comment publicly to the press or any other media regarding the Agreement or the City’s actions on the same, except to the City’s personnel or the Consultant’s personnel involved DPW-S On Call NonFed Agt. T&M (04-2023) -6- in the performance of this Agreement at public hearings or in response to questions from a Legislative committee. iii. The Consultant shall not issue any news releases or any public relations item of any nature, whatsoever, regarding work performed or to be performed under this Agreement without prior review of the contents thereof by the City and receipt of the City’s written permission. (b) Any and all original sketches, pencil tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by the Consultant pursuant to this Agreement, in any form whatsoever, are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement or default by the Consultant. The Consultant grants the City a copyright license to use such drawings and writings. The Consultant shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. The City may modify the design including any drawings or writings. Any use by the City of the aforesaid sketches, tracings, plans, computations, specifications, computer disk files, writings and other documents in completed form as to other projects or projects of this Program, or in uncompleted form, without specific written verification by the Consultant will be at the City’s sole risk and without liability or legal exposure to the Consultant. The Consultant may keep a copy of all drawings and specifications for its sole and exclusive use. (c) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as the Consultant represents to the City that the Consultant and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, the City relies upon the skill of the Consultant and any subcontractors to do and perform such services in a skillful manner and the Consultant agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by the City shall not operate as a release of the Consultant or any subcontractors from said professional standards. 7. Indemnification. To the furthest extent allowed by law, including California Civil Code section 2782.8, the Consultant shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions DPW-S On Call NonFed Agt. T&M (04-2023) -7- in law or equity (including reasonable attorney's fees, litigation expenses and cost to enforce this agreement) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, the Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by the City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to the City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, the Consultant or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to the Consultant shall be withheld until notice is received by the City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to the City. Any failure to maintain the required insurance shall be sufficient cause for the City to terminate this Agreement. No action taken by the City pursuant to this section shall in any way relieve the Consultant of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by the City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish the liability of the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify the City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. Approval or purchase of any insurance contracts or policies DPW-S On Call NonFed Agt. T&M (04-2023) -8- shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers, agents, employees, persons under the supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with the Consultant and the City prior to the commencement of any services by the subcontractor. The Consultant and any subcontractor/sub-consultant shall establish additional insured status for the City, its officers, officials, employees, agents, and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 9. Conflict of Interest and Non-Solicitation. (a) Prior to the City’s execution of this Agreement, the Consultant shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation and duty to immediately notify the City in writing of any change to the information provided by the Consultant in such statement. (b) The Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written request of City, Consultant shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, Consultant and the respective subcontractor(s) are in full compliance with all laws and regulations. Consultant shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, Consultant shall immediately notify the City of these facts in writing. (c) In performing the work or services to be provided hereunder, the Consultant shall not employ or retain the services of any person while such person either is employed by the City or is a member of any City council, DPW-S On Call NonFed Agt. T&M (04-2023) -9- commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) The Consultant represents and warrants that it has not paid or agreed to pay any compensation, lawful or unlawful, contingent or otherwise, direct or indirect, to any party to solicit or procure this Agreement or any rights/benefits hereunder. The City shall have the right, in its discretion, to deduct from any payment to the Consultant under this Agreement, or otherwise recover the full amount of, any rebate, kickback or other consideration paid by the Consultant in violation of any representation or warranty under this section. (e) Neither the Consultant, nor any firm affiliated with the Consultant, nor any of the Consultant’s subcontractors performing any services on a Task Order, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with a Task Order, with the exception of any subcontractor whose services are limited to providing surveying or materials testing information. The Consultant and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with a Task Order unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. An affiliated firm is one which is subject to the control of the same person(s) through joint- ownership or otherwise. (f) The Consultant shall disclose any financial, business, or other relationship with the City that may have an impact upon the outcome of this Agreement or any ensuing the City construction project/s. The Consultant shall also disclose any current clients who may have a financial interest in the outcome of this Agreement or any ensuing the City construction project/s, which will follow. (g) The Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement. (h) If the Consultant should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, the Consultant shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (i) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event the Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall: (a) Immediately establish and maintain a viable and ongoing recycling program, approved by the City’s Solid Waste Management Division, for DPW-S On Call NonFed Agt. T&M (04-2023) -10- each office and facility. Literature describing the City recycling programs is available from the City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (b) Immediately contact the City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of the City’s Solid Waste Management Division the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or designee. (b) Records of the Consultant’s expenses pertaining to this Agreement shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of Consultant pertaining to this Agreement shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to City until such action is resolved, or until the end of said time period whichever shall later occur. If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by the City, the Consultant shall have provided evidence to the City that the Consultant is licensed to perform the services called for by this Agreement (or that no license is required). If the Consultant should subcontract all or any portion of the work or services to be performed under this Agreement, the Consultant shall require each subcontractor to provide evidence to the City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. (d) The Consultant’s services pursuant to this Agreement shall be provided under the supervision of Lucas Piper, and he/she shall not assign another to supervise the Consultant’s performance of this Agreement without the prior written approval of the Director. 12. Nondiscrimination. To the extent required by controlling federal, state and local law, the Consultant shall not employ discriminatory practices in the provision of DPW-S On Call NonFed Agt. T&M (04-2023) -11- services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, the Consultant agrees as follows: (a) The Consultant will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) The Consultant will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The Consultant shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to the Consultant’s employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) The Consultant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of the Consultant’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. DPW-S On Call NonFed Agt. T&M (04-2023) -12- (e) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, the Consultant is acting solely as an independent contractor. Neither the Consultant, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of the City for any purpose. The City shall have no right to control or supervise or direct the manner or method by which the Consultant shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify that the Consultant is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between the Consultant and the City. The Consultant shall have no authority to bind the City absent the City’s express written consent. Except to the extent otherwise provided in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, the Consultant and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to the City employees. The Consultant shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, the Consultant shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to employment and tax withholding for and payment of the Consultant’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in the City employment benefits, entitlements, programs and/or funds offered employees of the City whether arising by reason of any common law, de facto, leased, or co- employee rights or other theory. It is acknowledged that during the term of this Agreement, the Consultant may be providing services to others unrelated to the City or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written DPW-S On Call NonFed Agt. T&M (04-2023) -13- notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 16. Assignment. (a) This Agreement is personal to the Consultant and there shall be no assignment by the Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by the Consultant, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) The Consultant hereby agrees not to assign the payment of any monies due the Consultant from the City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all monies due the Consultant directly to the Consultant. 17. Compliance With Law. In providing the services required under this Agreement, the Consultant shall at all times comply with all applicable laws of the United States, the State of California and the City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. DPW-S On Call NonFed Agt. T&M (04-2023) -14- 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both the City and the Consultant. 29. RFQ Document. Any Request for Qualifications and documents issued therewith (collectively RFQ) by the City that resulted in selection of the Consultant for entry into this Agreement are hereby incorporated into and made a part of this Agreement. In the event of a conflict between the RFQ and this Agreement (including any Exhibit hereto), this Agreement (including any exhibit hereto) shall take precedence. [Signatures follow on the next page.] DPW-S On Call NonFed Agt. T&M (04-2023) -15- IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Public Works Department ATTEST: TODD STERMER, CMC City Clerk By: Deputy No signature of City Attorney required. Standard Document #DPW-S On Call NonFed Agreement T&M (04-2023) has been used without modification, as certified by the undersigned. By: Harlavpreet S. Brar Professional Engineer Public Works Department REVIEWED BY: By: Francisco V. Magos,PE, MBA, QSD Public Works Department Address: CITY: City of Fresno Attention: Harlavpreet S. Brar, Professional Engineer 2600 Fresno Street, Room 4016 Fresno, CA 93721-3620 Phone: (559) 621-8616 E-mail: Harlavpreet.brar@fresno.gov GHD ,QF D&DOLIRUQLD&RUSRUDWLRQ By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Any Applicable Professional License: Number: Name: Date of Issuance: $GGUHVV &2168/7$17 *+',QF $WWHQWLRQ/XFDV3LSHU//$46'3 5LYHU3DUN3ODFH:HVW6XLWH )UHVQR&$ 3KRQH   (PDLOOXFDVSLSHU#JKGFRP -'XQFDQ)LQGOD\ 6HFUHWDU\ S Kamesh Vedula Vice-President HARLAVPREB Digitally signed by HARLAVPREB DN: E=Harlavpreet.Brar@fresno.gov, CN=HARLAVPREB, OU=Users, OU=PublicWorks, OU=Departments, DC=fresno, DC=gov Date: 2023.06.27 14:52:12-07'00' FRANCISM Digitally signed by FRANCISM DN: E=Francisco.Magos@fresno.gov, CN=FRANCISM, OU=Users, OU=PublicWorks, OU=Departments, DC=fresno, DC=gov Date: 2023.06.27 15:05:05-07'00' SCOTT L. MOZIER Director DPW-S On Call NonFed Agt. T&M (04-2023) -16- Attachments: 1. Exhibit A - Scope of Services 2. Exhibit B - Insurance Requirements 3. Exhibit C - Conflict of Interest Disclosure Form 4.Exhibit D – Task Order Form DPW-S On-Call NonFed Agt. T&M (04-2023) Page 1 of 3 Exhibit A EXHIBIT A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (City) and GHD Inc. (Consultant) Public Works Capital Improvement Program (Program) Services will be on an on-call basis and will include but not limited to providing civil engineering and architectural design services necessary to deliver park improvement projects that are managed by the Public Works Department. The improvement projects include but are not limited to the following: developing park’s master plan, rehabilitation and/or design of new play structures, tot lot play areas, splash pads, shade structures, playing courts, sports fields, walking paths and trails, dog parks, addition of site amenities including benches, picnic tables, water fountains, trash receptacles, bleachers, fencing, lighting upgrades and restroom facilities, ADA assessment of the existing site, landscape and irrigation design, parking lot and storm water drainage improvements. In general: • Participate in coordination meetings with City staff. • Participate, facilitate and/or coordinate community engagement meetings. • Participation In Stakeholder Meetings. • Prepare a preliminary assessment of existing infrastructure conditions and provide recommendations for replacement/repairs, which includes an engineer’s estimate and exhibits. • ADA assessment of the site by CASp Certified Professional. • Evaluation and Plan preparation for on-site fire equipment services. • Develop Master Plan documents and facilitate process with City and stakeholders. • Prepare and maintain design and construction schedule. • The Consultant shall monitor the project progress, maintain project files, and control the quality of the work performed by sub-consultants. • The Consultant shall value engineer the project as necessary to meet the project budget. • Research existing records of utility companies and agencies and coordinate the proposed improvements with existing field conditions. • Prepare utility notification letters and relocation drawings for various utilities and agencies. • Conduct site investigation to prepare construction documents. • Prepare all the documentation required to obtain permits from any and all agencies having jurisdiction over the project. • Coordinate with City’s on-call environmental consultants to comply with all environmental requirements. • Prepare Geometrically Approved Drawing (GAD) including specifications and engineer’s estimate. • Providing any necessary calculation to be submitted for Permit Approvals. • Prepare construction plans, technical specifications, and construction cost. • Submit construction documents for review to City offices, utilities/agencies, and obtaining final signatures on construction documents. • As part of the bidding phase, attend the pre-bid conference, prepare addenda and clarifications if necessary, respond to bid questions and attend bid opening. DPW-S On-Call NonFed Agt. T&M (04-2023) Page 2 of 3 Exhibit A • As part of the construction phase and General construction contract administration, attend the pre-construction conference, review shop drawings and other contractor submittals, provide clarification of construction documents during construction, review and provide technical information for construction contract change order requests if necessary, and perform as many as two site visits during construction. • Prepare record drawings documenting the as-built improvements, have as-built approved, and both Mylars and final CAD drawing provided to City. 5% Escalation 5% Escalation 5% Escalation FY2024 FY2025 FY2026 FY2027 Effective July 1, 2023 Effective July 1, 2024 Effective July 1, 2025 Effective July 1, 2026 A001 Senior Technical Director 1 353.00 $370.65 $389.18 $408.64 A002 Senior Technical Director 2 328.00 $344.40 $361.62 $379.70 A003 Senior Technical Director 3 302.00 $317.10 $332.96 $349.60 A004 Technical Director 1 272.00 $285.60 $299.88 $314.87 A005 Technical Director 2 251.00 $263.55 $276.73 $290.56 A006 Senior Professional 1 226.00 $237.30 $249.17 $261.62 A007 Senior Professional 2 209.00 $219.45 $230.42 $241.94 A008 Professional 1 200.00 $210.00 $220.50 $231.53 A009 Professional 2 170.00 $178.50 $187.43 $196.80 A010 Professional 3 149.00 $156.45 $164.27 $172.49 A011 Intern 141.00 $148.05 $155.45 $163.23 B001 Lead Design Technician 1 328.00 $344.40 $361.62 $379.70 B002 Lead Design Technician 2 298.00 $312.90 $328.55 $344.97 B003 Lead Design Technician 3 268.00 $281.40 $295.47 $310.24 B004 Senior Design Technician 1 243.00 $255.15 $267.91 $281.30 B005 Senior Design Technician 2 226.00 $237.30 $249.17 $261.62 B006 Design Technician 1 204.00 $214.20 $224.91 $236.16 B007 Design Technician 2 192.00 $201.60 $211.68 $222.26 B008 Drafting/Design 1 183.00 $192.15 $201.76 $211.85 B009 Drafting/Design 2 158.00 $165.90 $174.20 $182.90 B010 Drafting/Design 3 141.00 $148.05 $155.45 $163.23 B011 Drafting/Design 4 136.00 $142.80 $149.94 $157.44 B012 Intern Drafting/Design 115.00 $120.75 $126.79 $133.13 C001 Business Services Manager 1 289.00 $303.45 $318.62 $334.55 C002 Business Services Manager 2 251.00 $263.55 $276.73 $290.56 C003 Senior Business Services 1 187.00 $196.35 $206.17 $216.48 C004 Senior Business Services 2 162.00 $170.10 $178.61 $187.54 C005 Business Services 1 141.00 $148.05 $155.45 $163.23 C006 Business Services 2 132.00 $138.60 $145.53 $152.81 C007 Business Services 3 90.00 $94.50 $99.23 $104.19 D001 Project Support Manager 1 349.00 $366.45 $384.77 $404.01 D002 Project Support Manager 2 328.00 $344.40 $361.62 $379.70 D003 Senior Project Support 1 289.00 $303.45 $318.62 $334.55 D004 Senior Project Support 2 247.00 $259.35 $272.32 $285.93 D005 Project Support 1 217.00 $227.85 $239.24 $251.20 D006 Project Support 2 200.00 $210.00 $220.50 $231.53 D007 Project Support 3 183.00 $192.15 $201.76 $211.85 D008 Project Support 4 166.00 $174.30 $183.02 $192.17 D009 Project Support 5 141.00 $148.05 $155.45 $163.23 D010 Project Support 6 85.00 $89.25 $93.71 $98.40 7) Rates will be increased annually, July 1st, at a rate of 5%. 8) Prevailing wage rates billed at approved rates per current DIR rates for work performed at the time of service. 3) All other project related disbursements, expenses and subcontractor costs will be invoiced with a markup of 15%. GHD RATE SCHEDULE: 4) Personal vehicle milage rates will be charged in accordance with government regulated rates. 5) Overhead and Indirect costs are per GHD's FAR audited rate of 174.21% 6) All overtime will be billed at standard rates. Class Code Administration Professional Technical Employee / Classification Project Support RATE SCHEDULE NOTES: 1) Rates are for employees of GHD companies. 2) All travel will be invoiced at booking rates. Lodging and meal expenses will be at cost plus a 15% markup. Page  of 3 DPW-S On-Call NonFed Agt. T&M (04-2023) Page 1 of 4 Exhibit B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (City) and GHD Inc. (Consultant) Public Works Capital Improvement Program (Program) MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to Consultant’s profession. MINIMUM LIMITS OF INSURANCE Consultant, or any party the Consultant subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to City, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1.COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. DPW-S On-Call NonFed Agt. T&M (04-2023) Page 2 of 4 2.COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3.WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4.EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5.PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS Consultant shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Consultant shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to City, its officers, officials, employees, agents and volunteers; or (ii) Consultant shall provide a financial guarantee, satisfactory to City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. City, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. Consultant shall establish additional insured status for the City for all ongoing and completed operations under the Commercial General Liability policy by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured DPW-S On-Call NonFed Agt. T&M (04-2023) Page 3 of 4 status. The Commercial General endorsements must be as broad as that contained in ISO Forms: CG 20 10 11 85 or both CG 20 10 & CG 20 37. 2. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, Consultant’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents and volunteers shall be excess of Consultant’s insurance and shall not contribute with it. Consultant shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: Consultant and its insurer shall waive any right of subrogation against City, its officers, officials, employees, agents and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims- made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by Consultant. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by Consultant, Consultant must purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to City for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to City. Consultant is also responsible for providing written notice to the City under DPW-S On-Call NonFed Agt. T&M (04-2023) Page 4 of 4 the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Consultant shall furnish City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for City, Consultant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by Consultant shall not be deemed to release or diminish the liability of Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Consultant, its principals, officers, agents, employees, persons under the supervision of Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. SUBCONTRACTORS - If Consultant subcontracts any or all of the services to be performed under this Agreement, Consultant shall require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by City Risk Manager or designee. If no Side Agreement is required, Consultant will be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry. VERIFICATION OF COVERAGE Consultant shall furnish City with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to City’s execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of City, consultant shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. DPW-S On-Call NonFed Agt. T&M (04-2023) Exhibit C EXHIBIT C DISCLOSURE OF CONFLICT OF INTEREST Public Works Capital Improvement Program (Program) YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers, or professionals, owners or investors in a business, which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature Date (Name) (Company) (Address) Additional page(s) attached. (City State Zip) Kamesh Vedula 6/27/2023 GHD, Inc. 943 Reserve Drive Roseville, CA 95747 X X X X X X DPW-S Non-Fed Eng. On-Call T&M (04-2023) Page 1 of 1 Exhibit D EXHIBIT D TASK ORDER FORM Consultant Service Agreement between City of Fresno (City) and GHD Inc. (Consultant) Public Works Capital Improvement Program (Program) TASK ORDER ___ Title/Project: CONSULTANT: CITY Project ID: Task Order Description (Attach Scope of Work): Task Order Work Plan: Task Order Deliverable: Task Order Staffing: Task Order Cost: Task Order Period of Performance: Consultant Project Manager: City Project Manager: Authorized Signatures Consultant’s Authorized Representative City’s Authorized Representative Signature Name: __________________________ Title: ___________________________ Date: ___________________________ Signature Name: __________________________ Title: ___________________________ Date: ___________________________ Attachments: 1. Scope of Work 2. Cost Proposal City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1073 Agenda Date:7/20/2023 Agenda #: 1.-GG. REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, PE, Director Public Works Department AARON A. AGUIRRE, Director Parks, After School, Recreation, and Community Services Department BY:RANDALL W. MORRISON, PE, Assistant Director Public Works Department, Engineering Division HARLAVPREET S. BRAR, PE, Professional Engineer Public Works Department, Site Development Project Management Section SUBJECT Approve an agreement for professional engineering services with Quad Knopf Inc., dba QK, of Fresno, California for $82,930 with a $7,500 contingency, for design and construction support services for the Roeding Park Pickleball Court Project (Council District 3) RECOMMENDATION Staff recommends City Council approve a consultant services agreement with Quad Knopf Inc., dba QK, of Fresno, California in the amount of $82,930, with a $7,500 contingency, for the design and preparation of construction documents for the Roeding Park Pickleball Court Project and authorize the Public Works Director or designee to execute the agreement on behalf of the City of Fresno. EXECUTIVE SUMMARY The City of Fresno Parks, After School, Recreation and Community Services Department (PARCS) proposes to convert three (3) existing tennis courts into new pickleball courts with upgraded lighting at Roeding Park. The project will include a community meeting to present an initial conceptual design and receive public input to inform the final design. The contract for professional engineering design services will be funded using carryover funds from FY2023 Measure P expenditure category 1, highest-needs allocations. Council approval of the consultant agreement between the City and QK is recommended to facilitate development of plans, cost estimates, and general construction contract documents necessary to complete the project. BACKGROUND City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 TABLED TO AUGUST 10, 2023 MA/LC 5-0 AP RECUSED, MK ABSENT File #:ID 23-1073 Agenda Date:7/20/2023 Agenda #: 1.-GG. The PARCS Department proposes to utilize Measure P to improve the existing park facilities and enhance the park guest experience at Roeding Park. The project will support the growth of the pickleball community in the surrounding area and will cultivate an environment that promotes health and social interaction. As part of the project, QK will analyze the existing site conditions and will develop conceptual design plans of the pickleball courts. Accessible paths of travel to and from the pickleball courts to the parking lot will be reviewed and any necessary improvements incorporated into the design. The project will include upgraded lighting and may include additional upgrades to site furnishings such as benches and picnic tables subject to funding availability and community input. In accordance with AO 6-19, staff sent out a request for Statements of Qualifications (SOQs) in December 2022 via Planet Bids, email, and published in The Business Journal for Pickleball Court Projects. The request for SOQs was sent out for projects at four (4) different locations including Woodward Park, Roeding Park, Vinland Park, and Rotary East Park. Four (4) SOQs were received, and staff interviewed the three (3) qualified respondents between March 6, 2023, and March 7, 2023. QK was determined to be the most qualified and responsive based on the consultant interviews. Staff believes that a separate agreement for each location is the best route forward to meet different funding and scheduling requirements at each location. Staff negotiated a fee of $82,930, with a $7,500 contingency, for the preparation of plans, specifications, cost estimates, bidding support services, and construction support services for this project. Staff recommends City Council approve the proposed agreement with QK in the amount of $82,930, with a $7,500 contingency, for the design and preparation of construction documents for the Roeding Park Pickleball Court Project and authorize the Public Works Director or designee to sign on behalf of the City. The City Attorney’s Office has reviewed and approved the proposed agreement as to form. ENVIRONMENTAL FINDINGS A consultant agreement for the design of plans and cost estimates is not a “project” pursuant to California Environmental Quality Act (CEQA) Guidelines § 15378. LOCAL PREFERENCE Local preference was implemented in the consultant selection process pursuant to the Fresno Municipal Code Section 4-109. Quad Knopf Inc., is a local business, as defined by the Fresno Municipal Code. FISCAL IMPACT The proposed project is in Council District 3. The Roeding Park Pickleball Court Project is funded in the FY2024 approved budget through carryover funds from FY2023 Measure P allocations. Attachment(s): City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1073 Agenda Date:7/20/2023 Agenda #: 1.-GG. Consultant Agreement Vicinity Map Location Map City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 1 of 30 AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANT SERVICES THIS AGREEMENT (Agreement) is made and entered into, effective __________________________, by and between the CITY OF FRESNO, a California municipal corporation (City), and Quad Knopf, Inc., a California Corporation (Consultant). RECITALS WHEREAS, the City desires to obtain professional architectural and engineering services for the design of plans and general construction contract documents for Roeding Park Pickleball Court (Project); and WHEREAS, the Consultant is engaged in the business of furnishing services as a a licensed architect and engineer and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, the Consultant acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and WHEREAS, this Agreement will be administered for the City by its Public Works Department Director (Director) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. The Consultant shall perform the services described herein and in Exhibit A to complete the Project more fully described in Exhibit A, and this shall include all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. The services of the Consultant shall consist of five Parts as described below. A separate Notice to Proceed will be issued for each of the aforementioned Parts. By entry into this Agreement and upon the City’s issuance of a written "Notice to Proceed," the City contracts for the services in Part One. The Consultant shall not perform any other Part of the Agreement, and this Agreement shall not be a contract for any other Part, until further performance is authorized by the City’s issuance of a written “Notice to Proceed.” It shall, however, remain the Consultant’s offer to perform all remaining parts described herein. In the event the Consultant performs services without the City’s prior written authorization, the Consultant will not be entitled to compensation for such services. (a) Part One. Schematic Design Phase. (1) The Consultant shall review the description of the Project set forth in Exhibit A and consult with designated representatives of the City to ascertain the requirements of the Project. (2) The Consultant shall conduct studies and investigations as DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 2 of 30 necessary to confirm requirements of design including, but not limited to, (i) consulting with the various utility agencies, and (ii) obtaining all information and data from the respective responsible City department/division that is available in the City’s records and is required by the Consultant in connection with the consulting services including, but not limited to, maps, surveys, reports, information, restrictions, and easements. The Consultant shall notify the City if a topographic survey is required. (3) The Consultant shall provide a preliminary evaluation of the Project taking into consideration the City’s estimate of the cost of construction (Construction Budget) of Six Hundred Thirty Thousand Dollars ($630,000.00), including alternative approaches to design and construction of the Project. (4) Based upon the mutually agreed upon Project requirements and any adjustments authorized by the City in the Construction Budget, the Consultant shall design and prepare schematic design drawings and other documents for review, modification, if required, and acceptance by the City staff sufficient to show the concept and scope of the proposed Project and the scale and relationship of Project components. (5) The Consultant shall submit a preliminary estimate of construction cost for review and acceptance by the City. As used herein, "construction cost" means the cost of construction under the general construction contract and does not include The Consultant’s compensation as herein provided. Such estimate shall include, and shall separately state, the cost of any add or deduct alternatives, the cost of any work which may be let on a segregated bid basis and any equipment or fixtures which may be incorporated in or excluded from the general construction contract as may be necessary to stay within the Construction Budget. (6) The Consultant shall make as many submittals as may be necessary or desirable to obtain the acceptance by the City and shall assist the City in applying for and obtaining from applicable public agencies any approval permit, or waiver required by law, which assistance shall include, but not be limited to, making Project information available to the City. (7) The Consultant may not rely upon any as-builts provided by the City but shall investigate the existing conditions and ascertain the adequacy of such as-builts for the Consultant’s design. The Consultant shall bring to the City’s attention any discrepancies in the as-builts that are discovered by the Consultant. The City makes no representations regarding any as-builts. (8) Services shall be undertaken and completed in a sequence assuring expeditious completion. All services shall be rendered, and deliverables submitted within One Hundred Thity Five (135) calendar days from the issuance of a Notice to Proceed for this Part unless an extension of time is approved in writing by the Director. Re-submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within twenty one (21) calendar days from receipt of the City’s comments unless an extension of time is approved in writing by the Director. DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 3 of 30 (b) Part Two. Design Development Phase. After review and acceptance of the schematic design phase and issuance of a written Notice to Proceed with this Part Two: (1) Based upon the accepted schematic design documents and the Construction Budget, including authorized revisions thereto, the Consultant shall prepare for review and acceptance by the City the design development documents consisting of drawings and other documents to fix and describe the size and character of the Project as necessary to show treatment of significant details. In addition, the Consultant shall provide outline specifications of the work as to kinds of materials, systems, and other such design elements as may be required. Such design development documents and specifications shall be subject to review and acceptance by the City. (2) The Consultant shall submit a revised estimate of construction cost for review and acceptance by the City. The revised estimate shall include, but shall separately state, the cost of any add or deduct alternates, any work which may be let on a segregated bid basis, and any furnishings, equipment or fixtures which may be incorporated in or excluded from the general construction contract as may be necessary to stay within the Construction Budget, including authorized revisions thereto. (3) In the event that the revised estimate of construction cost exceeds the preliminary estimate of construction cost previously accepted, excluding therefrom any add alternate, any work which may be let on a segregated bid basis and any furnishing, equipment or fixtures which was identified in Part 1 as that which may be excluded from the general construction contract, the City shall have the option of accepting or rejecting the revised estimate and the Consultant shall, at no additional cost to the City, make such design changes as may be necessary to reduce the revised estimate so that it shall not exceed the preliminary estimate of construction cost previously accepted by the City. The City shall not increase the scope of the Project except by modification of this Agreement which shall include an agreed upon increase in the Consultant’s compensation. (4) The Consultant shall make as many submittals as may be necessary or desirable to obtain the acceptance by the City and shall assist the City in applying for and obtaining from applicable public agencies any approval, permit, or waiver required by law, which assistance shall include, but not be limited to, making Project information available to the City.Services shall be undertaken and completed in a sequence assuring expeditious completion. All services shall be rendered, and deliverables submitted within Zero (0) calendar days from the issuance of a Notice to Proceed for this Part unless an extension of time is approved in writing by the Director. Re-submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within Zero (0) calendar days from receipt of the City’s comments unless an extension of time is approved in writing by the Director. (c) Part Three. Construction Document Phase. After review and acceptance of the design development phase and issuance of a written Notice to Proceed DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 4 of 30 with this Part Three: (1) The Consultant shall prepare from the accepted design development documents, detailed plans and specifications setting forth the complete work to be done, and the materials, workmanship, finishes and equipment, fixtures, and site work required. The Consultant shall also prepare necessary bidding information, general and special conditions of the general construction contract, technical specifications of the general construction contract, and the bid proposal and general construction contract forms. Such documents shall be subject to the review and acceptance by the City. The Consultant shall cooperate with, assist and be responsive to Purchasing Manager in preparation of all documents including, without limitation, slip-sheeting final documents for printing when requested. The City’s Standard Specifications must be used by the Consultant where possible. Final drawings shall be drawn, printed, or reproduced by a process providing a permanent record in black on vellum, tracing cloth, polyester base film, or high-quality bond copy. Bid, general conditions, contract and bond document forms or formats regularly used by the City shall be used by the Consultant unless the Director determines they would be impractical for this Project. the Consultant shall be responsible for assuring that the special conditions, technical specifications, and any other documents prepared by the Consultant are consistent with any documents regularly used by the City that are used for this Project. (2) Upon request of the City, the Consultant shall provide the calculations used to determine the general construction contract quantities; and structural calculations for the purpose of obtaining any building permits. (3) The Consultant shall make as many submittals as may be necessary or desirable to obtain the acceptance by the City and shall assist the City in applying for and obtaining from applicable public agencies any approval, permit, report, statement, or waiver required by law, which assistance shall include, but not be limited to, making Project information available to the City. (4) The Consultant shall provide the City with two (2) sets of completed plans and two (2) sets of completed specifications for review and final acceptance by the City. Should the plans and specifications as submitted by the Consultant not be accepted by the City, the Consultant shall revise the plans and specifications as needed to obtain final acceptance at no additional cost to the City. (5) After acceptance of final corrections, if any, the Consultant shall provide the City with one set of accepted reproducible tracings and bid documents for the Project. In addition, the Consultant shall provide the City with one complete set of CAD/System disk files of drawings and complete disk files of specifications in the following format: .DWG. (6) The Consultant shall submit a final estimate of construction cost for review and acceptance by the City. Such estimate shall be calculated as of the date all general construction contract documents are delivered to the City in final form ready for reproduction and advertising. Such estimate shall include, but DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 5 of 30 shall separately state, the cost of any add or deduct alternates, any work which may be let on a segregated basis, and any equipment, or fixtures which may be incorporated in or excluded from the general construction contract. (7) In the event that the final estimate of construction cost exceeds the revised estimate of construction cost previously accepted, excluding therefrom any add alternate, any work which may be let on a segregated bid basis and any furnishings, equipment or fixtures which was identified in the final revised estimate in Part 2 as that which may be excluded from the general construction contract, the City shall have the option of accepting or rejecting the final estimate. If the City elects to reject the final estimate, the Consultant shall at no additional cost to the City, make such design changes as may be necessary to reduce the final estimate so that it shall not exceed the revised estimate of construction cost previously accepted by the City. (8) Services shall be undertaken and completed in a sequence assuring expeditious completion. All services shall be rendered, and deliverables submitted within seventy-five (75) calendar days from the issuance of a Notice to Proceed for this Part unless an extension of time is approved in writing by the Director. Re-submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within twenty-one (21) calendar days from receipt of the City’s comments unless an extension of time is approved in writing by the Director. (d) Part Four. Bidding Phase. After review and acceptance of the construction document phase and if the City elects to proceed to bid, which shall constitute a written Notice to Proceed with this Part Four: (1) The Consultant shall assist the City in obtaining bids. The Consultant shall not communicate with potential bidders regarding this Project without the express prior written authorization of the City’s Purchasing Manager. (2) The Consultant shall, within 7 calendar days of any request by the City, expeditiously draft and promptly provide addendum as determined by the City to be reasonable or necessary for the bidding process. (3) If the lowest responsible bid received for the general construction contract exceeds by 10% or more the final estimate of construction cost previously accepted by the City, excluding therefrom any add alternate, any work which may be let on a segregated bid basis and any furnishings, equipment or fixtures which are excluded from the general construction contract, the Consultant shall, within 14 calendar days of any request by the City, revise the plans and specifications as may be necessary to stay within 10% of such final estimate of construction cost, at no additional cost to the City provided such bid is received within 180 calendar days after completion of services in Section 1(c) of this Agreement. The Consultant shall also submit such revised plans and specifications, together with a new final estimate of construction cost, to the City for review and acceptance. This procedure, using the latest accepted final estimate of construction cost, shall, upon written notice to the Consultant from the Director, be repeated until an acceptable bid is received that does not exceed the accepted final estimate of construction cost by more than 10%. DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 6 of 30 (e) Part Five. Construction Phase and General Construction Contract Administration. The construction phase will begin with the award of the general construction contract, which shall constitute a written Notice to Proceed with this Part Five and will terminate when a Notice of Completion is filed. Upon award of a general construction contract for the Project and under the direction of the Director through the City’s designated Construction Manager for the Project: (1) The Consultant shall attend the pre-construction conference and, if called upon by the City, act on the City’s behalf in discussing the various aspects of the construction phase. (2) The Consultant shall review and recommend in writing to the City acceptance or non-acceptance of shop drawings, equipment and material submittals of the general construction contractor as required by the general construction contract and applicable laws and regulations in a timely manner. The period for the Consultant review shall be as specified in the general construction contract, except if such period is not so specified, the period shall be as determined in the pre-construction conference as mutually agreed upon by the City, the Consultant, and the general construction contractor. (3) The Consultant shall, at intervals appropriate to the state of construction, familiarize itself with the progress and quality of the work and determine in general if the work is proceeding in accordance with the general construction contract documents, and keep the City informed of the progress of the work. In the event that the Consultant’s visit to the site results in the discovery of any defect or deficiencies in the work of the general construction contractor, the Consultant shall immediately advise the City and document, in writing, the work the Consultant deems substandard, and make recommendations where appropriate to reject any work not conforming to the intended design or specifications. Based on the Consultant’s best knowledge, information and belief, the Consultant shall provide the City a general written assurance that the work covered by a payment application meets the standards in the general construction contract. As to technical aspects, the Consultant shall provide a written judgment of the acceptability of the work for payment applications and final acceptance, subject to the City’s right to overrule the Consultant. (4) Upon written request by the City, the Consultant shall render interpretations of the general construction contract documents necessary for the proper execution or progress of the work. (5) Upon written request by the City, the Consultant shall render written recommendations on change orders, claims, disputes, or other questions arising out of the general construction contract, in a timely manner. Recommendations by the Consultant in favor of a change order that is consequently accepted by the City shall constitute approval by the Consultant who shall then approve the change order in writing. The Consultant shall not unreasonably withhold written approval in the event the City accepts a change order that the Consultant recommended to be rejected. In the event of any technical disputes, the Consultant shall provide the City with the Consultant’s DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 7 of 30 written interpretation of the contract documents. The period for the Consultant review shall be as specified in the general construction contract, except if such period is not so specified, the period shall be as determined in the pre- construction conference as mutually agreed upon by the City, the Consultant, and the general construction contractor. If the City, the Consultant, and the respective general construction contractor are unable to mutually agree on such period for the Consultant review, then the City will make the determination and that determination will be final. (6) Upon written request by the City, the Consultant shall provide such design and specification services as may be requested by the City to implement change orders necessary for clarification or interpretation of the general construction contract documents or which may have resulted from errors or omissions by the Consultant. (7) Where change orders arise as a result of an increase in the scope of work or are due to unforeseeable conditions, the parties may modify this Agreement, which modification shall include an agreed upon increase in the Consultant’s compensation. (8) Upon written request of the City, the Consultant shall assist the City in the preparation of Progress Payment Estimates and other related construction reports. (9) The Consultant shall provide the City with two sets of original as-grade plans wet-stamped and signed by the Consultant’s Engineer of Record for the Project submitted for final approval by the City’s Building and Safety Services Division of the Development and Resource Management Department on all projects located outside the Right of Way. (10) the Consultant shall prepare Record Drawings by updating the accepted general construction documents in Part 3 to reflect all changes or deviations that occurred during construction as reflected on or from each of the following: (i) the general construction contractor provided red-lined plans, (ii) those furnished by the City, (iii) the Consultant provided Request for Information responses, and (iv) any the Consultant bulletins, amendments, or clarifications. The Consultant shall provide the City with one set of vellum Record Drawings for the Project within twenty-eight (28) calendar days from receipt of red-lined field markups unless an extension of time is approved in writing by the Director. Re- submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within twenty (20) calendar days from receipt of the City comments unless an extension of time is approved in writing by the Director. In addition, the Consultant shall provide the City with one complete set of CAD/System disk files of Record Drawings in the following format: .DWG. 2. The City’s responsibilities. The City will: (a) Provide, upon request and cooperation of the Consultant, access to, and make all provisions necessary to, enter upon public or private lands as required for the Consultant to perform such services and inspections as are required in development DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 8 of 30 of the Project; provided, however, if the City is unable to obtain access to enter upon public or private lands, the Consultant shall not be relieved from performing its services as to those public and private lands that are accessible. If the Consultant notifies the City that a topographic survey is required by the Consultant in connection with the consulting services, then the City will be responsible for conducting the topographic survey. (b) Manage and be responsible for all negotiations with owners in connection with land or easement acquisition and provide all required title reports and appraisals. (c) With the exception of preparing correspondence required for design, hold all required special meetings, serve all public and private notices, receive and act upon all protests, and perform all services customarily performed by owners as are necessary for the orderly progress of the work and the successful completion of the Project, and pay all costs incidental thereto. (d) Select the testing laboratory and pay the cost of borings, samplings, and other work involved in soils testing during construction. (e) Conduct onsite inspection during construction to check quality and quantity of work as conditions warrant and be responsible for assuring that the general construction contractor carries out all construction work in accordance with the plans and specifications. However, this does not release the Consultant from its responsibility to make periodic site visits under Section 1(e) for the purpose of observing the work to determine its general conformity with the plans and specifications and reporting its findings to the City. (f) Prepare all change orders during construction in cooperation with the Consultant. (g) Prepare all Progress Payment Estimates in cooperation with the Consultant following its general assurance that the work covered by a payment application meets the standards in the general construction contract documents based upon the Consultant’s best knowledge, information, and belief. (h) Pay, or cause to be paid, plan check fees, conditional use permit fees and site plan review fees. (i) Arrange for and pay, or cause to be paid, any fees associated with Environmental Impact Reports or Statements. (j) Give reasonably prompt consideration to all matters submitted by the Consultant for acceptance to the end that there will be no substantial delays in the Consultant’s program of work. For an acceptance, approval, authorization, a request, or any direction to the Consultant to be binding upon the City under the terms of this Agreement, such acceptance, approval, authorization, request, or direction must be in writing, duly authorized by the City and signed on behalf of the City by the Director. 