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HomeMy WebLinkAboutQK - Agreement Consultant - 03-17-2022AGREEMENT CITY OF FRESNO, CALIFORNIA CONSUL TANT SERVICES THIS AGREEMENT is entered into and effective on 3·\1 ·2 '2-,by and between the CITY OF FRESNO, a California municipal corporation (City), Lennar Homes of California, Incorporated (Developer), and Quad Knopf, Inc . dba QK (Consultant). RECITALS WHEREAS , the Developer will be submitting necessary applications for TTM 6374 , located on East Dakota Ave and North Fowler Ave, within the City of Fresno (Project); and WHEREAS , the Project will require various Land Use Approvals . For purposes of this Agreement, Land Use Approvals shall mean any benefits arising from any of the following : the approval of a General Plan Amendment, Rezone application, Tentative Tract Map, Conditional Use Permit and Development Permit and any document prepared pursuant to the California Environmental Quality Act (CEQA) or other law that is approved in conjunction with aforementioned land use entitlements ; and WHEREAS , the City as the lead agency (CEQA Guidelines Section 15367) has determined it is in the best interest of the City and the Developer to have a consultant prepare an Initial Study to determine the appropriate environmental document pursuant to CEQA Guidelines; and WHEREAS, the Consultant will prepare and submit the draft documents to the City for review and the City, as necessary and appropriate in the City 's sole discretion to further the preparation of a legally adequate Initial Study, will share the draft documents, in part or in whole , with the Developer; and WHEREAS , the Developer has agreed to have the Consultant prepare the Initial Study and any related documents required pursuant to CEQA Guidelines for the Project (collectively , the "Initial Study"); and WHEREAS, the Consultant is engaged in the business of furnishing technical and professional consulting and hereby represents it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS , this Agreement will be administered for the City by its Director of the Planning and Development Department (Director) or designee. 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 Serv ices. The Consultant has submitted the scope of work, which includes a milestone timeline and a list of any subcontractors, to the City for its review and approval and shall diligently cooperate with the City in making changes to the scope of work until the City approves the scope of work . Upon the City approval of the scope of work, incorporated herein as Exhibit C, dated Sept 22 , 2021 , the Consultant shall perform, to the satisfaction of the City , the services DEV-S Three Party Agt FYI (06-202 1) 1 described in the scope of work including all work incidental to, or necessary to perform, such services even though not specifically described in the scope of work. The Consultant services shall include , but not be limited to , consultation with the City staff and the Developer, management of necessary subconsultants, presentations at public hearings, and other related tasks as described in the scope of work. The Consultant shall work solely under the general direction of the City's Planning and Development Department, Assistant Directors, Planning Managers, and respective staff in the preparation of the Initial Study required by CEQA. With the express approval from the City 's Planning and Development Department, Assistant Directors, Planning Managers, and respective City staff as appropriate, the Consultant may consult with the Developer as needed to facilitate timely preparation of an accurate and legally defensible environmental document. The Consultant shall not make any changes to documents to be prepared within the scope of work without written approval of the City which may be provided via electronic mail. The Consultant shall hire all subcontractors in consultation with City staff. The Developer shall not contract directly with any subcontractors to perform any part of the work under this Agreement. 2. Term of Agreemen t and Tim e for Pe rform ance. This Agreement shall be effective from the date first set forth above and shall continue in full force and effect through the complete rendition of the services hereunder, subject to any earlier termination in accordance with this Agreement. The services of the Consultant as described in Paragraph 1 of this Agreement are to commence upon the effective date first set forth above , and shall be undertaken and completed in a sequence assuring expeditious completion . 3. Au t hority a nd Reg ul ati o n of Com mu nica ti o ns . The City shall have final authority over the scope of work, and the environmental document preparation process and content. The City shall coordinate all communication between the Consultant and the Developer to obtain project information and/or make public presentations related to the preparation of the initial study and environmental findings. Communications between the Developer and the Consultant shall occur in accordance with Section 1 above . 4. Con fi dent ia l Information and Ownersh ip 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 other than the Developer by the Consultant without the prior written approval of the Director. 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 other than the Developer. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of DEV-S Three Party Agt FYI (06-2021) 2 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 with copies made available to the Developer. 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 4. This Section shall survive expiration or termination of this Agreement. 