3. Compensation. (a) The Consultant’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee of Eighty Two Thousand Nine Hundred Thirty Dollars (82,930.00), and a contingency DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 9 of 30 amount not to exceed Seven Thousand Five Hundred Dollars ($7,500.00) for any additional work rendered pursuant to Subsection (d) below and authorized in writing by the Director. Such fees include all expenses incurred by the Consultant in performance of such services. (b) Detailed statements shall be rendered monthly and will be payable in the normal course of City business. Such statements shall be for an amount no greater than that attributable to the Part upon which the Consultant is then engaged as provided in Section 3(c) below. (c) For purposes of determining the division of the total compensation to the Consultant as provided in Section 3(a) above, or should performance of any succeeding Part not be authorized by the City as provided in Section 1 of this Agreement, it is agreed that the total compensation shall be allocated to the five Parts of the Consultant’s performance as follows: Part 1 – Fifty Three (53%), Part 2 – Zero (00%)], Part 3 – Thirty Five (35%)], Part 4 - Four (4%)] and Part 5 - Eight (8%)]. Prior to the award of a general construction contract for the Project, or should such contract not be awarded, the approved Parts as provided above shall be utilized for purposes of determining the fee due to the Consultant. (d) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to the Consultant’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. The Consultant shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. Subsequent to the date of completion of Part Three, changes due to Code revisions or enactments adopted after such date shall constitute additional work subject to this Section 3(d). 4. Termination, Remedies, Force Majeure, and Consolidation of Disputes. (a) This Agreement shall terminate without any liability of the City to the Consultant upon the earlier of: (i) the Consultant’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the Consultant; (ii) seven calendar days prior written notice with or without cause by the City to the Consultant; (iii) the City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, the Consultant shall: (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the City any and all unearned payments and all properties and materials in the possession of the Consultant that are owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid compensation for services satisfactorily performed prior to the effective date of termination. The Consultant shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of the Consultant to DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 10 of 30 satisfactorily perform in accordance with the terms of this Agreement, the City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the City’s damages caused by such failure. In no event shall any payment by the City pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement which may then exist on the part of the Consultant, nor shall such payment impair or prejudice any remedy available to the City with respect to the breach. (d) Upon any breach of this Agreement by the Consultant, the City may: (i) exercise any right, remedy (in contract, law, or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic, and incidental damages for the breach of the Agreement. If it is determined that the City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) The Consultant shall provide the City with adequate written assurances of future performance, upon the request of the Director or designee, in the event the Consultant fails to comply with any terms or conditions of this Agreement. (f) The Consultant shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Consultant shall notify the Director or designee in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Director or designee of the cessation of such occurrence. (g) the Consultant agrees that, notwithstanding any contrary provision in this Agreement, any dispute arising from or relating to this Agreement (including, without limitation, disputes based on contract, tort, equity, or statute) may, at the City’s option, be joined and consolidated with any other dispute or disputes arising from or relating to the Project so that all disputes arising from or relating to the Project may be resolved in a single proceeding. the Consultant hereby specifically waives any objection it may otherwise have to such joinder and consolidation and specifically consents to mediation, arbitration or any other dispute resolution mechanism, forum or proceeding necessary to effectuate the joinder and consolidation contemplated by this provision. 5. Confidential Information, Ownership of Documents and Copyright License. (a) Any reports, information, or other data prepared or assembled by the Consultant pursuant to this Agreement shall not be made available to any individual or organization by the Consultant without the prior written approval of the City. During the term of this Agreement, and thereafter, the Consultant shall not, without the prior written consent of the City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of the City, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, models, source or object codes and other DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 11 of 30 information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the City. (b) Any and all original sketches, pencil tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by the Consultant pursuant to this Agreement are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement or default by the Consultant. The Consultant grants the City a copyright license to use such drawings and writings. The Consultant shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. The City may modify the design including any drawings or writings. Any use by the City of the aforesaid sketches, tracings, plans, computations, specifications, computer disk files, writings, and other documents in completed form as to other projects or extensions of this Project, or in uncompleted form, without specific written verification by the Consultant will be at the City’s sole risk and without liability or legal exposure to the Consultant. The Consultant may keep a copy of all drawings and specifications for its sole and exclusive use. (c) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as the Consultant represents to the City that the Consultant and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, the City relies upon the skill of the Consultant and any subcontractors to do and perform such services in a skillful manner and the Consultant agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by the City shall not operate as a release of the Consultant or any subcontractors from said professional standards. 7. Indemnification. To the furthest extent allowed by law, including California Civil Code section 2782.8 the Consultant shall indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents, and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney’s fees, litigation expenses and cost to enforce this agreement) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of the Consultant, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If the Consultant should subcontract all or any portion of the services to be performed DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 12 of 30 under this Agreement, the Consultant shall require each subcontractor to indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, the Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by the City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to the City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, the Consultant or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to the Consultant shall be withheld until notice is received by the City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to the City. Any failure to maintain the required insurance shall be sufficient cause for the City to terminate this Agreement. No action taken by the City pursuant to this section shall in any way relieve the Consultant of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by the City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish the liability of the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify the City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers, agents, employees, persons under the supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor/sub- consultant to provide insurance protection, as an additional insured, to the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with the Consultant and the City prior to the DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 13 of 30 commencement of any services by the subcontractor. the Consultant and any subcontractor/sub-consultant shall establish additional insured status for the City, its officers, officials, employees, agents, and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 9. Conflict of Interest and Non-Solicitation. (a) Prior to the City’s execution of this Agreement, the Consultant shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation and duty to immediately notify the City in writing of any change to the information provided by the Consultant in such statement. (b) The Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state, and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. Seq., the California Political Reform Act (California Government Code Section 87100 et. Seq.), the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. Seq.) and Section 4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written request of the City, the Consultant shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, the Consultant and the respective subcontractor(s) are in full compliance with all laws and regulations. The Consultant shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, the Consultant shall immediately notify the City of these facts in writing. (c) In performing the work or services to be provided hereunder, the Consultant shall not employ or retain the services of any person while such person either is employed by the City or is a member of any the City council, commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) The Consultant represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct, or indirect, to solicit or procure this Agreement or any rights/benefits hereunder. (e) Neither the Consultant, nor any of the Consultant’s subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project. the Consultant and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. (f) If the Consultant should subcontract all or any portion of the work to DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 14 of 30 be performed or services to be provided under this Agreement, the Consultant shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (g) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event the Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall: (a) Immediately establish and maintain a viable and ongoing recycling program, approved by the City’s Solid Waste Management Division, for each office and facility. Literature describing the City recycling programs is available from the City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621- 1111. (b) Immediately contact the City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of the City’s Solid Waste Management Division the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or designee. (b) Records of the Consultant’s expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to the City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of the Consultant pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit, or other action is commenced before the expiration of said time period, all records shall be retained and made available to the City until such action is resolved, or until the end of said time period whichever shall later occur. If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by the City, the Consultant shall have provided evidence to the City that the Consultant is licensed to perform the services called for by this Agreement (or that no license is required). If the Consultant should subcontract all or any portion of the work or services to be performed under this DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 15 of 30 Agreement, the Consultant shall require each subcontractor to provide evidence to the City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. (d) The Consultant’s services pursuant to this Agreement shall be provided under the supervision of Ernie Escobedo, Branch Manager, and he/she shall not assign another to supervise the Consultant’s performance of this Agreement without the prior written approval of the Director. 12. Nondiscrimination. To the extent required by controlling federal, state, and local law, the Consultant shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, the Consultant agrees as follows: (a) The Consultant will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) The Consultant will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The Consultant shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to the Consultant’s employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. the Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) The Consultant will send to each labor union or representative of DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 16 of 30 workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers’ representatives of the Consultant’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, the Consultant is acting solely as an independent contractor. Neither the Consultant, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of the City for any purpose. The City shall have no right to control or supervise or direct the manner or method by which the Consultant shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify that the Consultant is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between the Consultant and the City. The Consultant shall have no authority to bind the City absent the City’s express written consent. Except to the extent otherwise provided in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, the Consultant and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to the City employees. The Consultant shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare, and retirement benefits. In addition, together with its other obligations under this Agreement, the Consultant shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to employment and tax withholding for and payment of the Consultant’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in the City employment benefits, entitlements, programs and/or funds offered employees of the City whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, the Consultant may be providing services to others unrelated to the City or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party’s address set forth on the signature page of this Agreement or at such other address as the parties may from DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 17 of 30 time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16 below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties’ respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 16. Assignment. (a) This Agreement is personal to the Consultant and there shall be no assignment by the Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by the Consultant, its successors, or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) The Consultant hereby agrees not to assign the payment of any monies due the Consultant from the City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all monies due the Consultant directly to the Consultant. 17. Compliance With Law. In providing the services required under this Agreement, the Consultant shall at all times comply with all applicable laws of the United States, the State of California and the City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify, or add to the interpretation or meaning of the provisions of this Agreement. DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 18 of 30 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any exhibit or attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third-Party Beneficiaries. The rights, interests, duties, and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both the City and the Consultant. 29. The City Manager, or designee, is hereby authorized and directed to DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 19 of 30 execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. [SIGNATURES FOLLOW ON THE NEXT PAGE.] DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit A Page 20 of 30 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day and year first above written. CITY OF FRESNO, A California municipal corporation By: SCOTT L. MOZIER, PE, Director Public Works Department ATTEST: TODD STERMER, CMC City Clerk By: Deputy No signature of City Attorney required. Standard Document #DPW-S Eng. CSA, Long Form Total Fee – Contingency (11- 2022) has been used without modification, as certified by the undersigned. By: Harlavpreet S. Brar Professional Engineer REVIEWED BY: Quad Knopf, Inc., a California Corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Any Applicable Professional License: Number: Name: Date of Issuance: Francisco V. Magos, PE, MBA, QSD Public Works Department Addresses: CITY: City of Fresno Attention:Harlavpreet S. Brar Professional Engineer 26oo Fresno Street, Room 4016 Fresno, CA 93721-3620 Phone: (559) 621-8616 E-mail: Harlavpreet.Brar@fresno.gov CONSULTANT: Quad Knopf, Inc. 601 Pollasky Avenue, Suite 301 Clovis, CA 93612 Phone: (559) 449-2400 E-mail: Ernie.Escobedo@qkinc.com Attention: Ernie Escobedo, Branch Manager Ron Wathen, PE #58690 Amber Aguayo CFO/COO PE #58690 Ronald J. Wathen, PE July 31, 1998 President DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit A Page 21 of 30 3. Exhibit C - Conflict of Interest Disclosure Form Attachments: 1. Exhibit A - Scope of Services 2. Exhibit B - Insurance Requirements DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit A Page 22 of 30 EXHIBIT A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (City) and Quad Knopf, Inc. (Consultant) Roeding Park Pickleball Court Project Scope of Work Roeding Park is located at 890 Belmont Avenue in the City of Fresno. The Project will include the conversion of three (3) existing Tennis Courts into new Pickleball Courts at Roeding Park. A thorough community outreach and engagement process with key members of the pickleball community, council districts, and the City’s PARCS Department will be performed. The CONSULTANT’s focus for the project will include designing new pickleball courts to meet pickleball requirements; updating areas and path of travel to the new pickleball courts; improving adjacent features and areas, including benches, picnic tables, shade structures, and optimizing park safety through the integration of area lighting around the new pickleball courts. The project documentation will include design and construction schedule preparation, required CEQA documentation, tribal consultation coordination, Historic Prevention commission review and approval, community outreach and engagement, construction plans, specifications and cost estimates at different phases, reviews including ADA/CASp, constructability, and CADD audits. The CONSULTANT will submit necessary documents to the CITY, utility companies, and other relevant agencies for review and approval at appropriate stages. The CONSULTANT will determine review and approval requirements during out initial project meetings with the City and incorporate them into the project schedule. Scope of Services Part 1: Schematic Design Phase The CONSULTANT will conduct an analysis of the existing conditions to gain a full understanding of the scope of work necessary for this Project. The CONSULTANT will have two (2) meeting with the CITY staff, including appropriate stakeholders and/or council members per the preference of the CITY. The meeting will serve to inform and gather input and gain consensus regarding the Project’s components. The CONSULTANT will prepare a Conceptual Design Report which will include existing conditions, recommendations, a photolog, cost estimate, and concept landscape plans. The CONSULTANT will provide two (2) initial conceptual design plans for review and DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit A Page 23 of 30 approval by CITY staff. The concepts will include the configuration of the court layouts, fencing, the location of proposed site amenities, and the accessible path of travel. An itemized preliminary cost estimate for the conceptual designs will be prepared, from which City staff will determine which elements are to be included in the concept design to present to the community. Upon agreement of a preferred concept, the CONSULTANT will present the concept to the community via a community outreach and engagement process to be determined in collaboration with the CITY. After the completion of the community process, the final Schematic Design report integrating the final concept design and community comments will be submitted to the CITY for review. A single combined set of comments from the CITY on the conceptual design plans and preliminary cost estimate will be applied in Parts Two and Three – Design Development and Construction Development Phase. The CONSULTANT will provide electrical design to support the proposed renovations to Roeding Park including site investigation of existing electrical infrastructure, site plan design, lighting design for pickleball courts, photometric analysis, single-line diagrams, energy compliance documents and calculations (Title 24), specifications, and submittal review. The CONSULTANT will provide structural design services to provide structural calculations, plans, and book specifications in CSI format for construction of the structural elements of the Project. The plans and calculations will be designed according to the force level provisions in the 2022 California Building Code. The structural sheets will include structural notes, typical details, structural details, and fencing details and elevations. Deliverable for Part 1 Schematic Phase will include the following:  Photolog and Existing Conditions  One (1) meeting with the stakeholders  Schematic Design reports and plans  Two (2) initial conceptual landscape design plans  One (1) final concept design based on CITY and Community input  Preliminary cost estimate  Electrical Design Documents for all civil plan submittals and approval  Structural Design Documents for all civil plan submittals and approval Part 2: Design Development Phase There is no scope of work proposed under Part 2. Part 3: Construction Document Phase Based on the approved conceptual design and construction budget, the CONSULTANT will prepare Construction Documents, details of the accepted design, and other drawings DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit A Page 24 of 30 as applicable in accordance with the local and State codes, standards, and specifications. Plans will be reviewed by the CONSULTANT’s Certified Accessibility Specialty (CASp) for ADA access requirements. The CONSULTANT shall be responsible for geotechnical services to finalize the footings for non-standard fences, light poles, or any additional amenities required on site. The Construction Document plans and specifications will include the following:  Title sheet and general notes  Topographic survey and demolition plan  Grading and drainage plan  Hardscape plans  Detailed sheets for the various amenities and site improvements  Technical specifications, bid item descriptions incorporated into CITY provided “front end” specifications, Divisions I-VI Deliverables for Part 3 Construction Document Phase will include the following:  One (1) 24”x36” set of 95% complete PS&E documents in PDF format.  One (1) meeting to review and discuss the 95% PS&E submittal in PDF format. A set of Construction Documents and specifications will be submitted to CITY’s Project Manager and City of Fresno Building & Safety Department for Permit review and comments. The CONSULTANT will prepare CEQA Notice of Exemption (NOE) for the CITY’s transmittal to the State Clearinghouse or Fresno County Clerk, as determined necessary. Following the receipt of permit plan check comments from the CITY, the CONSULTANT will prepare Final Construction Document plans and specifications and resubmit for final backcheck and approval. Deliverables for Part 3 Final Construction Documents Phase will include the following:  One (1) 24”x36” set of 100% complete PS&E documents in PDF format.  One (1) original set of PS&E documents by the City. Part 4: Bidding Support Phase The CONSULTANT will assist the CITY during the bidding process by conducting a pre- bid meeting on-site, reviewing and responding to all the questions and RFIs submitted by contractors, and issuing addenda(s) as necessary. Part 5: Construction and Contract Administration Phase DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit A Page 25 of 30 The CONSULTANT will assist the CITY Project Manager and Construction Management Division (CMD) during construction of the site improvements by attending preconstruction meeting arranged by the CITY CMD; provide clarification, as requested, of construction documents and respond to contractor’s request for information (RFIs); visiting the site at appropriate intervals to observe the workmanship is in substantial conformance with the construction documents. Following completion of the site improvements, the CONSULTANT will prepare “As- grade” plans based on CITY confirmed elevations and submit the plans to the CITY of Fresno. Compensation of all services described above will be based on a percentage of the construction costs, as described in the attached Proposed Fee Budgets. Fees will be billed monthly in accordance with the work completed. Part 1: Schematic Design Phase (53%) $ 44,330.00 Part 2: Design Development Phase (0%) $ 0.00 Part 3: Construction Document Phase (35%) $ 28,900.00 Part 4: Bidding Support Phase (4%) $ 3,700.00 Part 5: Construction Phase Services (8%) $ 6,000.00 TOTAL PROFESSIONAL SERVICES FEE $ 82,930.00 Schedule Time allotted for each phase is described in Agreement Section1 Scope of Services and is summarized below. Part 1: Schematic Design Phase (53%) 135 calendar days Part 2: Design Development Phase (0%) 0 calendar days Part 3: Construction Document Phase (35%) 75 calendar days Part 4: Bidding Support Phase (4%) No defined duration Part 5: Construction Phase Services (8%) No defined duration DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit B Page 26 of 30 EXHIBIT B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (City) and Quad Knof Inc. (Consultant) Roeding Park Pickleball Court MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance, or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to the Consultant’s profession. MINIMUM LIMITS OF INSURANCE The Consultant, or any party the Consultant subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to the City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit B Page 27 of 30 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event the Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the the City, its officers, officials, employees, agents, and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS The Consultant shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and the Consultant shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the City, its officers, officials, employees, agents, and volunteers; or (ii) The Consultant shall provide a financial guarantee, satisfactory to the City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall the City be responsible for the payment of any deductibles or self- insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds. The Consultant shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed manuscript insurance company endorsement DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit B Page 28 of 30 providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 2. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees, agents, and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, the Consultant’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, agents, and volunteers shall be excess of the Consultant’s insurance and shall not contribute with it. The Consultant shall establish primary and non- contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: the Consultant and its insurer shall waive any right of subrogation against the City, its officers, officials, employees, agents, and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims- made form: 1. The retroactive date must be shown and must be before the effective date of the Agreement or the commencement of work by the Consultant. 2. Insurance must be maintained, and evidence of insurance must be provided for at least five years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five-year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims- made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by the Consultant, the Consultant must purchase “extended reporting” coverage for a minimum of five years after completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to the City for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to the City. The Consultant is also responsible for providing written notice to the City under the same terms and conditions. Upon issuance by the insurer, broker, or DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit B Page 29 of 30 agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, the Consultant shall furnish the City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for the City, the Consultant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish the liability of the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers, agents, employees, persons under the supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. VERIFICATION OF COVERAGE The Consultant shall furnish the City with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to the City’s execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of the City, the Consultant shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. SUBCONTRACTORS - If the Consultant subcontracts any or all of the services to be performed under this Agreement, the Consultant shall require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a separate side agreement with the City to provide required indemnification and insurance protection. Any required side agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by the City Risk Manager or designee. If no side agreement is required, the Consultant shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and the Consultant shall ensure that the City, its officers, officials, employees, agents, and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with the Consultant, and the City, prior to commencement of any work by the subcontractor. DPW-S Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit C Page 30 of 30 EXHIBIT C DISCLOSURE OF CONFLICT OF INTEREST Roeding Park Pickleball Court YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? ☐☐ 2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno? ☐ ☐ 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? ☐ ☐ 4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? ☐ ☐ 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? ☐ ☐ 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? ☐ ☐ * If the answer to any question is yes, please explain in full below. Explanation: Signature Date Name Company Address City, State, Zip ☐Additional page(s) attached. QK regularly performs work for both private and agency clients with the City of Fresno. This project would not conflict with any existing work in the City. June 28, 2023 Amber Aguayo Quad Knopf, Inc. dba QK 601 Pollasky Avenue, Suite 301 Clovis, CA 93612 X X X X X X Whites Bridge MapleBrawleyHerndon Bullard Shaw ClovisFowlerTemperanceWestPalmClovisFowlerTemperanceDe WolfShields McKinley Belmont ChestnutPeachAmerican CedarGrantlandHayesElmEastMarksWestWalnutCorneliaNorth California Jensen Ashlan GrantlandHayesCorneliaBrawleyMarksShaw Bullard Herndon Nees De WolfShields McKinley Belmont California Jensen North Kings Canyon AshlanPeachBehymer Copper Shepherd NeesBlackstoneFirstCedarChestnutGarfieldBryanPolkBlytheValentineVan NessFruitMaroaFresnoMillbrookMapleWillowDakota Clinton Olive Gettysburg Barstow Sierra Alluvial Nielsen Kearney Muscat Annadale Church WillowMinnewawaMalaga OrangeBryanSunnysideArmstrongLocanFigCherryHughesFruitPolkValentineBlytheAlluvial Sierra Barstow Perrin SunnysideArmstrongLocanClinton Olive Tulare Butler Church Annadale DakotaMinnewawaInternational Teague Roeding Park N 0 1.5 30.75 Miles Project ID: PC00279 Council District: 3 Roeding Park Pickleball CourtVICINITY MAP DEPARTMENT OFPUBLIC WORKS District 3 City_Limits W Olive AveW Olive Ave N West AveN West AveCopyright nearmap 2015 Roeding Park Pickleball Court Project890 W. Belmont Ave. Fresno CA 93728 Project ID: PC00279 Council District: 3 LOCATION MAPN 0 90 18045 Feet DEPARTMENT OFPUBLIC WORKS Exhibit ARoeding Park Pickleball Court Project Legend City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1065 Agenda Date:7/20/2023 Agenda #: 1.-HH. REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, PE, Director Public Works Department BY:ANDREW J. BENELLI, PE, City Engineer/Assistant Director Public Works Department, Traffic Engineering Division HARMANJIT DHALIWAL, PE, Public Works Manager Public Works Department, Land Planning Section SUBJECT RESOLUTION - Approving the Final Map of Tract No. 6402, and accepting dedicated public uses offered therein except for dedications offered subject to City acceptance of developer installed required improvements - located on East Alluvial Avenue west of North Willow Avenue (Council District 6) RECOMMENDATION Staff recommends the City Council adopt a resolution approving the Final Map of Tract No. 6402 and accepting the dedicated public uses offered therein, to authorize the Public Works Director or his designee to execute the subdivision agreement on behalf of the City. EXECUTIVE SUMMARY The Subdivider, Heritage Crossing Fresno, Inc., have filed for approval, the Final Map of Tract No. 6402, for a 15-lot, 28-unit duplex residential subdivision on East Alluvial Avenue west of North Willow Avenue on 3.26 acres. BACKGROUND The Fresno City Planning Commission on October 19, 2022 approved Vesting Tentative Map No. 6402 (Tentative Map) for a 15-lot, 28-unit duplex residential subdivision on 3.25 acres. The Tentative Map was approved consistent with the Fresno General Plan to comply with the provisions of the Subdivision Map Act. Tract No. 6402 is the first and last phase. The Final Map is technically correct and conforms to the approved Tentative Map, the Subdivision Map Act and the Fresno Municipal Code. The provisions of Section 66474.1 of the Subdivision Map Act require a final map that is in substantial compliance with the approved tentative map to be City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT R. 2023-210 APPROVED ON CONSENT File #:ID 23-1065 Agenda Date:7/20/2023 Agenda #: 1.-HH. approved by the City Council. The Subdivider has satisfied all other conditions of approval.The City Attorney’s Office has approved the Final Map. MAINTENANCE DISTRICT:A condition of approval of the Tentative Map is to maintain the concrete curbs and gutters,valley gutters,sidewalks and curb ramps,and street lighting associated with the Final Map in accordance with the adopted standards of the City.The Subdivider has satisfied the maintenance requirement by annexing the subdivision into the City’s CFD-9 on December 13, 2018. The Subdivider has executed the covenant for Maintenance of Certain Improvements and as a condition of the Subdivision Agreement,is required to provide every prospective purchaser of each lot of the subdivision the “Notice of Special Tax”,in accordance with the provision of Section 53341.5 of the California Government Code.The maximum annual assessment is $419.00 per lot with an annual 2%adjustment or by the rise of the Construction Cost Index (CCI),if it exceeds 2%for the San Francisco Region. ENVIRONMENTAL FINDINGS Pursuant to CEQA Guidelines Section 15268(b)(3),approval of final subdivision maps is a ministerial action and is exempt from the requirements of CEQA. LOCAL PREFERENCE Local preference was not considered because this resolution does not include a bid or award of a construction or services contract. FISCAL IMPACT The Final Map is located in Council District 6.There will be no impact to the City’s General Fund. Approval by the Council will result in timely deliverance of the review and processing of the Final Map as is reasonably expected by the Subdivider.Prudent financial management is demonstrated by the expeditious completion of this Final Map inasmuch as the Subdivider has paid the City a fee for the processing of this Final Map and that fee is,in turn,funding the respective operations of the Public Works Department. Attachment(s): Resolution Final Map of Tract No. 6402 City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ 2 of 3 WHEREAS, the Subdivider and the Owners, whose signatures appear on the map, and others have offered for dedication certain streets, public utility easements, access rights and other public properties and uses as shown and delineated upon said map; and, WHEREAS, the Planning Commission of the City of Fresno, by formal resolution, approved said tentative map. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Fresno as follows: 1. The Council finds that the map is in substantial compliance with said tentative map, any deviations therefrom being deemed to be approved by the Council. 2. That the map is hereby approved and any and all of the streets, public utility easements, public utility facilities, access rights and all parcels of land and easements offered for dedication on the map are hereby accepted, unless it is stated on the Final Map that said dedications are subject to City acceptance of Developer installed improvements, subject to complete compliance with Sections 66492 and 66493 of the Subdivision Map Act prior to release of the map for recordation. * * * * * * * * * * * * * * 3 of 3 STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of , 2023. AYES : NOES : ABSENT : ABSTAIN : TODD STERMER, CMC City Clerk BY: Deputy APPROVED AS TO FORM: ANDREW JANZ CITY ATTORNEY BY: Kristi Costa Date Senior Deputy City Attorney BARSTOW GARFIELDBRYANPOLKBLYTHEVALENTINEVAN NESSFRUITSIERRA ALLUVIAL GETTYSBURG DAKOTA CLINTON OLIVE NIELSON KEARNEY ANNADALE INTERNATIONAL PERRIN TEAGUE ALLUVIALMAROAFRESNOMILLBROOKMAPLEWILLOW MINNEWAWASUNNYSIDEARMSTRONGMAPLEORANGECHERRYFIGCHURCH BUTLER TULARE LOCANDAKOTA CLINTON OLIVE FRUITHUGHESVALENTINEBLYTHEPOLKBRYANN FINAL TRACT MAP NO. 6402 DISTRICT 6 TRAFFIC ENGINEERING DIVISION LAND PLANNING SECTION City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1031 Agenda Date:7/20/2023 Agenda #: 1.-II. REPORT TO THE CITY COUNCIL FROM:GREGORY A. BARFIELD, M.A., Interim Director Department of Transportation BY:CAROLINA ILIC, AICP, Assistant Director Department of Transportation SUSAN ROGERS, IS Supervisor Department of Transportation/IS Division SUBJECT Actions related to award of a contract with Trapeze Software Group, Inc. of Cedar Rapids, Iowa, in the amount of $1,189,131.00: 1. Affirm the City Manager’s determination that Trapeze Software Group, Inc. is uniquely qualified to perform maintenance services for existing Trapeze-based software products. 2. Affirm the City Manager’s determination that Trapeze Software Group, Inc. is uniquely capable as defined by the Federal Transit Administration for sole source non-competitive procurements, to perform software maintenance services for the Department of Transportation. 3. Award a three (3) year with two (2) 1-year options services contract to Trapeze Software Group, Inc. for the maintenance of existing Trapeze-based software products in the amount of $1,189,131.00. FAX anticipates expending $217,125 for the first year of this agreement, $225,517 the second year, and $236,793 the third and final year. This service contract includes two optional years, which FAX can opt to exercise. 4. Authorize the Director of Transportation or designee to execute all related documents. RECOMMENDATION Staff recommends Council affirm the City Manager’s determination that Trapeze Software Group, Inc. (Trapeze) is uniquely qualified and uniquely capable to perform maintenance on existing Trapeze- based software products and to authorize the Director of Transportation/Fresno Area Express (FAX) or designee, to execute all related documents and award a services agreement with Trapeze in the amount of $1,189,131.00. EXECUTIVE SUMMARY FAX seeks to continue its service contract with Trapeze by entering into a three (3) year with two (2) 1-year options providing a continuation of software maintenance for our Trapeze Transit Passenger City of Fresno Printed on 7/31/2023Page 1 of 4 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1031 Agenda Date:7/20/2023 Agenda #: 1.-II. 1-year options providing a continuation of software maintenance for our Trapeze Transit Passenger Application suite of products.These products are critical to the day-to-day transit operations, planning,and maintenance for the department.FAX has utilized most of these modules since 1997, and they must be maintained,updated,and upgraded.The proprietary nature of these software modules means that FAX realizes significant cost savings by working directly with Trapeze.FAX anticipates expending $217,125 for the first year of this agreement,$225,517 the second year,and $236,793 the third year.This service contract includes two optional one-year extensions,which FAX can opt to exercise. BACKGROUND FAX seeks to continue with its multi-year service contract through Trapeze providing continuation of software maintenance for Trapeze’s Transit Passenger Application suite of products critical to the day -to-day operations and maintenance of transit service.This suite of products consists of eleven (11) separate modules which collectively contain software to control and define bus routes,schedules, real-time information feeds,operator sign-in,dispatch of vehicles,workforce management, paratransit services,bus stop management,and rolling stock maintenance.More specifically,FAX uses the following Trapeze modules: Product Description FX Advanced scheduling tool for fixed route transit systems. Its comprehensive functionality automates time-consuming tasks and creates efficiencies throughout the scheduling process such as:·Route Definition -Creating network data (nodes, stops, patterns, and stop patterns)·Trip Building -Developing and maintaining running time data for schedule building ·Blocking - Combining trips into vehicle assignments ·Runcutting -Trapeze BlockBuster is integrated with FX to efficiently break blocks into driver assignments ·Rostering -Combining driver assignments into weekly packages (with assigned days off) for driver bidding BlockBuster Advanced runcutting tool for fixed route scheduling. It is seamlessly integrated with FX, combining powerful algorithms and comprehensive parameter settings to quickly generate cost-effective operator assignment scenarios. OPS Integrated operations and workforce management solution that automates many frequently performed tasks to quickly navigate daily objectives and maximize managerial performance. Can be used for drivers, mechanics, field staff, yard personnel, and dispatchers. Without limitation, this integrated solution is designed to automate:·Bidding ·Daily dispatch ·Yard and asset management · Workforce management ·HR and payroll integration ·Reporting OPS-SIT Automates sign-in and sign-out processes using a variety of low-cost employee identification technologies. Helps ensure that service is protected, freeing up window dispatcher to focus on other activities. FX-MON Provides fixed route schedule information built in FX to other Trapeze applications or to third parties. PASS Scheduling and dispatching application developed to support the transportation management efforts of demand response transit services while following guidelines from the ADA. Used for client registration, trip booking, real-time scheduling, and dispatching. PASS integrates Geographic Information System (GIS) mapping, enabling users to precisely geocode client addresses and destinations, calculate trip lengths and distances for accurate scheduling, and zoom in to view detailed information about the service area. PASS-MON Interface application that allows data transmission to and from Mobile Data Terminals (MDTs). Provides vehicle itineraries to MDTs and receives real time tracking information (GPS location, event timings, etc.) back into PASS. PASS-COM Allows the agency to track and monitor complaints. EAM - FA & InfoCenter Tracks all transit infrastructure for which FAX is responsible, including rolling stock, facilities assets, maintenance equipment, etc. GTFS - Static Exports interface application designed to push out fixed route schedule information in the General Transit Feed Specification (GTFS) format necessary to upload the data to Google Transit. PASS - INFO Server Allows third party Interactive Voice Response (IVR) systems to retrieve trip and client information from PASS. City of Fresno Printed on 7/31/2023Page 2 of 4 powered by Legistar™ File #:ID 23-1031 Agenda Date:7/20/2023 Agenda #: 1.-II. Product DescriptionFXAdvanced scheduling tool for fixed route transit systems. Its comprehensivefunctionality automates time-consuming tasks and creates efficiencies throughoutthe scheduling process such as:·Route Definition -Creating network data(nodes, stops, patterns, and stop patterns)·Trip Building -Developingand maintaining running time data for schedule building ·Blocking -Combining trips into vehicle assignments ·Runcutting -TrapezeBlockBuster is integrated with FX to efficiently break blocks into driverassignments·Rostering -Combining driver assignments into weeklypackages (with assigned days off) for driver biddingBlockBusterAdvanced runcutting tool for fixed route scheduling. It is seamlessly integratedwith FX, combining powerful algorithms and comprehensive parameter settings toquickly generate cost-effective operator assignment scenarios.OPS Integrated operations and workforce management solution that automates manyfrequently performed tasks to quickly navigate daily objectives and maximizemanagerial performance. Can be used for drivers, mechanics, field staff, yardpersonnel, and dispatchers. Without limitation, this integrated solution is designedto automate:·Bidding ·Daily dispatch ·Yard and asset management ·Workforce management ·HR and payroll integration ·ReportingOPS-SIT Automates sign-in and sign-out processes using a variety of low-cost employee identification technologies. Helps ensure that service is protected, freeing up window dispatcher to focus on other activities. FX-MON Provides fixed route schedule information built in FX to other Trapeze applications or to third parties. PASS Scheduling and dispatching application developed to support the transportation management efforts of demand response transit services while following guidelines from the ADA. Used for client registration, trip booking, real-time scheduling, and dispatching. PASS integrates Geographic Information System (GIS) mapping, enabling users to precisely geocode client addresses and destinations, calculate trip lengths and distances for accurate scheduling, and zoom in to view detailed information about the service area. PASS-MON Interface application that allows data transmission to and from Mobile Data Terminals (MDTs). Provides vehicle itineraries to MDTs and receives real time tracking information (GPS location, event timings, etc.) back into PASS. PASS-COM Allows the agency to track and monitor complaints. EAM - FA & InfoCenter Tracks all transit infrastructure for which FAX is responsible, including rolling stock, facilities assets, maintenance equipment, etc. GTFS - Static Exports interface application designed to push out fixed route schedule information in the General Transit Feed Specification (GTFS) format necessary to upload the data to Google Transit. PASS - INFO Server Allows third party Interactive Voice Response (IVR) systems to retrieve trip and client information from PASS. FAX has utilized most of these passenger modules since 1997. As with any other asset,these modules must be maintained,updated,and upgraded.The proprietary nature of these software modules means that FAX realizes significant cost savings by working directly with Trapeze versus using an outside vendor to custom-build the necessary software and integrations to maintain the Transit Passenger Application software.An independent cost analysis (ICE) was conducted on January 11, 2023, and supports this conclusion. Many of these modules were purchased at different times,with the initial years of product maintenance included.As these individual maintenance agreements term out,it is more practical from a contract administration and price perspective to consolidate them into a single maintenance agreement. After careful research,FAX staff have determined that Trapeze’s software best meets these needs, including integration with existing software products. The City Attorney has approved the contract as to form. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378,the award of this contract does not qualify as a “project.” LOCAL PREFERENCE City of Fresno Printed on 7/31/2023Page 3 of 4 powered by Legistar™ File #:ID 23-1031 Agenda Date:7/20/2023 Agenda #: 1.-II. Local preference is not applicable because the service provider is uniquely qualified. FISCAL IMPACT This contract has no fiscal impact to the General Fund. The contract will be funded by Federal Transit Administration Program 5307 funds. FAX enterprise funds will make up the required local match. Appropriations were included and are available in the FAX FY24 budget. Attachments: Uniquely Qualified Memo Service Contract City of Fresno Printed on 7/31/2023Page 4 of 4 powered by Legistar™ SERVICE AGREEMENT CITY OF FRESNO, CALIFORNIA THIS AGREEMENT (Agreement or Contract) is made and entered into effective the 1st day of July 2022, by and between the CITY OF FRESNO, a California municipal corporation (City or Recipient or Purchaser), and TRAPEZE SOFTWARE GROUP, INC., a Delaware corporation (Service Provider or Contractor). RECITALS WHEREAS, City desires to obtain maintenance services for the software set forth in Exhibit A (Project); and WHEREAS, City desires to obtain licenses for additional Trapeze Software and implementation services for said additional Trapeze Software; and WHEREAS, Service Provider is engaged in the business of furnishing such software and services and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, Service Provider acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107; and WHEREAS, this Agreement will be administered for City by its Director of Transportation (Administrator) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and premises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. Service Provider shall perform the services described in Exhibit A, Exhibit F, and Exhibit G including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A, Exhibit F and Exhibit G. 2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above (Effective Date) and shall continue in full force and effect through June 30, 2025, subject to any earlier termination in accordance with this Agreement. The maintenance services of Service Provider as described in Exhibit A are to commence upon the Effective Date and shall be completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed prior to expiration of this Agreement and in accordance with any performance schedule set forth in Exhibit A. The software license services of Service Provider as described in Exhibit F and Exhibit G shall commence and be completed as set forth in Exhibit G Statement of Work. 3. Compensation. (a) Service Provider’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be the current fee set forth per year, paid in advance on the basis of the rates set forth in the schedule of fees and expenses contained in Exhibit A and Exhibit G, which are attached hereto and incorporated by reference. Such fee includes all expenses incurred by Service Provider in performance of the services. (b) Detailed statements shall be rendered on an as-needed basis for services performed for all charges in excess of or addition to the total annual “base” charge reflected in the pricing payment schedule in Exhibit A, Attachment B, Pricing, including charges set forth in Exhibit G, and will be payable in the normal course of City business. City shall not be obligated 1 Generic Service Provider Total Fee (01-11-16) to reimburse any expense for which it has not received a detailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. (c) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to Service Provider’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. Service Provider shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. 4. Termination, Remedies, and Force Majeure. (a) This Agreement shall terminate, in whole or in part, without any liability of City to Service Provider upon the earlier of : (i) Service Provider’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against Service Provider; (ii) ninety (90) calendar days’ prior written notice with or without cause by either party to the other party; (iii) City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. During the ninety (90) calendar day notice period, the applicable maintenance fees will remain payable. Prior to Agreement being terminated for cause, City shall allow Service Provider adequate opportunity to cure. (b) Immediately upon any termination or expiration of this Agreement, Service Provider shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to City any and all unearned payments on a prorated basis and all properties and materials in the possession of Service Provider that are owned by City. Subject to the terms of this Agreement, Service Provider shall be paid compensation for services satisfactorily performed prior to the effective date of termination. Service Provider shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In no event shall any payment by City pursuant to this Agreement constitute a waiver by City of any breach of this Agreement which may then exist on the part of Service Provider, nor shall such payment impair or prejudice any remedy available to City with respect to the breach. (d) Upon any breach of this Agreement by Service Provider, City may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct damages, for the breach of the Agreement as awarded by a court of competent jurisdiction. If it is determined that City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) Service Provider shall provide City with adequate written assurances of future performance, upon Administrator’s request, in the event Service Provider fails to comply with any terms or conditions of this Agreement. (f) Service Provider shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of Service Provider and without its fault or negligence such as, acts of God or the public enemy, acts of City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. Service Provider shall notify Administrator in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Administrator of the cessation of such occurrence. 2 Generic Service Provider Total Fee (01-11-16) 5. Confidential Information and Ownership of Documents. (a) Any reports, information, or other materials prepared or assembled by Service Provider pursuant to this Agreement pursuant to the City’s data shall not be made available to any individual or organization by Service Provider without the prior written approval of the Administrator. During the term of this Agreement, and thereafter, Service Provider shall not, without the prior written consent of City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of City, including but not limited to business plans, marketing plans, financial information, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in City. (b) Service Provider shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. (c) If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each subcontractor to also comply with the requirements of this Section 5. (d) Service Provider acknowledges that City is subject to the California Public Records Act (California Government code Sections 6250 et. seq.) (Act) regarding the disclosure of public records. This Agreement constitutes a public record available for public inspection. If Service Provider, in the course of work under this Agreement, provides proprietary information (Confidential Information) to City, such Confidential Information shall be clearly marked by Service Provider with the legend, “Company Confidential,” “Trade Secret,” or another appropriate proprietary legend. If City receives a request for information, the City will notify Service Provider of such request. In the event City discloses Service Provider’s Confidential Information (following notification to Service Provider) that is legally required to be disclosed under the Act in response to a Public Records Act request from a third party pursuant to the Act, Service Provider agrees to release and hold City harmless from any and all liability owing to Service Provider as a result of such disclosure. Notwithstanding the other provisions of this Article, nothing received by City hereunder shall be construed as Confidential Information which (i) is or becomes available to the public other than by a breach of this Agreement by a party hereto; (ii) is rightfully received by one party hereunder from another party not obligated to this Agreement, and without confidential limitations; (iii) is known by or independently developed by the receiving party; (iv) is approved for release by that party designating the information as confidential; or (v) has been developed by City under this Agreement. (e) The user documentation and training materials pertaining to the system as supplied by Service Provider (Documentation) whether proprietary to Service Provider or a third party, is licensed to City. Ownership of any intellectual property contained in the Documentation shall remain the sole and exclusive property of Service Provider or any applicable third party as the case may be. City shall not copy, modify, reverse engineer, or disassemble the Documentation or permit others to do such to the Documentation; provided, however, that City may make copies of the Documentation as necessary for back up, testing, integration and data- warehousing purposes to operate the System. City shall not transfer the license granted hereby or possession of the Documentation. (f) This Section 5 shall survive expiration or termination of this Agreement. 6. Level of Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as Service Provider represents to City that Service Provider and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said industry necessary to perform the services agreed to be done by it under this Agreement, City relies upon the skill of Service Provider and its subcontractors, if any, to do and 3 Generic Service Provider Total Fee (01-11-16) perform such services in a skillful manner and Service Provider agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by City shall not operate as a release of Service Provider or any subcontractors from said industry and professional standards. 7. Indemnification. To the furthest extent allowed by law, Service Provider shall indemnify and defend City and each of its officers, officials, employees, and agents from any third party suits, actions, and claims, all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including personal injury, death at any time and tangible property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses) that arise solely out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Service Provider, its principals, officers, employees, or agents in the performance of this Agreement (Third Party Claim), provided that: (a) City shall promptly give written notice to Service Provider after obtaining knowledge of any potential or actual Third Party Claim against City if recovery being sought against Service Provider is due to the indemnity set forth above; (b) Service Provider will have the right to defend City against any such Third Party Claim with counsel of Service Provider’s choice. In addition, City may retain separate co-counsel, at its sole cost and expense, to monitor the defense of the Third Party Claim, provided however, that Service Provider shall have the right to control the defense of such Third Party Claim in Service Provider’s sole discretion. (c) City will not consent to the entry of any judgment with respect to such Third Party Claim without the prior written consent of Service Provider. (d) City will not enter into any settlement with respect to such Third Party Claim without the prior written consent of Service Provider. (e) City shall cooperate with all reasonable request of Service Provider in connection with the defense of such Third Party Claim; and (f) To the extent reasonably possible, City shall use its good faith efforts to mitigate any losses against which Service Provider is obligated to indemnify City pursuant to this Section. If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall require each subcontractor to indemnify, and defend City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement, provided the subject matter of the indemnity occurred during the term of the Agreement. 8. Insurance. (a) Throughout the life of this Agreement, Service Provider shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. (b) If at any time during the life of the Agreement or any extension, Service Provider or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments 4 Generic Service Provider Total Fee (01-11-16) due or that become due to Service Provider shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. No action taken by City pursuant to this section shall in any way relieve Service Provider of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by Service Provider shall not be deemed to release or diminish the liability of Service Provider, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City shall apply to all claims and liability under the provisions of this Agreement regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Service Provider. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability under the provisions of this Agreement nor limit the liability of Service Provider, its principals, officers, agents, employees, or persons under the supervision of Service Provider, vendors, suppliers, invitees, Service Providers, sub-Service Providers, subcontractors, or anyone employed directly or indirectly by any of them. (d) Upon request of City, Service Provider shall promptly furnish City with a copy of an insurance certificate on the Accord form as required under this Agreement, including all endorsements. This requirement shall survive expiration or termination of this Agreement. (e) If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall require each subcontractor/sub- Service Provider to provide insurance protection in favor of the City, to the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsement certificates, which shall be on file with Service Provider and City prior to the commencement of any services by the subcontractor. 9. Conflict of Interest and Non-Solicitation. (a) Prior to City’s execution of this Agreement, Service Provider shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, Service Provider shall have the obligation and duty to promptly notify City in writing of any change to the information provided by Service Provider in such statement. (b) Service Provider shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state, and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.). Service Provider shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, Service Provider shall promptly notify City of these facts in writing. (c) In performing the work or services to be provided hereunder, Service Provider shall not employ or retain the services of any person while such person either is employed by City or is a member of any City council, commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. 5 Generic Service Provider Total Fee (01-11-16) (d) Service Provider represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit, or procure this Agreement or any rights/benefits hereunder. (e) Service Provider and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. Notwithstanding any approval given by the City Manager under this provision, Service Provider shall remain responsible for complying with Section 9(a), above. (f) If Service Provider should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, Service Provider shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. 10. Recycling Program. In the event Service Provider maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, Service Provider at its sole cost and expense shall: (i) Promptly establish and maintain a viable and ongoing recycling program, approved by City’s Solid Waste Management Division, for each office and facility. Literature describing City recycling programs is available from City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621- 1111. (ii) Promptly contact City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (iii) Cooperate with and demonstrate to the satisfaction of City’s Solid Waste Management Division the establishment of the recycling program in paragraph (i) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Administrator or designee. (b) Records of Service Provider’s expenses for those charges in excess of the total annual “base” charge reflected in the pricing and payment schedule in Exhibit A, Attachment B, and in Exhibit G, shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives upon request at Service Provider’s offices, during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of Service Provider pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to City until such action is resolved, or until the end of said time period whichever shall later occur. If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. 12. Nondiscrimination. To the extent required by controlling federal, state, and local law, Service Provider shall not employ discriminatory practices in the provision of services, 6 Generic Service Provider Total Fee (01-11-16) employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, Service Provider agrees as follows: (a) Service Provider will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) Service Provider will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Service Provider shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to Service Provider’s employment practices including, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Service Provider agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) Service Provider will, in all solicitations or advertisements for employees placed by or on behalf of Service Provider in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran, or veteran of the Vietnam era. (d) Service Provider will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of Service Provider’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, Service Provider is acting solely as an independent contractor. Neither Service Provider, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of City for any purpose. City shall have no right to control or supervise or direct the manner or method by which Service Provider shall perform its work and functions. However, City shall retain the right to administer this Agreement so as to verify that Service Provider is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between Service Provider and City. Service Provider shall have no authority to bind City absent City’s express written consent. Except to the extent otherwise provided in this Agreement, Service Provider shall bear its own costs and expenses in pursuit thereof. 7 Generic Service Provider Total Fee (01-11-16) (c) Because of its status as an independent contractor, Service Provider and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to City employees. Service Provider shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, Service Provider shall be solely responsible, indemnify, and defend the City from all matters relating to employment and tax withholding for and payment of Service Provider’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in City employment benefits, entitlements, programs and/or funds offered employees of City whether arising by reason of any common law, de facto, leased, or co- employee rights or other theory. It is acknowledged that during the term of this Agreement, Service Provider may be providing services to others unrelated to City or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 16. Assignment. (a) This Agreement is personal to Service Provider and there shall be no assignment by Service Provider of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by Service Provider, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. Notwithstanding the foregoing, Service Provider may assign its rights and interests by way of internal merger or acquisition with notice to City. (b) Service Provider hereby agrees not to assign the payment of any monies due Service Provider from City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). City retains the right to pay any and all monies due Service Provider directly to Service Provider. 17. Compliance With Law. In providing the services required under this Agreement, Service Provider shall at all times comply with all applicable laws of the United States, the State of California and City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any 8 Generic Service Provider Total Fee (01-11-16) conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. The parties specifically exclude the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity or unenforceability of any one provision in this Agreement shall not affect the other provisions. 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses as awarded by a court of competent jurisdiction. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral including those terms which may be contained on City’s Purchase Order. This Agreement may be modified only by written instrument duly authorized and executed by both City and Service Provider. No other terms, conditions, representation, warranties, or guarantees shall form a part hereof or have any legal effect whatsoever. 29. Federal Clauses. Notwithstanding the anything in this Agreement to the contrary, the parties agree that: (i) Service Provider shall be subject to the federal, state, and local government requirements set forth in Exhibit D as they apply to Trapeze’s performance of this agreement; and (ii) the products sold and software licensed hereunder are off-the-shelf, such federal, state, and local government requirements shall: a) be in effect only to the extent that such clauses are applicable to the subject matter hereof; b) recognize that no DBE contract goal has been established for this contract; 9 Generic Service Provider Total Fee (01-11-16) c) not transfer ownership of any intellectual property; d) not include any bond requirements for this agreement; e) not include any company policies that are outside of the applicable statutory requirements; f) not include any additional rights or remedies not found in the body of the Agreement (including but not limited to additional audit rights); g) not include any liquidated damages; h) be applicable, for audit purposes, at Trapeze’s location during normal business hours; and i) not include any requirement that requires Trapeze to give up any of its legal rights. Further, should such federal, state, and local government requirements cause the scope, schedule, or deliverables to change, then that parties agree that Service Provider shall be allowed an equitable adjustment. 30. Accessible Information and Communication Technology (ICT) Requirements. The contractor/consultant/vendor of Information and Communication Technology (ICT) content/products/services is required to provide deliverables that satisfy the accessibility requirements of the ADA, Section 508, and conform to Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0 AA), or the most recent WCAG version. Prior to execution and renewal (if applicable) of contract, contractor/consultant/vendor is required to utilize a Voluntary Product Accessibility Template (VPAT) 2.0, or the most recent VPAT version to submit an Accessibility Conformance Report. Using the report, the City will make a determination if the content/product/service substantially meets applicable accessible standards or best meets the standards and is consistent with the business need. In such instances in which the content/product/service is non-conforming the contract may be denied, or the contractor/consultant/vendor may be asked to provide a reasonable timeline for remediation of areas of non-conformance. Definitions: Information and Communication Technology (ICT) is information technology and other equipment, systems, technologies, or processes, for which the principal function is the creation, manipulation, storage, display, receipt, or transmission of electronic data and information, as well as any associated content. Examples of ICT include but are not limited to: computers and peripheral equipment; information kiosks and transaction machines; telecommunications equipment; customer premises equipment; multifunction office machines; software; applications; websites; videos; and, electronic documents. Web Content Accessibility Guidelines 2.0 standards (WCAG 2.0), or the most recent WCAG version, created by the World Wide Web Consortium (W3C) Web Accessibility Initiative (WAI), define how to make web content more accessible to people with disabilities. Testable success criteria are provided to allow WCAG 2.0 to be used where requirements and conformance testing are necessary; Level AA is the median level of conformance and the minimum acceptable level for accessibility. WCAG 2.0 is written to be technology neutral, and the success criteria and conformance requirements can be applied to all electronic content. Section 508 of the Rehabilitation Act of 1973 (Section 508) requires federal agencies and entities receiving federal funds to meet specific accessibility standards for electronic information and technology; the City of Fresno is an entity that receives federal funds. Section 508 of the Rehabilitation Act of 1973 (Section 508) requires federal agencies and entities receiving federal funds to meet specific accessibility standards for electronic information and technology; the City of Fresno is an entity that receives federal funds. 10 Generic Service Provider Total Fee (01-11-16) Accessible Document Requirements Documents must be provided as accessible PDFs or in another alternate accessible format. Accessible PDFs are PDF documents created so that they are not read solely as an image by assistive technology and screen readers. This is usually achieved through the use of tags, or a structured, textual representation of the PDF that is presented to screen readers but have no visible effect on the PDF file. 31. Miscellaneous. Trapeze can certify that Trapeze and its parent companies CSI USA Inc., and Trapeze Software ULC comply with the requirements set forth in Exhibit D, Sections entitled Suspension and Debarment, and Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment. Trapeze is a subsidiary of Constellation Software Inc. (“CSI”). CSI own hundreds of subsidiaries that operate independently of one another all over the world. Unfortunately, because of this, Trapeze is not able to answer or certify in respect to its hundreds of affiliates. Therefore, Trapeze can only certify in respect to itself and its immediate parent companies CSI USA Inc., and Trapeze Software ULC. [Signatures follow on the next page.] IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written. City OF FRESNO, a California municipal corporation By: Gregory A. Barfield, Interim Director, Dept.of Transportation APPROVED AS TO FORM: City Attorney BRANDON COLLET By: Date Brandon Collet Supervising Deputy City Attorney ATTEST: TODD STERMER, CRM MMC City Clerk By: TRAPEZE SOFTWARE GROUP, INC. A Delaware Corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Deputy Addresses: CITY: City of Fresno Attention: Carolina Ilic, Assistant Director 2223 G Street Fresno, CA 93706 Phone: (559) 621-1499 FAX: (559) 488-1065 Attachments: 1.Exhibit A - Scope of Services 2.Exhibit B - Insurance Requirements 3.Exhibit C - Conflict of Interest Disclosure Form 4.Exhibit D – Federal Requirements 5.Exhibit E – Lobbying Certification 6.Exhibit F – Software License Agreement 7.Exhibit G – Statement of Work SERVICE PROVIDER: Trapeze Software Group, Inc. Attention: Arlene English 5265 Rockwell Dr Cedar Rapids, IA 52402 Phone: 319-743-4522 12 Generic Service Provider Total Fee (01-11-16) EXHIBIT A SCOPE OF SERVICES Service Agreement between City of Fresno and TRAPEZE SOFTWARE GROUP, INC. PROFESSIONAL TRANSIT SOFTWARE MAINTENANCE SERVICES FOR LICENSED TRANSPORTATION PASSENGER SOFTWARE SUITE Trapeze Software Group, Inc. ("Seller", "Trapeze", or “CONSULTANT”) hereby agrees to furnish Software and other named maintenance services consisting of the necessary labor, and testing of all City of Fresno ("Buyer", "City", “Fresno Area Express”, or “FAX”) Software listed in Attachment A in accordance with the terms and conditions of the Agreement to which this Exhibit A is attached. Buyer agrees to use Seller as the maintenance vendor for all Software listed. Buyer agrees to purchase and pay for such services subject to the following terms and conditions: WHEREAS Buyer wishes to participate in Seller's annual maintenance program; WHEREAS Seller is the owner of the rights to certain software identified under Attachment A (Collectively “Software”), including copyright, trademark, trade secret and other intellectual property rights; WHEREAS Seller has granted Buyer certain rights regarding the Software that enable Buyer to use the Software under the terms and conditions specified under the granted license; and WHEREAS, The Software covered by this Exhibit are identified in Attachment A, Schedule of Covered Software, and pricing for this coverage is identified in Attachment B, Pricing Schedule. NOW, THEREFORE, the parties agree as follows: 1) DEFINITIONS. A. Updates and Upgrades: Those improvements to the Software that Seller generally makes available as part of the annual maintenance program. B. Priority One (1) Variance: An Software performance anomaly resulting in the loss or use of critical system functions to the extent that such loss affects the safety of the public and/or personnel. C. Priority Two (2) Variance: An Software deficiency of lesser severity than a Priority One (1) that does not substantially reduce the capability of the system to accomplish its primary system functions (e.g., vehicle communications and AVL). Priority Two (2) Variances indicate functional and/or performance deficiencies, but the system is still capable of accomplishing its primary system functions with a satisfactory degree of safety and effectiveness. A Priority One (1) Variance for which an acceptable workaround has been established shall be reassigned to a Priority Two (2). D. Service Notification: A notification or bulletin provided by Seller that describes a change to Software. E. Trade Secrets: Any information proprietary to either party (including software source code), concerning a design, process, procedure, formula, or improvement that is commercially valuable and secret (in the sense that the confidentiality of such information affords a competitive advantage to the owner), but shall not include any information that (1) is or becomes generally known to the public through no fault of the recipient; (2) is obtained without restriction from an independent source having a bona fide right to use and disclose such information, without restriction as to further use or disclosure; (3) the recipient independently develops through persons who have not had access to such information; or (4) the disclosing party approves for unrestricted release by written authorization. F. Trapeze Software ("Software"): The Trapeze proprietary software applications identified in Attachment A of this Exhibit. 2) MAINTENANCE SERVICES PROVIDED. Seller agrees to provide the following Software maintenance services during the term of this Agreement: A. Seller shall maintain the Software in conformity, and in all material respects, with the descriptions and specifications of the Software in effect at the time of the execution of this Agreement including this Exhibit; B. Seller shall send Buyer mailings regarding Updates and Upgrades of the Software; C. Seller shall provide phone support to Buyer’s authorized callers to assist with troubleshooting of installation, configuration, and operational problems of covered Software. i. Calls received for Priority One (1) Variances shall be returned within one (1) hour. ii. Calls received for Priority Two (2) Variances shall be returned within four (4) hours. iii. Calls received for Priority Three (3) shall be returned within one (1) business day. iv. Calls received for Priority Four (4) shall be returned within two (2) business days. The toll free number for all calls to Seller is 1‐877‐411‐8727. Buyer shall provide Seller with remote access to Buyer’s computers on which the Software is installed. Seller shall provide Updates and Upgrades to the Software via remote connection or at its sole discretion, load the software onto the system while on site. All media used to load software on‐site shall remain in the possession and control of Seller. Should the Buyer request any on‐site maintenance services, Seller reserves the right to charge its standard applicable service fees plus expenses related to such services. Seller does not represent or warrant that (a) the Software shall meet any or all of Buyer’s particular requirements; (b) the operation of the Software shall be error‐free or uninterrupted. 3) TERM OF THIS AGREEMENT. The term of this Agreement shall commence on the Effective Date set forth in the Agreement, and shall continue through June 30, 2025, unless (1) this Agreement is cancelled in accordance with Article 4 of the Agreement, Termination, Remedies, and Force Majeure; or (2) this Agreement is changed pursuant to Article 16. 4) OPTION TO RENEW Option to Renew for two (2) additional one (1) year periods is provided for in Attachment B. Buyer must exercise the option to renew prior to expiration of this Agreement including this Exhibit. If more than one (1) option to renew is contained in Attachment B, Buyer must exercise any subsequent option to renew prior to the expiration of the then current option. 5) PAYMENT AND PRICING TERMS. Buyer shall pay Seller on a "firm fixed price" basis, in US dollars, in accordance with the Maintenance Plan Fees, attached to and, by this reference, incorporated into this Agreement including this Exhibit. Terms of payment shall be net thirty (30) days from date of invoice. If Buyer determines that an invoice does not comply with the terms of this Agreement including this Exhibit, Buyer shall notify Seller in writing, via certified mail, within seven (7) business days of receipt of invoice. Buyer shall pay all undisputed portions of the invoices submitted by Seller within the payment terms stated herein. In the event Buyer declines, for any reason, to pay any invoice(s) when due, in addition to any other rights reserved hereunder, Seller reserves the right to suspend or limit performance until all past due sums are paid. In addition, Seller reserves the right to assess a monthly fee of two percent (2%) of the open balance payable to Seller by Buyer. Buyer understands and agrees that the two percent (2%) fee constitutes an administrative cost rather than a penalty. Time and Material rates are subject to change with notice and are set forth under Attachment B. Time and Material rates shall apply to any repair services for any Software covered under Article 7, EQUIPMENT AND SOFTWARE EXCLUDED FROM MAINTENANCE SERVICE COVERAGE. Seller shall invoice Buyer at the address set forth below for services provided hereunder. Invoice address: Fresno Area Express Administration Attn: Information Services Supervisor 2223 G Street Fresno, CA 93706 6) TAXES AND FEES. The prices stated do not include any state, federal or local sales or excise taxes, or duties, now in force or which may be enacted in the future, and may be applicable to the sale, delivery or use of goods. Buyer expressly agrees to pay Seller, in addition to the prices stated, the amount of any such taxes which may be imposed upon or payable by Seller. Buyer shall provide tax exemption certificate if Buyer is tax exempt. 7) SOFTWARE EXCLUDED FROM MAINTENANCE SERVICE COVERAGE. In the event that Software covered under the Agreement is (i) subjected to any of the conditions below by Buyer or any Third Parties or (ii) excluded from maintenance services by notification of Seller, such Software shall be excluded from maintenance service coverage. A. Software subjected to carelessness or negligence; B. Software subjected to cannibalization or vandalism; C. Software subjected to alteration or repair in a manner which conflicts with Seller’s written repair procedures, specifications, and license terms; D. Software subjected to inadequate packing, storage or handling; E. Software subjected to fire, wind, flood, leakage, collapse, lightning, explosion, or other Acts of God, including but not limited to, Acts of War (declared or undeclared), terrorism, or the public enemy; F. Software altered as a result of Third Party service bulletins; G. Software excluded from maintenance services through a ninety (90) calendar day notification by Seller. The parties further agree that the above maintenance services shall not include services which may be required to identify or correct errors, defects or performance issues in the Trapeze Software which are caused by the actions or omissions of the Buyer, its employees, contractors or vehicle riders. 8) NOT USED. 9) NOT USED. 10) NOT USED. 11) NOT USED. 12) NOT USED. 13) NOT USED. 14) DOCUMENTATION OF SOFTWARE DIFFICULTY. Upon the identification of a possible fault or difficulty within any of the Software to be supported hereunder, Buyer shall promptly issue a trouble report to Seller that shall include the following information: A. Date of performance anomaly; B. Software module in question and location of where Software is installed; C. Detailed system description of performance anomaly; D. Part number or version number of Software and severity/ impact to Buyers operations; and E. Contact name and phone number. The trouble report information shall also be communicated verbally to Seller at 1‐866‐778‐5572. Seller shall forward the trouble report to the designated repair technician. 15) CHANGES TO SOFTWARE. Seller may issue Service Notifications indicating recommended or mandatory changes to the Software covered under this Agreement. 16) CHANGES TO AGREEMENT. Seller and Buyer may, by mutual agreement and subsequent written amendment, make changes to this Agreement including this Exhibit. Implementation of any change not covered under this Agreement including this Exhibit shall be chargeable in accordance with Seller's current pricing. In addition, Buyer shall be entitled to acquire a license to new products at Seller’s then current license fees. Upgrades and new products will be provided with updated documentation where available and appropriate. 17) LIMITATION OF LIABILITY. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITIATION, DAMAGES FOR LOSS OF PROFITS, OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OF OR INABILITY TO USE ANY PRODUCT, OR ASSOCIATED SOFTWARE DESCRIBED HEREINEITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER PRODUCT, EQUIPMENT, SOFTWARE OR OTHER MATERIALS EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES. SELLER'S TOTAL AGGREGATE LIABILITY HEREUNDER WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE FEES PAID TO SELLER DURING INITIAL MAINTENANCE TERM. 17) NOT USED. 18) NOT USED. 19) PATENT, PROPRIETARY RIGHTS, COPYRIGHT AND TRADEMARK INDEMNITY. Seller shall retain all rights in patents, copyrights, trademarks, and trade secrets. Furthermore, neither the Agreement nor the delivery of any work hereunder shall be construed as granting, either by estoppel or otherwise, any right in, or license under, any present or future data, drawings, plans, ideas or methods disclosed in this Agreement or under any invention, patent, copyright or trade secret now or hereafter owned or controlled by Seller. Software utilized under this Agreement is proprietary and ownership of the software remains with Seller and/or its subcontractors, as the case may be. Subject to Article 5 of the Agreement, Buyer agrees to: (1) take reasonable steps to maintain Seller’s and subcontractors rights in the software; (2) not sell, transfer, publish, display, disclose, or make available the software, or copies of the software, to third parties except where Buyer may disclose the software to designated federal representatives under a nondisclosure agreement executed by both parties, (3) not use or allow to be used, the software either directly or indirectly for the benefit of any other person or entity, and (4) not use the software, along with its Updates, patches or Upgrades, on any equipment other than the equipment on which it was originally installed, without Seller’s written consent. Seller agrees that it will defend, at its own expense, all suits against Buyer for infringement of any United States patent or copyright which covers, or alleges to cover, the product described herein in the form sold by Seller. Seller agrees that it will pay all sums, which, by final judgment or decree in any such suits, may be assessed against Buyer on account of such infringement, provided that Seller shall be given (i) prompt written notice of all claims of any such infringement and of any suits brought or threatened against Buyer and (ii) authority to assume the sole defense thereof through its own counsel and to compromise or settle any suits so far as this may be done without prejudice of the right of Buyer to continue the use, as contemplated, of the product so purchased. If, in any such suit so defended, the product is held to constitute an infringement and its use is enjoined, or if in the light of any claim of infringement Seller deems it advisable to do so, Seller may either procure the right to continue the use of the same for Buyer, or replace the same with a non‐infringing product, or modify said product so as to be non‐infringing, or, if the foregoing options are not reasonably available, take back the infringing product and refund the purchase price less a reasonable allowance for use, damage or obsolescence. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES HERETO FOR PATENT AND/OR COPYRIGHT INFRINGEMENT. 20) NOT USED. 21) NOT USED. 22) NOT USED. 23) DISPUTES. The Parties shall attempt to resolve any dispute arising out of or relating to this Agreement promptly by negotiation in good faith between executives who have the authority to settle the dispute. Either Party shall give the other Party written notice of any dispute not resolved in the ordinary course of business. Within seven (7) business days after delivery of such notice, the Party receiving notice shall submit to the other a written response thereto. All reasonable requests for information made by one Party to any other shall be honored in a timely fashion. All negotiations conducted pursuant to this Article (and any of the Parties' submissions in contemplation hereof) shall be kept confidential by the Parties and shall be treated by the Parties and their representatives as compromise and settlement negotiations under the Federal Rules of Evidence and any similar state rules. 24) NOT USED. 25) TRADE SECRETS. Buyer acknowledges that all Trade Secrets relating to or concerning the Software, including any modifications made thereto, are owned by Trapeze or Trapeze has the applicable rights of use and Buyer will maintain the Trade Secrets in strict confidence and not disclose the Trade Secrets to any third party without Seller’s prior written consent. Buyer shall prohibit any persons other than Buyer employees from using any components of the Software and Buyer shall restrict the disclosure and dissemination of all Trade Secrets reflected in the Software to Buyer employees who are bound to respect the confidentiality of such Trade Secrets. These obligations of confidentiality will survive termination of the Agreement. 26) MEDIA AND PUBLICATION. Upon reasonable notice and consultation with the Buyer, Seller shall be entitled to publish press releases and other general marketing information related to the Agreement and the work done hereunder. Except for the foregoing, and subject to the strict requirements of the law, neither party will communicate with representatives of the general or technical press, radio, television, or other communication media regarding the work performed under the Agreement without the prior written consent of the other party, which shall not be unreasonably withheld. 27) DATA/DATABASE OWNERSHIP. The license to use the Software database is granted to Buyer solely for the development of internal reports by Buyer and for the integrated operation of Trapeze Software components. Unless expressly included herein, all other access rights to the Software database are excluded from this Agreement, and the Buyer shall not develop or use, or authorize the development or use of, any other application interfaces to or from the Software database. However, Buyer shall retain ownership of the raw data that is inputted into the Software database, and export this raw data (i) when needed to support business activities and (ii) created directly by Buyer’s employees. 28) NOT USED. ATTACHMENT A TO EXHIBIT A LIST OF SOFTWARE Service Agreement between City of Fresno and TRAPEZE SOFTWARE GROUP, INC. PROFESSIONAL TRANSIT SOFTWARE MAINTENANCE SERVICES FOR LICENSED TRANSPORTATION PASSENGER SOFTWARE SUITE Software Product Operational Characteristics FX/Blockbuster up to 110 peak vehicles & 1 w/s FX MON up to 110 peak fixed route vehicles OPS up to 300 employees OPS SIT up to 260 employees PASS up to 1018 booked paratransit trips & 9 w/s PASS COM up to 1018 booked paratransit trips PASS MON up to 53 paratransit vehicles EAM‐FA up to 135 active transit equipment units, mobile for 1, Crystal for 1 GTFS STATIC up to 110 peak vehicles ViewPoint for ITS up to 100 GM of Source Data Limit, 5 power users & unlimited consumer users EAM Optimization Up to 110 revenue bus vehicles, incl: Equipment Focus for facilities, MobileFocus, State of Good Repair/Capital Planning, Telematics ATTACHMENT B TO EXHIBIT A PRICE OF SERVICES Service Agreement between City of Fresno and TRAPEZE SOFTWARE GROUP, INC. PROFESSIONAL TRANSIT SOFTWARE MAINTENANCE SERVICES FOR LICENSED TRANSPORTATION PASSENGER SOFTWARE SUITE Follows this page Fresno Area Express - Maintenance ScheduleProductPeriodOperational Characteristics Value NotesFX/BlockbusterJuly 1, 2022 - June 30, 2023 $ 32,647 FX/BlockbusterJuly 1, 2023 - June 30, 2024 $ 34,279 FX/BlockbusterJuly 1, 2024 - June 30, 2025 $ 35,993 FX/BlockbusterJuly 1, 2025 - June 30, 2026 $ 37,793 option yearFX/BlockbusterJuly 1, 2026 - June 30, 2027up to 110 peak vehicles & 1 w/s up to 110 peak vehicles & 1 w/s up to 110 peak vehicles & 1 w/s up to 110 peak vehicles & 1 w/s up to 110 peak vehicles & 1 w/s $ 39,682 option yearFX MONJuly 1, 2022 - June 30, 2023 $ 10,902 FX MONJuly 1, 2023 - June 30, 2024 $ 11,447 FX MONJuly 1, 2024 - June 30, 2025 $ 12,019 FX MONJuly 1, 2025 - June 30, 2026 $ 12,620 option yearFX MONJuly 1, 2026 - June 30, 2027up to 110 peak fixed route vehicles up to 110 peak fixed route vehicles up to 110 peak fixed route vehicles up to 110 peak fixed route vehicles up to 110 peak fixed route vehicles $ 13,251 option yearOPSJuly 1, 2022 - June 30, 2023up to 300 employees $ 47,280 OPSJuly 1, 2023 - June 30, 2024up to 300 employees $ 49,644 OPSJuly 1, 2024 - June 30, 2025up to 300 employees $ 52,126 OPSJuly 1, 2025 - June 30, 2026up to 300 employees $ 54,733 option yearOPSJuly 1, 2026 - June 30, 2027up to 300 employees $ 57,469 option yearOPS SITJuly 1, 2022 - June 30, 2023up to 260 employees $ 5,130 OPS SITJuly 1, 2023 - June 30, 2024up to 260 employees $ 5,387 OPS SITJuly 1, 2024 - June 30, 2025up to 260 employees $ 5,656 OPS SITJuly 1, 2025 - June 30, 2026up to 260 employees $ 5,939 option yearOPS SITJuly 1, 2026 - June 30, 2027up to 260 employees $ 6,236 option yearPASSJuly 1, 2022 - June 30, 2023up to 1018 booked paratransit trips & 9 w/s $ 34,905 PASSJuly 1, 2023 - June 30, 2024up to 1018 booked paratransit trips & 9 w/s $ 36,650 PASSJuly 1, 2024 - June 30, 2025up to 1018 booked paratransit trips & 9 w/s $ 38,483 PASSJuly 1, 2025 - June 30, 2026up to 1018 booked paratransit trips & 9 w/s $ 40,407 option yearPASSJuly 1, 2026 - June 30, 2027up to 1018 booked paratransit trips & 9 w/s $ 42,427 option yearPASS COMJuly 1, 2022 - June 30, 2023up to 1018 booked paratransit trips $ 5,957 PASS COMJuly 1, 2023 - June 30, 2024up to 1018 booked paratransit trips $ 6,254 PASS COMJuly 1, 2024 - June 30, 2025up to 1018 booked paratransit trips $ 6,567 PASS COMJuly 1, 2025 - June 30, 2026up to 1018 booked paratransit trips $ 6,896 option yearPASS COMJuly 1, 2026 - June 30, 2027up to 1018 booked paratransit trips $ 7,240 option yearFresno, CA 1Confidential To Trapeze3/2/2023 Fresno Area Express - Maintenance ScheduleProductPeriodOperational Characteristics Value NotesPASS MONJuly 1, 2022 - June 30, 2023up to 53 paratransit vehicles $ 21,423 PASS MONJuly 1, 2023 - June 30, 2024up to 53 paratransit vehicles $ 22,494 PASS MONJuly 1, 2024 - June 30, 2025up to 53 paratransit vehicles $ 23,619 PASS MONJuly 1, 2025 - June 30, 2026up to 53 paratransit vehicles $ 24,800 option yearPASS MONJuly 1, 2026 - June 30, 2027up to 53 paratransit vehicles $ 26,040 option yearEscrowJuly 1, 2022 - February 28, 2023 $ 2,346 prorated per cancellationEAM-FAJuly 1, 2022 - June 30, 202311,289$ EAM-FAJuly 1, 2023 - June 30, 202411,853$ EAM-FAJuly 1, 2024 - June 30, 202512,446$ EAM-FAJuly 1, 2025 - June 30, 202613,068$ option yearEAM-FAJuly 1, 2026 - June 30, 2027up to 135 active transit equipment units, mobile for 1, Crystal for 1 up to 135 active transit equipment units, mobile for 1, Crystal for 1 up to 135 active transit equipment units, mobile for 1, Crystal for 1 up to 135 active transit equipment units, mobile for 1, Crystal for 1 up to 135 active transit equipment units, mobile for 1, Crystal for 113,722$ option yearGTFS STATICJuly 1, 2022 - June 30, 2023up to 106 peak vehicles $ 3,358 GTFS STATICJuly 1, 2023 - June 30, 2024up to 106 peak vehicles $ 3,526 GTFS STATICJuly 1, 2024 - June 30, 2025up to 106 peak vehicles $ 3,702 GTFS STATICJuly 1, 2025 - June 30, 2026up to 106 peak vehicles $ 3,887 option yearGTFS STATICJuly 1, 2026 - June 30, 2027up to 106 peak vehicles $ 4,082 option yearViewPoint for ITSYear 1 SaaSup to 100 GM of Source Data Limit, 5 power users & unlimited consumer users $ 33,118 Year one contractedViewPoint for ITSYear 2 SaaSup to 100 GM of Source Data Limit, 5 power users & unlimited consumer users $ 34,774 to be prorated to align to July 1st startViewPoint for ITSYear 3 SaaSup to 100 GM of Source Data Limit, 5 power users & unlimited consumer users $ 36,513 ViewPoint for ITSYear 4 SaaSup to 100 GM of Source Data Limit, 5 power users & unlimited consumer users $ 38,338 ViewPoint for ITSYear 5 SaaSup to 100 GM of Source Data Limit, 5 power users & unlimited consumer users $ 40,255 EAM OptimizationYear 1 $ 8,770 Year one contractedEAM OptimizationYear 2 $ 9,209 to be prorated to align to July 1st startEAM OptimizationYear 3 $ 9,669 EAM OptimizationYear 4 $ 10,152 EAM OptimizationYear 5up to 110 revenue bus vehicles, incl: Equipment Focus for facilities, MobileFocus, State of Good Repair/Capital Planning, Telematicsup to 110 revenue bus vehicles, incl: Equipment Focus for facilities, MobileFocus, State of Good Repair/Capital Planning, Telematicsup to 110 revenue bus vehicles, incl: Equipment Focus for facilities, MobileFocus, State of Good Repair/Capital Planning, Telematics up to 110 revenue bus vehicles, incl: Equipment Focus for facilities, MobileFocus, State of Good Repair/Capital Planning, Telematics up to 110 revenue bus vehicles, incl: Equipment Focus for facilities, MobileFocus, State of Good Repair/Capital Planning, Telematics $ 10,660 2022217,125$ 2023225,517$ 2024236,793$ 2025248,633$ 2026261,063$ 1,189,131$ Fresno, CA 2Confidential To Trapeze3/2/2023 ATTACHMENT C TO EXHIBIT A NOT APPLICABLE EXHIBIT B INSURANCE REQUIREMENTS Service Agreement between City of Fresno (City) and Trapeze Software Group, Inc. (Service Provider) PROFESSIONAL TRANSIT SOFTWARE AND MAINTENANCE SERVICES FOR LICENSED TRANSPORTATION PASSENGER SOFTWARE SUITE MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). If personal automobile coverage is used, the City, its officers, officials, employees, agents, and volunteers are to be listed as additional insureds. 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Technology Liability (Errors and Omissions) insurance appropriate to Service Provider’s profession. Coverage shall be sufficiently broad to respond to duties and obligations as is undertaken by Service Provider in this agreement and shall include but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines penalties and credit monitoring expenses with limits sufficient to respond to these obligations. MINIMUM LIMITS OF INSURANCE Service Provider, or any party the Service Provider subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. TECHNOLOGY PROFESSIONAL LIABILITY insurance with limits of not less than: (i) $2,000,000 per claim/occurrence; and, (ii) $4,000,000 policy aggregate UMBRELLA OR EXCESS INSURANCE In the event Service Provider purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents, and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS Service Provider shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Service Provider shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its officers, officials, employees, agents, and volunteers; or (ii) Service Provider shall provide a financial guarantee, satisfactory to City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration, and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. City, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds. Service Provider shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 2. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents, and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, Service Provider’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents, and volunteers shall be excess of Service Provider’s insurance and shall not contribute with it. Service Provider shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: Service Provider and its insurer shall waive any right of subrogation against City, its officers, officials, employees, agents, and volunteers. If the Technology Liability insurance policy is written on a claims-made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by Service Provider. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims- made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by Service Provider, Service Provider must purchase “extended reporting” coverage for a minimum of five years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to City for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty calendar days written notice by certified mail, return receipt requested, has been given to City. Service Provider is also responsible for providing written notice to the City under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Service Provider shall furnish City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for City, Service Provider shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen calendar days prior to the expiration date of the expiring policy. Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by Service Provider shall not be deemed to release or diminish the liability of Service Provider, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Service Provider. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Service Provider, its principals, officers, agents, employees, persons under the supervision of Service Provider, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. SUBCONTRACTORS - If Service Provider subcontracts any or all of the services to be performed under this Agreement, Service Provider shall require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a separate side agreement with the City to provide required indemnification and insurance protection. Any required side agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by City Risk Manager or designee. If no side agreement is required, Service Provider shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and Service Provider shall ensure that City, its officers, officials, employees, agents, and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with Service Provider, and City, prior to commencement of any work by the subcontractor. VERIFICATION OF COVERAGE Service Provider shall furnish City with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to City’s execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. EXHIBIT C DISCLOSURE OF CONFLICT OF INTEREST YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: □ Additional page(s) attached. Signature 20 - December - 2022 Date Deborah Mills Name Trapeze Software Group, Inc. Company 5265 Rockwell Drive NE Address Cedar Rapids, IA 52402 City, State, Zip EXHIBIT D FEDERAL CONDITIONS GREATER THAN $250,000 This contract/purchase agreement is subject to a financial assistance contract between the City of Fresno and the Federal Transit Administration, which requires that this contract/agreement contain the following clauses: NO GOVERNMENT OBLIGATION TO THIRD PARTIES (1) The City and contractor/vendor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the purchaser, contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. (2) The contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS (1) The contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. 