5 . Co mp ensati on. (a) All costs associated with the Consultant's performance of the services described in the scope of work including all work incidental to, or necessary to perform, such services even though not specifically described in the scope of work, shall be paid by the Developer under a separate agreement with the Consultant. The City shall not be liable, either jointly or severally, for any costs incurred to perform the work set forth in the Scope of Work attached as Exhibit C, including preparation of the Initial Study and any other environmental document currently the subject of this Agreement or as the Agreement may later be amended that is the subject of this Agreement. (b) The Consultant shall provide the City with all invoices the Consultant submits to the Developer for payment or reimbursement. The Consultant shall submit the copies of these invoices at the same time said invoices are first submitted to the Developer for payment. 6. Termination. (a) This Agreement shall terminate without any liability of the City to the Consultant or the Developer 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 the City fiscal year of this Agreement, or insufficient funding for the Project; (iv) expiration of this Agreement, or seven calendar days' prior written notice with or without cause by the Developer to the Consultant and the City. DEV-S Three Party Agt FYI (06-2021) 3 (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 properties and materials in the possession of the Consultant that are owned by the City . 7 . Su bseq uent Cons ultan t. If a subsequent consultant is required to perform the work contemplated by the Agreement, the Developer shall select the subsequent consultant and the City shall have the right to evaluate and approve or disapprove the subsequent consultant selected by the Developer. 8 . D isc reti o nary Governmenta l Act io ns. Certain planning, land use, zoning and other permits and public actions required in connection with the Project including, without limitation , the Land Use Approvals , the environmental review and analysis under CEQA or any other statute, and other transactions contemplated by this Agreement are discretionary government actions . Nothing in this Agreement obligates the City or any other governmental entity to grant final approval of any matter described herein . Such actions are legislative, quasi-judicial , or otherwise discretionary in nature . The City cannot take action with respect to such matters before completing the environmental assessment of the Project under CEQA and any other applicable laws. The City cannot and does not commit in advance that it will give final approval to any matter. The City shall not be liable, in law or equity, to the Consultant, the Developer or any of the Initial Study or subsequent environmental documents executors, administrators, transferees, subcontractors, successors-in-interest or assigns for any failure of any governmental entity to grant approval on any matter subject to discretionary approval. 9. Con fi de nti a l In forma ti on . Except as provided for in this section , 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 other than the Developer without the prior written approval of the Director or the City's City Manager; unless required by law and the timeframe in such a case it is not feasible to obtain prior written consent, although in such a case, the Consultant must immediately notify the Director or the City's City Manager of the request or subpoena for such information and immediately deliver via facsimile or e-mail any legal documents supporting the demand for said information . The Consultant shall provide copies of administrative draft documents in connection with the Project's environmental review to the City under the scope of work. The City shall then distribute administrative draft documents to the Developer. The Developer's comments regarding the administrative documents shall be submitted only to the City, within timeframe established by the City, and the City shall forward to the Consultant. This section shall not supersede the provisions of California Public Resources Code Section 21167 .6 regarding the required contents of the record of proceedings. 10. Prof essiona l Sk ill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as the Consultant represents to the City that the DEV-S Three Party Agt FYI (06-2021 J 4 Consultant is 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 to do and perform such services in a skillful manner and the Consultant agrees to thus perform the services. Therefore, acceptance of such services by the City shall not operate as a release of the Consultant from said professional standards. 11 . Indemnification. (a) To the furthest extent allowed by law, the Developer 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 Developer or any other person, and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of a violation of the California Environmental Quality Act relating to the Project. The Developer's obligations under the preceding sentence shall apply regardless of whether the 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 the City or any of its officers, officials, employees, agents, or volunteers. If a claim, demand or action at law or equity arise within the scope of this provision, the City and the Developer shall mutually agree on defense counsel. If the Developer should subcontract all or any portion of the work to be performed under this Agreement, the Developer 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. (b) 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 liability for 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 Consultant or any other person, and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses incurred by, or awarded against, the City, including plaintiff's attorney's fees), arising out of the Consultant's negligence in the performance of this Agreement. The Consultant's obligations under the preceding sentence shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or by the willful misconduct of the City or any or its