3801 et seq. and U.S. DOT regulations, “Program Fraud Civil Remedies, “49 CFR Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the contractor to the extent the Federal Government deems appropriate. (2) The contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. 5307, the Government reserves the right to impose the penalties of 18 U.S.C. 1001 and 49 U.S.C. § 5323(l) on the contractor, to the extent the Federal Government deems appropriate. (3) The contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. ACCESS TO RECORDS AND REPORTS (1) Record Retention. The Contractor will retain, and will require its subcontractors of all tiers to retain, complete and readily accessible records related in whole or in part to the contract, including, but not limited to, data, documents, reports, statistics, sub- agreements, leases, subcontracts, arrangements, other third party agreements of any type, and supporting materials related to those records. (2) Retention Period. The Contractor agrees to comply with the record retention requirements in accordance with 2 C.F.R. § 200.333. The Contractor shall maintain all books, records, accounts and reports required under this Contract for a period of at not less than three (3) years after the date of termination or expiration of this Contract, except in the event of litigation or settlement of claims arising from the performance of this Contract, in which case records shall be maintained until the disposition of all such litigation, appeals, claims or exceptions related thereto. (3) Access to Records. The Contractor agrees to provide sufficient access to FTA and its contractors to inspect and audit records and information related to performance of this contract as reasonably may be required. (4) Access to the Sites of Performance. The Contractor agrees to permit FTA and its contractors access to the sites of performance under this contract as reasonably may be required. FEDERAL CHANGES (1) Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. TERMINATION (1) Termination for Convenience: The City of Fresno may terminate this contract, in whole or in part, at any time by written notice to the contractor. The contractor shall be paid its costs, including contract close out costs, and profit on work performed up to the time of termination. The contractor shall promptly submit its termination claim to be paid by contractor. If the contractor has any property in its possession belonging to the City of Fresno, the contractor will account for the same, and dispose of it in the manner the City of Fresno directs. (2) Termination for Default: If the contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is for services, the contractor fails to perform in the manner called for in the contract or if the contractor fails to comply with any other provisions of the contract, the City of Fresno may terminate this contract for default. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract. (3) If it is later determined by the City of Fresno that the contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of, or are beyond the control of the contractor, the City of Fresno, after setting up a new delivery or performance schedule, may allow the contractor to continue work, or treat the termination as a termination for convenience. CIVIL RIGHTS The City is an Equal Opportunity Employer. As such, the City agrees to comply with all applicable Federal civil rights laws and implementing regulations. Apart from inconsistent requirements imposed by Federal laws or regulations, the City agrees to comply with the requirements of 49 U.S.C. § 5323(h) (3) by not using any Federal assistance awarded by FTA to support procurements using exclusionary or discriminatory specifications. Under this Agreement, the Contractor shall at all times comply with the following requirements and shall include these requirements in each subcontract entered into as part thereof. (1) Nondiscrimination – In accordance with Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, sex, disability, or age. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity – The following equal employment opportunity requirements apply to the underlying contract: (a) Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. chapter 60, and Executive Order No. 11246, "Equal Employment Opportunity in Federal Employment," September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, national origin, or sex (including sexual orientation and gender identity). Such action shall include, but not be limited to, the following: employment, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (b) Age - In accordance with the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. §4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (3) The contractor also agrees to include these requirements in each subcontract financed whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. DISADVANTAGED BUSINESS ENTERPRISE (DBE) The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 C.F.R. part 26 in the award and administration of DOT- assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to: (1) Withholding monthly progress payments; (2) Assessing sanctions; (3) Liquidated damages; and/or (4) Disqualifying the contractor from future bidding as non-responsible. 49 C.F.R. § 26.13(b). INCORPORATION OF FTA 4220.1F TERMS (1) The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1F, dated November 1, 2008, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA-mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The contractor shall not perform any act, fail to perform any act, or refuse to comply with any City of Fresno request, which would cause the City of Fresno to be in violation of the FTA terms and conditions. (2) Flow Down – The incorporation of FTA terms has unlimited flow down. SUSPENSION AND DEBARMENT The Contractor shall comply and facilitate compliance with U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200, which adopts and supplements the U.S. Office of Management and Budget (U.S. OMB) “Guidelines to Agencies on Government Wide Debarment and Suspension (Nonprocurement),” 2 C.F.R. part 180. These provisions apply to each contract at any tier of $25,000 or more, and to each contract at any tier for a federally required audit (irrespective of the contract amount), and to each contract at any tier that must be approved by an FTA official irrespective of the contract amount. As such, the Contractor shall verify that its principals, affiliates, and subcontractors are eligible to participate in this federally funded contract and are not presently declared by any Federal department or agency to be: a) Debarred from participation in any federally assisted Award; b) Suspended from participation in any federally assisted Award; c) Proposed for debarment from participation in any federally assisted Award; d) Declared ineligible to participate in any federally assisted Award; e) Voluntarily excluded from participation in any federally assisted Award; or f) Disqualified from participation in ay federally assisted Award. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The certification in this clause is a material representation of fact relied upon by the City. If it is later determined by the City that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. part 180, subpart C, as supplemented by 2 C.F.R. part 1200, while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. RESOLUTION OF DISPUTES, BREACHES, OR OTHER LITIGATION (1) The validity of this Agreement and of any of its terms and provisions, as well as the rights and duties of the parties, shall be governed by the laws of the State of California. In the event of litigation between the two parties, proper venue shall be laid in a court of competent jurisdiction in the County of Fresno, State of California. (2) Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of (Recipient)’s Maintenance Manager. This decision shall be final and conclusive unless with ten (10) days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the Maintenance Manager. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the Maintenance Manager shall be binding upon the contractor and the Contractor shall abide by the decision. (3) Pending final resolution of a dispute in hereunder, the Contractor shall proceed diligently with the performance of this Agreement and in accordance with the City’s decision. LOBBYING The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: (l) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure of Lobbying Activities," in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. (3) The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such subrecipients shall certify and disclose accordingly. The certificate titled Non Lobbying Certification must be completed and returned with your bid. This certificate is labeled as EXHIBIT D CLEAN AIR (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. CLEAN WATER (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. CARGO PREFERENCE REQUIREMENTS Use of United States-Flag Vessels. The contractor agrees: (1) To use privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels. (2) To furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 days following the date of loading for shipments originating outside the United States, a legible copy of a rated, “on-board” commercial ocean bill-of-lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington D.C. 20590 and the FTA recipient (through the contractor in the case of a subcontractor’s bill-of lading). (3) To include these requirements in all subcontracts issued pursuant to the contract when the subcontract may involve the transport of equipment, materials, or commodities by Statement of Unavailability of U.S.-Flag Air Carriers International air transportation of persons (and their personal effects) or property by U.S.-flag air carrier was not available or it was necessary to use foreign-flag air carrier service for the following reasons. See FAR § 47.403. Stated Reason(s): ocean vessel. FLY AMERICA Fly America Requirements: (1) Definitions. As used in this clause- “International air transportation” means transportation by air between a place in the United States and a place outside the United States or between two places both of which are outside the United States. “United States” means the 50 States, the District of Columbia, and outlying areas. “U.S.-flag air carrier” means an air carrier holding a certificate under 49 U.S.C. Chapter 411. (2) When Federal funds are used to fund travel, Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118) (Fly America Act) requires contractors, recipients, and others use U.S.-flag air carriers for U.S. Government-financed international air transportation of personnel (and their personal effects) or property, to the extent that service by those carriers is available. It requires the Comptroller General of the United States, in the absence of satisfactory proof of the necessity for foreign-flag air transportation, to disallow expenditures from funds, appropriated or otherwise established for the account of the United States, for international air transportation secured aboard a foreign-flag air carrier if a U.S.-flag air carrier is available to provide such services. (3) If available, the contractor, in performing work under this contract, shall use U.S.-flag carriers for international air transportation of personnel (and their personal effects) or property. (4) In the event that the contractor selects a carrier other than a U.S.-flag air carrier for international air transportation, the contractor shall include a statement on vouchers involving such transportation essentially as follows: (5) The contractor shall include the substance of this clause, including this paragraph, in each subcontract or purchase under this contract that may involve international air transportation. ENERGY CONSERVATION (1) The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. RECYCLED PRODUCTS The contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. CONFORMANCE WITH ITS NATIONAL ARCHITECTURE (1) Contractor shall conform, to the extent applicable, to the National Intelligent Transportation Standards architecture as required by SAFETEA-LU Section 5307(c), 23 U.S.C. Section 512 and as amended by MAP-21 23 U.S.C. § 517(d), note and follow the provisions of FTA Notice, “FTA National Architecture Policy on Transit Projects,” 66 Fed. Reg.1455 et seq., January 8, 2001, and any other implementing directives FTA may issue at a later date, except to the extent FTA determines otherwise in writing. ADA ACCESS (1) In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. SAFE OPERATION OF MOTOR VEHICLES (1) Seat Belt Use - The Contractor is encouraged to adopt and promote on-the-job seat belt use policies and programs for its employees and other personnel that operate company-owned vehicles, company-rented vehicles, or personally operated vehicles. The terms “company-owned” and “company-leased” refer to vehicles owned or leased either by the Contractor or City. (2) Distracted Driver - The Contractor agrees to adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers, including policies to ban text messaging while using an electronic device supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle Contactor owns, leases, or rents, or a privately- owned vehicle when on official business in connection with the work performed under this agreement. PROMPT PAYMENT (1) The Prime Contractor shall pay any Subcontractor for work that has been satisfactorily performed no later than thirty (30) days from the date of the Prime Contractor’s receipt of each payment made by the City of Fresno. Additionally, within thirty (30) days of satisfactory completion of all work required of the Subcontractor, the Prime Contractor shall release any retainage payments withheld to the Subcontractor. NOTICE OF LEGAL MATTERS AFFECTING THE FEDERAL GOVERNMENT (1) The Contractor agrees that if a current or prospective legal matter that may affect the Federal Government emerges, the Contractor shall promptly notify the City of the legal matter in accordance with 2 C.F.R. §§ 180.220 and 1200.220. (2) The types of legal matters that require notification include, but are not limited to, a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal disagreement in any forum for any reason. (3) Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal Government’s administration or enforcement of federal laws, regulations, and requirements. (4) Additional Notice to U.S. DOT Inspector General. The contractor must promptly notify the City and U.S. DOT Inspector General in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the City is located, if the contractor has knowledge of potential fraud, waste, or abuse occurring on a Project receiving assistance from FTA. The notification provision applies if a person has or may have submitted a false claim under the False Claims Act, 31 U.S.C. § 3729, et seq., or has or may have committed a criminal or civil violation of law pertaining to such matters as fraud, conflict of interest, bid rigging, misappropriation or embezzlement, bribery, gratuity, or similar misconduct involving federal assistance. This responsibility occurs whether the Project is subject to this Agreement or another agreement between the City and FTA, or an agreement involving a principal, officer, employee, agent, or Third-Party Participant of the City. It also applies to subcontractors at any tier. Knowledge, as used in this paragraph, includes, but is not limited to, knowledge of a criminal or civil investigation by a Federal, state, or local law enforcement or other investigative agency, a criminal indictment or civil complaint, or probable cause that could support a criminal indictment, or any other credible information in the possession of the contractor. In this paragraph, “promptly” means to refer information without delay and without change. This notification provision applies to all divisions of the Recipient, including divisions tasked with law enforcement or investigatory functions. (5) The Contractor further agrees to include the above clause in each subcontract, at every tier, financed in whole or in part with Federal assistance provided by the FTA. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT The Contractor agrees to comply with 2 CFR 200.216 and Public Law 115-232, Section 889, and may not 1) procure or obtain; 2) extend or renew a contract to procure; or 3) enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system for this federally funded agreement. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). a) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities). b) Telecommunications or video surveillance services provided by such entities or using such equipment. c) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. Exhibit E NONLOBBYING CERTIFICATION LOBBY RESTRICTIONS Certification for Contracts, Grants, Loans, and Cooperative Agreements (To be submitted with each bid or offer exceeding $100,000) The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that: 1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions. 3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Signature of Contractor's Authorized Official Deborah Mills, VP Finance 20 - December - 2022 Name and Title of Contractor's Authorized Official Date EXHIBIT F SOFTWARE LICENSE AGREEMENT between City of Fresno and TRAPEZE SOFTWARE GROUP, INC. ADDITIONAL TRANSIT SOFTWARE LICENSES TO BE ADDED TO EXISTING LICENSED TRANSPORTATION PASSENGER SOFTWARE SUITE WHEREAS Contractor is the owner of the rights to certain software, including copyright, trademark, trade secret and other intellectual property rights; and WHEREAS City desires to purchase certain rights regarding the Software that will enable the City to use the Software under the terms and conditions specified under the granted license; and WHEREAS the Software and associated services covered by this Exhibit are identified in Exhibit G, Statement of Work, and pricing for the Software and associated services are identified in Exhibit G, Statement of Work; and NOW, THEREFORE, the parties agree as follows: 1. .Definitions “Agreement” this Trapeze Software License Agreement effectively made as of the date first written above, between Trapeze and the City, and the attached exhibits, all of which form an integral part of the Agreement; “Confidential Information” all information obtained by the parties from each other under the Agreement, but does not include any information, which at the time of disclosure is generally known by the public. “Documentation” user documentation and training materials pertaining to the Software as supplied by Trapeze; “New Product” any update, new feature or major enhancement to the Software that Trapeze markets and licenses for additional fees separately from Upgrades; “Software” the certain software as identified in Exhibit G of the Agreement; “Trade Secrets” the Software, Documentation, and other related information (including all modifications of the Software developed for the City other than work for hire) disclosed to the City under this Trapeze Software License Agreement, including trade secrets and other confidential and proprietary information of Trapeze. “Upgrades” generic enhancements to the Software that Trapeze generally makes available as part of its long-term software support program. 2. License, Maintenance and Support Services In consideration of payments to be made by the City to Trapeze as set out below, Trapeze agrees to provide the following: (a) Trapeze hereby grants to the City a personal, non-transferable, non-exclusive license to use a production copy of the object code version of the Software in the form supplied by Trapeze and on hardware approved by Trapeze as of the License Date referred to in Exhibit G, Statement of Work, (“License Date”), restricted to the places of business of the City, for the City’s own operations, with operational characteristics as described in Exhibit G. (b) Trapeze hereby grants to the City a personal, non-transferable, non-exclusive license to use Documentation, but only as required to exercise the license granted herein. (c) For any warranty period, and subsequently only as part of maintenance, Trapeze will maintain the Software so that it operates in conformity in all material respects with the descriptions and specifications for the Software set forth in the Documentation. (d) For any warranty period, and subsequently only as part of maintenance, in the event that the City detects any errors or defects in the Software, Trapeze will provide reasonable support services as described in Exhibit A. (e) For any warranty period, and subsequently only as part of maintenance, Trapeze will post website notices of available Upgrades of the Software, and copies of the release notes for download. Trapeze shall provide the City with Upgrades of the Software at no additional license fee charge. (f) The City may make one back-up copy of the Software at each site. The City may use the production copy of the Software solely to process the City’s own data, and the software may not be used on a service bureau or similar basis to process data of others. (g) The license to use the Software described in Exhibit G is granted to the City solely for the development of internal reports by the City and for the integrated operation of Trapeze software components. (h) Other than the rights of use expressly conferred upon the City by this paragraph, the City shall have no further rights to use the Software or the Documentation, and shall not copy, reproduce, modify, adapt, reverse engineer, disassemble or translate them, without the express written authority of Trapeze. These obligations of confidentiality shall survive termination of the license granted herein. (i) Support and maintenance services shall not include, and the City shall pay additional fees for, any and all consulting, implementation, modification, education and training related services. 3. Purchase Order, Payment and Maintenance Fee Upon execution of this Trapeze Software License Agreement, the City will issue a Purchase Order specifying the amount for the provision of Software licenses and services, as set out in Exhibit G and payable pursuant to the terms of Section 3 of the Services Agreement. 4. Trade Secrets and Confidential Information The City acknowledges that any Trade Secrets or Confidential Information disclosed to the City pursuant to this Trapeze Software License Agreement are owned by Trapeze and include trade secrets and other confidential and proprietary information of Trapeze, and the City shall maintain in confidence and not disclose the same, directly or indirectly, to any third party without Trapeze’s prior written consent, except as required by law following prior notice to Trapeze. 5. Media and Publication The City shall not communicate with representatives of the general or technical press, radio, television or other communications media regarding the work under this Trapeze Software License Agreement without prior written consent of Trapeze, which shall not be unreasonably withheld. The City nor any of its personnel shall publish or reproduce or arrange press releases regarding Trapeze without the prior written consent of Trapeze upon such terms as may be agreed. Trapeze reserves the right to publish the results of the work done under this Trapeze Software License Agreement, provided the City consents in writing. 6. Remote Access Upon the City’s consent, the City shall provide Trapeze with the right of a remote connection to the City’s computer(s) on which the Software is installed, so as to enable Trapeze to monitor the operation of the Software. 8. Warranty, Acceptance Procedure and Indemnity Trapeze warrants the Software to operate in all material respects as specified in the Documentation for the period specified in Exhibit G. The sole remedy of the City for any breach of this warranty will be to require Trapeze to use reasonable efforts to correct, or replace at its own expense, any defects in the Software that are brought to Trapeze’s attention by the City. Trapeze warrants that it holds title to all Software licensed and delivered pursuant to this Trapeze Software License Agreement. Trapeze further warrants that it has full power and authority to grant to the the City the rights set forth in this Trapeze Software License Agreement and that neither the performance of the services by Trapeze nor the use by the City of the Software, or any portion thereof, will in any manner constitute an infringement or other violation of any ownership, claim, copyright, trade secret, trademark, patent, invention, proprietary information, nondisclosure, or other rights of any third party. Acceptance Procedure: Acceptance Procedures for Software Licenses purchases hereunder shall be as set forth in Exhibit G, Statement of Work. If Exhibit G is silent on this issue, then, and only in that event, shall the following be deemed the Acceptance Procedure for the new Software Licenses. Upon completing the delivery, installation, and testing of the Software, Trapeze will notify The City in writing. The City will then have twenty (20) business days in which to conduct acceptance tests in order to ensure that the Software operates in all material respects as specified in the Documentation. At the end of this period, The City will be deemed to accept the Software unless Trapeze receives prior written notice outlining the nature of the perceived defects in the Software. Notwithstanding the above, the City will be deemed to accept the Software when the City puts the Software into operational and functional use. Without limiting the foregoing, the Software will be deemed to be in operational and functional use when the City first uses the Software to support its then current operations in any capacity. Upon the deemed acceptance of the Software in accordance with this paragraph, the City will provide Trapeze with a written acknowledgement to confirm such acceptance. The foregoing warranty is in lieu of all other warranties or conditions, express or implied, including but not limited to any implied warranties or conditions of merchantability, merchantable quality and fitness for a particular purpose and those arising by statute or otherwise in law or from the course of dealing or usage of trade. But for the requirements of Exhibit G, Trapeze does not represent or warrant that this Software will meet all of the City’s particular requirements, that the operation of the Software will operate 100% error-free or uninterrupted and that all program errors in the Software can be found in order to be corrected. A party’s entire liability and responsibility for any and all claims, damages, or losses arising from post-acceptance use of the Software by the City shall be absolutely limited to the amount paid for the Licenses in Exhibit G. Notwithstanding any provision contained herein, A party shall not be liable for any indirect, consequential, special, incidental or contingent damages or expenses, whether in contract, tort (including negligence) or otherwise, arising in any way out of this Trapeze Software License Agreement, the Software, or party’s performance or lack thereof under this Trapeze Software License Agreement, including without limiting the generality of the foregoing, loss of revenue, profit or use. However, for intellectual property infringement, Trapeze will defend the City in respect of any claims brought against the City by a third party based on the claim that the Software infringes the intellectual property rights of that third party. Trapeze will pay any award rendered against the City by a court of competent jurisdiction in such action, provided that the City gives Trapeze prompt notice of the claim and Trapeze is permitted to have full control of any defense. If all or any part of the Software becomes, or in Trapeze’s opinion is likely to become, the subject of such a claim, Trapeze may either modify the Software to make it non-infringing or terminate this Trapeze Software License Agreement as it relates to the infringing portion of the Software. This is Trapeze’s entire liability concerning intellectual property infringement. Trapeze will not be liable for any infringement or claim based upon any modification of the Software developed by the City, or use of the Software in combination with software or other technology not supplied or approved in advance by Trapeze, or use of the Software contrary to this Trapeze Software License Agreement or the Documentation. 9. Exclusion of Liability Trapeze does not guarantee the privacy, security, authenticity or non- corruption of any information transmitted through the internet or any information stored in any system connected to the internet. Trapeze shall not be responsible for any claims, damages, costs or losses whatsoever arising out of or in any way related to the City’s connection to or use of the internet. Trapeze will not be liable to the City or any third party for any claims, expenses, damages, costs or losses whatsoever arising out of or in any way related to: (i) The City’s use of map or geographical data, owned by the City or any third party, in conjunction with the Software or otherwise; or (ii) The City’s use of the Software insofar as such Software may be used to store, transmit, display, disclose or otherwise use data or information which is considered private, confidential, proprietary or otherwise exempt from public disclosure under applicable law. Trapeze will not be liable to the City or any third party for any claims, expenses, damages, costs or losses whatsoever arising out of changes in the City staffing. 10. Termination The license granted by this Trapeze Software License Agreement is a perpetual, non-exclusive license that shall commence upon the License Date. The maintenance terms shall continue for periods each of which shall be one (1) year in length from the expiry of the warranty period unless the maintenance fees are not paid when due or unless earlier terminated as provided herein: a. Either party may terminate this Trapeze Software License Agreement for convenience with ninety (90) days written notice. b. Either party has the right to terminate this Trapeze Software License Agreement if the other party breaches or is in default of any obligation hereunder, and if such default has not been cured within fifteen (15) days after receipt of notice of such default. c. Either party has the right to terminate this Trapeze Software License Agreement by written notice if the other party becomes insolvent or bankrupt. Without limiting the foregoing the following shall be deemed to be the City defaults under this Trapeze Software License Agreement: The City fails to pay any amount when due hereunder; or the City becomes insolvent or any proceedings shall be commenced by or against the City under any bankruptcy, insolvency or similar laws. In the event that the license granted under this Trapeze Software License Agreement is terminated, the City shall forthwith return to Trapeze all copies of the Software, the Documentation and other materials provided to the City pursuant to this Trapeze Software License Agreement and will certify in writing to Trapeze that all copies or partial copies of the Software, the Documentation and such other materials have been returned to Trapeze or destroyed. The obligations of each party pertaining to Confidential Information and taxes shall survive the termination of this Trapeze Software License Agreement. 13. Audits Trapeze may perform audit(s) on the use of the Software and Documentation upon giving the City written notice of at least five (5) business days. The City agrees to make the necessary operational records, databases, equipment, employees and facilities available to Trapeze for the audit(s) provide no unreasonable interference with the City’s operations. The purpose of the audit will be to verify compliance with the terms and conditions of this Trapeze Software License Agreement. EXHIBIT G STATEMENT OF WORK Service Standard for Maintenance of Trapeze Software Trapeze will use reasonable efforts to correct any Software deficiency or performance anomaly the within the time frames established below to cause the Software to meet the functional and performance criteria set out in the Documentation for the Software in effect at the time of this Agreement. Unless provided otherwise in this maintenance and support schedule, Trapeze will respond to a trouble report of a Software deficiency or performance anomaly in accordance with the severity level reasonably determined by the Licensee and communicated to Trapeze, based on the following definitions: Severity Level Condition Response Time (Goal) Resolution Efforts Priority 1 An error or performance anomaly that renders Software inoperable in a production environment, resulting in the inability to utilize critical system components. During normal business hours – Immediately After Hours ‐ Within 1 hour Dedicated staff resources working 24 hours per day, 7 days per week until corrected. Within 4 hours of receipt of Priority 1 report the management of the issue will escalate to the 1st escalation point until corrected. Within 8 hours of receipt of Priority 1 report the management of the issue will escalate to the 2nd and 3rd escalation point until corrected. Within 12 hours of receipt of Priority 1 report the management of the issue will escalate to the 4th escalation point until corrected. Trapeze will remain in regular contact with the Licensee (contact will occur, at a minimum, during escalation points, and every 8 hours thereafter). Severity Level Condition Response Time (Goal) Resolution Efforts * Priority 2 An error or performance anomaly with Software resulting in major inconvenience for users in the production environment or the public. Within 2 business hours For the first 48 hours following receipt of Priority 2 report, dedicated staff resources working during normal business hours until corrected. Within 24 hours of receipt of Priority 2 report the management of the issue will escalate to the 1st escalation point until corrected. Within 48 hours of receipt of Priority 2 report the management of the issue will escalate to the 2nd and 3rd escalation point until corrected. Within 5 days of receipt of Priority 2 report the management of the issue will escalate to the 4th escalation point until corrected. Trapeze will remain in regular contact with the Licensee (contact will occur, at a minimum, during escalation points, and every 24 hours thereafter). Severity Level Condition Response Time (Goal) Resolution Efforts Priority 3 Software issues where the system is functioning but causing minor or short‐term inconvenience for specific users with critical positions using the production environment. Within 1 business day Working on the issue during normal business hours with the same efforts as are employed for other Priority 3 reports. Priority 4 General questions; Software issues resulting in minor inconvenience for non‐critical positions using the production environment or testing using a test environment. Includes Hardware Support (RMA requests) Within 2 business day Working on the issue during normal business hours with the same efforts as are employed for other Priority 4 reports. * If Trapeze’s resolution efforts result in a work around that leads Licensee to experience an improvement in the conditions it is reporting, the severity level will be lowered accordingly. For example, where a Priority 1 report is resolved by Trapeze to the point where the Licensee is experiencing conditions associated with a Priority 2 severity level, the Priority 1 report will be reclassified as a Priority 2 report, at which time Trapeze shall be deemed to be in “receipt of a Priority 2 report” and Priority 2 resolution efforts shall apply. Escalation Management Matrix Trapeze strives to provide exceptional customer support services. If this level of service is not experienced, it is important for our customers to have the ability to escalate their concerns so appropriate actions can be taken. All support issues are logged first with our customer care organization to ensure that all required details can be recorded and allow the customer care team to attempt to resolve the issue within the service level objectives. First level Escalation Point of Contact: Customer Success Manager or comparable role. If you are concerned that your issue is not being progressed in a satisfactory manner, please refer this to the Second Level Escalation Point of Contact. Second Level Escalation Point of Contact: Product Line Manager/Customer Care Manager or comparable role. If you feel your escalation is not being progressed in a satisfactory manner at Second Level escalation, please refer this to the Third Level Escalation Point of Contact, General Manager of the Respective Vertical Business Unit (VBU) responsible for the product type being investigated for software deficiency or performance anomaly. Third Level Escalation Point of Contact: General Manager of the respective Vertical Business Unit (VBU) or comparable role. Management at the Third Level is the final step in the escalation process. City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1027 Agenda Date:7/20/2023 Agenda #: 1.-JJ. REPORT TO THE CITY COUNCIL FROM:GREGORY A. BARFIELD, M.A., Interim Director Department of Transportation BY:CAROLINA ILIC, Assistant Director Department of Transportation JEFF LONG, Senior Regional Planner Department of Transportation SUBJECT Approve the Department of Transportation / Fresno Area Express (FAX) federally mandated Title VI Service Equity Analysis for proposed service changes, with conclusions of no disparate impacts on minority populations or disproportionate burdens on low-income populations. RECOMMENDATION Staff recommends Council approve the federally mandated Title VI Service Equity Analysis, which evaluates and concludes that the proposed service changes will not result in disparate impacts on minority populations or disproportionate burdens on low-income populations. EXECUTIVE SUMMARY Based upon a Service Equity Analysis mandated by Title VI of the Civil Rights Act of 1964 and a comprehensive public outreach process conducted in May and August 2022, it was determined that proposed service changes to Routes 3, 20, 45, and 34 do not result in disparate impacts on minority populations or disproportionate burdens on low-income populations, and no mitigation measures are required. BACKGROUND Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. Federal Transit Administration (FTA) Circular 4702.1B establishes Title VI requirements and guidelines for FTA recipients to ensure the level and quality of public transportation service is provided in a nondiscriminatory manner; promote full and fair participation in public transportation decision-making without regard to race, color, or national origin; and ensure meaningful access to transit-related programs and activities by persons with limited English proficiency. City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT APPROVED ON CONSENT File #:ID 23-1027 Agenda Date:7/20/2023 Agenda #: 1.-JJ. As mandated by the FTA under Title VI of the Civil Rights Act of 1964,evaluation of major service changes as defined in FAX’s 2022 Title VI Program,which was accepted by Council on October 13, 2022,requires a Title VI Service Equity Analysis.The purpose of the equity analysis is to examine whether any major service changes would result in disparate impacts on minority populations or disproportionate burdens on low-income populations,and if so,methods to avoid,minimize,or mitigate potential impacts or burdens. The analysis is included in Attachment 1 and its appendices. After a comprehensive public outreach process which included seven “Pop Up”events held at heavily used bus stops throughout the City,and five Open House public workshops in May and August of 2022,the Department received overwhelming support for the proposed service changes.The proposed service changes consist of frequency enhancements to Routes 3,20,45,and 34;an extension of Route 45 to service Justin Garza High School;and extension of Route 34 to service the North Pointe Business Park,including the IRS,Amazon,Ulta,and other businesses.As explained in Attachment 1,the Title VI Service Equity Analysis concludes that all the proposed changes are considered major,but when examined in context,the changes do not cause a disparate impact or disproportionate burden and no mitigation measures are necessary. Implementation was delayed until now allowing the department to staff up with additional drivers and to bring additional buses into the fleet allowing for the additional service upgrades proposed. ENVIRONMENTAL FINDINGS Pursuant to section 15378 of the CEQA Guidelines,approval of these service changes is not a project for the purposes of CEQA. LOCAL PREFERENCE Local preference was not applied as the program adoption is not an award of a contract. FISCAL IMPACT The preparation of this report was financed in part through the FTA and local funds from the Fresno Council of Governments.Implementation of the service changes will have no impact on the general fund. Attachments: Title VI Service Equity Analysis and Appendices, June 2023 City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ chrCity of Fresno Department of Transportation/Fresno Area Express Title VI Service Equity Analysis June 2023 Prepared By: 1 Table of Contents Overview ....................................................................................................................................................... 2 Relevant Policies ........................................................................................................................................... 2 Proposed Changes......................................................................................................................................... 3 Summary of Public Participation & Outreach ............................................................................................... 4 Service Equity Analysis .................................................................................................................................. 5 Data Sources ............................................................................................................................................. 6 Major Service Change Analysis ................................................................................................................. 9 Geographic/Population Analysis ............................................................................................................. 10 Ridership Analysis ................................................................................................................................... 12 Recommended Mitigation Measures ......................................................................................................... 13 2 Overview In compliance with Title VI of the Civil Rights Act of 1964, the Federal Transit Administration (FTA) requires all transit agencies that receive federal funding to monitor the performance of their systems, ensuring services are made available and/or distributed equitably. One component of ensuring compliance is performing an equity analysis for all fare changes and any major service changes to determine its impact on minority (race, color, or national origin) and low-income populations. Fresno Area Express (FAX) is the primary fixed-route transit operator in Fresno and is operated and administered by the City of Fresno, California. FAX has proposed changes to 4 of its routes. This Title VI analysis will: • Determine whether the proposed route changes constitute a major service change or not, • Evaluate how the proposed changes may impact low-income and minority populations, and • Identify strategies to avoid, minimize, or mitigate any disproportionate burdens, disparate impacts, or any potentially negative outcomes. Relevant Policies This FAX service equity analysis was completed in accordance with FTA regulations outlined in FTA Circular 4702.1B, “Title VI Requirements and Guidelines for Federal Transit Administration Recipients.” The circular requires this analysis to ensure or minimize any disparate impact on minority populations or disproportionate burden on low-income populations. Disparate Impact Definition Refers to a facially neutral policy or practice that disproportionately affects members of a group identified by race, color, or national origin, where the recipient’s policy or practice lacks a substantial legitimate justification and where there exists one or more alternatives that would serve the same legitimate objectives but with less disproportionate effect on the basis of race, color, or national origin. (FTA C 4702.1B, Chap. I-2) Disproportionate Burden Definition Refers to a neutral policy or practice that disproportionately affects low-income populations more than non-low-income populations. A finding of disproportionate burden requires the recipient to evaluate alternatives and mitigate burdens where practicable. (FTA C 4702.1B, Chap. I-2) Each transit agency is responsible for establishing a threshold for what constitutes a “major” service change as well as what differential is considered a disparate impact or disproportionate burden. Major Service Change In 2022, FAX completed its Triennial Title VI Program. Per FAX’s Title VI policy, a major service change is any service change that: • Adds or removes 25 percent or more of revenue miles on any route, or • Adds or removes 25 percent or more of revenue hours on any route. 3 Disparate Impact Policy A disparate impact exists if a major service change, fare change, or fare media change requires a minority population to bear adverse effects by 20 percent or more than the adverse effects borne by the general population in the affected area. Disproportionate Burden Policy A disproportionate burden exists if a major service change, fare change, or fare media change requires a low-income population to bear adverse effects by 20 percent or more than the adverse effects borne by the general population in the affected area. FAX has also recently completed four other Title VI analyses, including for a series of service changes in 2020, an analysis of a fare reduction in 2021, an analysis of a pilot program consisting of free fares for Reduced Fare passengers subsidized by Kaiser in 2022, and an analysis of reduced fares for students in 2022. This Title VI analysis will apply Title VI policies in a manner consistent with these earlier analyses. Proposed Changes FAX is continually evaluating its service to improve efficiency and optimize resources. FAX has proposed changes to four routes. Table 1 summarizes the proposed service changes. Figure 1 and Figure 2 show FAX’s network before and after the proposed changes, respectively. Table 1: Summary of Proposed Service Changes Route Description of Revised Service Origin and Destination of Revised Service Route 3 Increase frequency from every 45 minutes to every 30 minutes N/A Route 20 Increase frequency from every 45 minutes to every 30 minutes N/A Route 34 Increase frequency from every 20 minutes to every 15 minutes; Extend the southern end of the route to the North Pointe Business Park, including the IRS, Amazon, Ulta, and other businesses From East Jensen Ave and South Cherry Ave to South Orange Ave and East Central Ave Route 45 Increase frequency from every 45 minutes to every 30 minutes; Extend the western end of the route to serve Harvest Elementary School, Glacier Point Middle School, and Justin Garza High School From North Polk Ave and West Ashlan Ave to North Bryan Ave and West Gettysburg Ave 4 Figure 1: Existing Network Figure 2: Proposed Network. New Coverage is Highlighted in Yellow. 5 Summary of Public Participation & Outreach To collect community feedback on the proposed service changes, FAX held a series of outreach events in May 2022 and August 2022. The May outreach events, which focused on the proposed changes to Routes 3, 20, and 45, consisted of five workshops, one of which was virtual, and six informal pop-up events at bus stops throughout the system. The August outreach events focused on the proposed changes to Route 34, and consisted of three workshops, one of which was virtual. Information about the proposed changes, as well as information about the workshops were placed on the FAX website. Flyers advertising the workshops in English and Spanish were placed at bus stops, on buses, on social media, and in the FAX newsletter. Appendix A includes the public outreach materials produced for these proposed changes. Service Equity Analysis The service equity analysis has three key parts: • First, proposed service changes are analyzed to determine if those changes meet the major service change threshold as defined by FAX’s Title VI policy. • If any of the proposed service changes meet the major service change threshold, then the proposed route changes are analyzed to determine if those changes create a disparate impact or disproportionate burden according to FAX’s Title VI policy. • If a disparate impact or disproportionate burden is found, then mitigation measures will be recommended for the proposed service changes so that they no longer create a disparate impact or disproportionate burden. Figure 3 illustrates FAX’s service equity analysis process. Because of the combination of proposed changes, FAX determined analyzing all proposed changes, regardless of if they meet policy thresholds, would provide consistent information for the decision-making process related to the proposed network changes. 6 Figure 3: Service Equity Analysis Process As outlined in the FTA Circular, transit agencies should analyze available data for the general population (U.S. Census or American Community Survey data) or data specific to system ridership (survey data). To provide the most comprehensive findings, both population and ridership data were analyzed and are summarized in this document. (Care was taken not to “mix and match” in comparative analysis—always comparing ridership to ridership and population to population, as noted in FTA C 4702.1B, Chap. IV-15.) Data Sources Data from the American Community Survey (ACS) and the 2022 FAX Customer Satisfaction Survey were used to perform the Title VI analysis. American Community Survey 2021 ACS five-year estimates provide census block group-level population data for the geography-based analysis. The following tables were used in this analysis: • C17002: Ratio of Income to Poverty Level in the Past 12 Months • B03002: Hispanic or Latino Origin by Race FAX defines low-income as at or below 150 percent of the federal poverty line. Individuals who reported in the ACS that their income over the previous 12 months fell below 150 percent of the federal poverty line were defined as low-income for the geographic analysis. 7 For purposes of this analysis, the following origin by race categories are defined as minority: • Black or African American alone • American Indian or Alaska Native alone • Asian alone • Native Hawaiian or Other Pacific Islander alone • Hispanic or Latino • “Other” race alone • Two or more races 2022 FAX Customer Satisfaction Survey The following questions from the 2022 Customer Satisfaction Survey were analyzed for the service equity analysis: • Route: What is the bus route number that you are on? (Blank space for entering a number.) • Demographics, Ethnicity: Which of the following most closely describes your ethnic background? (1) Hispanic, (2) White/Caucasian, (3) African American/Black, (4) Asian/Southeast Asian- please specify national origin or Asian ethnic group, (5) American Indian, (6) Pacific Islander, (7) Middle Easterner, (8) other/please specify. • Demographics, Household Size: Including yourself, how many people live in your household? (Blank space for entering a number.) • Demographics, Income: Which of the following categories best describes your total household income in 2013, before taxes? (1) less than $10,000 per year, (2) $10,000 to $19,999, (3) $20,000 to $29,999, (4) $30,000 to $39,999, (5) $40,000 to $49,999, (6) $50,000 to $74,999, (7) $75,000 to $99,999 per year, (8) $100,000 or more per year. All respondents who indicated a race/ethnicity other than Non-Hispanic White/Caucasian were considered a minority for purposes of this analysis. If a respondent indicated more than one race/ethnicity, they were considered a minority. Furthermore, if a respondent indicated “other,” they were considered a minority. Records where the respondent did not answer the race/ethnicity question were excluded from the disparate impact analysis, as their minority status could not be determined.1 FAX’s definition of low-income is any person whose median household income is at or below 150 percent of the federal poverty line. The federal poverty guidelines issued by the U.S. Department of Health and Human Services were used as the basis for determining low-income status. See Table 2. Utilizing the survey questions related to household income and number of persons per household, each survey respondent was coded as low-income (below 150 percent of the poverty line) or non-low-income (above 150 percent of the poverty line) according to 1 If these respondents did not answer the race/ethnicity question but did answer the questions related to household size and income, they were still included in the disproportionate burden analysis. The FTA directs recipients to analyze disparate impact and disproportionate burden separately. 8 Table 3, below. For ranges where a significant portion of the range fell below 150 percent poverty line, the entire range was classified as low-income/”below” to ensure no low-income individuals were mistakenly classified as non-low-income. Households with 13 or more members making more than $100,000 were considered low-income for the same reason. Table 2: 2022 Poverty Guidelines for the 48 Contiguous States and D.C. Persons in Family/Household Poverty Guideline 150 Percent of Poverty Guideline 1 $13,590 $20,385 2 $18,310 $27,465 3 $23,030 $34,545 4 $27,750 $41,625 5 $32,470 $48,705 6 $37,190 $55,785 7 $41,910 $62,865 8 $46,630 $69,945 9 $51,350 $77,025 10 56,070 $84,105 11 $60,790 $91,185 12 $65,510 $98,265 13 $70,230 $105,345 14 $74,950 $112,425 9 Table 3: Low-Income Status by 2018 FAX Customer Satisfaction Survey Categories (Below or Above 150 Percent of Federal Poverty Guideline) Reported Annual Household Income in 2022 Persons in Household Less than $10,000 $10,000 - $19,999 $20,000 - $29,999 $30,000 - $39,999 $40,000 - $49,999 $50,000 - $74,999 $75,000 - $99,999 $100,000 or More 1 Below Below Below Above Above Above Above Above 2 Below Below Below Above Above Above Above Above 3 Below Below Below Below Above Above Above Above 4 Below Below Below Below Below Above Above Above 5 Below Below Below Below Below Above Above Above 6 Below Below Below Below Below Below Above Above 7 Below Below Below Below Below Below Above Above 8 Below Below Below Below Below Below Above Above 9 Below Below Below Below Below Below Below Above 10 Below Below Below Below Below Below Below Above 11 Below Below Below Below Below Below Below Above 12 Below Below Below Below Below Below Below Above 13 Below Below Below Below Below Below Below Below 14 Below Below Below Below Below Below Below Below Major Service Change Analysis The first step in determining if the proposed service changes would cause a disparate impact or disproportionate burden is determining which proposed changes, if any, constitute a major service change under Fresno’s policy. To do so, revenue miles and revenue hours were compared for each route in the existing and proposed network. See Table 4. Routes with a 25 percent or greater change in revenue miles or revenue hours from the existing network to the proposed network are considered major service changes. Table 4: Change in Revenue Hours and Revenue Miles, Existing and Proposed Revenue Hours (Annual) Revenue Miles (Annual) Route Existing Proposed Percent Change Existing Proposed Percent Change Major Change? 3 16,360 25,463 55.6% 208,686 321,297 54.0% Yes 20 12,912 20,539 59.1% 172,895 250,465 44.9% Yes 34 32,327 48,584 50.3% 380,522 553,757 45.5% Yes 45 13,121 24,406 86.0% 182,731 310,037 69.7% Yes Every proposed change qualifies as a major service change due to a greater than 25 percent increase in revenue hours and/or revenue miles. Because each proposed change exceeds the major service change threshold, analysis is provided for all proposed changes. 10 Geographic/Population Analysis This report summarizes two layers of analysis. The first layer considers the population living within ¼ mile of FAX system bus stops. There are two parts to this first layer of analysis. First, the percent of minority and low-income populations along current routes with proposed changes are compared against the system-wide percentages of minority and low-income populations. This identifies which routes are considered “minority routes” or “low-income routes.” Typically, only minority and low-income routes would be considered for further analysis. In this case, all routes will receive additional analysis. The second step is to compare the difference in the minority share of population between the existing and proposed route. If the difference is 20 percentage points greater than the difference for non-minorities, this indicates a disparate impact. For example, say the demographic makeup of existing Route A is 78 percent minority and the makeup of proposed Route A is 50 percent minority. The minority population with access to that route has decreased by 28 percentage points, while, conversely, non-minority access has increased by 28 percentage points. This exceeds the 20 percent threshold for a disparate impact, indicating some mitigation might be required. Results of this analysis are summarized in Table 5 and the analysis was repeated for low-income populations, as shown in Existing Proposed Difference Route Total Population within ¼ mile Percent Minority Total Population within ¼ mile Percent Minority Percentage Point Change Minority Disparate Impact 3 33,384 56.0% 33,384 56.2% 0.2% No 20 69,319 76.0% 69,319 76.0% 0.0% No 34 59,978 76.9% 62,623 76.8% -0.1% No 45 54,238 74.3% 54,045 74.3% 0.0% No System Total 371,108 76.3% 379,671 76.3% 0.0% No Table 6. Table 5: Population within ¼ Mile of FAX Stop by Minority Status, Existing and Proposed Existing Proposed Difference Route Total Population within ¼ mile Percent Minority Total Population within ¼ mile Percent Minority Percentage Point Change Minority Disparate Impact 3 33,384 56.0% 33,384 56.2% 0.2% No 20 69,319 76.0% 69,319 76.0% 0.0% No 34 59,978 76.9% 62,623 76.8% -0.1% No 45 54,238 74.3% 54,045 74.3% 0.0% No System Total 371,108 76.3% 379,671 76.3% 0.0% No Table 6: Population within ¼ Mile of FAX Stop by Income Status, Existing and Proposed Existing Proposed Difference 11 Route Total Population within ¼ mile Percent Low- income Total Population within ¼ mile Percent Low- Income Percentage Point Change Low-Income Disproportionate Burden 3 33,384 15.4% 33,384 15.7% 0.3% No 20 69,319 36.2% 69,319 36.2% 0.0% No 34 59,978 43.5% 62,623 43.5% 0.0% No 45 54,238 37.0% 54,045 37.0% 0.0% No System Total 371,108 40.3% 379,671 40.2% -0.1% No Route 3 Increasing service frequency on Route 3 meets the major service change threshold. Additionally, the percentage of minority individuals living within ¼ mile of Route 3 stops is significantly smaller than that of the existing system-wide percentage. However, because the proposed change is a service improvement and the percent of minority individuals with access within ¼ mile to the route increases, there is no disparate impact, and no mitigation measures need to be considered. The percentage of low-income individuals living within ¼ mile of the proposed Route 3 stops is also significantly smaller than the existing system-wide percentage. As the difference is greater than 20 percent, the proposed addition therefore meets the disproportionate burden threshold. Similarly, however, because the proposed change is a service improvement and the percent of low-income individuals with access within ¼ mile to the route increases, there is no disparate impact, and no mitigation measures need to be considered. Route 20 The increase of service frequency of Route 20 meets the major service change threshold. The population living within ¼ mile of existing stops has a slightly smaller percentage of minority individuals than the system-wide average, and that percentage does not change under the proposed network. As a result, and because the changes to Route 20 are a service improvement, there is no disparate impact, and no mitigation measures need to be considered. The percentage of low-income individuals living within ¼ mile of Route 20 stops is slightly lower than the system-wide average. However, the proposed network does not affect that percentage. As a result, there is no disproportionate burden, and no mitigation measures need to be considered. Route 34 The increase in service frequency and addition of new coverage on Route 34 meets the major service change threshold. The percentage of minority individuals living within ¼ mile of Route 34 is slightly above the system-wide average, and there is only a 0.1 percentage point decrease in the percent of minority individuals who have access to the route. The changes to Route 34 also represent an increase in coverage, meaning the changes are a service improvement. As a result, there is no disparate impact, and no mitigation measures need to be considered. The percentage of low-income individuals living within ¼ mile is slightly above the system-wide average. This proposed alignment change has no impact on the percent of low-income individuals who have access within ¼ mile to Route 34 stops. As a result, there is no disproportionate burden, and no mitigation measures need to be considered. 12 Route 45 The addition of new coverage on Route 45 meets the major service change threshold. The proportion of minority individuals living within ¼ mile of Route 45 is slightly less than the system-wide average, and there is no change in that share under the proposed network. However, these changes can be classified as a service improvement because there is an increase in coverage on the route. As a result, there is no disparate impact, and no mitigation measures need to be considered. The percentage of low-income individuals living within ¼ mile of Route 45 is slightly below the system- wide average, and the proposed changes do not change that percentage. As a result, there is no disproportionate burden, and no mitigation measures need to be considered. 13 Ridership Analysis The second layer of analysis considers FAX ridership based on the demographic information gathered through the 2022 Customer Satisfaction Survey. To consider known FAX riders specifically, rather than the population that merely could be using FAX due to geographic proximity, the most recent customer satisfaction survey was also analyzed for impacts. The purpose of considering this data is to determine if there are any routes that were not identified as minority or low-income routes based on geographic population analysis but have above-average minority or low-income ridership (Part 1 of the population analysis). Findings are summarized in Table 7. Highlighted cells indicate routes that are above the 20 precent threshold and cells with asterisks indicate very low response rates. Table 7: Minority and Low-Income Ridership Shares by Route, Compared to System Total Minority Low-Income Route Percentage Minority System Avg % Difference Percentage Low- Income System Avg % Difference 3 60.0%* -13.4% 75.0%* -4.1% 20 66.7% -6.7% 58.8%* -20.3% 34 76.9% 3.6% 82.7% 3.6% 45 44.4%* -28.9% 66.7%* -12.4% System-Wide 73.4% 79.1% Route 3 Similar to the ACS analysis, the percentage of minority riders on Route 3 is less than the percentage of minority riders, system wide. The percentage of low-income riders is also slightly lower on Route 3 than system-wide, but not significantly so, and remains quite high overall. As a result, there is no disparate impact or disproportionate burden, and no mitigation measures need to be considered. Route 20 The percentage of minority riders on Route 20 is also below the system average, and the percentage of low-income riders is below average and breaks the 20% difference threshold. The differences in the case of low-income riders identifies a potential disproportionate burden, and mitigation measures need to be considered. Route 34 The percentage of minority riders on Route 34 is slightly above average. The percentage of low-income riders is also above the system-wide average, although by significantly less than that of the disproportionate burden threshold. As a result, there is no disparate impact or disproportionate burden, and no mitigation measures need to be considered. Route 45 The percentage of minority riders on Route 45 is below the system-wide percentage, by 28.9 percentage points, and the percentage of low-income riders is slightly below. The difference in the minority riders on Route 45 compared to the system average is more than enough to cross the 20% threshold. As this could indicate a disparate impact, mitigation measures need to be considered. 14 Alternative Remix Analysis In addition to the usual analysis, FAX also conducted an analysis using the Remix Title VI tool. Remix’s Title VI tool looks at the overall impact of proposed changes by calculating annual person trips. For each route, the tool takes the number of low-income and minority individuals within a quarter mile before and after the proposed change, then multiplies those numbers by the number of trips on that route. This method captures the difference in total amount of service available to minority and low-income populations and can catch some impacts in ways the usual analysis cannot. For example, a route that is moved to a less dense part of town may provide less service to minority and low-income populations, even if the percentage of minority and low-income populations remains the same. Applying this analysis to the changes proposed by FAX shows that the proposed changes are not an impact. Even though a larger number of trips are being added to routes that have below average minority and low-income percentages, those additions are balanced by the fact that the total number of minority and low-income individuals that live within a quarter mile of improved service on Route 34 is much larger. The Remix Title VI Analysis can be seen in Appendix C. Mitigation Measures No additional mitigation measures are necessary; the proposed changes, when examined in context, do not suggest that the service changes as a whole cause a disparate impact or disproportionate burden. Of the proposed changes, Route 20 was found to have potential disproportionate burdens based on the ridership analysis; it is an increase in service that disproportionately benefits non-low-income individuals. Route 45 was found to have potential disparate impacts because it is an increase in coverage for a route with high non-minority ridership. However, the results from the analyses suggest that the other proposed changes already mitigate the impacts of Routes 20 and 45, and that no additional mitigation measures are necessary. It is important to take these ridership numbers with a grain of salt because the survey response rate for some of the routes was incredibly low, as noted in the chart above. The survey was taken in 2022, when ridership was still recovering from the COVID pandemic. When looking at the geographic population analysis, it was found that the difference in percent of minority and low-income individuals between the existing and proposed networks overall is very small, a total decrease by 0.1%. While the Route 3 change increases service in areas with lower-than-average minority and low-income individual percentages, the increase in frequency on Route 34 expands service in areas that meet or exceed the system average for minority and low-income individuals. This route also serves a greater share of the total population within ¼ mile of FAX stops than Routes 3, 20, and 45 which helps to balance the impacts. In addition, Route 3 provides service to a number of medical facilities, a community college, and two regional shopping centers. Public outreach conducted when the route was originally introduced indicated that minority and low-income showed strong support for improved service to these areas, suggesting that although the route itself may not pass through neighborhoods with higher than average minority and low-income population, the route does provide connections to locations that minority and low-income riders feel are valuable. The Route 34 change, for example expands route coverage to an Amazon facility and other major employment sites. This route provides access to jobs for an area with an above average share of minority and low-income individuals. Additionally, the route is above average for the share of minority and low-income riders that use the route. In addition, the analysis done using the Remix Title VI tool also shows that, while much of the increased service is concentrated in areas that are more likely to be non-minority and non-low income, that 15 increased service is balanced by the additional service on Route 34. With this context along with the analysis, the combined impact of the service changes does not cause a disparate impact or disproportionate burden. 16 Appendix A: Community Outreach Materials Figure 4: Flyer for May Workshops 17 Figure 5: Flyer for August Workshops 18 Figure 6: Excerpt from April 2022 Newsletter (continues on following page) 19 20 Appendix B: Route Maps Figure 7: Route 3 Current Figure 8: Route 3 Proposed 21 Figure 9: Route 20 Current 22 Figure 10: Route 20 Proposed 23 Figure 11: Route 34 Current 24 Figure 12: Route 34 Proposed 25 Figure 13: Route 45 Current 26 Figure 14: Route 45 Proposed Appendix C: Alternative Remix Analysis Route Name Population (within 1/4 mi) Low Income Minority Trips (Annually ) Population (within 1/4 mi) Low Income Minority Trips (Annually ) Population (within 1/4 mi) Low Income Minority Trips (Annually ) Population (within 1/4 mi) Low Income Minority Trips (Annually ) People-Trips (Population * Trips) Low Income People-Trips Minority People- Trips Change Borne By Low Income Change Borne by Minorities 1 Fax Q (A)29,112 48.8%80.8%26,101 29,703 49.2%81.5%25,486 29,112 48.8%80.8%26,101 29,703 49.2%81.5%25,486 0 0 0 0.0%0.0% 1 Fax Q (B)14,737 58.0%88.4%978 0 0 14,737 58.0%88.4%978 0 0 0 0 0 0.0%0.0% 1 Fax Q (C)0 0 16,344 41.7%74.2%726 0 0 16,344 41.7%74.2%726 0 0 0 0.0%0.0% 3 Herndon 16,843 15.6%55.2%7,068 16,541 15.3%56.8%7,320 0 0 0 0 -240,126,444 -37,036,436 -134,455,332 15.4%56.0% 3 Herndon (Proposed)0 0 0 0 16,843 15.8%55.5%10,365 16,541 15.5%56.9%10,365 346,025,160 54,212,532 194,340,225 15.7%56.2% 9 Shaw (A)21,532 36.2%67.3%9,565 24,192 34.7%65.9%9,676 21,532 36.2%67.3%9,565 24,192 34.7%65.9%9,676 0 0 0 0.0%0.0% 9 Shaw (B)25,835 35.9%67.1%8,217 24,723 36.3%66.7%8,469 25,835 35.9%67.1%8,217 24,723 36.3%66.7%8,469 0 0 0 0.0%0.0% 12 Brawley / Inspiration Park 9,599 40.8%83.4%11,091 10,606 38.4%80.9%10,980 9,599 40.8%83.4%11,091 10,606 38.4%80.9%10,980 0 0 0 0.0%0.0% 20 Hughes / Mckinley 34,114 37.6%76.1%7,320 35,205 34.8%76.0%7,320 0 0 0 0 -507,415,080 -183,518,890 -385,873,800 36.2%76.0% 20 Hughes / Mckinley (Proposed)0 0 0 0 34,114 37.6%76.1%10,617 35,205 34.8%76.0%10,617 735,959,823 266,177,603 559,675,155 36.2%76.0% 22 West Ave / Tulare (A)46,663 43.9%78.5%8,490 50,026 41.6%76.2%9,105 46,663 43.9%78.5%8,490 50,026 41.6%76.2%9,105 0 0 0 0.0%0.0% 22 West Ave / Tulare (B)26,941 40.5%72.5%504 30,557 37.3%69.5%837 26,941 40.5%72.5%504 30,557 37.3%69.5%837 0 0 0 0.0%0.0% 22 West Ave / Tulare (C)21,539 48.9%85.7%474 0 0 21,539 48.9%85.7%474 0 0 0 0 0 0.0%0.0% 22 West Ave / Tulare (D)24,854 44.3%84.2%252 21,513 48.5%85.7%504 24,854 44.3%84.2%252 21,513 48.5%85.7%504 0 0 0 0.0%0.0% 22 West Ave / Tulare (E)49,978 42.1%78.2%756 0 0 49,978 42.1%78.2%756 0 0 0 0 0 0.0%0.0% 22 West Ave / Tulare (F)0 0 21,103 33.5%67.7%252 0 0 21,103 33.5%67.7%252 0 0 0 0.0%0.0% 26 Palm / Butler (A)45,413 41.1%73.7%8,883 44,861 41.6%74.1%9,246 45,413 41.1%73.7%8,883 44,838 41.6%74.1%9,246 -212,658 -88,637 -184,920 41.7%87.0% 26 Palm / Butler (B)23,099 31.1%61.0%978 23,720 32.9%62.1%726 23,099 31.1%61.0%978 23,696 32.9%62.0%726 -17,424 -8,537 -14,520 49.0%83.3% 26 Palm / Butler (C)24,121 51.1%86.0%726 23,184 50.9%86.5%615 24,121 51.1%86.0%726 23,184 50.9%86.5%615 0 0 0 0.0%0.0% 28 Dss / Manchester / West Fresno (A)30,610 44.1%75.8%14,115 29,369 43.9%75.5%14,145 30,610 44.1%75.8%14,115 29,369 43.9%75.5%14,145 0 0 0 0.0%0.0% 28 Dss / Manchester / West Fresno (B)14,423 41.4%66.2%452 13,885 41.7%68.4%502 14,423 41.4%66.2%452 13,885 41.7%68.4%502 0 0 0 0.0%0.0% 28 Dss / Manchester / West Fresno (C)6,070 48.4%93.1%978 0 0 6,070 48.4%93.1%978 0 0 0 0 0 0.0%0.0% 28 Dss / Manchester / West Fresno (D)0 0 23,473 42.7%72.5%615 0 0 23,473 42.7%72.5%615 0 0 0 0.0%0.0% 28 Dss / Manchester / West Fresno (E)0 0 19,782 43.9%74.0%302 0 0 19,782 43.9%74.0%302 0 0 0 0.0%0.0% 32 Fresno St (A)33,893 47.9%79.4%10,224 34,481 46.5%78.8%10,365 33,893 47.9%79.4%10,224 34,481 46.5%78.8%10,365 0 0 0 0.0%0.0% 32 Fresno St (B)10,619 63.6%89.8%1,178 10,241 62.8%89.6%804 10,619 63.6%89.8%1,178 10,241 62.8%89.6%804 0 0 0 0.0%0.0% 32 Fresno St (C)0 0 26,082 41.2%74.3%474 0 0 26,082 41.2%74.3%474 0 0 0 0.0%0.0% 33 Belmont 21,014 59.5%90.6%8,136 20,170 59.9%90.1%8,025 21,014 59.5%90.6%8,136 20,170 59.9%90.1%8,025 0 0 0 0.0%0.0% 34 First Street (A)37,865 43.4%76.9%13,248 38,115 43.7%76.9%12,885 0 0 0 0 -992,747,295 -432,106,959 -763,231,683 43.5%76.9% 34 First Street (B)7,887 62.7%86.6%978 0 0 0 0 0 0 -7,713,486 -4,839,713 -6,678,762 62.7%86.6% 34 First Street (C)0 0 32,205 39.7%74.4%726 0 0 0 0 -23,380,830 -9,292,144 -17,401,494 39.7%74.4% 34 First Street (Proposed) (A)0 0 0 0 37,738 43.3%76.8%16,020 38,115 43.7%76.9%15,657 1,201,329,315 522,339,651 923,184,831 43.5%76.8% 34 First Street (Proposed) (B)0 0 0 0 7,887 62.7%86.6%978 0 0 7,713,486 4,839,713 6,678,762 62.7%86.6% 34 First Street (Proposed) (C)0 0 0 0 0 0 32,205 39.7%74.4%726 23,380,830 9,292,144 17,401,494 39.7%74.4% 35 Olive 30,357 48.5%85.7%10,728 31,595 47.9%85.3%10,728 30,248 48.4%85.7%10,728 31,595 47.9%85.3%10,728 -1,169,352 -719,310 -1,051,344 61.5%89.9% 38 Cedar (A)52,745 44.9%78.8%16,524 52,357 45.0%78.9%16,272 52,800 44.9%78.8%16,524 52,382 45.0%78.9%16,272 1,315,620 660,738 1,183,932 50.2%90.0% 38 Cedar (B)27,709 48.8%85.3%754 29,202 48.5%84.5%452 27,709 48.8%85.3%754 29,202 48.5%84.5%452 0 0 0 0.0%0.0% 38 Cedar (C)0 0 40,410 51.3%86.1%50 0 0 40,410 51.3%86.1%50 0 0 0 0.0%0.0% 39 Fyi / Clinton 26,766 42.5%78.5%9,357 26,816 41.7%79.1%10,113 26,766 42.5%78.5%9,357 26,816 41.7%79.1%10,113 0 0 0 0.0%0.0% 41 Malaga / Shields / Chestnut (A)54,100 45.2%83.0%9,609 55,744 45.0%82.8%9,357 54,100 45.2%83.0%9,609 55,744 45.0%82.8%9,357 0 0 0 0.0%0.0% 41 Malaga / Shields / Chestnut (B)20,155 39.8%76.3%504 0 0 20,155 39.8%76.3%504 0 0 0 0 0 0.0%0.0% 41 Malaga / Shields / Chestnut (C)0 0 14,140 43.3%82.6%504 0 0 14,140 43.3%82.6%504 0 0 0 0.0%0.0% 41 Malaga / Shields / Chestnut (D)0 0 35,339 47.9%86.5%252 0 0 35,339 47.9%86.5%252 0 0 0 0.0%0.0% 45 Ashlan 27,317 37.3%74.5%6,816 26,921 36.7%74.1%7,068 -376,470,300 -139,307,131 -279,703,368 37.0%74.3% 45 Ashlan (Proposed)0 0 0 0 27,124 37.3%74.4%9,861 26,921 36.7%74.1%9,861 532,937,745 197,199,832 395,751,513 37.0%74.3% 58 Ne Fresno 8,370 14.0%53.4%3,912 9,631 13.0%53.5%3,912 8,370 14.0%53.4%3,912 9,631 13.0%53.5%3,912 0 0 0 0.0%0.0% 58E E Childrens Hospital 1,578 29.5%69.4%3,801 1,738 32.3%71.9%3,801 1,578 29.5%69.4%3,801 1,801 32.9%72.5%3,801 239,463 114,276 212,856 47.7%88.9% All Changes (both directions)371,108 40.3%76.3%405,331 380,394 40.2%76.3%429,649 699,648,573 247,918,730 509,833,545 35.4%72.9% Low Income Minority Change Borne By35.4%72.9% Area Average 34.5%72.8% Delta 0.9%0.0% Before (Inbound)Before (Outbound)After (Inbound)After (Outbound)Difference City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1050 Agenda Date:7/20/2023 Agenda #: 1.-KK. REPORT TO THE CITY COUNCIL FROM:ANNALISA PEREA, Vice President Council District 1 MIGUEL ARIAS, Councilmember Council District 3 SUBJECT Resolution - Creating A Pilot Program to Improve The Safety Of And Establish Procedures For Sidewalk Vending In Tower District RECOMMENDATION [If more than one recommendation pluralize] EXECUTIVE SUMMARY [Brief, 1-2 paragraphs; information stated here must be expanded in Background section; clear and concise so anyone understands action being requested] BACKGROUND [Include: Any prior history; “City Attorney has reviewed and approved to form,” if applicable; source of funding; appropriate regulation summary information] ENVIRONMENTAL FINDINGS [Include CEQA findings or state N/A] LOCAL PREFERENCE [N/A due to State and Federal money; N/A because it is more than ½ of 1%; or yes, state why] FISCAL IMPACT [Funding source, clarify whether General Fund is or is not impacted; appropriation authority already approved or an AAR is attached; if appropriate explain impact on other projects or timing of funding from other agencies; future obligations] City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT R. 2023-211 APPROVED ON CONSENT File #:ID 23-1050 Agenda Date:7/20/2023 Agenda #: 1.-KK. Attachment:[If more than one, pluralize] City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1097 Agenda Date:7/20/2023 Agenda #: 1.-LL. REPORT TO THE CITY COUNCIL FROM:ANNALISA PEREA, Vice President Council District 1 SUBJECT Resolution - To Bring Focused Attention to an Affordable Connectivity Program to Bridge the Digital Divide for Residents Who Lack Internet Access Attachment: Resolution City of Fresno Printed on 7/31/2023Page 1 of 1 powered by Legistar™ 7/20/2023 AP/NE 7-0 R. 2023-212 1 of 3 Date Adopted: Date Approved: Effective Date: City Attorney Approval: ______ Resolution No. ____________ RESOLUTION NO. ____________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, TO BRING FOCUSED ATTENTION TO AN AFFORDABLE CONNECTIVITY PROGRAM TO BRIDGE THE DIGITAL DIVIDE FOR RESIDENTS WHO LACK INTERNET ACCESS WHEREAS, access to affordable and reliable internet connectivity is critical to the City of Fresno, which would allow for full participation in society and the modern economy; and WHEREAS, the Federal Communications Commission (FCC) estimates that approximately 14% of households in Fresno County lack access to broadband internet; and WHEREAS, the City of Fresno is committed to helping families and children be healthy, productive and self-sufficient and realizes that the use of broadband can save both time and money for residents while helping them bridge the economic divide; and WHEREAS, the City of Fresno is committed to helping students obtain the highest quality education possible incorporating digital literacy and understands that high-speed internet connectivity and availability of computing devices at school and at home are critical teaching and learning tools for academic achievement; and WHEREAS, the COVID-19 pandemic has tremendously impacted the urgency for internet access in households, as online presences are needed for remote work and asynchronous courses, which require internet stability; and WHEREAS, in July 2021, Governor Gavin Newsom signed historic broadband legislation into law to help bridge the digital divide and provide reliable and affordable 2 of 3 internet access to all Californians. Senate Bill 156 (Chapter 112, Statutes of 2021) expands the state’s broadband fiber infrastructure and increases internet connectivity for families and businesses; and WHEREAS, an Affordable Connectivity Program would produce an abundance of benefits for the City of Fresno, including digital tools for students and job seekers; and WHEREAS, the Council desires to bring focused attention to an Affordable Connectivity Program in the City of Fresno for its residents, resulting in a blooming community from easily accessible broadband internet. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Fresno as follows: 1. The Council hereby desires to bring focused attention to the need for an Affordable Connectivity Program to foster equality for Fresno residents and bolster resources for upward mobility. 2. This resolution shall be effective upon final approval. 3 of 3 * * * * * * * * * * * * * * STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of 2023. AYES : NOES : ABSENT : ABSTAIN : TODD STERMER, CMC City Clerk By: Deputy Date APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Angela M. Karst Date Senior Deputy City Attorney City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1115 Agenda Date:7/20/2023 Agenda #: 1.-MM. REPORT TO THE CITY COUNCIL FROM:TYLER MAXWELL, Council President Council District 4 ANNALISA PEREA, Vice President Council District 1 SUBJECT ***Resolution - to adopt a Commercial Façade Improvement Grant Program for Districts 1 and 4 (Subject to Mayor’s Veto) Attachment: RESOLUTION City of Fresno Printed on 7/31/2023Page 1 of 1 powered by Legistar™ 7/20/2023 MA/NE 6-0 LC ABSENT R. 2023-213 APPROVED ON CONSENT Exhibit A Exhibit B Exhibit A Exhibit B City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1049 Agenda Date:7/20/2023 Agenda #: REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, PE, Director Public Works Department BY:ANDREW J. BENELLI, PE, City Engineer/Assistant Director Public Works Department, Traffic Engineering Division ADRIAN GONZALEZ, Senior Engineering Technician Public Works Department, Land Planning Section SUBJECT HEARING to adopt Resolutions and Ordinance to Annex Territory and Levy a Special Tax regarding City of Fresno Community Facilities District Number 11, Annexation Number 145 (Final Tract Map Number 6283) (Located on the southeast corner of North Fowler Avenue and East Dakota Avenue) (Council District 4) 1. ***RESOLUTION - to Annex Territory to Community Facilities District No. 11 and Authorizing the Levy of a Special Tax for Annexation No. 145 (Subject to Mayor’s Veto) 2. ***RESOLUTION - Calling Special Mailed-Ballot Election (Subject to Mayor’s Veto) 3. ***RESOLUTION - Declaring Election Results (Subject to Mayor’s Veto) 4. ***BILL - (For introduction and adoption) - Levying a Special Tax for the Property Tax Year 2022-2023 and Future Tax Years Within and Relating to Community Facilities District No. 11, Annexation No. 145 (Subject to Mayor’s Veto) RECOMMENDATIONS 1. Adopt Resolution to Annex Territory to Community Facilities District No. 11 and Authorizing the Levy of a Special Tax for Annexation No. 145, 2. Adopt Resolution Calling Special Mailed-Ballot Election, 3. Adopt Resolution Declaring Election Results, and 4. Adopt Ordinance Levying a Special Tax for the Property Tax Year 2022-2023 and Future Tax Years Within and Relating to Community Facilities District No. 11, Annexation No. 145. EXECUTIVE SUMMARY On June 8, 2023, the Council of the City of Fresno (Council) adopted Council Resolution No. 2023- 175 with the intent to annex territory to Community Facilities District No. 11 (CFD No. 11) at the request of the landowner (P.R. Farms, Inc) of Final Tract Map No. 6283 (136 lot Single-Family Home Subdivision). This is the noticed public hearing to consider annexing Final Tract Map No. 6283 as Annexation No. 145 to CFD No. 11 to provide funding for the Services (as hereafter defined) pertaining to certain required above ground public improvements associated with this subdivision. City of Fresno Printed on 7/31/2023Page 1 of 3 powered by Legistar™ 7/20/2023 TM/MA 7-0 R. 2023-214, R. 2023-215 R. 2023-216, B-26/O. 2023-023 File #:ID 23-1049 Agenda Date:7/20/2023 Agenda #: pertaining to certain required above ground public improvements associated with this subdivision. The cost for Services is $723.52 per lot annually.If approved,the recommended resolutions and ordinance will levy a Special Tax on the properties in Final Tract Map No.6283 for identified Services. (See attached Location and Features map.) BACKGROUND Subdivision: 6283 Developer: Lennar Homes Number of Lots:136 Maximum Special Tax Per Lot: $723.52 Features:Certain required above ground public improvements;including Landscaping and irrigation systems;concrete and hardscape improvements,paving,street lights,park hardscaping and amenities. On November 15,2005,the Council adopted Council Resolution No.2005-490 forming CFD No.11 to fund the maintenance of landscaping,open spaces,local streets,local street lights and street furniture,curbs,gutters,sidewalks,street trees and other public facilities and services as defined by the City of Fresno Special Tax Financing Law,Chapter 8,Division 1,Article 3 of the Fresno Municipal Code (City Law). The landowner of Final Tract Map No.6283 has petitioned the City of Fresno to be annexed into CFD No.11 to provide the funding for the operation and reserves for maintenance (Services) pertaining to the landscaping,trees and irrigation systems within the street rights-of-way,landscape easements and dedicated Outlots;the concrete curbs and gutters,valley gutters,sidewalks,curb ramps,street name signage,street lighting,and local street paving associated with this subdivision. Pursuant to this petition,the Council adopted Council Resolution No.2023-175,declared its intention to annex the Final Tract Map No.6283 to CFD No.11,and set the public hearing for formal consideration. (See attached Location and Features map.) Resolution No.2023-175 also directed the preparation of an Engineer’s Report describing the Services and the costs of those services and this report is on file with the City Clerk. If adopted by the Council,the attached ordinance would levy the proposed Maximum Special Tax of $723.52 per residential lot to provide Services for Fiscal Year 2022-2023.The Maximum Special Tax will be adjusted upward annually by 2%or by the rise of the Construction Cost Index (CCI)if it exceeds 2% for the San Francisco Region. The levy of the special tax is subject to approval by the qualified electors through a special election. Two additional resolutions are attached for Council consideration pertaining to this special election. Today’s public hearing has been duly noticed and the attached ordinance and resolutions have been approved as to form by the City Attorney’s Office. ENVIRONMENTAL FINDINGS Pursuant to the definition in California Environmental Quality Act Guidelines Section 15378,this action is not a project. City of Fresno Printed on 7/31/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1049 Agenda Date:7/20/2023 Agenda #: LOCAL PREFERENCE Local preference was not implemented,as this item does not include a bid or award of a construction or services contract. FISCAL IMPACT No City funds will be involved.All costs for services will be borne by the property owners within the subject tract. Attachment(s): Location Map Feature Map Resolution Annex-Levy Resolution Calling Election Resolution Declaring Results Ordinance City of Fresno Printed on 7/31/2023Page 3 of 3 powered by Legistar™ BARSTOW GARFIELDBRYANPOLKBLYTHEVALENTINEVAN NESSFRUITSIERRA ALLUVIAL GETTYSBURG DAKOTA CLINTON OLIVE NIELSON KEARNEY ANNADALE INTERNATIONAL PERRIN TEAGUE ALLUVIALMAROAFRESNOMILLBROOKMAPLEWILLOW MINNEWAWASUNNYSIDEARMSTRONGMAPLEORANGECHERRYFIGCHURCH BUTLER TULARE LOCANDAKOTA CLINTON OLIVE FRUITHUGHESVALENTINEBLYTHEPOLKBRYANN DEVELOPMENT SERVICES DIVISION FINAL TRACT MAP NO. 6283 DISTRICT 4 ANNEXATION NO. 145 COMMUNITY FACILITIES DISTRICT NO. 11 NORTH FOWLER AVENUE EAST DAKOTA AVENUENNORTH FOWLER AVENUENORTH BURGAN AVENUENORTH LAVERNE AVENUEEAST ROBINSON AVENUEN McARTHUR AVEEAST DAKOTA AVENUE NORTH McARTHUR AVENUEEAST GIAVANNA AVENUE EAST RAMONA AVENUE FINAL TRACT MAP NO. 6283 BUFFERS/PARKWAYS/MEDIAN TREES & SHRUBS = 60,005 SF FEATURES TO BE ADDED BY ANNEXATION NO. 145 COMMUNITY FACILITIES DISTRICT NO. 11 DEVELOPMENT SERVICES DIVISION N STREET LIGHTS: LOCAL STREET PAVEMENT: CONCRETE IMPROVEMENTS: LANDSCAPE AND IRRIGATION: INTERIOR RESIDENTIAL = 154,431 SF TOTAL = 56 EACH CURB & GUTTER = 11,525 LF VALLEY GUTTER = 1,335 SF SIDEWALK & CURB RAMPS = 71,702 SF OUTLOT HARDSCAPE AND AMENITIES: TURF & BEDS GROUND COVER = 25,866 SF STAMPED CONCRETE = 4,595 SF MEDIAN CURB = 2,259 LF SMALL TREES = 66 EACH LARGE TREES = 95 EACH *CONCRETE WALKS & PADS = 7,807 SF *BENCHES = 2 EACH *TRASH RECEPTACLE = 1 EACH 1 of 6 Date Adopted: Date Approved: Effective Date: City Attorney Approval: HT Resolution No. RESOLUTION NO. ____________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, TO ANNEX TERRITORY TO COMMUNITY FACILITIES DISTRICT NO. 11 AND AUTHORIZING THE LEVY OF A SPECIAL TAX FOR ANNEXATION NO. 145 WHEREAS, on June 8, 2023, the Council of the City of Fresno (Council) adopted Council Resolution No. 2023-175 to Annex Final Tract Map No. 6283 to the City of Fresno, Community Facilities District No. 11 (CFD No. 11) and to Authorize the Levy of Special Taxes, pursuant to the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code (City Law); and WHEREAS, Council Resolution No. 2023-175, incorporating a map of the area proposed for annexation to CFD No. 11, and stating the Services (as hereafter defined) to be provided, the estimated maximum cost of providing such Services, and the rate and method of apportionment of the special tax to be levied within Annexation No. 145 of CFD No. 11 to pay for the Services with respect to Annexation No. 145 of CFD No. 11, is on file with the City Clerk of the City of Fresno (City Clerk), and the provisions thereof are incorporated herein by this reference as if fully set forth herein; and WHEREAS, on this date, this Council held a noticed public hearing, as required by City Law and Council Resolution No. 2023-175 concerning the annexation of territory to CFD No. 11; and WHEREAS, at the hearing all interested persons desiring to be heard on the annexation of territory to CFD No. 11, the facilities and services to be provided therein, and the levy of said special tax were heard; and 2 of 6 WHEREAS, at the hearing evidence was presented to this Council on the proposed annexation before it, including a report by th e Public Works Director (District Report) as to the Services to be provided through CFD No. 11 and the costs thereof, and a copy of the District Report is on file with the City Clerk; and WHEREAS, pursuant to Government Code Section 53339.6, the City Clerk or designee did not receive written protests with respect to the proposed annexation, the specified types of services to be furnished therein, or the rate and method of apportionment of the special taxes therein, from any of the following: (1) at least 5 0% of the registered voters or six registered voters, whichever is more, residing within the existing community facilities district; (2) at least 50% of the registered voters or six registered voters, whichever is more, residing within the territory proposed for annexation; (3) owners of at least one-half of the area of land in the territory included in the existing community facilities district and not exempt from the special tax; or (4) owners of at least one-half of the area of land in the territory proposed for annexation and not exempt from the special tax; and WHEREAS, the special tax proposed to be levied upon the territory, if annexed, to pay for the proposed Services (set forth in page A-1 of Exhibit A hereto), has not been eliminated through protest of at least fifty percent (50%) or more of the registered voters residing within the territory proposed for annexation, or through protests of landowners not exempt from the special tax and owning at least one-half (½) of the area of land within the proposed annexation. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Fresno as follows: 1. Recitals. The foregoing recitals are true and correct. 3 of 6 2. No Majority Protest. The proposed special tax to be levied within the proposed annexation has not been precluded by majority protest pursuant to City Law. 3. Prior Proceedings. The Council duly considered all prior proceedin gs for the proposed annexation and the levy of the special tax therein, and finds and determines that the proceedings are valid and conform to the requirements of City Law. This Council finds and determines that the proposed annexation conforms to the goals and policies that this Council adopted respecting the formation of CFD No. 11. 4. Boundaries Described. The boundaries of the proposed annexation, set forth in the map of the area proposed for annexation to CFD No. 11, recorded in the Fresno County Recorder’s Office in Book 46 at page 97 of Maps of Assessment and Community Facilities Districts, are approved, incorporated herein by reference, and shall be the boundaries of the Annexation No. 145. 5. Services. The types of public services proposed to be financed by Annexation No. 145 of CFD No. 11 and pursuant to City Law are those listed as services on page A-1 of Exhibit A in the District Report on file with the City Clerk (Services). A copy of which is attached as Exhibit A and incorporated herein by this reference. 6. Special Taxes. Except to the extent that funds are otherwise available to CFD No. 11 to pay for the Services, a special tax sufficient to pay the costs thereof, secured by a continuing lien against all non-exempt real property in CFD No. 11, including the territory to be annexed, will be levied annually within CFD No. 11, and collected in the same manner as ordinary ad valorem property taxes or in any other manner as this Council or its designee shall determine, including direct billing of the affected property owners. The proposed rate and method of apportionment of the special tax among the real property parcels within the territory of the proposed annexation, in sufficient detail to 4 of 6 allow each landowner within the territory of the proposed annexation to estimate the probable maximum amount such owner must pay, are described in the District Report on file with the City Clerk and attached hereto as Exhibit B and incorporated herein by this reference. 7. Tax Collection Authority. The Public Works Director of the City of Fresno or designee, 2600 Fresno Street, Fresno, California 93721 telephone number (559) 621 - 1492 is the officer who will be responsible for preparing annually a current r oll of special tax levy obligations by assessor’s parcel number and estimating future special tax levies pursuant to City Law. 8. Tax Lien. Upon recordation of a notice of special tax lien, pursuant to Section 3114.5 of the California Streets and Highways Code, a continuing lien to secure each levy of the special tax shall attach to all non -exempt real property in the proposed annexation area. This lien shall continue in force and effect until the special tax obligation ceases and the lien is canceled in accordance with law or until collection of the tax by the City of Fresno ceases. 9. Appropriations Limit. In accordance with City Law, the annual appropriations limit, as defined by subdivision (h) of Section 8 of Article XIII B of the California Constitution, of the proposed annexation, is hereby preliminarily established at $500,000 and said appropriations limit shall be submitted to the voters of the proposed annexation as hereafter provided. The proposition establishing said annual appropriations limit shall become effective if approved by the qualified electors voting thereon and shall be adjusted in accordance with the applicable provisions of City Law. 10. Election. Pursuant to the provisions of City Law, the levy of the special tax and the proposition to establish the appropriations limit specified above shall be submitted 5 of 6 to the qualified electors of the proposed annexation at an election the time, place and conditions of which election shall be as specified by a separate resolution of thi s Council. 11. Effective Date. This Resolution shall be effective upon final approval. Attachments: Exhibit A - Description of Services Exhibit B - Rate and Method of Apportionment of Special Tax 6 of 6 * * * * * * * * * * * * * * STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of 2023. AYES : NOES : ABSENT : ABSTAIN : Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Vote: , 2023 TODD STERMER, CMC City Clerk BY: Date Deputy APPROVED AS TO FORM: ANDREW JANZ City Attorney BY: Heather Thomas Date Deputy City Attorney EXHIBIT A A-1 City of Fresno Community Facilities District No. 11 Annexation No. 145 Description of Services to be Financed by Community Facilities District No. 11 for Annexation No. 145 (Final Tract Map No. 6283) The operations and reserves for the maintenance of certain required improvements (Services) that are to be financed by Community Facilities District No. 11 (CFD No. 11) for Final Tract Map No. 6283, Annexation No. 145 are generally as described below. The Services will include all costs (including reserves for replacement) attributable to maintaining, servicing, cleaning, repairing and/or replacing landscaped areas and trees in public street rights-of-way, public landscape easements, public open spaces and other similar landscaped areas officially dedicated for public use. General maintenance will include, without limitation, mowing, edging, fertilizing, aerating and watering grass areas, repairing and replacing irrigation systems as necessary; staking, pruning, replacing and spraying of trees and shrubs; removing litter, debris, and garbage. Services shall include all costs attributable to cleaning, maintaining, servicing, repairing and/or replacing all ground level infrastructure (including reserves for replacement) within dedicated public easements and outlots. Such facilities include, without limitation, concrete curbs, gutters, valley gutters, curb ramps and sidewalks, street name signage , street lighting, and local street paving associated with this subdivision. Such facilities may also include, without limitation, all hardscaping and park amenities and structures associated with the subdivision. Services shall include all costs attributable to street lighting services. Maintenance costs will include a proportionate share of all other expenses that the City of Fresno (City) may incur in administering CFD No. 11. All Services shall be provided by the City, with its own forces or by contract with third parties, or any combination thereof, to be determined entirely by the City. Nothing in this exhibit or any other exhibit or provision of this Resolution shall be construed as committing the City or CFD No. 11 to provide all of the authorized Services or to provide for the payment of or reimbursement for all of the authorized incidental expenses. The provision of Services and/or payment or reimbursement of incidental expenses shall be subject to the successful annexation of Annexation No. 145 to CFD No. 11 and the availability of sufficient proceeds of Special Taxes within CFD No. 11. EXHIBIT A A-2 City of Fresno Community Facilities District No. 11 Formation Description of Services currently financed by Community Facilities District No. 11 The services that are to be financed (Services) by Community Facilities District No. 11 (CFD No. 11) are any and all Services defined by City of Fresno Speci al Tax Financing Law (Chapter 8, Division 1, Article 3 of the Fresno Municipal Code) and the Mello-Roos Community Facilities Act of 1982 (Chapter 2.5 commencing with Section 53311 , of Part 1, Division 2, Title 5 of the California Government Code.) I. Services may include all costs attributable to maintaining, servicing, cleaning, repairing and/or replacing all facilities, including hardscaping, in landscaped areas (may include reserves for replacement) in public street rights-of-way, public landscape easements, public trail areas, parkways, and other similar landscaped areas officially dedicated for public use. II. General maintenance will include, without limitation, mowing, edging, fertilizing, seeding, aerating, and watering grass areas; repairing and replacing irrigation systems as necessary; staking, pruning, replacing and spraying of trees and shrubs; repairing and replacing paths, walkways and trails; removing litter, debris, and garbage. II. Services may include all costs attributable to cleaning, maintaining, servicing, repairing and/or replacing all local ground level street infrastructure (may include reserves for replacement) within local street rights-of-way. Such facilities may include, without limitation, street paving, curbs and gutters, sidewalks, street lighting, hydrants, inlets, street trees and street furniture. III. Services may include costs attributable to police, fire, traffic control, street lighting and recreational services. Maintenance costs will also include a proportionate share of all other expenses that the City of Fresno (City) may incur in administering the CFD No. 11. All Services shall be provided by the City, with its own forces or by contract with third parties, or any combination thereof, to be determined entirely by the City. Nothing in this exhibit or any other exhibit or provision of this resolution shall be construed as committing the City or CFD No. 11 to provide all of the authorized Services or to provide for the payment of or reimbursement for all of the authorized incidental expenses. The provision of Services and/or payment or reimbursement of incidental expenses shall be subject to the continued existence of CFD No. 11 and the availability of sufficient proceeds of special taxes within the CFD No. 11. EXHIBIT B B-1 City of Fresno Community Facilities District No. 11 Annexation No. 145 Rate and Method of Apportionment of Special Tax Cost Estimate The estimate breaks down the costs of providing 1 year’s service for FY 2022-2023 for Final Tract Map No. 6283 (136 lots), Phase III of Vesting Tentative Tract Map No. 6131. Final Tract Map No. 6283’s costs include services for Final Tract Map No. 6283 and Final Tract Map No. 6283’s share of services provided to Vesting Tentative Tract Map No. 6131. Vesting Tentative Tract Map No. 6131 totals 413 Lots (counting the 136 from Tract No. 6283). The final maps within Vesting Tentative Tract Map No. 6131 are to share equally for a portion of the cost of Services by Community Facilities District No. 11 as calculated with Final Tract Map No. 6131 (Annexation No. 80) and Final Tract Map No. 6240 (Annexation No. 119). Final Tract Map No. 6283 will pay additional costs due to added facilities for that phase. ITEM DESCRIPTION (T-6283) ESTIMATED COST 1 Landscape Operational Costs $57,461.00 2 Other Operational Costs $947.00 3 Reserve for Replacement $37,950.00 4 Incidental Expenses $2,040.00 Total $98,398.00 Subdivision Appropriation Limit FINAL TRACT MAP NO. MAX. SPECIAL TAX PER RESIDENTIAL UNIT TOTAL TAXABLE UNITS APPROPRIATION LIMIT SUBDIVIDER 6283 $723.52 136 $500,000.00 Lennar Homes EXHIBIT B B-2 City of Fresno Community Facilities District No. 11 Annexation No. 145 Rate and Method of Apportionment of Special Tax A Special Tax applicable to each assessor’s parcel in Community Facilities District No. 11 (CFD No. 11) shall be levied and collected according to the tax liability determined by the City Council of the City of Fresno, through the application of the appropriate amount or rate for taxable property, as described below. All of the property in CFD No. 11, unless exempted by law or by the provisions of Section E below, shall be taxed for the purposes, to the extent, and in the manner herein provided, including property su bsequently annexed to CFD No. 11 unless a separate Rate and Method of Apportionment of Special Tax is adopted for the annexation area. A. DEFINITIONS The terms hereinafter set forth have the following meanings: “Assessor’s Parcel” or “Parcel” means a lot or parcel shown on an assessor’s parcel map with an assigned assessor’s parcel number. “Assessor’s Parcel Map” means an official map of the County Assessor of the County of Fresno designating parcels by assessor’s parcel number. “City” means the City of Fresno. “City Law” means the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code. “Council” means the City Council of the City of Fresno, acting as the legislative body of CFD No. 11. “Developable Lot” means a lot that is anticipated development of residential or non - residential uses, and which is not an outlot, remainder parcel or other parcel which is not intended to be developed or which must be further subdivided before being developed. “Excluded Parcels” means those assessor’s parcels identified as ineligible for inclusion in CFD No. 11 as shown in “Attachment 1” of this Rate and Method of Apportionment of Special Tax. “Final Map” means a final map, or portion thereof, approved by the Council of the City of Fresno pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) that creates individual developable lots for which building permits may be issued. The term “Final Map” shall not include any assessor’s parcel map or subdivision map or EXHIBIT B B-3 portion thereof that does not create individual developable lots for which a building permit may be issued, including assessor’s parcels that are designated as remainder parcels. “Fiscal Year” means the period starting April 1 and ending on the following March 31. “Maximum Special Tax” means the maximum special tax, determined in accordance with Section C, which can be levied in any Fiscal Year. “Proportionately” means, in any fiscal year, that the ratio of the actual Special Tax to the Maximum Special Tax is equal for all assessor’s parcels in CFD No. 11. “Public Property” means any property within the boundaries of CFD No. 11 that is owned by the federal government, the State of California or other local governments or public agencies. “Reserve for Replacement” means a reasonable reserve pursuant to Fresno Municipal Code 8-1-303(e) (4), as a service cost or expense and not as payment for public facilities under Government Code Section 53321(d). “Residential Unit” means a residential dwelling unit and shall include single-family unattached homes, condominiums, town homes, duplex, triplex and fourplex units, and individual apartment units in a multi-family building. For purposes of the levy of special taxes pursuant to Section C below, “Residential Units” shall include dwelling units already built on taxable property in CFD No. 11, as well as dwelling units planned, but not yet built, when the special tax is levied each fiscal year. “Shared Services” means the costs of services are paid equally by the property owners of two or more subdivisions. “Special Tax” means any special tax to be levied each fiscal year on assessor’s parcels of taxable property to fund the Special Tax Requirement as defined below. “Special Tax Requirement” means the amount necessary in any fiscal year to (i) pay authorized maintenance and improvement expenses, (ii) pay administrative expenses of CFD No. 11, and (iii) cure any delinquencies in the payment of special taxes levied in prior fiscal years or (based on delinquencies in the payment of special taxes which have already taken place) are expected to occur in the fiscal year in which the tax will be collected. “Subdivision” means the division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, shown on the latest equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease, or financing whether immediate or future. Property shall be considered as contiguous units, even if it is separated by roads, streets, utility easement or railroad rights -of-way. “Subdivision” includes a condominium project, as defined in Section 4125 of the Civil Code, a community apartment project, as defined in Section 4105 of the Civil Code. EXHIBIT B B-4 “Taxable Property” means all of the assessor’s parcels within the boundaries of CFD No. 11 which are not exempt from the special tax pursuant to law or Section E below. B. CALCULATION OF RESIDENTIAL UNITS On April 1 of each fiscal year, the City of Fresno (City) or its designee shall determine how many residential units are built, or allowed to be built, on assessor’s parcels within CFD No. 11. For parcels of undeveloped property zoned for development of single-family units attached, the number of residential units shall be determined by referencing the condominium plan, apartment plan site plan or other development plan, or by assigning the maximum allowable units permitted based on the underlying zoning for the parcel. Once a single-family attached building or buildings have been built on an assessor’s parcel, the City or its designee shall determine the actual number of residential units contained within the building or buildings, and the special tax levied against the parcel in the next fiscal year shall be calculated by dividing the Special Tax Requirement by the actual number of residential units not to exceed the Maximum Special Tax per residential unit identified for the final map in Section C, Table 1 below. C. MAXIMUM SPECIAL TAX The Maximum Special Tax (MST) applicable to each assessor’s parcel in CFD No. 11 shall be specific to each final map within CFD No. 11. When additional property is annexed to CFD No. 11, the rate and method adopted for the annexed property shall reflect the MST for the final map or final maps then annexed. The Maximum Special Tax for Fiscal Year 2022-2023 for a residential unit within Final Tract Map No. 6283 is identified in Table 1 below: Table 1 Maximum Special Tax (Fiscal Year 2022-2023)* Final Tract Map Number** Maximum Special Tax 6283 $723.52 per Residential Unit *Beginning in January of each year, the MST will be adjusted upward annually by 2% or by the rise of the Construction Cost Index (CCI), if it exceeds 2%, for the San Francisco Region for the prior 12-month period (December through December) as published in the Engineering News Record, or published in a comparable index if the Engineering News Record is discontinued or otherwise not available. Each annual adjustment of the MST shall become effective on the subsequent July 1. ** A Special Tax shall be levied on all parcels within an identified final map except excluded parcels as identified in Attachment 1. EXHIBIT B B-5 D. METHOD OF LEVY AND COLLECTION OF THE SPECIAL TAX Commencing with Fiscal Year 2022-2023, the Special Tax shall be levied on all taxable parcels as follows: Step 1: Determine the Special Tax Requirement (as defined in Section A above) for the fiscal year in which the Special Tax will be collected; Step 2: Calculate the total special tax revenues that could be collected from taxable property within CFD No. 11 based on applying the Maximum Special Tax rates determined pursuant to Section C above to the number of residential units on each parcel of taxable property in CFD No. 11; If the amount determined in Step 1 is greater than or equal to the amount calculated in Step 2, levy the Maximum Special Tax set forth in Table 1 above on all parcels of taxable property in CFD No. 11; If the amount determined in Step 1 is less than the amount calculated in Step 2, levy the Special Tax proportionately against all parcels of taxable property up to 100% of the Maximum Special Tax for each subdivision as identified in Table 1, until the amount of the Special Tax levy equals the Special Tax Requirement for that fiscal year. The Special Tax for CFD No. 11 shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, provided, however, that CFD No. 11 may (under the authority of Government Code 53340), in any particular case, bill the taxes directly to the property owner off of the County of Fresno tax roll, and the Special Taxes will be equally subject to penalties and foreclosure if delinquent. E. EXEMPTIONS Notwithstanding any other provision of this Rate and Method of Apportionment of Special Tax, no Special Tax shall be levied on parcels that have been conveyed to a public agency, except as otherwise provided in City Law, and properties receiving a welfare exemption under subdivision (g) of Section 214 of the Revenue and Taxation Code. In addition, no Special Tax shall be levied on excluded parcels or parcels that are determined not to be developable lots. EXHIBIT B B-6 ATTACHMENT 1 City of Fresno Community Facilities District No. 11 Annexation No. 145 Excluded Parcels THERE ARE NO EXCLUDED PARCELS IN FINAL TRACT MAP NO. 6283 1 of 4 Date Adopted: Date Approved: Effective Date: City Attorney Approval: HT Resolution No. RESOLUTION NO. ____________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, CALLING SPECIAL MAILED- BALLOT ELECTION COMMUNITY FACILITIES DISTRICT NO. 11 ANNEXATION NO. 145 WHEREAS, on June 8, 2023, the Council of the City of Fresno (Council) adopted Council Resolution No. 2023-175 to annex Final Tract Map No. 6283 to City of Fresno Community Facilities District No. 11 (CFD No. 11) and to authorize the levy of special taxes; and WHEREAS, Council Resolution No. 2023-175 identified the services to be provided by Annexation No. 145 of CFD No. 11 and provided an estimate of the cost of providing those services; and WHEREAS, Council Resolution No. 2023-175 contemplated the imposing of a special tax upon those properties within Annexation No. 145 of CFD No. 11 receiving said services; and WHEREAS, a report has been filed with the City Clerk of the City of Fresno (City Clerk) that describes the proposed rate and method of apportionment of the special tax among the parcels of real property proposed to be annexed to CFD No. 11 in sufficient detail to allow all interested parties to estimate the maximum amount e ach property owner must pay; and WHEREAS, the levy of said proposed special tax shall be subject to the approval of the qualified electors of the territory proposed to be annexed to CFD No. 11 at a special 2 of 4 election; and WHEREAS, the Public Works Director has filed a Certificate (Certificate) in these proceedings providing that fewer than twelve (12) registered voters reside within the boundaries of the territory proposed for annexation to CFD NO. 11. NOW, THEREFORE, BE IT RESOLVED by the Council as follows: 1. The levy of a special tax proposed in Council Resolution No. 2023-175 shall be submitted to the voters pursuant to the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code (City Law). 