officers, officials, employees, agents, or volunteers, or by any third party. DEV-S Three Party Agt FYI (06-2021) 5 (c) 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 require each subconsultant to indemnify, defend, protect and hold harmless the City and provide the warranties and waivers in accordance with all provisions of this section. Notwithstanding the preceding paragraph of this Agreement, to the extent that subconsultant is a "design professional" as defined in Section 2782.8 of the California Civil Code, and any successor or amended statute, and performing work hereunder as a "design professional" shall, in lieu of the preceding paragraph, be required to indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents, and volunteers to the furthest extent allowed by law, from liability for damages (whether in Agreement, 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 the design professional, its principals, officers, employees, agents, or volunteers in the performance of this Agreement. (d) This section shall survive expiration or termination of this Agreement. 12. Insurance. (a) Throughout the life of this Agreement, the Developer and the Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit A or as may be authorized, and any additional insurance as may be required, in writing by the City's Risk Manager or designee at any time and in its sole discretion. (b) If at any time during the life of the Agreement or any extension, the Developer or the Consultant 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 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 Developer or the Consultant of their 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 Developer and the Consultant shall not be deemed to release or diminish the liability of either the Developer or the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify shall apply to all claims and liability regardless of whether any insurance policies are DEV-S Three Party Agt FYI (06-2021) 6 applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Developer or the Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the Developer or the Consultant and their principals, officers, agents, employees, persons under the supervision of the Developer or the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) Upon request of the City, the Developer and the Consultant 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. (e) If the Developer should subcontract all or any portion of the services to be performed under this Agreement, the Developer shall require each subcontractor to provide insurance protection in favor of the City and each of its officers, officials, employees, agents, and authorized volunteers in accordance with the terms of this section and Exhibit A, except that any required certificates and applicable endorsements shall be on file with the Developer and the City prior to the commencement of any services by the subcontractor. (f) 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 provide insurance protection in favor of the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this section and Exhibit A, except that any required certificates and applicable endorsements shall be on file with the Consultant, the Developer and the City prior to the commencement of any services by the subcontractor. 13. Notificat ions and Cooperatio n By the City. The City shall notify the Developer and/or the Consultant within a reasonable period of time of its receipt of any demand, claim, action, proceeding, or litigation arising from liability for damages arising out of either the Developer and/or the Consultant's negligence in which the City is to be indemnified and held harmless by the Developer or the Consultant pursuant to Section 11 of this Agreement. If the City requests that the Developer or the Consultant defend the City, the City shall notify the Developer or the Consultant in writing within a reasonable period of time of its receipt of any such demand, claim, action, proceeding, or litigation and the City shall cooperate fully in such defense. 14. The City and the Developer shall mutually select the attorney or attorneys who will defend the City. The Consultant agrees to accept such selection. The Developer further agrees to be fully responsible for any and all reasonable costs and attorney's fees generated by the City's attorney(s) in the defense of the City in any DEV-S Three Party Agl FYI (06-2021) 7 claim, demand, action, proceeding, or litigation from liability for damages arising out of the Developer's negligence . The Consultant further agrees to be fully responsible for any and all reasonable costs and attorney's fees generated by the City's attorney(s) in the defense of the City in any claim, demand, action, proceeding , or litigation from liability for damages arising out of the Consultant's negligence. 15 . The C ity's Participating In Defense . Nothing contained herein shall prohibit the City , in its sole discretion , from participating in the defense of any demand , claim, action , proceeding, or litigation over and above representation by outside counsel, or from participating in the defense of any demand, claim , action, proceeding, or litigation . If City elects to also defend, it shall do so in good faith . In no event shall City's participation in the defense of any demand claim, action, proceeding, or litigation affect the obligations imposed upon the Developer and the Consultant in Section 11 of this Agreement. 16 . 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 B . 