2. The setting of the appropriations limit shall be submitted to the voters pursuant to City Law. 3. The two ballot items described above shall be combined into a single ballot measure pursuant to City Law. The ballot language shall be as shown on the ballot form attached as Exhibit A, which is hereby approved. 4. This Council accepts the Certificate of the Public Works Director filed in these proceedings and, based on the Certificate, finds that fewer than twelve (12) registered voters reside within the boundaries of the territory proposed to be annexed to CFD No. 11. Accordingly, under City Law the voters in this election shall be the landowners owning land within the territory proposed to be annexed to CFD No. 11. 5. The Council further finds that the landowners of record owning property within the territory proposed to be annexed to CFD No. 11 are those set forth in the attachment to the Certificate and that the attachment correctly sets forth how much property owned by each landowner and the number of votes to which each is entitled. 6. This Council approves the form, attached as Exhibit B, entitled Waiver and 3 of 4 Consent From Sole Property Owner Shortening Time Periods and Waiving Various Requirements for Conducting Mailed-Ballot Election in CFD No. 11, Annexation No. 145, City of Fresno, County of Fresno, State of California. This Council finds that the rights, procedures and time periods therein waived are solely for the protection of the voters, may be waived under City Law, and that the waiver constitutes a full and knowing waiver by any voter who has executed the form of these rights, procedures and time periods. 7. Accordingly, this Council calls the special election described herein and sets July 20, 2023 as Election Day. Pursuant to City Law, the election shall be conducted by mailed ballot. 8. The City Clerk or designee is directed to mail or to deliver the ballots, in the form of Exhibit A hereto, to the landowners shown on the attachment to the Certificate . The City Clerk or designee shall fill in the names of the landowners and the number of votes to be cast on each ballot, according to the Certificate, before delivery or mailing. 9. The City Clerk or designee shall accept personal or mail delivery of the ballots at any time up to the hearing on Thursday, July 20, 2023, at 10:00 a.m. Upon receipt of all eligible ballots, however, the City Clerk or designee shall immediately close the election and declare the results to the Council. Attachments: Exhibit A - Special Election Ballot Exhibit B - Waiver and Consent From Sole Property Owner 4 of 4 * * * * * * * * * * * * * * STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of 2023. AYES : NOES : ABSENT : ABSTAIN : Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Vote: , 2023 TODD STERMER, CMC City Clerk BY: Date Deputy APPROVED AS TO FORM: ANDREW JANZ City Attorney BY: Heather Thomas Date Deputy City Attorney EXHIBIT A A-1 SPECIAL ELECTION BALLOT (Mailed-Ballot Election) Community Facilities District No. 11 Annexation No. 145 This ballot is for the use of P.R. Farms, Inc., the landowner owning a portion of land within the boundaries of Final Tract Map No. 6283, Community Facilities District No. 11, Annexation No. 145, City of Fresno, County of Fresno, State of California. According to the provisions of the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the City of Fresno Municipal Code, and the resolutions of the City Council of the City of Fresno, the above -named landowner is entitled to cast nineteen (19) votes on this ballot. In order to be counted, the ballot must be returned prior to the Hearing on Thursday, July 20, 2023, at 10:00 a.m., to TODD STERMER, City Clerk, City of Fresno, 2600 Fresno Street, Room 2133, Fresno, CA 93721. Mailing by that date will not be sufficient. The Ballot must be physically received by the City Clerk prior to the deadline in order to be counted. AN “X” OR OTHER MARK WILL CAST ALL VOTES ASSIGNED TO THIS BALLOT, OR THE VOTER MAY WRITE NUMBERS IN THE SPACES PROVIDED BALLOT MEASURE Shall the City of Fresno be authorized to levy a special tax, and finance the authorized services, and costs and expenses by and through its Community Facilities District No. 11, Annexation No. 145, all as specified in its Council Resolutions No. 2023-175 and No. ; and shall the appropriations limit for Community Facilities District No. 11 Annexation No. 145 be established in accordance therewith? Number of Votes YES Number of Votes NO EXHIBIT A A-2 CERTIFICATION The undersigned is the authorized representative of the above -named landowner and is the person legally authorized and entitled to cast this ballot on behalf of the above - named landowner. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ______________________, 2023. Company Name: By: _______________________________ Print Name: _______________________________ Print Title: _______________________________ (Attach Notary Acknowledgment) EXHIBIT B B-1 WAIVER AND CONSENT FROM PROPERTY OWNER SHORTENING TIME PERIODS AND WAIVING VARIOUS REQUIREMENTS FOR CONDUCTING MAILED-BALLOT ELECTION Community Facilities District No. 11, Annexation No. 145 The undersigned is the person legally entitled and authorized to cast the Ballots as the authorized representative of the owner of a portion of the property within the boundaries of Final Tract Map No. 6283 in this mailed-ballot election to be conducted within Community Facilities District No. 11 Annexation No. 145, to determine, among other things, whether the rate and method of apportionment of the annual special taxes shall be approved. The undersigned hereby waives any and all minimum time periods relative to the election pursuant to the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code (City Law). The undersigned hereby waives the preparation and distribution of an impartial analysis of the ballot measure, as well as arguments in favor and against, under the authority of City Law. The undersigned hereby waives the requirement to publish notice of the election under City Law. The undersigned hereby waives the requirements regarding the time to mail ballots to the qualified electors under Elections Code Section 4101, and agrees to accept either mailed service or personal service of the ballot. The undersigned hereby waives the requirements regarding identification envelopes for the return of mailed ballots contained in City Law. The undersigned hereby waives any and all defects in notice or procedure in the conduct of the election, whether known or unknown (other than the right to have ballots accurately counted), and states that the election is being expedited, pursuant to this waiver and consent, at the particular instance and request of the undersigned. I declare, under penalty of perjury, under the laws of the State of California, that I am the person legally entitled and authorized to cast the ballot as the authorized representative of the landowner set forth in the first paragraph hereof, and to waive and consent to the above, that the foregoing waivers and consents are voluntarily given and that this declaration is executed on __________________, 2023 Company Name ______________________________ By: _______________________________ Print Name _______________________________ Print Title _______________________________ (Attach Notary Acknowledgment) 1 of 4 Date Adopted: Date Approved: Effective Date: City Attorney Approval: HT Resolution No. RESOLUTION NO. ____________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, DECLARING ELECTION RESULTS COMMUNITY FACILITIES DISTRICT NO. 11 ANNEXATION NO. 145 WHEREAS, on July 20, 2023, the Council of the City of Fresno (Council) adopted Council Resolution No. 2023 -______ calling a special mailed-ballot election on levying special taxes on land within, and on approving an annual appropriati ons limit for Annexation No. 145 to Community Facilities District No. 11 (CFD No. 11); and WHEREAS, the Council has received, reviewed and hereby accepts the City of Fresno City Clerk’s (City Clerk) Canvass and Statement of Election Results, dated ________________, 2023, a copy of which is attached as Exhibit A; NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Fresno as follows: 1. The Council finds and declares that: (a) the ballot measure on the levy of taxes and approval of an annual appropriations limit for Annexation No. 145, has been submitted to the qualified electors within the area of Annexation No. 145, pursuant to Council Resolution No. 2023 -______, and (b) the ballot measure has been passed and approved by more than two-thirds of the votes cast, in accordance with City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno municipal Code (City Law). 2 of 4 2. The Council declares Annexation No. 145 to be fully formed and the property within Annexation No. 145, to be subject to the levy of the special taxes and the special tax lien described in Council Resolution No. 2023 -______, annexing Final Tract Map No. 6283 as Annexation No. 145, and authorizing the levy of a special tax therein, and Council Resolution No. 97-126, approving local goals and policies for Community Facilities Districts, as described in the Community Facilities District Report dated as of June 13, 2023, on file with the City Clerk. 3. The Council directs the City Clerk or designee to record a notice of special tax lien in the Office of the County Recorder, pursuant to City Law, no later than 15 days after this resolution is adopted. Attachment: Exhibit A - Canvass and Statement of Election Results 3 of 4 * * * * * * * * * * * * * * STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of 2023. AYES : NOES : ABSENT : ABSTAIN : Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Vote: , 2023 TODD STERMER, CMC City Clerk BY: Date Deputy APPROVED AS TO FORM: ANDREW JANZ City Attorney BY: Heather Thomas Date Deputy City Attorney EXHIBIT A 4 of 4 CANVASS AND STATEMENT OF ELECTION RESULTS Community Facilities District No. 11 Annexation No. 145 I, TODD STERMER, City Clerk of the City of Fresno, hereby certify: I have personally received and assembled all ballots eligible to be cast in the special mailed-ballot, landowner election called by the Council of the City of Fresno in its Council Resolution No. 2023 -______on propositions to levy a special tax within and approve an appropriations limit for Community Facilities District No. 11, Annexation No. 145, and held on July 20, 2023. In accordance with my instructions contained in that Resolution, I hereby declare the election closed. I personally, in the presence of members of City of Fresno staff representing the Public Works Department, as well as the City Clerk’s Office, have counted the ballots and canvassed the returns of such election, and hereby certify that the result of that c ount is as follows and that the following total votes cast for and against such propositions, the total votes and the percentage of “yes” votes cast are true and correct. Total Votes that could be cast 19 Total Votes Cast “Yes ___ Total Votes Cast “No” ___ Total Votes Cast ___ The Votes cast “Yes” equal ____% of the total votes cast. I make this certification on _________________, 2023. ATTEST: Todd Stermer, CMC City Clerk By Deputy 1 of 4 Date Adopted: Date Approved: Effective Date: City Attorney Approval: HT Ordinance No. BILL NO. ________ ORDINANCE NO. ________ AN ORDINANCE OF THE CITY OF FRESNO, CALIFORNIA, LEVYING A SPECIAL TAX FOR THE PROPERTY TAX YEAR 2022-2023 AND FUTURE TAX YEARS WITHIN AND RELATING TO COMMUNITY FACILITIES DISTRICT NO. 11, ANNEXATION NO. 145 WHEREAS, on July 20, 2023, the Council of the City of Fresno (Council) adopted Council Resolution No. 2023 -______, a resolution of the Council annexing territory to Community Facilities District No. 11 as Annexation No. 145, authorizing the levy of a special tax therein to pay for certain facilities and services for Annexation No. 145, and preliminarily establishing an appropriations limit therefore (Annexation Resolution), pursuant to the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code (City Law); and WHEREAS, by Council Resolution No. 2023 -______, the Council called a special election on the proposition on levying a special tax and establishing an appropriations limit within Annexation No. 145; and WHEREAS, on July 20, 2023, an election was held within Annexation No. 145 and, as required by City Law, the ballot measure was passed and approved by more than two - thirds of the votes cast. THE COUNCIL OF THE CITY OF FRESNO DOES ORDAIN AS FOLLOWS: 1. Pursuant to City Law, and in accordance with the Rate and Method of Apportionment of Special Tax as shown in Exhibit B to the Annexation Resolution, which is attached hereto for reference purposes, a special tax is hereby authorized and levied 2 of 4 on all taxable parcels within Annexation No. 145 for the 2022-2023 fiscal year and for each future fiscal year at the same or at a rate lower than the maximum rate of tax provided in Exhibit B to the Annexation Resolution. The special taxes levied in any fiscal year on any parcel within Annexation No. 145 shall not exceed the maximum special tax specified in Exhibit B of the Annexation Resolution, which is attached hereto for reference purposes. 2. The Public Works Director or designee is authorized and directed, with the aid of the appropriate officers and agents of the City of Fresno (City), to determine each year, the Special Tax Requirement (as that term is defined in Exhibit B of the Annexation Resolution), to prepare the annual special tax roll in the amount of Special Tax Requirement in accordance with said Exhibit B and, without further action of this Council, to provide all necessary and appropriate information to the County of Fresno (County) Auditor in the form, and within the time, necessary to effect the correct and timely billing and collection of the special tax on the secured property tax roll of the County. The special tax shall be levied and collected in the same manner, shall be subject to the same penalties and the same lien priority, and the same procedure and sale for delinque ncy, as for ad valorem taxes. Notwithstanding the foregoing, as set forth in the Annexation Resolution and City Law, this Council reserves the right to use any method of collecting the special tax, which the Council, from time to time, may determine to be in the best interests of the City including, without limitation, direct billing by the City to the property owners and supplemental billing. The Public Works Director or designee is further authorized and directed to furnish the notices of special tax required by Section 53340.2 of the California Government Code. 3 of 4 3. The appropriate officers and agents of the City are further authorized and directed to adjust the special tax roll before the final posting of the special taxes to the County tax roll each fiscal year, as necessary to achieve a correct match of the special tax levy with the county assessor’s parcel numbers finally used by the County in sending out property tax bills. 4. If a court of competent jurisdiction finds any part of this Ordinance to be invalid or the special tax to be inapplicable to or unreasonable for any particular parcel, the balance of this Ordinance and the application of the special tax to the remaining parcels shall not be affected and shall remain in full force and effect. 5. This Ordinance shall take effect and be in force immediately upon the date of final passage, as a tax measure, pursuant to City Charter, Article VI, Section 610. Attachment: Exhibit B - Rate and Method of Apportionment of Special Tax 4 of 4 * * * * * * * * * * * * * * STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of 2023. AYES : NOES : ABSENT : ABSTAIN : Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Vote: , 2023 TODD STERMER, CMC City Clerk BY: Date Deputy APPROVED AS TO FORM: ANDREW JANZ City Attorney BY: Heather Thomas Date Deputy City Attorney EXHIBIT B B-1 City of Fresno Community Facilities District No. 11 Annexation No. 145 Rate and Method of Apportionment of Special Tax Cost Estimate The estimate breaks down the costs of providing 1 year’s service for FY 2022-2023 for Final Tract Map No. 6283 (136 lots), Phase III of Vesting Tentative Tract Map No. 6131. Final Tract Map No. 6283’s costs include services for Final Tract Map No. 6283 and Final Tract Map No. 6283’s share of services provided to Vesting Tentative Tract Map No. 6131. Vesting Tentative Tract Map No. 6131 totals 413 Lots (counting the 136 from Tract No. 6283). The final maps within Vesting Tentative Tract Map No. 6131 are to share equally for a portion of the cost of Services by Community Facilities District No. 11 as calculated with Final Tract Map No. 6131 (Annexation No. 80) and Final Tract Map No. 6240 (Annexation No. 119). Final Tract Map No. 6283 will pay additional costs due to added facilities for that phase. ITEM DESCRIPTION (T-6283) ESTIMATED COST 1 Landscape Operational Costs $57,461.00 2 Other Operational Costs $947.00 3 Reserve for Replacement $37,950.00 4 Incidental Expenses $2,040.00 Total $98,398.00 Subdivision Appropriation Limit FINAL TRACT MAP NO. MAX. SPECIAL TAX PER RESIDENTIAL UNIT TOTAL TAXABLE UNITS APPROPRIATION LIMIT SUBDIVIDER 6283 $723.52 136 $500,000.00 Lennar Homes EXHIBIT B B-2 City of Fresno Community Facilities District No. 11 Annexation No. 145 Rate and Method of Apportionment of Special Tax A Special Tax applicable to each assessor’s parcel in Community Facilities District No. 11 (CFD No. 11) shall be levied and collected according to the tax liability determined by the City Council of the City of Fresno, through the application of the appropriate amount or rate for taxable property, as described below. All of the property in CFD No. 11, unless exempted by law or by the provisions of Section E below, shall be taxed for the purposes, to the extent, and in the manner herein provided, including property su bsequently annexed to CFD No. 11 unless a separate Rate and Method of Apportionment of Special Tax is adopted for the annexation area. A. DEFINITIONS The terms hereinafter set forth have the following meanings: “Assessor’s Parcel” or “Parcel” means a lot or parcel shown on an assessor’s parcel map with an assigned assessor’s parcel number. “Assessor’s Parcel Map” means an official map of the County Assessor of the County of Fresno designating parcels by assessor’s parcel number. “City” means the City of Fresno. “City Law” means the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code. “Council” means the City Council of the City of Fresno, acting as the legislative body of CFD No. 11. “Developable Lot” means a lot that is anticipated development of residential or non - residential uses, and which is not an outlot, remainder parcel or other parcel which is not intended to be developed or which must be further subdivided before being developed. “Excluded Parcels” means those assessor’s parcels identified as ineligible for inclusion in CFD No. 11 as shown in “Attachment 1” of this Rate and Method of Apportionment of Special Tax. “Final Map” means a final map, or portion thereof, approved by the Council of the City of Fresno pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) that creates individual developable lots for which building permits may be issued. The term “Final Map” shall not include any assessor’s parcel map or subdivision map or EXHIBIT B B-3 portion thereof that does not create individual developable lots for which a building permit may be issued, including assessor’s parcels that are designated as remainder parcels. “Fiscal Year” means the period starting April 1 and ending on the following March 31. “Maximum Special Tax” means the maximum special tax, determined in accordance with Section C, which can be levied in any Fiscal Year. “Proportionately” means, in any fiscal year, that the ratio of the actual Special Tax to the Maximum Special Tax is equal for all assessor’s parcels in CFD No. 11. “Public Property” means any property within the boundaries of CFD No. 11 that is owned by the federal government, the State of California or other local governments or public agencies. “Reserve for Replacement” means a reasonable reserve pursuant to Fresno Municipal Code 8-1-303(e) (4), as a service cost or expense and not as payment for public facilities under Government Code Section 53321(d). “Residential Unit” means a residential dwelling unit and shall include single-family unattached homes, condominiums, town homes, duplex, triplex and fourplex units, and individual apartment units in a multi-family building. For purposes of the levy of special taxes pursuant to Section C below, “Residential Units” shall include dwelling units already built on taxable property in CFD No. 11, as well as dwelling units planned, but not yet built, when the special tax is levied each fiscal year. “Shared Services” means the costs of services are paid equally by the property owners of two or more subdivisions. “Special Tax” means any special tax to be levied each fiscal year on assessor’s parcels of taxable property to fund the Special Tax Requirement as defined below. “Special Tax Requirement” means the amount necessary in any fiscal year to (i) pay authorized maintenance and improvement expenses, (ii) pay administrative expenses of CFD No. 11, and (iii) cure any delinquencies in the payment of special taxes levied in prior fiscal years or (based on delinquencies in the payment of special taxes which have already taken place) are expected to occur in the fiscal year in which the tax will be collected. “Subdivision” means the division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, shown on the latest equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease, or financing whether immediate or future. Property shall be considered as contiguous units, even if it is separated by roads, streets, utility easement or railroad rights -of-way. “Subdivision” includes a condominium project, as defined in Section 4125 of the Civil Code, a community apartment project, as defined in Section 4105 of the Civil Code. EXHIBIT B B-4 “Taxable Property” means all of the assessor’s parcels within the boundaries of CFD No. 11 which are not exempt from the special tax pursuant to law or Section E below. B. CALCULATION OF RESIDENTIAL UNITS On April 1 of each fiscal year, the City of Fresno (City) or its designee shall determine how many residential units are built, or allowed to be built, on assessor’s parcels within CFD No. 11. For parcels of undeveloped property zoned for development of single-family units attached, the number of residential units shall be determined by referencing the condominium plan, apartment plan site plan or other development plan, or by assigning the maximum allowable units permitted based on the underlying zoning for the parcel. Once a single-family attached building or buildings have been built on an assessor’s parcel, the City or its designee shall determine the actual number of residential units contained within the building or buildings, and the special tax levied against the parcel in the next fiscal year shall be calculated by dividing the Special Tax Requirement by the actual number of residential units not to exceed the Maximum Special Tax per residential unit identified for the final map in Section C, Table 1 below. C. MAXIMUM SPECIAL TAX The Maximum Special Tax (MST) applicable to each assessor’s parcel in CFD No. 11 shall be specific to each final map within CFD No. 11. When additional property is annexed to CFD No. 11, the rate and method adopted for the annexed property shall reflect the MST for the final map or final maps then annexed. The Maximum Special Tax for Fiscal Year 2022-2023 for a residential unit within Final Tract Map No. 6283 is identified in Table 1 below: Table 1 Maximum Special Tax (Fiscal Year 2022-2023)* Final Tract Map Number** Maximum Special Tax 6283 $723.52 per Residential Unit *Beginning in January of each year, the MST will be adjusted upward annually by 2% or by the rise of the Construction Cost Index (CCI), if it exceeds 2%, for the San Francisco Region for the prior 12-month period (December through December) as published in the Engineering News Record, or published in a comparable index if the Engineering News Record is discontinued or otherwise not available. Each annual adjustment of the MST shall become effective on the subsequent July 1. ** A Special Tax shall be levied on all parcels within an identified final map except excluded parcels as identified in Attachment 1. EXHIBIT B B-5 D. METHOD OF LEVY AND COLLECTION OF THE SPECIAL TAX Commencing with Fiscal Year 2022-2023, the Special Tax shall be levied on all taxable parcels as follows: Step 1: Determine the Special Tax Requirement (as defined in Section A above) for the fiscal year in which the Special Tax will be collected; Step 2: Calculate the total special tax revenues that could be collected from taxable property within CFD No. 11 based on applying the Maximum Special Tax rates determined pursuant to Section C above to the number of residential units on each parcel of taxable property in CFD No. 11; If the amount determined in Step 1 is greater than or equal to the amount calculated in Step 2, levy the Maximum Special Tax set forth in Table 1 above on all parcels of taxable property in CFD No. 11; If the amount determined in Step 1 is less than the amount calculated in Step 2, levy the Special Tax proportionately against all parcels of taxable property up to 100% of the Maximum Special Tax for each subdivision as identified in Table 1, until the amount of the Special Tax levy equals the Special Tax Requirement for that fiscal year. The Special Tax for CFD No. 11 shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, provided, however, that CFD No. 11 may (under the authority of Government Code 53340), in any particular case, bill the taxes directly to the property owner off of the County of Fresno tax roll, and the Special Taxes will be equally subject to penalties and foreclosure if delinquent. E. EXEMPTIONS Notwithstanding any other provision of this Rate and Method of Apportionment of Special Tax, no Special Tax shall be levied on parcels that have been conveyed to a public agency, except as otherwise provided in City Law, and properties receiving a welfare exemption under subdivision (g) of Section 214 of the Revenue and Taxation Code. In addition, no Special Tax shall be levied on excluded parcels or parcels that are determined not to be developable lots. EXHIBIT B B-6 ATTACHMENT 1 City of Fresno Community Facilities District No. 11 Annexation No. 145 Excluded Parcels THERE ARE NO EXCLUDED PARCELS IN FINAL TRACT MAP NO. 6283 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1069 Agenda Date:7/20/2023 Agenda #: REPORT TO THE CITY COUNCIL FROM:TODD STERMER, City Clerk Office of the City Clerk SUBJECT Appearance by Alberta Boran to discuss cleanliness of Fresno. (Resident of District 2) Attachment: Request to Speak Application City of Fresno Printed on 7/14/2023Page 1 of 1 powered by Legistar™ 7/20/2023 APPEARED 1 From:Alberta Boran <> Sent:Tuesday, June 6, 2023 1:05 PM To:Clerk Agendas Subject:Request to Speak Before the Fresno City Council Follow Up Flag:Follow up Flag Status:Flagged Name: Alberta Boran  Address    Fresno, California 93711   District District 2  Phone  Email   Date You Wish to Speak Before the City  Council  July 20, 2023  Topic/Subject Cleanliness of Fresno, CA  IP Address 198.200.238.254  User‐Agent (Browser/OS) Google Chrome 113.0.0.0 / Windows  Referrer https://www.fresno.gov/cityclerk/boards‐commissions/request‐to‐speak‐ council/  City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1118 Agenda Date:7/20/2023 Agenda #: REPORT TO THE CITY COUNCIL SUBJECT Appearance by Mary Padilla to discuss who are we representing. (Resident of District 2) City of Fresno Printed on 7/14/2023Page 1 of 1 powered by Legistar™ 7/20/2023 NO SHOW From:Mary Padilla To:Clerk Agendas Subject:Request to Speak Before the Fresno City Council Date:Friday, July 7, 2023 11:44:07 AM External Email: Use caution with links and attachments Name:Mary Padilla Address District District 2 Phone Email Date You Wish to Speak Before the City Council July 20, 2023 Topic/Subject Who Are We Representing? IP Address 198.200.238.254 User-Agent (Browser/OS)Google Chrome 114.0.0.0 / Windows Referrer https://www.fresno.gov/cityclerk/boards- commissions/request-to-speak-council/ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1079 Agenda Date:7/20/2023 Agenda #: REPORT TO THE CITY COUNCIL FROM:JENNIFER CLARK, Director Planning and Development Department THROUGH:SOPHIA PAGOULATOS, Planning Manager Planning and Development Department BY:DREW WILSON, Program Manager PARCS Department SUBJECT HEARING to consider the adoption of the Central Southeast Area Specific Plan and related Environmental Assessment, State Clearinghouse (SCH No. 2023020138), and related actions: 1. ADOPT the Subsequent Mitigated Negative Declaration, Environmental Assessment No. P22- 00400 dated February 1, 2023 (Exhibit I), prepared pursuant to CEQA Guidelines Section 15162 and 15070 et. Seq. and the Mitigation Monitoring and Reporting Program prepared pursuant to CEQA Guidelines Section 15097. 2. APPROVE Plan Amendment Application P22-00400 which proposes to: a. RESOLUTION - Approving repeal of the Roosevelt Community Plan, pertaining to approximately 15,721 acres (Exhibit N) b. BILL (For Introduction)(For Adoption) - Approving the repeal of the Butler/Willow Specific Plan, pertaining to approximately 563 acres (Exhibit O) c. RESOLUTION - Approving adoption of the Central Southeast Area Specific Plan and accompanying Planned Land Use Ma (Exhibit P) d. RESOLUTION - Approving adoption of the Planned Land Use Map (Figure LU-1) of the Fresno General Plan to incorporate the land use changes proposed in the Central Southeast Area Specific Plan (Exhibit Q) e. BILL (For Introduction)(For Adoption) - Approving the rezone of approximately 136 acres of property within the Central Southeast Area Specific Plan area to be consistent with the planned land uses proposed in the Plan (Exhibit R) 3. RESOLUTION - Authorizing the Planning Department Director or her designee to correct any typographical errors and update the text, policies, maps, tables, and exhibits contained in the Central Southeast Area Specific Plan, the Fresno General Plan, and the Development Code to reflect the final action taken by the Council, to the extent that such updates are necessary to City of Fresno Printed on 7/31/2023Page 1 of 12 powered by Legistar™ 7/20/2023 CONTINUED TO AUGUST 10, 2023 AT 10:05 A.M. File #:ID 23-1079 Agenda Date:7/20/2023 Agenda #: maintain consistency (Exhibit S). RECOMMENDATION 1.ADOPT the Subsequent Mitigated Negative Declaration, Environmental Assessment No. P22- 00400 dated February 1, 2023 (Exhibit I), prepared pursuant to CEQA Guidelines Section 15162 and 15070 et. seq. and the Mitigation Monitoring and Reporting Program prepared pursuant to CEQA Guidelines Section 15097. 2.APPROVE Plan Amendment Application P22-00400 which proposes to: a.RESOLUTION - Approving repeal of the Roosevelt Community Plan, pertaining to approximately 15,721 acres (Exhibit N) b.BILL - Approving the repeal of the Butler/Willow Specific Plan, pertaining to approximately 563 acres (Exhibit O) c.RESOLUTION - Approving adoption of the Central Southeast Area Specific Plan and accompanying Planned Land Use Ma (Exhibit P) d.RESOLUTION - Approving adoption of the Planned Land Use Map (Figure LU-1) of the Fresno General Plan to incorporate the land use changes proposed in the Central Southeast Area Specific Plan (Exhibit Q) e.BILL - Approving the rezone of approximately 136 acres of property within the Central Southeast Area Specific Plan area to be consistent with the planned land uses proposed in the Plan (Exhibit R) 3.RESOLUTION - Authorizing the Planning Department Director or her designee to correct any typographical errors and update the text, policies, maps, tables, and exhibits contained in the Central Southeast Area Specific Plan, the Fresno General Plan, and the Development Code to reflect the final action taken by the Council, to the extent that such updates are necessary to maintain consistency (Exhibit S). EXECUTIVE SUMMARY The proposed project is the adoption of the Central Southeast Area Specific Plan (“Plan”),which includes the repeal of the Roosevelt Community Plan and the Butler/Willow Specific Plan, amendment of the Fresno General Plan,and the rezoning of approximately 136 acres in the Plan Area.This report describes the planning process as well as the key elements of the Plan.The City Council initiated the land use map and guiding principles of the Plan on June 18,2020,and removed some sites from the Plan Area, detailed in City Council Resolution No. 2020-147. BACKGROUND Origins:The need for a Specific Plan for the Central Southeast Area emerged from community members who wanted an actionable plan to address a broad array of neighborhood concerns.The last comprehensive planning effort that had been undertaken in the area prior to the update of the General Plan in 2014 was the Specific Plan for the Butler/Willow Area adopted in 1971,and the Roosevelt Community Plan adopted in 1992.$550,000 in Community Development Block Grant (CDBG)funding was allocated in 2017 to finance the specific plan and a related environmental City of Fresno Printed on 7/31/2023Page 2 of 12 powered by Legistar™ File #:ID 23-1079 Agenda Date:7/20/2023 Agenda #: (CDBG)funding was allocated in 2017 to finance the specific plan and a related environmental assessment.The boundaries of the specific plan area are within city limits since City of Fresno CDBG funds are not allowed to be spent outside city limits (see Vicinity Map in Exhibit A). Specific Plans:The California Government Code Section 65450 defines Specific Plans and sets out the regulations for their use.Specific Plans systematically implement the Fresno General Plan for all or part of the area under its scope in one of three ways:1)by acting as statements of planning policy that refine the Fresno General Plan policies applicable to a defined area;2)by directly regulating land use,or 3)by bringing together detailed policies and regulations into a focused development scheme.The Plan most closely represents 1 and 2,since it includes new planning policy for the area, and it refines land use by amending the planned land use of a small proportion of property in the area and rezoning said property for consistency. Process:The planning process includes the following steps and was expected to be complete 3 years from the beginning of the process in 2017, however due to the COVID pandemic and other factors, the project was delayed. The process is now in Step 8. 1.Project Kick-off and Existing Conditions Report 2.Initial Community Outreach/ Develop “Big Ideas” 3.Selection of Guiding Principles and Priority Goals and Strategies 4.Recommendation of Proposed Land Use Map 5.Plan Initiation through Planning Commission and City Council 6.Completion of Environmental Assessment and Specific Plan 7.Public Review of Draft Specific Plan and Environmental Assessment 8.Adoption The outreach and participation for the planning process was multifaceted and extensive.It included numerous stakeholder interviews,three community workshops,20 mobile workshops,two surveys and nine (Committee)meetings.All Committee meetings were noticed according to the Brown Act. Hard copies of key documents were placed in the libraries and community centers in the Plan Area. The various components of the outreach process are described below: Stakeholder Interviews.The project team held stakeholder interviews on October 10 and 11,2017 with 16 different groups,which included:resident groups,Fresno Unified School District,Southeast Fresno Community Economic Development Association,religious leaders,Fresno Pacific University, community benefit organizations, and other representatives of stakeholder groups. Community Workshops.The initial phase of the planning process included three community workshops,held on June 20,July 17,and October 4,2018.They were attended by approximately 65, 75 and 20 persons,respectively.The tasks at the first workshop were to identify issues and opportunities in the Plan Area,as well as community vision and guiding principles;the second workshop invited residents to comment on “Big Ideas”for the Specific Plan and provide input on the Draft Goals and Strategies of the Plan;and the third workshop invited input on the Draft Goals and Strategies.All of the activities provided guidance to the Committee on the development of the City of Fresno Printed on 7/31/2023Page 3 of 12 powered by Legistar™ File #:ID 23-1079 Agenda Date:7/20/2023 Agenda #: Strategies.All of the activities provided guidance to the Committee on the development of the Guiding Principles and Proposed Land Use Map (See pages 8-10 and page 36 in Exhibit C,Central Southeast Specific Plan Initiation Report). Mobile Workshops.The project team developed an outreach process designed to overcome common barriers of public participation.Outreach efforts were integrated into established and ongoing community meetings and events.City staff brought mobile workshops to over 20 community group meetings in and near the project area, receiving input from residents. Surveys.Three surveys have been produced and distributed to residents,business owners,and other interested parties.The first survey was aimed at getting an understanding of the community’s view of the project area as well as identifying key issues and desires of the community;the second survey allowed residents to identify where they would like to see more park space;and the third survey was intended to get an initial ranking of the Plan’s goals and strategies.Approximately 255, 175,and 145 individuals responded to the survey,respectively.The results of the survey were shared with the community and the Committee. Steering Committee Meetings.A 15-member steering committee (Committee)made up of neighborhood residents,business owners,and other stakeholders was appointed by Councilmember Chavez.Represented on the committee were community organizations such as Habitat for Humanity, Leadership Counsel for Justice and Accountability,the Fresno Fair,the Fresno Center,Reading and Beyond,Neighborhood Church,and the Southeast Fresno Community Economic Development Association.The Committee’s task was to translate community input into the development of the Proposed Land Use Map and Guiding Principles.The Committee had a series of meetings on Plan- related topics and provided input to the project team.The meetings on Land Use and Goals and Strategies were structured to incorporate community input as decisions were made. Public Review Draft: There were several opportunities for community involvement that followed the release of the Public Review Draft. This included workshops to share key elements of the Plan and to solicit feedback from residents and stakeholders. It should be noted that the COVID-19 pandemic overlapped with this phase, therefore engagement occurred through written communication and online meetings. o 6 topic-based Community Conversations were held in partnership with the West Area Neighborhoods Specific Plan o Several committee meetings announcing the Public Review Draft to various bodies such as the Bicycle Pedestrian Advisory Commission, Fresno Youth Commission, Council District Project Review Committees, etc. Social media was used to share updates and announcements throughout the planning process via the City of Fresno Facebook and Twitter accounts.One radio announcement was made on Punjabi Radio USA to share information about the release of the Draft Specific Plan and the topic-based Community Conversations series. Plan documents were featured on a special webpage created for the project ( www.fresno.gov/CentralSoutheastPlan <http://www.fresno.gov/CentralSoutheastPlan> ) and hard copies were placed in the Central Branch Fresno Library and the Mosqueda branch library in the Plan Area. City of Fresno Printed on 7/31/2023Page 4 of 12 powered by Legistar™ File #:ID 23-1079 Agenda Date:7/20/2023 Agenda #: A project liaison was dedicated to answer questions about the Plan and communication materials were routinely provided in English, Spanish, Punjabi, and Hmong. Plan Initiation:After working with the community and stakeholders to develop guiding principles,big ideas,and a proposed land use map,the plan was initiated by the City Council on June 18,2020.As part of the Council motion,the following sites were removed from the project boundary and directed to be incorporated into the boundary of the South Central Specific Plan per Council Resolution No. 2020-147:48005006,48005026S,48005008S,48005009,48005025U,48005003,48005010S, 48005011S,48005012S,48005023U,48005017,48005016,48007053,48007065S,48011014, 48011029S,48011022,48011041S,and 48011042S;and 48006012,48006017S,48006015, 48006003,48001031U,48007051U and 48006002U which were removed from the project boundary through a Director Memo dated May 25,2023.Maps showing the initial plan boundary and the modified plan boundary after removal of these sites are included in Exhibit A. Plan Features: Plan Area.The Specific Plan Area is approximately 2,000 acres just east and southeast of Downtown Fresno and is bounded by Belmont Avenue to the north,Fourth Avenue to the west, Church Avenue to the south,and Peach Avenue to the east.Additionally,the Specific Plan Area is located within the Roosevelt Community Plan area and overlaps a portion of the Butler/Willow Specific Plan area. Relationship to Other Plans. The Central Southeast Specific Plan relates to other Fresno land use plans as follows: Specific Plan for the Butler/Willow Area.The Specific Plan for the Butler/Willow (SPBW)Area was adopted June 15,1971,and was intended primarily to provide a detailed plan for zoning and circulation of the 564-acre area surrounding the Internal Revenue Service Center.The Central Southeast Specific Plan would replace the SPBW but would carry forward any relevant policies. Roosevelt Community Plan.The Roosevelt Community Plan (RCP)was adopted on April 7,1992, and its primary purpose was to address issues and concerns affecting the community as it was experiencing growth.The RCP intended to anticipate the community’s needs and to stimulate the development of well-balanced quality neighborhoods.The Central Southeast Specific Plan would repeal the RCP to avoid overlap and confusion but would carry forward any relevant policies. General Plan.The General Plan,adopted on December 18,2014,created policies and implementation strategies to achieve a long-term vision which emphasizes infill development, complete neighborhoods,and multi-modal transportation.The Central Southeast Specific Plan utilizes the General Plan as its foundation and provides a more defined vision for the Central Southeast Area. Downtown Neighborhoods Community Plan.This plan was adopted on October 20,2016,and abuts the Plan Area to the northwest, but does not overlap it. Active Transportation Plan.The Active Transportation Plan (ATP)was adopted on March 2,2017, and serves as the city’s comprehensive guide for active transportation.The ATP envisions a complete,safe,and comfortable network of trails,sidewalks,and bikeways that serve as a means for people to safely get to their destinations while reducing roadway congestion and vehicle milesCity of Fresno Printed on 7/31/2023Page 5 of 12 powered by Legistar™ File #:ID 23-1079 Agenda Date:7/20/2023 Agenda #: for people to safely get to their destinations while reducing roadway congestion and vehicle miles travelled and improving the air quality.The population of the Plan Area utilizes several modes of transportation,and the Plan expands on the ATP’s vision of walking and biking in the Central Southeast Area. Parks Master Plan.The Parks Master Plan (PMP)was adopted on December 14,2017,and serves as a community-based vision and road map for planning a complete and functional park system.It examined the General Plan’s goals for park land and determined the amount of acreage needed for the city’s existing and future population.The Plan builds on the PMP by including recommendations on locations for future parks and schools for joint-use agreements. Vision Statement and Guiding Principles.The Vision Statement and Guiding Principles of the Plan were created in conjunction with the Committee (see page 24 of the Plan)and provided the foundation for all elements of the Plan. Big Ideas:The project team conducted a four-day charrette with the Committee and community members to brainstorm strategies that would stimulate positive change in Plan Area.That session helped identify key opportunity or “change”areas and accompanying design concepts that would implement the Specific Plan’s overarching vision and Guiding Principles.These land use concepts,which became known as the “Big Ideas”,were presented at a committee meeting,a community workshop,and several mobile workshops,and further refined based on community feedback.The eight Big Ideas built upon the Vision Statement and Guiding Principles and were used to create key Goals and Strategies for Land Use and Design,Transportation,Public Realm, and Infrastructure. Land Use.Using the Big Ideas and Goals and Strategies approved by the Committee as a basis, a land use map was developed.Proposed changes affect less than 10%of the total Plan Area. These changes were considered and voted on by the Committee at public meetings held on July 30 and August 13, 2019, using a voting rule of a 75% majority. Implementation.The Specific Plan articulates the community’s vision and creates an action-driven framework to transform Plan into a safe,livable,and prosperous community over the next 20 to 30 years.The Next Steps &Funding Chapter (8)outlines how to leverage existing resources, identifies collaborators,new funding sources,mechanisms,and innovative partnerships.The chapter outlines the community’s priorities,next steps,and potential funding and financing strategies to implement the Plan’s recommended improvements and programs. Public Comment on the Plan April 2021 Public Draft.The public draft of the Plan was released on April 8,2021,for a 