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's City Manager, if no actual or potential conflict is involved . DEV-S Three Party Ag! FYI (06-2021) 8 (d) The Consultant represents and warrants 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) The Consultant is not directly retained by the City. The Consultant has no interest in the approval of the Project. The Consultant is able to perform the work outlined in the Agreement without conflict. This interest is in accordance will all applicable laws and is being fully disclosed. (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 Section 16 of this Agreement in each subcontract and require its subcontractors to comply therewith. (g) Section 16 of this Agreement shall survive expiration or termination of this Agreement. 17 . 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. Section 17(b) of this Agreement 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. 18 . 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: DEV-S Three Party Agt FYI (06-2021) 9 (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, or 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 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. 19 . Independent Con tractor. 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, supervise, or direct the manner or method by DEV-S Three Party Agt FYI (06-2021) 10 which the Consultant shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify the Consultant is performing its obligations in accordance with the terms and conditions thereof. (a) 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. (b) 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 hold 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 City employment benefits, entitlements, programs and/or funds offered to employees of the City whether arising by reason of any common law, de facto, leased , or co­ employee rights or other theory. The Consultant shall be solely liable and responsible for ensuring that its officers , agents , and employees are in compliance with federal immigration laws. The Consultant is required to furnish the City, upon reasonable request, copies of Forms I-9 and supporting documentation for all officers, agents, and employees performing work services relating to this Agreement. 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. 20 . No ti ces . Any notice required or intended to be given to any 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, or by overnight delivery via a nationally or regionally recognized courier with confirmation of receipt, 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. DEV-S Three Party Agt FYI (06-2021) 11 21 . Bin din g . Once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of all parties and each party" respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 22 . Assign ment. 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's 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 's City Manager or designee . 23 . Comp li a nce With Law. In providing the services required under this Agreement, the Consultant shall at all times use due professional care to 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. 24. 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 . 25 . Govern ing Law an d Ve nu e. This Agreement and the documents referred to herein 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 regard ing the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California . 26 . 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. 27 . Seve rabili ty. The provisions of this Agreement are severable. The invalidity or unenforceability of any one provision in this Agreement shall not affect the other provisions, which shall remain in full force and effect. 28 . In terpre tation . 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. Accordingly, the parties hereby waive the benefit of California Civil Code §1654 and any successor or amended statute, providing that in the case of uncertainty, language of the contract should be interpreted most strongly against the party who advised the uncertainty to exist. 29. Attorney 's Fees . If any party is required to commence any proceeding or legal action to enforce or interpret any term , covenant or condition of this Agreement, DEV-S Three Party Ag! FYI (06-2021) 12 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 . For the purposes of this Agreement, "attorneys' fees and legal expenses" includes , without limitation, paralegals' fees and expenses, attorneys , consultants fees and expenses, expert witness fees and expenses, and all other expenses incurred by the prevailing party 's attorneys in the course of the representation of the prevailing party in anticipation of and/or during the course of litigation , whether or not otherwise recoverable as "attorneys ' fees " or as "costs" under California law, and the same may be sought and awarded in accordance with California procedure as pertaining to an award of contractual attorneys ' fees . 30 . Exhibits . Each exhibit and attachment referenced in this Agreement is, by the reference , incorporated into and made a part of this Agreement. 31 . 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 . 32. 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 . 33 . Exten t of Ag reemen t. Each party acknowledges 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 negotiat ions, representations or agreements , either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by the City , the Developer, and the Consultant. [Signatures follow on the next page.] DEV-S Three Party Agt FYI (06-2021) 13 ------------ ------------ ------------ ---------- ---------- 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: c_ ' C' 'VC1.