90-day public comment period closing on July 8,2021.Four comment submissions were received,with a total of 54 discrete comments.Staff reviewed each submission,summarized the discrete comments,and provided responses to each comment.These comments and responses are recorded in the Comment Summary Matrix (see Exhibit F). Redline Summary.All changes made to the Public Draft are recorded in the Redline Summary document (see Exhibit G). Fresno General Plan Consistency The Government Code requires consistency between a General Plan and a Specific Plan.SinceCity of Fresno Printed on 7/31/2023Page 6 of 12 powered by Legistar™ File #:ID 23-1079 Agenda Date:7/20/2023 Agenda #: The Government Code requires consistency between a General Plan and a Specific Plan.Since the Specific Plan contains proposed land uses that are different than those on the Fresno General Plan Land Use Map (Figure LU-1)for approximately 7 percent of the Plan Area,a Fresno General Plan Amendment is proposed to ensure land use consistency between both plans.In terms of policy,the Central Southeast Specific Plan is a refinement of the Fresno General Plan that includes goals and strategies that reflect the needs and desires of residents and stakeholders. These goals and strategies are found to be consistent with those of the Fresno General Plan. Consistency with key Elements is discussed below. Economic Development.This General Plan Element focuses on a balanced economic strategy for the city.The Specific Plan can be found to be consistent with,and help implement,the following Objectives: -Objective ED-1: Support economic development by maintaining a strong working relationship with the business community and improving the business climate for current and future businesses. -Objective ED-2: Support local business start-ups and encourage innovation by improving access to resources and capital and help overcome obstacles hampering economic development. -Objective ED-3: Attract and recruit businesses and offer incentives for economic development. -Objective ED-4: Cultivate a skilled, educated, and well-trained workforce by increasing educational attainment and the relevant job skill levels in order to appeal to local and non- local businesses. The Specific Plan seeks to increase the development of local uses that will help residents meet their daily needs.This includes local-serving retail and healthcare options (see ED-1,ED-2,PH-1, and PH-2 and related Strategies). Urban Form, Land Use, and Design. This General Plan Element envisions the Specific Plan Area to develop with Complete Neighborhoods that are integrated via multimodal infrastructure and transit.Complete Neighborhoods are a core value and goal of the Fresno General Plan,and this is carried into the Specific Plan as well. -Objective UF-1:Emphasize the opportunity for a diversity of districts,neighborhoods, and housing types. -Objective UF-2:Enhance the unique sense of character and identity of the different subareas of the Downtown neighborhoods. -Objective UF-14:Create an urban form that facilitates multi-modal connectivity. -Objective LU-7:Plan and support industrial development to promote job growth. -Objective LU-8:Provide for the development of civic and institutional land uses to meet the educational, medical, social, economic, cultural, and religious needs of the community. The Specific Plan aligns future land uses and the built environment to the needs of the community.The proposed land use and design recommendations in the Specific Plan aim to expand opportunities for a variety of housing types that accommodate residents of all income City of Fresno Printed on 7/31/2023Page 7 of 12 powered by Legistar™ File #:ID 23-1079 Agenda Date:7/20/2023 Agenda #: expand opportunities for a variety of housing types that accommodate residents of all income groups,ages,and at different stages of their lives (see LU-1,LU-3,LU-4,LU-6,LU-7,LU-9,and related Strategies).It looks to provide spaces for businesses to grow through a variety of development types to create vibrant centers of commercial and community activity connected to the neighborhoods and downtown (see LU-1,LU-2,LU-3,LU-5,and related Strategies).New mixed-use development is envisioned on most opportunity sites in the Plan Area,accented by new connections,improved public spaces,and enhanced streetscapes (see LU-1,LU-2,LU-8,LU -9, and related Strategies). Mobility and Transportation.This General Plan Element envisions a multi-modal transportation system and complete streets that serve all city residents.The Specific Plan maintains this vision where a top priority is roadway improvement (including sidewalk, curb, gutter, and bike lanes). -Objective MT-1:Create and maintain a transportation system that is safe,efficient, provides access in an equitable manner, and optimizes travel by all modes. -Objective MT-2:Make efficient use of the City’s existing and proposed transportation system and strive to ensure the planning and provision of adequate resources to operate and maintain it. -Objective MT-4:Establish and maintain a continuous,safe,and easily accessible bikeways system throughout the metropolitan area to reduce vehicle use,improve air quality and the quality of life, and provide public health benefits. -Objective MT-5:Establish a well-integrated network of pedestrian facilities to accommodate safe,convenient,practical,and inviting travel by walking,including for those with physical mobility and vision impairments. -Objective MT-6:Establish a network of multi-purpose pedestrian and bicycle paths,as well as limited access trails,to link residential areas to local and regional open spaces and recreation areas and urban Activity Centers in order to enhance Fresno’s recreational amenities and alternative transportation options. -Objective MT-9:Provide public transit opportunities to the maximum number and diversity of people practicable in balance with providing service that is high in quality, convenient, frequent, reliable, cost effective, and financially feasible. Throughout the planning process, it became clear that safe, convenient access to transit, cycling and walking were a high priority for the community. The Central Southeast neighborhood has five arterials and a network of wide collector streets that present obstacles to walking and biking (see T-1, T-2, T-3, T-4, T-5, T-6, T-7, T-9, and related Strategies). Parks, Open Space and Schools. This General Plan Element contains standards for acres of parkland per population and contains policies that support urban greening and walkable access to parks. -Objective POSS-1:Provide an expanded, high quality and diversified park system, allowing for varied recreational opportunities for the entire Fresno community. -Objective POSS-2:Ensure that adequate land, in appropriate locations, is designated and acquired for park and recreation uses in infill and growth areas. -Objective POSS-3:Ensure that park and recreational facilities make the most efficient use of land; that they are designed and managed to provide for the entire Fresno community; and that they represent positive examples of design and energy conservation. City of Fresno Printed on 7/31/2023Page 8 of 12 powered by Legistar™ File #:ID 23-1079 Agenda Date:7/20/2023 Agenda #: -Objective POSS-9:Work with California State University, Fresno, and other institutions of higher learning in Fresno, to enhance the City’s workforce, job creation, and economic development, as well as its image and desirability as a place to live. Parks and open spaces play a critical role in the sustainability and health of the community by providing a focal point for community activities, recreation, and social interaction. Throughout the planning process, it became clear that access to quality parks, open spaces, and recreational amenities are a top priority for the community. While existing parks in the Plan Area are well-used and cherished, new parks and open space are needed to meet the goal of ensuring that every resident is within walking distance of a park. The Plan analyzes parks in the Plan Area with the same standards as the Fresno General Plan and includes policies to address the need (see P-1 and P-3 and related Strategies). Healthy Communities. This General Plan Element focuses on the relationships between the built, natural, and social environments and community health and wellness outcomes, such as death, chronic disease, and the effects of drug abuse and crime. -Objective HC-2:Create complete, well-structured, and healthy neighborhoods and transportation systems. -Objective HC-3:Create healthy, safe, and affordable housing. -Objective HC-4:Improve property maintenance. -Objective HC-5:Promote access to healthy and affordable food. -Objective HC-6:Improve access to schools and their facilities for the community. A core value of the Specific Plan is to create Complete Neighborhoods, with access to daily needs such as healthy groceries, parks, and efficient and active transportation systems- all within one’s own neighborhood (see LU-1, LU-2, LU-3, LU-5, ED-2, PH-1, PH-2, PH-3, E-1, CE-1, and related Strategies). The Plan also calls for the development of a variety of housing types that accommodate residents of all income groups, ages, and at different stages of their lives (see LU- 1, LU-3, LU-4, LU-6, LU-7, LU-9, and related Strategies). Housing Element. This General Plan Element includes objectives, policies, and programs to provide safe and affordable housing for all segments of the community. -Objective H-1:Provide adequate sites for housing development to accommodate a range of housing by type, size, location, price, and tenure. The Specific Plan also calls for the development of a variety of housing types that accommodate residents of all income groups, ages, and at different stages of their lives (see LU-1, LU-3, LU-4, LU-6, LU-7, LU-9, and related Strategies). In addition to Fresno General Plan consistency, the Government Code requires that findings be made for any proposed land use changes on housing element sites. Specifically, Section 65863 (b) of the Government Code states that no city shall reduce or permit the reduction of the residential density for any parcel at a lower residential density, unless it can make written findings that both of the following are true: 1.The reduction is consistent with the adopted Fresno General Plan; and 2.The remaining sites identified in the housing element are adequate to accommodate City of Fresno Printed on 7/31/2023Page 9 of 12 powered by Legistar™ File #:ID 23-1079 Agenda Date:7/20/2023 Agenda #: the jurisdiction’s share of the regional housing need allocation (RHNA). The proposed changes on housing element sites are consistent with the Fresno General Plan because the adoption of the Plan also includes a Fresno General Plan Amendment to align planned land uses and make them consistent. In addition, the Plan is consistent with Fresno General Plan and Housing Element goals, policies and objectives as noted above. The net overall change in housing capacity results in a capacity loss in the 16-30 dwelling units per acre (du/ac) very low/low-income category of 22 units; a net capacity gain in the 12-16 du/ac moderate income category of 214 units, and a capacity loss of 89 units in the 0-12 du/ac above moderate-income category. In the 16-30 du/ac category, the Housing Element Sites Inventory includes 6,340 dwelling units of excess capacity beyond the Regional Housing Needs Allocation (RHNA) of 8,834 dwelling units. The reduction of the 16-30 du/ac category results in remaining capacity of 6,318 dwelling units which exceeds the RHNA amount. Therefore, both findings above can be made (see Exhibit K). Housing Crisis Act of 2019 (SB 330) Senate Bill (“SB”) 330, also known as the Housing Crisis Act of 2019 is a housing-related bill that went into effect on January 1, 2020, and will remain in effect through January 1, 2030. One of the applicable provisions of this legislation, as it relates to Plan Amendments and Rezoning, includes limitations wherein an affected City (which includes the City of Fresno) cannot change land use or zoning designations, nor alter the intensity of existing land use designations or zone districts, in a manner that reduces housing capacity below the capacity that was available on January 1, 2018; unless there is a concurrent increase of capacity elsewhere within the city (i.e. corresponding up- zone) that ensures there is no net loss of housing capacity. The land use changes proposed by the Plan would result in a housing capacity increase of 2,316 housing units. Council District Project Review Committees The Plan Area includes Council Districts 5 and 7. The Plan was presented to the Project Review Committee of District 5, but not District 7 due to no active committee. The Council District 5 Project Review Committee reviewed the Plan on June 12, 2023, and voted (yes: 3 | no: 0 | abstain: 0 | absent: 1) to recommend approval of the project. Planning Commission:At a special meeting on May 31, 2023, the Planning Commission voted (yes: 5 | no: 0 | abstain: 0 | absent: 2) to recommend approval of the Plan. See Exhibit M for the Planning Commission Resolutions. Airport Land Use Commission. The Plan was considered by the Airport Land Use Commission at its regularly scheduled meeting on June 5, 2023. After deliberations, the ALUC found the project consistent with the Airport Land Use Consistency Plan by a unanimous vote. Notice of City Council Hearing The City Council hearing was noticed in the Fresno Bee pursuant to Section 15-5007-d of the Fresno Municipal Code (see Exhibit L). Courtesy notices were mailed to residents and property owners with proposed or requested land use changes. ENVIRONMENTAL FINDINGS The environmental analysis contained in the Initial Study and Mitigated Negative Declaration No.P22City of Fresno Printed on 7/31/2023Page 10 of 12 powered by Legistar™ File #:ID 23-1079 Agenda Date:7/20/2023 Agenda #: The environmental analysis contained in the Initial Study and Mitigated Negative Declaration No.P22 -00400 (Exhibit I)is tiered from Program Environmental Impact Report (EIR)SCH No.2019050005 prepared for the Fresno General Plan Update (PEIR),certified in 2021.The Project has been determined to be a subsequent project that is not fully within the scope of PEIR SCH No. 2019050005 prepared for the Fresno General Plan. Pursuant to Public Resources Code Section 21094 and California Environmental Quality Act (CEQA) Guidelines Section 15168(d),this Project has been evaluated with respect to each item on the attached environmental checklist to determine whether this project may cause any additional significant effect on the environment which was not previously examined in the PEIR. This completed environmental impact checklist form and its associated narrative reflect applicable comments of responsible and trustee agencies and research and analysis conducted to examine the interrelationship between the proposed project and the physical environment.The information contained in the Project application and its related environmental assessment application,responses to requests for comment,checklist,initial study narrative,and any attachments thereto,combine to form a record indicating that an initial study has been completed in compliance with the State CEQA Guidelines and the CEQA. All new development activity and many non-physical projects contribute directly or indirectly toward cumulative impacts on the physical environment.It has been determined that the incremental effect contributed by this Project toward cumulative impacts is not considered substantial or significant in itself,and/or that cumulative impacts accruing from this project may be mitigated to less than significant with application of feasible mitigation measures. Based upon the evaluation guided by the environmental checklist form,it was determined that there are no foreseeable substantial impacts from the Project that are additional to those identified in the Fresno General Plan PEIR.The completed environmental checklist form indicates whether an impact is potentially significant, less than significant with mitigation, less than significant, or no impact. The Initial Study has concluded that the Project will not result in any adverse effects which fall within the "Mandatory Findings of Significance"contained in Section 15065 of the CEQA Guidelines.The finding is,therefore,made that the Project will not have a significant adverse effect on the environment. The Environmental Assessment was released on February 3,2023,for a 30-day public comment period closing on March 6,2023,and then extended to conclude on April 21,2023.Four comment submissions were received.The comments focused on the need for future projects to identify potential contamination on sites in the Plan Area;water runoff capacity for new development in the Plan Area; and clarification Public Comment Period timing. LOCAL PREFERENCE N/A - No purchasing FISCAL IMPACT N/A - No expenditures City of Fresno Printed on 7/31/2023Page 11 of 12 powered by Legistar™ File #:ID 23-1079 Agenda Date:7/20/2023 Agenda #: ATTACHMENTS: Exhibit A -Vicinity Map and Plan Boundaries Exhibit B -Maps of the Roosevelt Community Plan Area & Butler/Willow Specific Plan Area Exhibit C -Proposed Planned Land Use Map Exhibit D -Proposed Changes to General Plan Planned Land Use Map Exhibit E -Proposed Changes to the Zoning Map Exhibit F -Central Southeast Area Specific Plan Public Review Draft Exhibit G -Central Southeast Area Specific Plan Redline Draft Exhibit H -Comment Summary Matrix & Comment Letters Exhibit I -Environmental Assessment Comment Letters Exhibit J -Fresno Municipal Code Findings Exhibit K -Housing Element Findings Exhibit L -Fresno Bee Notice Exhibit M -Planning Commission Resolutions Exhibit N -Resolution Approving Plan Amendment (Repeal) Exhibit O -Ordinance Approving Repeal Exhibit P-Resolution Approving Plan Amendment (adopt) Exhibit Q -Resolution Approving Plan Amendment (amend) Exhibit R -Ordinance Approving Rezone Exhibit S -Resolution Authorizing Planning & Development Director to Make Updates Exhibit T -Presentation City of Fresno Printed on 7/31/2023Page 12 of 12 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: REPORT TO THE CITY COUNCIL FROM:JENNIFER K. CLARK, Director Planning and Development Department BY:PHILLIP SIEGRIST, Planning Manager Development Services Division SUBJECT HEARING to Consider Plan Amendment and Rezone Application No. P22-00507, Development Permit Application No. P22-00505, and related Environmental Assessment No. P22-00507/P22- 00505 pertaining to ±1.23 acres of property located on the west side of North Sugar Pine Avenue between West Fir Avenue and West Beechwood Avenues. (Council District 2) - Planning & Development Department. 1. ADOPT the Mitigated Negative Declaration as prepared for Environmental Assessment No. P22-00505/P22-00507, dated December 9, 2022, for the proposed project pursuant to the State of California Environmental Quality Act (CEQA); and, 2. RESOLUTION - Approving Plan Amendment Application No. P22-00507, requesting authorization to amend the Fresno General Plan to change the planned land use designation for the subject property from Residential - Medium Density (±1.23 acres) to Commercial - General (±1.23 acres); and, 3. BILL - (For introduction and adoption) - Approving Rezone Application No. P22-00507, requesting authorization to amend the Official Zoning Map of the City of Fresno to rezone the subject property from the RS-5 (Residential Single Family, Medium Density) (±1.23 acres) zone district to the CG (Commercial - General) (±1.23 acres) zone district in accordance with the Plan Amendment Application; and, 4. APPROVE - Development Permit Application No. P22-00505, requesting authorization to construct an 11,664-square-foot medical clinic and associated parking, circulation, and infrastructure improvements on the approximately 1.23-acre site, subject to compliance with Conditions of Approval dated March 1, 2023. RECOMMENDATION Staff recommends that the City Council take the following actions: 1. ADOPT the Mitigated Negative Declaration as prepared for Environmental Assessment No. P22-00505/P22-00507, dated December 9, 2022, for the proposed project pursuant to the State of California Environmental Quality Act (CEQA); and, 2. ADOPT RESOLUTION - Approving Plan Amendment Application No. P22-00507, requesting authorization to amend the Fresno General Plan to change the planned land use designation for the subject property from Residential - Medium Density (±1.23 acres) to Commercial - City of Fresno Printed on 7/31/2023Page 1 of 15 powered by Legistar™ 7/20/2023 CONTINUED TO AUGUST 10, 2023 AT 10:10 A.M. File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: General (±1.23 acres); and, 3.INTRODUCE AND ADOPT BILL -Approving Rezone Application No.P22-00507,requesting authorization to amend the Official Zoning Map of the City of Fresno to rezone the subject property from the RS-5 (Residential Single Family,Medium Density)(±1.23 acres)zone district to the CG (Commercial -General)(±1.23 acres)zone district in accordance with the Plan Amendment Application; and, 4.APPROVE -Development Permit Application No.P22-00505,requesting authorization to construct an 11,664-square-foot medical clinic and associated parking,circulation,and infrastructure improvements on the approximately 1.23-acre site,subject to compliance with Conditions of Approval dated March 1, 2023. EXECUTIVE SUMMARY Roger Hurtado of Centerline Design,LLC,on behalf of Valley Health Team,Inc.has filed Plan Amendment/Rezone Application No.P22-00507 and related Development Permit Application No. P22-00505 pertaining to six (6)parcels totaling approximately ±1.23 acres located west of North Sugar Pine Avenue between West Fir and West Beechwood Avenues. Plan Amendment Application No.P22-00507 proposes to amend the Fresno General Plan,Bullard Community Plan,and Pinedale Neighborhood Plan to change the planned land use designations for the subject property from Residential -Medium Density (±1.23 acres)to Commercial -General (±1.23 acres). The rezone application component proposes to amend the Official Zoning Map of the City of Fresno to rezone the subject property from the RS-5 (Residential Single Family,Medium Density)(±1.23 acres)zone district to Commercial -General (±1.23 acres)zone district in accordance with the Plan Amendment Application. Related Development Permit Application No.P22-00505 requests to construct an 11,664-square-foot, single-story medical clinic.The project proposes on and off-site improvements including but not limited to two (2)points of ingress and egress;curbs,gutters,and sidewalks;landscaping;and guest and employee parking.The project will also require the construction of public facilities and infrastructure in accordance with the standards,specifications,and policies of the City of Fresno. Under the current planned land use and zone district of Residential -Medium Density,the proposed use as a medical office would be prohibited.Under the proposed Commercial -General planned land use and zone district, the proposed use would be permitted by right. On March 1,2023,the Planning Commission considered the items as presented by staff in accordance with Fresno Municipal Code (FMC)Section 15-5808.Two (2)members of the public spoke on the project during the hearing.After a complete hearing,the Planning Commission voted and recommended the City Council adopt the environmental assessment and approve the plan amendment & rezone and development permit applications 6 votes to 0. The City Council is considering this project pursuant to FMC Section 15-5810,which requires a City Council Hearing and Action for plan amendment and rezone applications. City of Fresno Printed on 7/31/2023Page 2 of 15 powered by Legistar™ File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: BACKGROUND Plan Amendment and Rezone Application No.P22-00507 and related Development Permit Application No.P22-00505 were filed by Roger Hurtado of Centerline Design,LLC,on behalf of Valley Health Team,Inc.and pertains to six (6)contiguous parcels totaling approximately ±1.23 acres located west of North Sugar Pine Avenue between West Fir and West Beechwood Avenues. Surrounding Property Information Plan Amendment and Rezone Application No.P22-00507 and related Development Permit Application No.P22-00505 were filed by Roger Hurtado of Centerline Design,LLC,on behalf of Valley Health Team,Inc.and pertains to six (6)contiguous parcels totaling approximately ±1.23 acres located west of North Sugar Pine Avenue between West Fir and West Beechwood Avenues. Surrounding Property Information The project site is in an area generally characterized by a mix of existing land uses including Public Facilities (north),residential (south),commercial (east),residential (west).Furthermore,surrounding properties are planned and zoned for a mix of land uses which include Public Facility -Elementary School (north),Residential -Medium Density (south),Corridor -Center Mixed Use (east),and Residential -Medium Density (west).Properties located further to the south and southwest are planned for Commercial -General.Properties located further to the east are planned for Commercial -Regional.Additional surrounding property information such as the existing and planned land use designations,as well as the existing zoning districts surrounding the subject property can be found in Exhibits B, C, D, & E. Project Description The project proposes to develop an 11,664-square-foot,28-foot-tall single-story medical clinic.The project proposes on and off-site improvements including but not limited to two (2)points of ingress and egress;curbs,gutters,and sidewalks;landscaping;and employee and guest parking.The project will also require the demolition of two (2)existing on-site structures,which include a 923 square-foot single-family dwelling unit and 464 square-foot detached garage,and the construction of public facilities and infrastructure in accordance with the standards,specifications,and policies of the City of Fresno. Proposed Building Design and Operations The proposed facility is anticipated to serve an estimated 5,000 unduplicated patients and provide 21,450 patient visits per year or 82 clients per day.Services to be provided also include telemedicine which will account for 25%(or 20+/-patients)of all client visits.Valley Health Team anticipates that 40-50%of patient visits will consist of residents from within the Pinedale community and students from Pinedale Elementary School. The project is anticipated to employ approximately 40 staff members including providers and support staff at the site.The proposed hours of operations are Monday through Friday,from 8:00 a.m.to 6:00 p.m.based on demand,the proposed health center may offer expanded hours in the evenings to 8:00 p.m.and on Saturdays.An Urgent Care component may also be provided seven (7)days a week from 8:00 a.m. to 9:00 p.m. with a reduced staff, provided the demand for the service exists. City of Fresno Printed on 7/31/2023Page 3 of 15 powered by Legistar™ File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: The health center will meet OSHPD3 requirements and will accommodate exam,treatment,labs,x- ray,behavioral health,dental and other rooms or offices.The health center will provide outpatient services in family medicine,internal medicine,pediatrics,perinatal care,gynecology,nutrition and health education,behavioral health,dentistry,diagnostic lab and x-ray,referral services for women, infants, and children. Additionally, chiropractic and podiatry dispensing services will be offered. The proposed project would also include a six-foot concrete masonry unit (CMU)wall and landscape buffer along the western project site boundary. Vehicular access to the project site would be provided through two (2)new drive approaches located along West Beechwood Avenue and North Sugar Pine Avenue.Vehicle circulation within the project site would be provided by a network of two-way,27-foot-wide driveways.The proposed project would include 56 vehicle parking spaces,including two (2)accessible parking stalls,one (1)van accessible parking stall,and six (6)stalls in the future would be designated for electric vehicle charging stations. In addition,the proposed project would provide six (6)bicycle parking spaces,including three (3)long -term bicycle lockers and three short-term bicycle racks. Existing Land Use and Zoning The subject property is located within the boundaries of the Fresno General Plan,Bullard Community Plan,Pinedale Neighborhood Plan,and the Fresno County Airport Land Use Compatibility Plan (ALUCP).These plans designate the subject ±1.23-acre property for Residential -Medium Density planned land uses.The existing underlying RS-5 (Residential Single Family,Medium Density)zone district is consistent with the Residential - Medium Density planned land use designation. Based upon the existing residentially planned land use density and acreage allocations currently designated by the Fresno General Plan,the subject property is currently expected to yield approximately 6 - 14 dwelling units. According to the Fresno General Plan,Medium Density Residential is intended for areas with predominantly single-family residential development,but can also accommodate a mix of housing types,including small-lot starter homes,zero-lot line developments,duplexes,and townhomes. Under the current planned land use designation and zone district of Residential -Medium Density, the proposed medical facility would be prohibited.Therefore,the subject Plan Amendment and Rezone Application (P22-00507)is required to change the existing zoning and land use to a district in which this use is permissible to facilitate the proposed development. Proposed Land Use and Zoning Plan Amendment Application No.P22-00507 proposes to amend the Fresno General Plan and Pinedale Specific Plan to change the planned land use designations for the subject property from Residential -Medium Density (±1.23 acres)to Commercial -General (±1.23 acres).The rezone application component proposes to amend the Official Zoning Map of the City of Fresno to rezone the subject property from the RS-5 (Residential Single Family,Medium Density)(±1.23 acres)zone district to the CG (Commercial -General)zone district in accordance with the Plan Amendment Application.The proposed underlying CG zone district is consistent with the proposed Commercial - General planned land use designation. City of Fresno Printed on 7/31/2023Page 4 of 15 powered by Legistar™ File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: The Commercial -General planned land use designation and zoning classification accommodates a range of retail and service uses that are not appropriate in other areas because of higher volumes of vehicle traffic and potential impacts on other uses.Examples of allowable uses include building materials,storage facilities with active storefronts,equipment rental,wholesale businesses,and specialized retail not normally found in shopping centers.The focus of district development standards is to ensure structures fit into the surrounding development pattern and architectural or traffic conflicts are minimized. Article 67 of the Fresno Municipal Code (FMC)provides use classifications which describe one or more uses of land that have similar characteristics (e.g.,residential uses,commercial uses,industrial uses,etc.),but do not list every use or activity that may appropriately be within the classification. Pursuant to FMC Section 15-6704 (Commercial Use Classifications),the proposed use would be classified as offices,Medical and Dental.Office uses providing consultation,diagnosis,therapeutic, preventive,or corrective personal treatment services by doctors,dentists,medical and dental laboratories,and similar practitioners of medical and healing arts for humans licensed for such practice by the State of California.Incidental medical and/or dental research within the office is considered part of the office use, where it supports the on-site patient services. Pursuant to Table 15-1202 (Land Use Regulations -Commercial Districts)of the FMC,Office uses, which includes Medical and Dental,are permitted “by right”in the CG zone district and not subject to specific limitations or additional regulations for special uses pursuant to Article 27 of the FMC. Therefore,if approved,the project (Development Permit Application No.P22-00505)would be considered consistent with the proposed planned land use and zoning classification of Commercial - General. Housing Crisis Act of 2019 (SB 330) On October 9,2019,Governor Newsom signed Senate Bill (“SB”)330 enacting the “Housing Crisis Act of 2019.”This housing bill was effective starting January 1,2020,and later amended through the adoption of Senate Bill 8 (SB 8),effective January 1,2022,and will therefore remain in effect through January 1,2030.One of the applicable provisions of this legislation,as it relates to Plan Amendments and Rezoning,includes limitations wherein an affected City (which includes the City of Fresno) cannot change the general plan land use designation,specific plan designation,or zoning to a less intensive use,or reduce the intensity of an existing land use designation or zone district,below the density/intensity that was in effect on January 1,2018;unless,the City concurrently increases density within its plans elsewhere within the City (i.e.corresponding up-zone)to ensure the total number of available residential units remain the same,resulting in no net loss of residential development capacity.Pursuant to SB 8,“concurrently,”was amended to be defined as follows:the action is approved at the same meeting of the legislative body;the action is approved at the same meeting of the legislative body or,if the action that would result in a net less or residential capacity is requested by an applicant for a housing development project,within 180 days;and the action is included in the initiative in a manner that ensures the added residential capacity is effective at the same time as the reduction in residential capacity. In this case,the subject area of ±1.23 acres are proposing a land use change from Residential - Medium Density to Commercial -General.The maximum density allowed in the Residential -Medium Density planned land use designation is 12 dwelling units per acre.Therefore,the proposed plan amendment and rezone application would result in a reduction of residential development capacity ofCity of Fresno Printed on 7/31/2023Page 5 of 15 powered by Legistar™ File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: amendment and rezone application would result in a reduction of residential development capacity of 14 dwelling units;unless a separate Plan Amendment/Rezone application that will increase the total number of residential units elsewhere in the City is concurrently approved by the City Council on the same day as the subject application (resulting in no net loss in residential capacity). In accordance with SB 330 and SB 8,an affected city (including Fresno)cannot enact a change in the General Plan or Specific Plan designation or zoning to a less intensive use or reduce residential density below January 2018 levels without a concurrent up-zone.These are matters subject to Council Resolution and Ordinance.Therefore,it must be demonstrated that the proposed project will not result in a net loss prior to Council action. The applicant has not submitted an application for a separate Plan Amendment and Rezone that would offset the loss of potential dwelling units for the subject area,consistent with SB 330.For purposes of this project complying with the provisions of SB 330 and SB 8,the City Council must “concurrently”approve a separate proposal or initiative that would offset the loss of potential dwelling units for the subject site in order to be consistent with SB330 & SB 8. ANALYSIS Traffic & Circulation The Project site has three (3)existing street frontages,West Fir Avenue to the North,North Sugar Pine Avenue to the East,and West Beechwood Avenue to the South.The Fresno General Plan Circulation Element designates these roadways (West Fir Avenue,North Sugar Pine and West Beechwood Avenue) as local streets. The project will include frontage improvements including but not limited to two (2)points of ingress and egress,curbs,gutters,and sidewalks.The proposed project is located within Traffic Impact Zone III pursuant to Figure MT-4 of the Fresno General Plan,which generally represents areas near or outside the City Limits but within the Sphere of Influence (SOI)as of December 31,2012.The threshold established by the Fresno General Plan in TIZ III is Level of Service “D”representing a high -density, but stable flow. In accordance with Fresno General Plan Policy MT-2-I,given that the project includes a General Plan amendment,a Traffic Impact Study (TIS)is required.However,the project site and surrounding area already has appropriate multi-modal infrastructure improvements.As such,the City Traffic Engineer determined that a trip generation comparison would suffice in lieu of a TIS.A Trip Generation Analysis (TGA)was prepared by JLB Traffic Engineering,Inc.dated April 8,2022 (Exhibit N)to evaluate the potential difference in traffic generation. As identified in the TGA,vehicle trips and generation rates projected to be generated by the proposed project were calculated using the Institute of Traffic Engineers (ITE)Trip Generation Manual, 10th Edition. Based upon the existing residentially planned land use density and acreage allocations currently designated by the Fresno General Plan,the subject property (if it were to be developed with single family residences)is anticipated to generate approximately 104 Average Daily Trips (ADT)with 8 vehicle trips occurring during the morning (7 to 9 a.m.)peak hour travel period and 11 vehicle tripsCity of Fresno Printed on 7/31/2023Page 6 of 15 powered by Legistar™ File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: vehicle trips occurring during the morning (7 to 9 a.m.)peak hour travel period and 11 vehicle trips occurring during the evening (4 to 6 p.m.) peak hour travel period. Based upon the proposed change in land use from Residential -Medium Density to Commercial - General,at full buildout the proposed project is projected to generate 406 Average Daily Trips (ADT) with 32 vehicle trips occurring during the morning (7 to 9 a.m.)peak hour travel period and 40 vehicle trips occurring during the evening (4 to 6 p.m.) peak hour travel period. Compared to that which could be developed consistent with the General Plan,the proposed project is estimated to generate a net increase of 302 average daily trips,24 morning peak hour trips and 29 evening peak hour trips. The Public Works Department/Traffic Engineering Division staff has reviewed the proposed traffic yield from the proposed project and the expected traffic generation will not adversely impact the existing and projected circulation system as analyzed in PEIR. The Public Works Department,Traffic Engineering Division has reviewed the potential traffic related impacts for the proposed project and has determined that the streets adjacent to and near the subject site will be able to accommodate the quantity and kind of traffic which may be potentially generated subject to the standard city requirements for street improvements and subject to the project specific mitigation measures determined applicable by the City of Fresno Traffic Engineer.These requirements generally include:(1)Local street dedications;(2)Street improvements,(including,but not limited to,construction of concrete curbs,gutters,pavement,underground street lighting systems; and (3)Payment of applicable impact fees (including,but not limited to,the Traffic Signal Mitigation Impact (TSMI)Fee,Fresno Major Street Impact (FMSI)Fee,and the Regional Transportation Mitigation Fee (RTMF) Fee. Vehicle Miles Traveled (VMT) Analysis Senate Bill (SB)743 requires that relevant California Environmental Quality Act (CEQA)analysis of transportation impacts be conducted using a metric known as vehicle miles traveled (VMT)instead of Level of Service (LOS).VMT measures how much actual auto travel (additional miles driven)a proposed project would create on California roads.If the project adds excessive car travel onto our roads, the project may cause a significant transportation impact. On June 25,2020,the City of Fresno adopted CEQA Guidelines for Vehicle Miles Traveled Thresholds,dated June 25,2020,pursuant to Senate Bill 743 to be effective of July 1,2020.The Fresno VMT Thresholds document includes thresholds of significance for development projects, transportation projects,and land use plans.These thresholds of significance were developed using the County of Fresno as the applicable region,and the required reduction of VMT (as adopted in the Fresno VMT Thresholds)corresponds to Fresno County’s contribution to the statewide GHG emission reduction target.In order to reach the statewide GHG reduction target of 15%,Fresno County must reduce its GHG emissions by 13%.The method of reducing GHG by 13%is to reduce VMT by 13% as well. For residential and non-residential (except retail)development projects,the adopted threshold of significance is a 13%reduction,which means that projects that generate VMT in excess of a 13% reduction from the existing regional VMT per capita or per employee would have a significant environmental impact.Projects that reduce VMT by more than 13%are less than significant.For retail projects,the adopted threshold is any net increase in VMT per employee compared to existingCity of Fresno Printed on 7/31/2023Page 7 of 15 powered by Legistar™ File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: retail projects,the adopted threshold is any net increase in VMT per employee compared to existing VMT per employee. A quantitative analysis was prepared by JLB Traffic Engineering (Exhibit N)utilizing the 10th Edition of the Trip Generation Manual published by the Institute of Transportation Engineers (ITE).The results of the analysis indicated the proposed project is estimated to generate a maximum of 406 daily trips,32 AM peak hour trips and 40 PM peak hour trips,which is lower than 500 ADT.The analysis concluded there are no impacts to VMT associated with this Project. Air Quality and Greenhouse Gas Emissions The California Emissions Estimator Model (CalEEMod)is a statewide land use emissions computer model designed to provide a uniform platform for government agencies,land use planners,and environmental professionals to quantify potential criteria pollutant and greenhouse gas (GHG) emissions (i.e.,reactive organic gasses,oxides of nitrogen,small particulate matter,etc.)associated with both construction and operations from a variety of land use projects. CalEEMod version 2020.4.0 was used to quantify direct emissions from construction and operation activities (including vehicle use),as well as indirect emissions,such as GHG emissions from energy use,solid waste disposal,vegetation planting and/or removal,and water use.Overall,the project will not result in criterion pollutants and greenhouse gas emissions beyond adopted thresholds of significance.A more detailed analysis and evaluation of the projects air quality and greenhouse gas emissions impacts is included in Appendix A of the attached Environmental Assessment dated December 9, 2022, that was prepared for the project (Exhibit N). Public Services Sewer The nearest sanitary sewer main to serve the proposed project is within the Pinedale County Water District service area,and it is anticipated that Pinedale County Water District will provide sewer service to the proposed development.The applicant shall contact the Pinedale County Water District for sewer service conditions and/or restrictions.The requirements listed above,and additional requirements have been listed in the Department of Public Utilities memo dated November 3, 2022. Water The nearest water mains to serve the proposed project is within the Pinedale County Water District service area,and it is anticipated that Pinedale County Water District will provide water services (potable water and fire protection)to the proposed development.The applicant shall contact the Pinedale County Water District for water service conditions and/or restrictions.Water facilities are available to provide service to the site subject to the conditions listed in the Department of Public Utilities memo dated November 3, 2022. FMFCD In the memorandum dated October 6,2022,the FMFCD indicated that the existing Master Plan drainage system was designed to serve medium density residential uses and does not have the capacity to accommodate the increased runoff generated by the proposed commercial land use.As such,the project has been conditioned to mitigate the impacts of the increased runoff to a rate that would be expected if developed to medium density residential.The developer may either make improvements to the existing pipeline system to provide additional capacity or may implement aCity of Fresno Printed on 7/31/2023Page 8 of 15 powered by Legistar™ File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: improvements to the existing pipeline system to provide additional capacity or may implement a permanent peak reducing facility in order to eliminate adverse impacts on the existing system. Fire The City of Fresno Fire Department reviewed the proposed project and has determined that adequate Fire service will be available subject to future requirements for development which will include requirements incorporated into the Conditions of Approval. Review for compliance with fire and life safety requirements for the interior of proposed building and the intended use are reviewed by both the Fire Department and the Building and Safety Services Section of the Planning and Development Department when a submittal for building plan review is made as required by the California Building Code. Police The City of Fresno Police Department did not provide comment. Other Agencies All comments received from the applicable agencies have been incorporated into the conditions of approval for Plan Amendment and Rezone Application No.P22-00507 and Development Permit Application No.P22-00505.The project will comply with all department comments and conditions and all zoning requirements as incorporated into the conditions of approval dated March 1, 2023. Fresno Municipal Code Given the conditions of approval dated March 1,2023 (Exhibit J),Plan Amendment and Rezone Application No.P22-00507 and related Development Permit Application No.P22-00505 will meet all of the provisions of the FMC,including but not limited to setbacks,transition standards,parking, landscaping,and connectivity,and will comply with all applicable design guidelines and development standards for Office uses (specifically Medical and Dental)in the CG (Commercial -General)zone district. LAND USE PLANS AND POLICIES Fresno General Plan The project proposes to amend the Fresno General Plan to change the planned land use designations for the subject property from Residential -Medium Density (±1.23 acres)to Commercial -General (±1.23 acres).According to the Fresno General Plan,the Commercial -General planned land use designation is intended accommodate a range of retail and service uses that are not appropriate in other areas because of higher volumes of vehicle traffic and potential impacts on other uses.Examples of allowable uses include building materials,storage facilities with active storefronts, equipment rental,wholesale businesses,and specialized retail not normally found in shopping centers.The focus of district development standards is to ensure structures fit into the surrounding development pattern and architectural or traffic conflicts are minimized. The Fresno General Plan provides goals,objectives,and policies to guide development.As City of Fresno Printed on 7/31/2023Page 9 of 15 powered by Legistar™ File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: proposed, the project will be consistent with the following Fresno General Plan goals: ·Increase opportunity, economic development, business, and job creation. ·Make full use of existing infrastructure,and investment in improvements to increase competitiveness and promote economic growth. ·Promote orderly land use development in pace with public facilities and services needed to serve development. These goals contribute to the establishment of a comprehensive city-wide land use planning strategy to meet economic development objectives,achieve efficient and equitable use of resources and infrastructure, and create an attractive living environment. The following are applicable objectives and policies from the Urban Form,Land Use &Design,and Economic Development elements of the Fresno General Plan: ·Objective ED-1:Support economic development by maintaining a strong working relationship with the business community and improving the business climate for current and future businesses. ·Objective LU-1:Establish a comprehensive citywide land use planning strategy to meet economic development objectives,achieve efficient and equitable use of resources and infrastructure, and create an attractive living environment. o Policy LU-1-a:Promote Development within the Existing City Limits as of December 31,2012.Promote new development,infill,and rehabilitation of existing building stock in the Downtown Planning Area,along BRT corridors,in established neighborhoods generally south of Herndon Avenue,and on other infill sites and vacant land within the City. o LU-1-c:Provision of Public Facilities and Services.Promote orderly land use development in pace with public facilities and services needed to serve development. ·Objective LU-2:Plan for infill development that includes a range of housing types,building forms, and land uses to meet the needs of both current and future residents. o Policy LU-2-a:Infill Development and Redevelopment.Promote development of vacant,underdeveloped,and re-developable land within the City Limits where urban services are available by considering the establishment and implementation of supportive regulations and programs. The proposed plan amendment meets the intent of the goals,objectives,and policies of the Fresno General Plan referenced herein above.Approval of the plan amendment and rezone would help facilitate and achieve the above-mentioned goals,objectives,and policies of the General Plan.The subject property is currently undeveloped and located in an area experiencing growth in development and that can be generally characterized by a mix of existing land uses including Public Facility - Elementary School (north),Residential -Medium Density (south),Corridor -Center Mixed Use (east), City of Fresno Printed on 7/31/2023Page 10 of 15 powered by Legistar™ File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: Elementary School (north),Residential -Medium Density (south),Corridor -Center Mixed Use (east), and Residential -Medium Density (west).The property is an appropriate infill site as it has existing infrastructure and is near built-out urban uses.The project also proposes a building of high-quality design and at a scale compatible with the surrounding area;therefore,the project fosters a high- quality design and would contribute to the mix of amenities in the surrounding area.Lastly,the project supports economic development by opening a new medical facility,which will provide 40 permanent, full-time jobs in North Fresno’s Pinedale Area. Bullard Community Plan There are no goals,objectives or policies within the Bullard Community Plan that would restrict or prohibit the proposed project (Plan Amendment,Rezone,and Development Permit).However, pursuant to FMC Section 15-104-B-4.a (Priority of Plans),should there be a conflict between the Development Code and any operative plan,or between two operative plans,the Development Code shall prevail. Pinedale Neighborhood Plan The Pinedale Neighborhood Plan (PNP)currently has principles and policies that would discourage commercial uses at the subject properties.Specifically,Objective D-1 which is intended to restrict the development of new commercial uses primarily to those areas that are within the North Blackstone/North Sugar Pine Avenue commercial corridor and along the Herndon Avenue frontage road,directly southeast of the project site.Through Policy D.1.d,the PNP rezoned the subject properties which are properties along the westerly side of North Sugar Pine Avenue,between West Beechwood and West Fir Avenues from the C-6 (Heavy Commercial)zone district to R-2-A (Low Density Multiple-Family Residential,one story)zone district;properties which are now currently zoned RS-5 (Residential Single-Family, Medium Density). However,the PNP includes the intent to provide the residents of Pinedale easy access to needed commercial and professional/medical services.The project (as proposed)will introduce medical services and easy access to residents who may otherwise require transit or a vehicle to reach medical services outside of the Pinedale neighborhoods.In this way,the project (proposed rezone/plan amendment and related development permit)may be found consistent with the intent and vision of the PNP. Fresno County Airport Land Use Compatibility Plan The proposed project is located within the Airport Influence Area under the Fresno County Airport Land Use Compatibility Plan.The project site is located within the Fresno-Chandler Executive Airport’s (FCE)Safety Zone 7 -Precision Approach Zone and is not located within a Noise Contour. Listed uses prohibited in Traffic Pattern Zone 7 include hazards to flight.Furthermore,the following Development conditions do not apply;No object shall have a height that would penetrate the airspace protection surface of the airport.Any object that penetrates one of these surfaces is,by FAA definition,considered an obstruction.A proposed object having a height that exceeds the airport’s airspace protection surface shall be allowed only if,upon conclusion of the FAA’s 7460 review process, the FAA determines that the object would not be a hazard to air navigation. The Airport Land Use Commission reviewed the project as submitted at their December 5,2022, regular meeting and approved a Finding of Consistency with the ALUCP.Therefore,the proposedCity of Fresno Printed on 7/31/2023Page 11 of 15 powered by Legistar™ File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: regular meeting and approved a Finding of Consistency with the ALUCP.Therefore,the proposed project is compatible and in compliance with the Airport Land Use Compatibility Plan. Public Notice and Input Neighborhood Meeting Prior to submittal of the proposed project,the applicant held a neighborhood meeting on February 22, 2021.Several members of the Pinedale community were in attendance where the applicant provided an overview of the proposed project and addressed comments,questions,and concerns.All but one (1)of the attendees expressed support for the proposed project.A summary of the meeting is available and attached with the Master Application/Operational statement in Exhibit G. Council District Project Committee Review On October 10,2022,the Council District 2 Project Review Committee reviewed this project and unanimously voted (3-0-0)to recommend Approval.Further,recommended the project be approved promptly and open as soon as possible to provide necessary services. Historic Preservation Commission On November 28,2022,the Historic Preservation Commission reviewed the Cultural Resource Assessment pursuant to Sections 15064.5 and 15126.4(b)of the California Environmental Quality Act guidelines and unanimously (4-0-1)recommended approval (to Planning Commission and City Council)of Plan Amendment/Rezone Application No.P22-00507 and related Development Permit Application No. P22-00505. Fresno County Airport Land Use Commission As mentioned in the Land Use and Policies section above,the Fresno County Airport Land Use Commission reviewed the project as submitted at their December 5,2022,regular meeting and approved a Finding of Consistency with the ALUCP. Notice of Planning Commission Hearing In accordance with Section 15-5007 of the FMC,the Planning and Development Department mailed notices of this Planning Commission hearing to surrounding property owners within 1,000 feet of the subject property on February 17, 2023 (Exhibit K). Fresno City Planning Commission Action/Recommendation On March 1,2023,the Planning Commission considered the item as presented by staff,followed by a brief presentation by the applicant.No members of the public spoke in opposition and two (2) members of the public spoke in support of the project.However,one of which raised several concerns primarily related to traffic and safety,security,and nuisances;all of which were addressed by the project applicant.No letters and/or e-mails were received in opposition or support of the project.After a complete hearing,the Planning Commission voted and recommended the City Council approve the rezone and development permit applications 6 votes to 0,with 0 Commissioners absent. The Planning Commission resolutions (Exhibit L) are attached for more information. Notice of City Council Hearing On June 2,2023,the Planning and Development Department mailed notices of the City Council Hearing to surrounding property owners within 1,000 feet of the subject site in accordance with Section 15-5007 of the FMC. See Exhibit M for Notice of City Council Hearing. City of Fresno Printed on 7/31/2023Page 12 of 15 powered by Legistar™ File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: ENVIRONMENTAL FINDINGS An environmental assessment initial study was prepared for this project in accordance with the requirements of the California Environmental Quality Act (CEQA)Guidelines.This process included the distribution of requests for comment from other responsible or affected agencies and interested organizations. The City of Fresno has prepared an Initial Study of the above-described project and proposes to adopt a Mitigated Negative Declaration. Pursuant to the California Public Resources Code (PRC)§§21093 and 21094 and California Environmental Quality Act (CEQA)Guidelines §§15070 to 15075,15150,and 15152,this project has been evaluated with respect to each item on the attached Appendix G/Initial Study Checklist to determine whether this project may cause any additional significant effect on the environment,which was not previously examined in the Program Environmental Impact Report SCH No.2019050005 for the Fresno General Plan (“PEIR”).After conducting a review of the adequacy of the PEIR pursuant to PRC §21157.6(b)(1)and CEQA Guidelines §§15151 and 15179(b),the Planning and Development Department,as lead agency,finds that no substantial changes have occurred with respect to the circumstances under which the PEIR was certified and that no new information,which was not known and could not have been known at the time that the PEIR was certified as complete, has become available. The completed Appendix G/Initial Study Checklist,its associated narrative,technical studies,and mitigation measures reflect applicable comments of responsible and trustee agencies and research and analyses conducted to examine the interrelationship between the proposed project and the physical environment.The information contained in the project application and its related environmental assessment application,responses to requests for comment,checklist,Initial Study narrative,and any attachments thereto,combine to form a record indicating that an Initial Study has been completed in compliance with the State CEQA Guidelines and the CEQA. All new development activity and many non-physical projects contribute directly or indirectly toward cumulative impacts on the physical environment.It has been determined that the incremental effect contributed by this project toward cumulative impacts is not considered substantial or significant in itself and/or that cumulative impacts accruing from this project may be mitigated to less than significant with application of feasible mitigation measures. With mitigation imposed under the PEIR and project specific mitigation,there is no substantial evidence in the record that this project may have additional significant,direct,indirect,or cumulative effects on the environment that are significant and that were not identified and analyzed in the PEIR. The Planning and Development Department,as lead agency,finds that no substantial changes have occurred with respect to the circumstances under which the PEIR was certified and that no new information,which was not known and could not have been known at the time that the PEIR was certified as complete has become available. Based upon the evaluation guided by the Appendix G/Initial Study Checklist,it was determined that there are project specific foreseeable impacts which require project level mitigation measures. City of Fresno Printed on 7/31/2023Page 13 of 15 powered by Legistar™ File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: The Initial Study has concluded that the proposed project will not result in any adverse effects,which fall within the "Mandatory Findings of Significance"contained in §15065 of the State CEQA Guidelines.The finding is,therefore,made that the proposed project will not have a significant adverse effect on the environment. Public notice has been provided regarding staff’s finding in the manner prescribed by §15072 of the CEQA Guidelines and by § 21092 of the PRC Code (CEQA provisions). Therefore,it has been determined based upon the evidence in the record that the project will not have a significant impact on the environment and that the filing of a Mitigated Negative Declaration is appropriate in accordance with the provisions of CEQA Section 21157.5(a)(2)and CEQA Guidelines Section 15178(b)(1) and (2). A public notice of the attached Negative Declaration for Environmental Assessment Application No. P22-00507/P22-00505 (Exhibit N)was published on December 9,2022.To date,no response letters have been received. FRESNO MUNICIPAL CODE FINDINGS Based upon analysis of the applications,staff concludes that the required findings of Sections 15- 5206 (Development Permit Findings)and 15-5812 (Plan Amendment and Rezone Findings)of the Fresno Municipal Code can be made. These findings are attached as Exhibit O. HOUSING ELEMENT FINDINGS The project is located across six (6)parcels;five (5)of which are part of the 2013-2023 RHNA Housing Element Sites Inventory,which anticipates a combined minimum capacity of five (5)above moderate units for this site.This project proposes 0 units of housing which is less than the established minimum residential capacity.Therefore,the City Council must make the required findings pursuant to California Government Code §§65863.These findings are attached as Exhibit O. LOCAL PREFERENCE Local preference was not considered because the project does not include a bid or award of a construction or service contract. FISCAL IMPACT Affirmative action by the City Council will result in timely deliverance of the review and processing of the applications as is reasonably expected by the applicant.Prudent financial management is demonstrated by the expeditious completion of this land use application in as much as the applicant has paid to the City a fee for the processing of this application and that fee is,in turn,funding the City of Fresno Printed on 7/31/2023Page 14 of 15 powered by Legistar™ File #:ID 23-1080 Agenda Date:7/20/2023 Agenda #: respective operations of the Planning and Development Department. CONCLUSION The appropriateness of the proposed project has been examined with respect to its consistency with goals and policies of the Fresno General Plan,Bullard Community Plan,Pinedale Neighborhood Plan,and the Fresno County Airport Land Use Compatibility Plan;its compatibility with surrounding existing or proposed uses;and its avoidance or mitigation of potentially significant adverse environmental impacts.These factors have been evaluated as described above and by the accompanying environmental assessment and concludes that the required findings contained within Sections 15-5812 and 15-5306 et seq.of the FMC can be made.Upon consideration of this evaluation,it can be concluded that the proposed Plan Amendment and Rezone Application No.P22- 00507 and related Development Permit Application No.P22-00505 are appropriate for the subject property. ATTACHMENTS: Exhibit A - Vicinity Map Exhibit B - Aerial Photograph Exhibit C - Planned Land Use Map Exhibit D - Zoning Map Exhibit E - Project Information Tables Exhibit F - Noticing Map Exhibit G - Master Application & Owner’s Letter of Authorization Exhibit H - Operational Statement Exhibit I - Exhibits (Site Plan, Elevations, Floor Plans, & Landscape Plan) Exhibit J - Conditions of Approval [March 1, 2023] Exhibit K - Planning Commission Public Hearing Notice & Noticing Map Exhibit L - Planning Commission Resolutions 13789, 13790, & 13791 Exhibit M - City Council Public Hearing Notice & Noticing Map Exhibit N - Environmental Assessment (Including Studies) Exhibit O - Fresno Municipal Code & Housing Element Findings Exhibit P - City Council Resolution for Plan Amendment P22-00507 Exhibit Q - City Council Ordinance Bill for Rezone Application P22-00507 Exhibit R - PowerPoint Presentation City of Fresno Printed on 7/31/2023Page 15 of 15 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1103 Agenda Date:7/20/2023 Agenda #: 3.-A. REPORT TO THE CITY COUNCIL FROM:JENNIFER CLARK, Director Planning and Development Department BY:SOPHIA PAGOULATOS, Planning Manager Planning and Development Department SUBJECT Presentation on the Fresno County Multi-Jurisdictional Housing Element RECOMMENDATION Informational only. EXECUTIVE SUMMARY The purpose of this item is to update the City Council and the public on the progress of preparation of the Multijurisdictional Housing Element. A presentation will be provided by the consultant, Chelsey Payne, Director of Urban Design and Planning, Ascent. City staff will be available to answer questions. BACKGROUND California housing element law requires that all California jurisdictions update their housing elements every eight years. Housing Elements, which are required chapters of General Plans, include data on housing needs, demographics, housing stock, sites available for housing (the “sites inventory”), affirmatively furthering fair housing analysis, housing constraints, review of the previous housing element, and programs that the jurisdiction will implement during the housing element period to address identified housing needs. On April 21, 2022, the City Council approved the City’s participation in the Fresno County Multijurisdictional Housing Element update for the Sixth Cycle Housing Element, covering the period of 2023 - 2031. The Fresno Council of Governments is coordinating the effort, with Placeworks as the prime consultant, and Ascent and the sub-consultant for the City of Fresno. The purpose of this presentation is to brief the public and City Council on the highlights of the public City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 PRESENTED NO PUBLIC COMMENT RECEIVED File #:ID 23-1103 Agenda Date:7/20/2023 Agenda #: 3.-A. draft Multijurisdictional Housing Element and answer any questions about the document or the process moving forward. Specifically, the presentation will cover: ·Brief overview of the project ·A high-level summary of community engagement ·Summary of the Regional Housing Needs Allocation (RHNA) and the findings of the sites inventory analysis ·Key findings from the fair housing assessment ·Primary focus will be on reviewing the implementation programs in the Action Plan Two rounds of outreach have been held during the fall of 2022 and the spring of 2023 to learn more about housing needs from community members and stakeholders. The public draft of the housing element is now available for a public comment period from July 17 - August 16, 2023. Six community workshops are being held during the public comment period to ensure that community members have a chance to see how their input affected the draft housing element and to provide additional feedback. ENVIRONMENTAL FINDINGS N/A-This item is informational only. LOCAL PREFERENCE N/A - This item is informational only. FISCAL IMPACT N/A - This item is informational only. ATTACHMENT: Exhibit A - PowerPoint Presentation City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ City of Fresno Housing Element Update July 20, 2023 Fresno County Multi-Jurisdictional Housing Element Update 2 Agenda Housing Element Overview Housing Element Outreach Meeting the RHNA Assessment of Fair Housing Housing Element Programs Schedule and Next Steps Fresno County Multi-Jurisdictional Housing Element Update | City of Coalinga 3 Purpose »To provide an overview of the Draft Housing Element and receive input prior to submittal to the State Department of Housing and Community Development (HCD). Housing Element Overview Fresno County Multi-Jurisdictional Housing Element Update 5 About the Housing Element 8-year housing plan required by State Law Considers housing needs of all economic segments of the community Must show adequate land for housing, with diverse zoning Must include goals, objectives, and meaningful actions to support safe, decent, and affordable housing for all Must be certified by the State for compliance with state law Fresno County Multi-Jurisdictional Housing Element Update 6 Housing Element Contents and Organization Regional Housing Element •Introduction •Public Outreach & Engagement •Housing Needs Assessment •Regional Assessment of Fair Housing •Opportunities for Residential Development •Housing Constraints •Goals & Policies Local Appendix: 1E •1E-0: Summary of Needs and Conditions •1E-1: Action Plan •1E-2: Sites Inventory •1E-3: Local Assessment of Fair Housing •1E-4: Constraints •1E-5: Review of Past Accomplishments •1E-6: Public Outreach & Engagement •1E-7: Detailed Sites Inventory Tables Fresno County Multi-Jurisdictional Housing Element Update 7 Project Schedule July – Sept 2022 Feb-March 2023 July-Aug 2023 July-Aug 2023 Aug-Nov 2023 Nov 2023- Jan 2024 Regional Outreach City of Fresno Community Outreach (Round 1) Draft Housing Element (30-day Review) Community Outreach (Round 2) Submit to HCD – 1st Review (90 days) Revisions + Submit to HCD (60 days) Jan 2024 Adoption Hearings Fresno County Multi-Jurisdictional Housing Element Update 8 Project Schedule (Alternative) July – Sept 2022 Feb-March 2023 July-Aug 2023 July-Aug 2023 Aug-Nov 2023 Nov 2023- Jan 2024 Regional Outreach City of Fresno Community Outreach (Round 1) Draft Housing Element (30-day Review) Community Outreach (Round 2) Submit to HCD – 1st Review (90 days) Revisions + Submit to HCD (60 days) Feb-April 2024 May 2024 Additional Revisions + Submit to HCD (60 days) Adoption Hearings Fresno County Multi-Jurisdictional Housing Element Update 9 Previous Community Engagement ▪15 Community and Stakeholder Workshops ▪10 Stakeholder Consultations ▪2 Regional Focus Groups ▪More than 250 participants »Next Workshop is July 20th Fresno County Multi-Jurisdictional Housing Element Update 10 Upcoming Community Engagement July 20th July 22nd July 28th August 3rd August 8th August 9th Westside Church of God 1424 W. California Ave. 5:30-7:30p El Dorado Park – Paul Caprioglio Community Center 5191 N Sixth St. 2:00-4:00p Hidalgo Neighborhood Resource Room 646 N. Bond St. 4:30-7:00p Teague Community Resource Center 4718 N. Polk Ave 5:30-7:30p Nelson Elementary 1336 W. Spruce Ave. 5:00-7:00p Ted C. Willis Community Center 770 N. San Pablo Ave. 4:30-6:30p Meeting the Regional Housing Needs Allocation (RHNA) Fresno County Multi-Jurisdictional Housing Element Update 12 How is the RHNA Determined The State projects future housing needs at various income levels and allocates units to COGs Statewide The COG develops a methodology to evaluate factors for distribution of units to each jurisdiction; methodology approved by HCD FCOG RHNA = 58,298 units Cities and counties are allocated units. They must then find ways to accommodate – enough land at appropriate densities City of Fresno RHNA = 36,866 units State Role Regional Role Local Role Fresno County Multi-Jurisdictional Housing Element Update 13 Clovis, 15% Coalinga , 1% Firebaugh, 1% Fowler, 1% City of Fresno, 63% Huron, 1% Kerman, 2% Kingsburg, 2% Mendota, 1% Orange Cove, 1% Parlier, 1% Reedley, 3% Sanger, 3% San Joaquin, <1% Selma, 3%Unincorporated Fresno County , 4% Fresno COG RHNA Jurisdiction RHNA Allocation RHNA Allocation Percentage Clovis 8,977 15% Coalinga 566 1% Firebaugh 443 1% Fowler 339 1% City of Fresno 36,866 63% Huron 319 1% Kerman 1,063 2% Kingsburg 882 2% Mendota 642 1% Orange Cove 469 1% Parlier 733 1% Reedley 1,463 3% Sanger 1,494 3% San Joaquin 200 <1% Selma 1,492 3% Unincorporated Fresno County 2,350 4% Fresno County Multi-Jurisdictional Housing Element Update 14 Fresno RHNA by Income Level Total of 15,324 Lower-Income Units In comparison: ➢City of Clovis RHNA: 8,977 ➢Fresno County RHNA: 2,350 Income Level Income Range* 2015-2023 RHNA (units) 2023-2031 RHNA (units) Percent Increase Very Low Income (<50% of AMI)≤$38,950 5,666 9,440 67% Low Income (51-80% of AMI) $38,951- $62,300 3,289 5,884 79% Moderate Income (81-120% of AMI) $62,301 - $80,300 3,571 5,638 58% Above Moderate Income (>120% of AMI) >$80,300 11,039 15,904 44% TOTAL 23,565 36,866 56% Fresno County Area Median Income (AMI) = $80,300* *Based on 2022 HCD Income Limits for a four-person household in Fresno County Fresno County Multi-Jurisdictional Housing Element Update 15 Strategies to meet the 6th Cycle RHNA Consider Pipeline Projects and Specific Plans Projected Accessory Dwelling Units (ADU) Look at Vacant and Underutilized sites Focus on sites larger than 0.5 acres and smaller than 10 acres Starting with sites from the 5th cycle element Fresno County Multi-Jurisdictional Housing Element Update 16 Zoning to Accommodate the RHNA Above Moderate-Income Sites Single family zones RE RS -1 RS-2 RS -3 RS-4 RS -5 Moderate Income-Sites Multifamily zones (less than 30 units/acre) RM-1 RM-MH Single-family residential subdivisions Approved Market- Rate Multifamily Lower-Income Sites Multifamily and Mixed-Use zones (greater than than 30 units/acre) RM-2 RM-3 DTC DTG DTN NMX CMX RMX CMS CR »Cities and counties must show adequate land zoned for housing to accommodate the RHNA at each income level »Housing Element assumption is Density = Affordability ▪Default density standard for lower-income housing is 30 units per acre for metropolitan jurisdictions ▪Recent zoning text amendments expanded capacity for lower-income housing in mixed use zones ▪Large multifamily and mixed-use sites (greater than 10 acres) inventoried as “mixed income” Fresno County Multi-Jurisdictional Housing Element Update 17 Fresno County Multi-Jurisdictional Housing Element Update 18 RHNA Summary by Income Level Very Low- Income Low- Income Moderate Income Above- Moderate Total Capacity 2023-2031 RHNA 9,440 5,884 5,638 15,904 36,866 Planned or Approved Projects 1081 188 1,625 210 2,131 Vacant Land with Final Subdivision Maps Under Construction 0 0 0 967 967 Vacant Sites 12,129 2,751 10,292 25,173 Underutilized Sites 7,686 1,233 9,108 18,027 Accessory Dwelling Units 28 38 28 94 Total Capacity 20,140 5,647 20,605 46,392 Surplus 4,816 9 4,701 9,526 Assessment of Fair Housing Fresno County Multi-Jurisdictional Housing Element Update 20 Fair Housing Assessment Public/Private Investment Land Use Patterns Anti-Displacement Strategies Local Knowledge Patterns of Integration & Segregation Access to Opportunities Disproportionate Housing Needs Other Relevant Factors Income Distribution Demographic Characteristics Disabilities Familial Status Transit Availability Job Opportunities Environmental Health School Quality Overcrowding Housing Costs Homelessness Housing Conditions Fresno County Multi-Jurisdictional Housing Element Update | City of Fresno 21 Fair Housing Findings »Concentrated Areas of Race and Income ▪Neighborhoods north of Shaw Ave have the highest median incomes ▪Concentrated areas of poverty are generally in the core, south, and west neighborhoods ▪40 census tracts in the city currently designated as Racially/Ethnically Concentrated Areas of Poverty (R/ECAPS) ▪17 census tracts are Racially Concentrated Areas of Affluence (RCAAs) 455 8,155 481 937 2,529 4,847 3,465 13,938 0 2,000 4,000 6,000 8,000 10,000 12,000 14,000 16,000 RCAA RECAP Sum of Lower Income Housing Capacity Sum of Moderate Income Housing Capacity Sum of Above Moderate Income Housing Capacity Sum of Total Housing Capacity Sum of Total Housing Capacity by R/ECAP or RCAA Fresno County Multi-Jurisdictional Housing Element Update | City of Fresno 22 Fair Housing Findings »Unequal access to opportunity and resources ▪Past land use and zoning practices favoring outward expansion and resulting in subsequent disinvestment in core south and west neighborhoods ▪Less capacity for lower- and moderate-income housing types in high and highest resource areas Highest, 18% High, 22% Moderate, 17% Low, 11% High Segregation & Poverty, 32% No Data, 1% Opportunity Areas by Census Tract, Fresno Fresno County Multi-Jurisdictional Housing Element Update | City of Fresno 23 Fair Housing Findings »Disproportionate housing needs ▪77 census tracts in the city that are considered susceptible to displacement risk, making up more than half of the city (57 percent) ▪Housing Needs •Tenant protections to ensure stable housing •Deeply affordable housing to match extremely low- and very low-income housing needs •Accessible units for persons with disabilities and seniors Housing Element Objectives and Programs Fresno County Multi-Jurisdictional Housing Element Update 25 2023 – 2031 Housing Element »The Housing Element includes: ▪7 goals ▪48 policies ▪36 programs »Proposed changes to the programs were made as a result changes in State Law and extensive community input/ recommendations from local planning reports An aspiration or vision for something to achieve Guides day-to-day decisions on housing Identifies specific steps the City will take to achieve housing objectives Goals Policies Programs Fresno County Multi-Jurisdictional Housing Element Update 26 2023-2031 Housing Element Goals Goal 1 New Housing Development Goal 2 Affordable Housing Goal 3 Housing and Neighborhood Conservation Goal 4 Special Needs Housing Goal 5 Fair and Equal Housing Opportunities Goal 6 Energy Conservation and Sustainable Development Goal 7 Prevent Displacement and Homelessness Fresno County Multi-Jurisdictional Housing Element Update 27 Goal 1- New Housing Development Program 1 - Maintain Adequate Sites Program 2 - Variety of Housing Opportunities in High Resource Areas Program 3 -Encourage and Facilitate Accessory Dwelling Units Program 4 - Streamline Development Review Process Program 5 - Large and Small Lot Development Program 6 – Objective Design Standards Program 7 – Adaptive Reuse Program 8 – Use of Sites in Previous Housing Elements Program 9 – Annual Reporting Program Program 1 - Maintain Adequate Sites Program 2 - Variety of Housing Opportunities in High Resource Areas Program 3 - Encourage and Facilitate Accessory Dwelling Units Program 4 - Streamline Development Review Process Program 8 - Use of Sites in Previous Housing Elements Fresno County Multi-Jurisdictional Housing Element Update 28 Goal 2 – Affordable Housing Program 10 - Incentives for Housing Development Program 11 - Local Housing Trust Fund Program 12 - Pursue State and Federal Funding Sources for Housing Development Program 13- Partnerships with Affordable Housing Developers Program 14 – Land Bank Program 15 – Community Land Trust Program 16 – Surplus Public Lands Program 17 – Mixed Income Neighborhood Trust Program 18– Home Buyer Assistance Program 19 – Housing Choice Voucher Incentive Program Program 20 – Advocate for Repeal of Article 34 Program 11 – Local Housing Trust Fund Program 14 – Land Bank Program 15 – Community Land Trust Program 16 – Surplus Public Lands Fresno County Multi-Jurisdictional Housing Element Update 29 Goal 3 – Housing and Neighborhood Conservation Program 21 - Housing Rehabilitation Program 22 - Comprehensive Code Enforcement Goal 6 – Energy Conservation and Sustainable Development Program 27 – Reduce or Waive Fees for Vehicle Miles Traveled (VMT) Program 21 – Housing Rehabilitation Fresno County Multi-Jurisdictional Housing Element Update 30 Goal 4 – Special Needs Housing Program 23 – Special Needs Housing Program 24 - Development Code Amendments for Compliance with State Law Goal 5 – Fair and Equal Housing Opportunities Program 25 – Fair Housing Services Program 26 – Equitable Community Investments Program 24 – Development Code Amendments for Compliance with State Law Fresno County Multi-Jurisdictional Housing Element Update 31 Goal 7– Prevent Displacement and Homelessness Program 28 – Opportunity to Purchase Act Program 29 – Mobile Home Parks Program 30 – Emergency Rental Assistance Program Program 31- Eviction Protection Program Program 32 – Replacement Units Program 33 – Homeless Assistance Program 34 – At -Risk Housing Program 30 – Emergency Rental Assistance Program Program 31 – Eviction Protection Program Program 33 – Homeless Assistance Fresno County Multi-Jurisdictional Housing Element Update 32 Actions to Affirmatively Further Fair Housing Identified Fair Housing Issue Meaningful Actions Segregation based on race and income •Program 2 – Variety of Housing Opportunities •Program 3 – Encourage and Facilitate Accessory Dwelling Units •Program 10 – Incentives for Housing Development •Program 11 – Local Housing Trust Fund •Program 13 – Partnerships with Affordable Housing Developers •Program 17 - Mixed Income Neighborhood Trust (MINT) •Program 19 – Housing Choice Voucher Incentive Program Unequal Access to Opportunity •Program 2 – Variety of Housing Opportunities •Program 3 – Encourage and Facilitate Accessory Dwelling Units •Program 10 – Incentives for Housing Development •Program 19 – Housing Choice Voucher Incentive Program •Program 26 – Equitable Community Investments Disproportionate Housing Needs and Displacement Risk •Program 15 – Community Land Trust •Program 17 - Mixed Income Neighborhood Trust (MINT) •Program 18 – Home Buyer Assistance •Program 19 – Housing Choice Voucher Incentive Program •Program 21 – Housing Rehabilitation •Program 23 – Special Needs Housing •Program 25 – Fair Housing Services •Program 28 – Opportunity to Purchase Act •Program 29 – Mobile Home Parks •Program 30 – Emergency Rental Assistance Program •Program 31 – Eviction Protection Program •Program 33 – Homeless Assistance Schedule Fresno County Multi-Jurisdictional Housing Element Update 34 Schedule UPCOMING MEETINGS City Council Hearing July 20th Community Workshop July 20th REVISE DRAFT Staff / Consultants to revise the Housing Element based on Council direction SUBMIT TO HCD Submit Draft Housing Element to HCD and publish in September HCD REVIEW “90-day” HCD review period will be completed November/December ADOPTION Housing Element adoption is anticipated in 2024, pending HCD review Public Comment period ends on August 16th Note: The City will accept public comments during the HCD- review process. Fresno County Multi-Jurisdictional Housing Element Update 35 Resources »Multijurisdictional Housing Element webpage: ▪www.fresnomjhe.com »City of Fresno Housing Element webpage: ▪www.fresno.gov/housingelement »State of California Housing and Community Development webpage: ▪https://www.hcd.ca.gov/planning-and-community- development/housing- elements »City of Fresno Staff Contacts: ▪Michelle.Zumwalt@fresno.gov ▪Sophia.Pagoulatos@fresno.gov Thank you City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1130 Agenda Date:7/20/2023 Agenda #: 3.-B. REPORT TO THE CITY COUNCIL FROM:GEORGEANNE A. WHITE, City Manager Office of Mayor & City Manager BY:TJ MILLER, Assistant City Manager Office of Mayor & City Manager RUTH F. QUINTO, CPA, Assistant City Manager Office of Mayor & City Manager SUBJECT Actions pertaining to the creation of the Capital Projects Department within the City of Fresno: 1. ***RESOLUTION - Creating the Capital Projects Department within the City of Fresno (Subject to Mayor’s Veto) 2. ***RESOLUTION - Adopting the 6 th Amendment to the Annual Appropriations Resolution (AAR) No. 2023-185 appropriating $50,000,000 for the Downtown Fresno Public Infrastructure Improvement Projects and to reclassify $4,492,800 from the Department of Public Works and $1,867,900 from the Department of Public Utilities into the new Capital Projects Department (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) 3. ***RESOLUTION - Adopt the First Amendment to the Position Authorization Resolution (PAR) No. 2023-184 adding 46 position and transferring 74 positions from the Department of Public Works and 20 positions from the Department of Public Utilities to The Capital Projects Department. (Subject to Mayor’s Veto) 4. ***RESOLUTION - Adopt the First Amendment to the FY 2024 Salary Resolution No. 2023- 183, amending Exhibit 13-1, Unit 13, Exempt Supervisory and Professional (CFPEA) by increasing the salary step plan for Professional Engineer; and amending Exhibit 14, Unit 14, Exempt Management Classes (CFMEA) by retitling Public Works/Public Utilities Manager - Licensed Engineer to Licensed Engineer Manager and increasing the salary step range for the classification; and amending Exhibit 2, Non-Represented Management and Confidential Classes by increasing the Maximum of Range E5. (Subject to Mayor’s Veto) RECOMMENDATION [If more than one recommendation pluralize] EXECUTIVE SUMMARY [Brief, 1-2 paragraphs; information stated here must be expanded in Background section; clear and City of Fresno Printed on 7/31/2023Page 1 of 2 powered by Legistar™ 7/20/2023 MK/AP 7-0 R. 2023-217, R.2023-218, R. 2023-219, R. 2023-220 File #:ID 23-1130 Agenda Date:7/20/2023 Agenda #: 3.-B. concise so anyone understands action being requested] BACKGROUND [Include: Any prior history; “City Attorney has reviewed and approved to form,” if applicable; source of funding; appropriate regulation summary information] ENVIRONMENTAL FINDINGS [Include CEQA findings or state N/A] LOCAL PREFERENCE [N/A due to State and Federal money; N/A because it is more than ½ of 1%; or yes, state why] FISCAL IMPACT [Funding source, clarify whether General Fund is or is not impacted; appropriation authority already approved or an AAR is attached; if appropriate explain impact on other projects or timing of funding from other agencies; future obligations] Attachment:[If more than one, pluralize] City of Fresno Printed on 7/31/2023Page 2 of 2 powered by Legistar™ SEE APPENDIX FOR FOOTNOTES Page 2.1 EXHIBIT 2 Unit 2 – Non-Represented Management and Confidential Classes CLASS TITLE JOB CODE PROB PER RANGE Minimum Maximum Airport Public Safety Manager 310004e - E7 8706 - 11971 Assistant City Attorney 160008e - E4 11958 - 18878 Assistant City Manager 150135e - E3 15950 - 21931 Assistant Controller* 135020e - E5 9588 - 160741554 6 Assistant Director* 150160e - E5 9588 - 160741554 6 Assistant Director of Personnel Services* 150043e - E5 9588 - 160741554 6 Assistant Director of Public Utilities* 620100e - E5 9588 - 160741554 6 Assistant Director of Public Works* 210089e - E5 9588 - 160741554 6 Assistant Police Chief* 415010e - E5 9588 - 160741554 6 Assistant Retirement Administrator* 135040e - E5 9588 - 160741554 6 Background Investigator 410055 - E16 4903 - 6639 Budget Analyst 135006e - E15 5546 - 7565 Budget Manager 135008e - E7 8706 - 11971 Chief Assistant City Attorney 160015e - E3 15950 - 21931 Chief Information Officer 125067e - E4 11958 - 18878 Chief Labor Negotiator 150030e - E6 10270 - 13840 Chief of Staff to Councilmember 150086e - E10 3905 - 10882 Chief of Staff to the Mayor* 150123e - E5 9588 - 160741554 6 City Attorney 160009e - E1 18159 - 24968 City Attorney Investigator 160003 - E15 5546 - 7565 City Clerk 150125e - E4 11958 - 18878 City Engineer 210080e - E4 11958 - 18878 City Manager 150130e - E1 18159 - 24968 Community Coordinator 150075e - E11 4188 - 7304 Community Outreach Specialist 150230e - E11 4188 - 7304 Controller 135021e - E4 11958 - 18878 SEE APPENDIX FOR FOOTNOTES Page 2.1 e Exempt class, see Section 4 *Effective 7/31/2023 by the First Amendment to Salary Resolution No. 2023-183. Council Assistant 150085e - E10 3905 - 10882 Deputy City Attorney II 160006e - E8 7725 - 10882 Deputy City Attorney III 160007e - E7 8706 - 11971 SEE APPENDIX FOR FOOTNOTES Page 2.2 † This is one position assigned to the Labor Relations Division in the Personnel Services Department, working on confidential issues related to negotiations with bargaining units. e Exempt class, see Section 4. *Effective 7/31/2023 by the First Amendment to Salary Resolution No. 2023-183 EXHIBIT 2 Unit 2 – Non-Represented Management and Confidential Classes CLASS TITLE JOB CODE PROB PER RANGE Minimum Maximum Deputy City Manager* 150140e - E5 9588 - 160741554 6 Director 150170e - E4 11958 - 18878 Director of Aviation 310045e - E4 11958 - 18878 Director of Development 220020e - E4 11958 - 18878 Director of Personnel Services 150042e - E4 11958 - 18878 Director of Public Utilities 620101e - E4 11958 - 18878 Director of Transportation 310040e - E4 11958 - 18878 Economic Development Coordinator 150090e - E10 3905 - 10882 Economic Development Director 150099e - E4 11958 - 18878 Executive Assistant to Department Director 115003e - E19 4376 - 6477 Executive Assistant to the City Attorney 115004e - E17 4973 - 7449 Executive Assistant to the City Manager 115001e - E17 4973 - 7449 Executive Assistant to the Mayor 115002e - E17 4973 7449 Fire Chief 425007e - E3 15950 - 21931 Governmental Affairs Manager 150240e - E10 3905 - 10882 Human Resources Manager 150025e - E7 8706 - 11971 Independent Reviewer* 150220e - E5 9588 - 160741554 6 Internal Auditor 135010e - E15 5546 - 7565 Investment Officer 135014e - E6 10270 - 13840 Management Analyst II 150032e† 12 E15 5546 - 7565 Payroll Accountant 130016e - E20 5990 - 10882 Payroll Manager 135012e - E7 8706 - 11971 Police Chief 415008e - E2 16349 - 23616 SEE APPENDIX FOR FOOTNOTES Page 2.3 EXHIBIT 2 Unit 2 – Non-Represented Management and Confidential Classes CLASS TITLE JOB CODE PROB PER RANGE Minimum Maximum Principal Budget Analyst 135009e - E12 8310 - 11426 Principal Internal Auditor 135011e - E8 7725 - 10882 Principal Labor Relations/Risk Analyst 150018e - E12 8310 - 11426 Project Liaison/Program Administrator 150062e - E13 9092 - 13126 Public Affairs Officer 150118e - E8 7725 - 10882 Public Works Director 210085e - E4 11958 - 18878 Retirement Administrator 135030e - E3 15950 - 21931 Retirement Benefits Manager 135045e - E7 8706 - 11971 Retirement Office Manager 115007e - E17 4973 - 7449 Senior Budget Analyst 135007e - E8 7725 - 10882 Senior City Attorney Investigator 160004e - E8 7725 - 10882 Senior Deputy City Attorney I 160013e - E6 10270 - 13840 Senior Deputy City Attorney II 160014e - E21 9649 - 15225 Senior Deputy City Attorney III 160016e - E22 10131 - 15985 Senior Human Resources/Risk Analyst 150017e - E8 7725 - 10882 Senior Law Clerk 11502210 - E16 4903 - 6639 Supervising Deputy City Attorney* 160010e - E5 9588 - 16074155 46 Veterinarian 150250e - E4 11958 - 18878 E Exempt class, see Section 4. 10 Persons in this classification are limited to no more than two (2) consecutive years in this class. *Effective 7/31/2023 by the First Amendment to Salary Resolution No. 2023-183. SEE APPENDIX FOR FOOTNOTES Page 13-1.3 e Exempt class, see Section 4. *Effective 7/31/2023 by the First Amendment to Salary Resolution No. 2023-183. EXHIBIT 13-1 Unit 13 – Exempt Supervisory and Professional (CFPEA) CLASS TITLE JOB CODE PROB PER A B C D E Emergency Services Dispatch Supervisor 410004e 12 6788 7119 7464 7831 8213 Energy Efficiency Supervisor 230058e 12 5718 5999 6292 6603 6926 Equipment Supervisor 720031e 12 7014 7355 7716 8095 8495 Fire Prevention Engineer 210055e 12 7236 7592 7964 8355 8768 Fleet Administration Supervisor 720025e 12 6450 6765 7093 7444 7803 Forestry Supervisor I 510030e 12 5324 5586 5857 6144 6442 Forestry Supervisor II 510031e 12 5452 5718 6000 6298 6603 Grant Writer 150105e 12 5195 5450 5714 5995 6286 Historic Preservation Specialist 230066e 12 6762 7096 7447 7810 8192 Housing Program Supervisor 230055e 12 6971 7319 7684 8068 8473 Human Resources Analyst 150016e 12 5967 6259 6562 6884 7223 Human Resources Records Supervisor 115050e 12 5907 6196 6502 6814 7152 Information Services Supervisor 125032e 12 8097 8496 8911 9350 9813 Landscape Maintenance Superintendent 510027e 12 8033 8430 8841 9276 9732 Lead Risk Analyst 150008e 12 6460 6780 7120 7475 7850 Supervising Licensed Professional Engineer* 210110e 12 11353 9861 11921 10349 12517 10859 13143 11396 13800 11966 Management Analyst I 150020e4 124 4304 4513 4732 4963 5207 Management Analyst II 150021e4 124 5316 5578 5848 6135 6432 Parking Supervisor 720035e 12 5785 6061 6354 6663 7285 Parks Supervisor I 510025e 12 5324 5586 5857 6144 6442 Parks Supervisor II 510026e 12 6462 6778 7112 7464 7823 Planner III 220007e 12 6266 6572 6892 7232 7590 Police Support Services Supervisor 115047e 12 5693 5972 6268 6569 6894 Principal Accountant 130014e 12 7102 7450 7817 8200 8603 Procurement Supervisor 140004e 12 6435 6756 7093 7448 7821 SEE APPENDIX FOR FOOTNOTES Page 13-1.3 e Exempt class, see Section 4. EXHIBIT 13-1 Unit 13 – Exempt Supervisory and Professional (CFPEA) CLASS TITLE JOB CODE PROB PER A B C D E Supervising Plans Examiner 210044e 12 8269 8678 9107 9551 10020 Supervising Professional Engineer 210110e 12 9861 10349 10859 11396 11966 Supervising Real Estate Agent 170013e 12 7089 7436 7803 8184 8586 Supervising Traffic Signal Operations Specialist 720050e 12 7355 7715 8098 8497 8911 Survey Party Chief 210031e 12 7264 7615 7988 8376 8793 Systems Security Administrator 125050e 12 7365 7720 8102 8494 8911 Transit Supervisor I 320050e 12 6232 6535 6851 7189 7539 Transit Supervisor II 320051e 12 7015 7354 7716 8096 8495 Treasury Officer 135015e 12 7102 7450 7817 8200 8603 Wastewater Environmental Supervisor 620073e 12 7550 7917 8308 8718 9146 Wastewater Operations Supervisor 620072e 12 7550 7917 8308 8718 9146 Wastewater System Supervisor 620071e 12 7550 7917 8308 8718 9146 Water Conservation Supervisor 610045e 12 6672 6999 7341 7704 8081 Water System Supervisor 610055e 12 7550 7917 8308 8718 9146 EXHIBIT 14 Unit 14 – Management Classes (CFMEA) CLASS TITLE JOB CODE PROB PER A B C D E F G H I Fleet Manager 720032e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Graffiti Abatement Manager 720040e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Housing & Neighborhood Revitalization Manager 230065e - 9483 9719 9963 10211 10466 10728 10996 11272 11554 Information Services Manager 125055e - 9483 9719 9963 10211 10466 10728 10996 11272 11554 Law Office Manager 115020e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Licensed Engineer Manager* Public Works/Public Utilities Manager – Licensed Engineer 210094e - 12564 10973 12878 11245 13200 11527 13530 11816 13868 12110 14215 12413 14570 12723 14935 13042 15308 13366 PARCS Operations Manager 520025e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Parks Manager 510035e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Personnel Manager 150026e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Planning Manager 220010e - 9483 9719 9963 10211 10466 10728 10996 11272 11554 Program Manager 510040e - 7196 7376 7560 7748 7941 8141 8345 8552 8766 Projects Administrator 150063e - 9483 9719 9963 10211 10466 10728 10996 11272 11554 Public Works/Public Utilities Manager 210095e - 9483 9719 9963 10211 10466 10728 10996 11272 11554 e Exempt class, See Section 4. Public Works/Public Utilities Manager – Licensed Engineer 210094e - 10973 11245 11527 11816 12110 12413 12723 13042 13366 Purchasing Manager 140005e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Records Manager 115046e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Retirement Accounting Manager 135044e - 9719 9963 10211 10466 10728 10996 11272 11554 11843 Revenue Manager 135026e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 SEE APPENDIX FOR FOOTNOTES Page 2.1 e Exempt class, see Section 4 *Effective 7/31/2023 by the First Amendment to Salary Resolution No. 2023-183. EXHIBIT 2 Unit 2 – Non-Represented Management and Confidential Classes CLASS TITLE JOB CODE PROB PER RANGE Minimum Maximum Airport Public Safety Manager 310004e - E7 8706 - 11971 Assistant City Attorney 160008e - E4 11958 - 18878 Assistant City Manager 150135e - E3 15950 - 21931 Assistant Controller* 135020e - E5 9588 - 16074 Assistant Director* 150160e - E5 9588 - 16074 Assistant Director of Personnel Services* 150043e - E5 9588 - 16074 Assistant Director of Public Utilities* 620100e - E5 9588 - 16074 Assistant Director of Public Works* 210089e - E5 9588 - 16074 Assistant Police Chief* 415010e - E5 9588 - 16074 Assistant Retirement Administrator* 135040e - E5 9588 - 16074 Background Investigator 410055 - E16 4903 - 6639 Budget Analyst 135006e - E15 5546 - 7565 Budget Manager 135008e - E7 8706 - 11971 Chief Assistant City Attorney 160015e - E3 15950 - 21931 Chief Information Officer 125067e - E4 11958 - 18878 Chief Labor Negotiator 150030e - E6 10270 - 13840 Chief of Staff to Councilmember 150086e - E10 3905 - 10882 Chief of Staff to the Mayor* 150123e - E5 9588 - 16074 City Attorney 160009e - E1 18159 - 24968 City Attorney Investigator 160003 - E15 5546 - 7565 City Clerk 150125e - E4 11958 - 18878 City Engineer 210080e - E4 11958 - 18878 City Manager 150130e - E1 18159 - 24968 Community Coordinator 150075e - E11 4188 - 7304 Community Outreach Specialist 150230e - E11 4188 - 7304 Controller 135021e - E4 11958 - 18878 Council Assistant 150085e - E10 3905 - 10882 Deputy City Attorney II 160006e - E8 7725 - 10882 Deputy City Attorney III 160007e - E7 8706 - 11971 SEE APPENDIX FOR FOOTNOTES Page 2.2 † This is one position assigned to the Labor Relations Division in the Personnel Services Department, working on confidential issues related to negotiations with bargaining units. e Exempt class, see Section 4. *Effective 7/31/2023 by the First Amendment to Salary Resolution No. 2023-183 EXHIBIT 2 Unit 2 – Non-Represented Management and Confidential Classes CLASS TITLE JOB CODE PROB PER RANGE Minimum Maximum Deputy City Manager* 150140e - E5 9588 - 16074 Director 150170e - E4 11958 - 18878 Director of Aviation 310045e - E4 11958 - 18878 Director of Development 220020e - E4 11958 - 18878 Director of Personnel Services 150042e - E4 11958 - 18878 Director of Public Utilities 620101e - E4 11958 - 18878 Director of Transportation 310040e - E4 11958 - 18878 Economic Development Coordinator 150090e - E10 3905 - 10882 Economic Development Director 150099e - E4 11958 - 18878 Executive Assistant to Department Director 115003e - E19 4376 - 6477 Executive Assistant to the City Attorney 115004e - E17 4973 - 7449 Executive Assistant to the City Manager 115001e - E17 4973 - 7449 Executive Assistant to the Mayor 115002e - E17 4973 7449 Fire Chief 425007e - E3 15950 - 21931 Governmental Affairs Manager 150240e - E10 3905 - 10882 Human Resources Manager 150025e - E7 8706 - 11971 Independent Reviewer* 150220e - E5 9588 - 16074 Internal Auditor 135010e - E15 5546 - 7565 Investment Officer 135014e - E6 10270 - 13840 Management Analyst II 150032e† 12 E15 5546 - 7565 Payroll Accountant 130016e - E20 5990 - 10882 Payroll Manager 135012e - E7 8706 - 11971 Police Chief 415008e - E2 16349 - 23616 SEE APPENDIX FOR FOOTNOTES Page 2.3 EXHIBIT 2 Unit 2 – Non-Represented Management and Confidential Classes CLASS TITLE JOB CODE PROB PER RANGE Minimum Maximum Principal Budget Analyst 135009e - E12 8310 - 11426 Principal Internal Auditor 135011e - E8 7725 - 10882 Principal Labor Relations/Risk Analyst 150018e - E12 8310 - 11426 Project Liaison/Program Administrator 150062e - E13 9092 - 13126 Public Affairs Officer 150118e - E8 7725 - 10882 Public Works Director 210085e - E4 11958 - 18878 Retirement Administrator 135030e - E3 15950 - 21931 Retirement Benefits Manager 135045e - E7 8706 - 11971 Retirement Office Manager 115007e - E17 4973 - 7449 Senior Budget Analyst 135007e - E8 7725 - 10882 Senior City Attorney Investigator 160004e - E8 7725 - 10882 Senior Deputy City Attorney I 160013e - E6 10270 - 13840 Senior Deputy City Attorney II 160014e - E21 9649 - 15225 Senior Deputy City Attorney III 160016e - E22 10131 - 15985 Senior Human Resources/Risk Analyst 150017e - E8 7725 - 10882 Senior Law Clerk 11502210 - E16 4903 - 6639 Supervising Deputy City Attorney* 160010e - E5 9588 - 16074 Veterinarian 150250e - E4 11958 - 18878 E Exempt class, see Section 4. 10 Persons in this classification are limited to no more than two (2) consecutive years in this class. *Effective 7/31/2023 by the First Amendment to Salary Resolution No. 2023-183. SEE APPENDIX FOR FOOTNOTES Page 13-1.3 e Exempt class, see Section 4. *Effective 7/31/2023 by the First Amendment to Salary Resolution No. 2023-183. EXHIBIT 13-1 Unit 13 – Exempt Supervisory and Professional (CFPEA) CLASS TITLE JOB CODE PROB PER A B C D E Emergency Services Dispatch Supervisor 410004e 12 6788 7119 7464 7831 8213 Energy Efficiency Supervisor 230058e 12 5718 5999 6292 6603 6926 Equipment Supervisor 720031e 12 7014 7355 7716 8095 8495 Fire Prevention Engineer 210055e 12 7236 7592 7964 8355 8768 Fleet Administration Supervisor 720025e 12 6450 6765 7093 7444 7803 Forestry Supervisor I 510030e 12 5324 5586 5857 6144 6442 Forestry Supervisor II 510031e 12 5452 5718 6000 6298 6603 Grant Writer 150105e 12 5195 5450 5714 5995 6286 Historic Preservation Specialist 230066e 12 6762 7096 7447 7810 8192 Housing Program Supervisor 230055e 12 6971 7319 7684 8068 8473 Human Resources Analyst 150016e 12 5967 6259 6562 6884 7223 Human Resources Records Supervisor 115050e 12 5907 6196 6502 6814 7152 Information Services Supervisor 125032e 12 8097 8496 8911 9350 9813 Landscape Maintenance Superintendent 510027e 12 8033 8430 8841 9276 9732 Lead Risk Analyst 150008e 12 6460 6780 7120 7475 7850 Licensed Professional Engineer* 210110e 12 11353 11921 12517 13143 13800 Management Analyst I 150020e4 124 4304 4513 4732 4963 5207 Management Analyst II 150021e4 124 5316 5578 5848 6135 6432 Parking Supervisor 720035e 12 5785 6061 6354 6663 7285 Parks Supervisor I 510025e 12 5324 5586 5857 6144 6442 Parks Supervisor II 510026e 12 6462 6778 7112 7464 7823 Planner III 220007e 12 6266 6572 6892 7232 7590 Police Support Services Supervisor 115047e 12 5693 5972 6268 6569 6894 Principal Accountant 130014e 12 7102 7450 7817 8200 8603 Procurement Supervisor 140004e 12 6435 6756 7093 7448 7821 SEE APPENDIX FOR FOOTNOTES Page 13-1.3 e Exempt class, see Section 4. EXHIBIT 13-1 Unit 13 – Exempt Supervisory and Professional (CFPEA) CLASS TITLE JOB CODE PROB PER A B C D E Supervising Plans Examiner 210044e 12 8269 8678 9107 9551 10020 Supervising Real Estate Agent 170013e 12 7089 7436 7803 8184 8586 Supervising Traffic Signal Operations Specialist 720050e 12 7355 7715 8098 8497 8911 Survey Party Chief 210031e 12 7264 7615 7988 8376 8793 Systems Security Administrator 125050e 12 7365 7720 8102 8494 8911 Transit Supervisor I 320050e 12 6232 6535 6851 7189 7539 Transit Supervisor II 320051e 12 7015 7354 7716 8096 8495 Treasury Officer 135015e 12 7102 7450 7817 8200 8603 Wastewater Environmental Supervisor 620073e 12 7550 7917 8308 8718 9146 Wastewater Operations Supervisor 620072e 12 7550 7917 8308 8718 9146 Wastewater System Supervisor 620071e 12 7550 7917 8308 8718 9146 Water Conservation Supervisor 610045e 12 6672 6999 7341 7704 8081 Water System Supervisor 610055e 12 7550 7917 8308 8718 9146 e Exempt class, See Section 4. EXHIBIT 14 Unit 14 – Management Classes (CFMEA) CLASS TITLE JOB CODE PROB PER A B C D E F G H I Fleet Manager 720032e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Graffiti Abatement Manager 720040e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Housing & Neighborhood Revitalization Manager 230065e - 9483 9719 9963 10211 10466 10728 10996 11272 11554 Information Services Manager 125055e - 9483 9719 9963 10211 10466 10728 10996 11272 11554 Law Office Manager 115020e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Licensed Engineer Manager* 210094e - 12564 12878 13200 13530 13868 14215 14570 14935 15308 PARCS Operations Manager 520025e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Parks Manager 510035e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Personnel Manager 150026e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Planning Manager 220010e - 9483 9719 9963 10211 10466 10728 10996 11272 11554 Program Manager 510040e - 7196 7376 7560 7748 7941 8141 8345 8552 8766 Projects Administrator 150063e - 9483 9719 9963 10211 10466 10728 10996 11272 11554 Public Works/Public Utilities Manager 210095e - 9483 9719 9963 10211 10466 10728 10996 11272 11554 Purchasing Manager 140005e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Records Manager 115046e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 Retirement Accounting Manager 135044e - 9719 9963 10211 10466 10728 10996 11272 11554 11843 Revenue Manager 135026e - 8622 8838 9059 9285 9518 9754 9998 10248 10503 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1064 Agenda Date:7/20/2023 Agenda #: 5.-A. CLOSED SESSION ITEM SUBJECT CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION Government Code Section 54956.9, subdivision (d)(4): 1 potential case City of Fresno Printed on 7/31/2023Page 1 of 1 powered by Legistar™ 7/20/2023 DISCUSSED NO ANNOUNCEMENTS City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1070 Agenda Date:7/20/2023 Agenda #: 5.-B. CLOSED SESSION ITEM SUBJECT CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION Government Code Section 54956.9, subdivision (d)(1) TAT Fresno, LLC v. City of Fresno; Fresno Superior Court Case No.: 22CECG00234 City of Fresno Printed on 7/7/2023Page 1 of 1 powered by Legistar™ 7/20/2023 MOVED TO AUGUST 10, 2023 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1072 Agenda Date:7/20/2023 Agenda #: 5.-C. CLOSED SESSION ITEM SUBJECT CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION Government Code Section 54956.9, subdivision (d)(1) HAVEN #20, LLC v. City of Fresno; Fresno Superior Court Case No.: 22CECG00238 City of Fresno Printed on 7/7/2023Page 1 of 1 powered by Legistar™ 7/20/2023 MOVED TO AUGUST 10, 2023 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1081 Agenda Date:7/20/2023 Agenda #: 5.-D. CLOSED SESSION ITEM SUBJECT CONFERENCE WITH LEGAL COUNCIL - POTENTIAL EXPOSURE TO LITIGATION: Government Code Section 54956.9(d)(2): PW Fund B, LP, et al. v. City of Fresno City of Fresno Printed on 7/31/2023Page 1 of 1 powered by Legistar™ 7/20/2023 DISCUSSED NO ANNOUNCEMENTS City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1116 Agenda Date:7/20/2023 Agenda #: 5.-E. CLOSED SESSION ITEM SUBJECT CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION Government Code Section 54956.9, subdivision (d)(4): 1 potential case City of Fresno Printed on 7/31/2023Page 1 of 1 powered by Legistar™ 7/20/2023 DISCUSSED NO ANNOUNCEMENTS City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1117 Agenda Date:7/20/2023 Agenda #:5.-F. CLOSED SESSION ITEM SUBJECT CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION Government Code Section 54956.9, subdivision (d)(4): 1 potential case City of Fresno Printed on 7/31/2023Page 1 of 1 powered by Legistar™ 7/20/2023 DISCUSSED ANNOUNCEMENTS MADE LC, GB RECUSED 4-1