__ Jen ri if7r .Clark, Director, Plan~ ng cfnd Development Department No signature of City Attorney required. Standard Document "DEV-S Three Party Agt FYI (06-2021 )" has been used without modification, as certified by the undersigned . By: Ji/?:'9 . McKencie Perez" City Supervising Planner ATTEST: (C>~i) 5,~/_ --0RIAMA PARR*, CMC --IA~eFin, €ity C erk Lennar Homes of Incorporated y 'De;;"-\ I '-t.S ?12-e i7 0--l\ (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: ------------­ Name: Title : - (If corporation or LLC., Board Chair, Pres. or Vice Pres.) Quad Knopf, Inc., dba QK By: _____________ Name: Title: -------------(If corporation or LLC ., Board Chair, Pres. or Vice Pres.) By:------------­ Name: -- Title: ---(If corporation or LLC., Board Chair, Pres. or Vice Pres.) DEV-S Three Party Agt FYI (06-2021) 14 ------------ ------------ 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 : ___________ Jennifer K. Clark, Director, Planning and Development Department No signature of City Attorney required . Standard Document "DEV-S Three Party Agt FYI (06-2021 )" has been used without modification, as certified by the undersigned. By:------------- McKencie Perez City Supervising Planner ATTEST: BRIANA PARRA, CMC Interim City Clerk By : _ __________ Date Deputy Lennar Homes of California, Incorporated By :-------------­ Name : Title : _____________ (If corporation or LLC ., Board Chair, Pres. or Vice Pres .) By :-------------­ Name : Title: _____________ (If corporation or LLC ., Board Chair, Pres . or Vice Pres .) Quad Knopf, Inc., dba QK By : 2.,,,..,~ -.1. ,,JM-n:-&J I , ?E £"&'=>~2> Name Z~.,.__._;, -1 . w~"t"h.~ Title : Yr~c;_~<l&-}t (If corporation or LLC., Board Chair, Pres. or Vice Pres .) By : -~--a-++~-4--++<1'°--- Name : .J\-m~t--r ~avt o Title: Ch •/ VP (If corporation or LLC ., Board Chair, Pres. or Vice Pres .) DEV-S Three Party Agt FYI (06-2021) 14 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Fresno ) On November 30 , 2021 personally appeared before me, Christine Collins, Darryl S. Den ius Notary Public , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in h is/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Addresses: City: Planning and Development Department Mike Sanchez, Assistant Director 2600 Fresno Street, Room 3043 Fresno, CA 93721-3604 Phone: (559) 621-8277 FAX: (559) 498-1026 E-mail: Mike .Sanchez@fresno.gov Attachments: Exhibit A -Insurance Requirements Addresses: Developer: Lennar Homes of California, Incorporated Attention: Mike Miller 8080 N. Palm Ave Fresno, CA. 93711 Phone: 559-348-3091 FAX: 559-44 7-3404 E-Mail : Mike.Miller@lennar.com Quad Knopf, Inc. dba QK Attention: Amber Aguayo Chief Financial Officer PO Box 3699 Visalia, CA 93278 Phone : 661-616-2600 FAX : NA E-mail: Amber.Aguayo@qkinc.com Exhibit B -Disclosure of Conflict of Interest Form Exhibit C -Scope of Work DEV-S Three Party Agt FYI (06-2021) 15 EXHIBIT A INSURANCE REQUIREMENTS Consultant Service Agreement between CITY OF FRESNO and LENNAR HOMES OF CALIFORNIA, INCORPORATED and Quad Knopf, Inc. dba OK Project: TTM 6374 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 Developer and Consultant, or any party the Developer and 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: Developer and Consultant must both provide the following 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. DEV-S Three Party Agt FYI (06-2021) 16 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. Only Consultant must provide: 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 Developer or 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 Developer or Consultant shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Developer or 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) Developer or 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. Developer and 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 DEV-S Three Party Agt FYI (06-2021) 17 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, Developer and 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 Developer and Consultant's insurance and shall not contribute with it. Developer and 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 0413. The Workers ' Compensation insurance policy is to contain, or be endorsed to contain, the following provision: Developer and Consultant and their insurers 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 thirty calendar days' written notice by certified mail, return receipt requested, has been given to City. Developer and Consultant are 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, Developer and 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, Developer, and Consultant shall provide a new certificate, and applicable DEV-S Three Party Agt FYI (06-2021) 18 endorsements, evidencing renewal of such policy not less than fifteen 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 Developer and Consultant shall not be deemed to release or diminish the liability of Developer and 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 Developer and Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Developer and Consultant, its principals, officers, agents , employees, persons under the supervision of Developer or Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. SUBCONTRACTORS -If Developer or Consultant subcontracts any or all of the services to be performed under this Agreement, Developer and Consultant shatl 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, Developer and 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 Developer and 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, Developer and 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. DEV-S Three Party Agt FYI (06-2021) 19 EXHIBIT B DISCLOSURE OF CONFLICT OF INTEREST Lennar TTM 6374 YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? □ Ix] 2 Do you represent any firm , organization, or person who is in litigation with the City of Fresno? □ l!I 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? □ 00 * If the answer to any question is yes, please explain in full below . Explanation : __________ ~I( ~.} ~ o(-< II"<. I <rfl'-I'J 12-1-2..-' Date Al'l\~ Aj \.{tt ~o VP / c. Fo Name ~~s.s ivi R. ft_ G~ · &,u_,._J.. ffu <-' -P . l t\ ~ et~'"" &IL Company c~ h--<.>-t\.O Po Box 3'=-'°}"1 Address \{,~·AJA..._, CA 43-:z.7%" City, State Zip o Additional page(s) attached . DEV-S Three Party Agt FYI (06-2021) 20 Lennar TTM 6374 Sept 22, 2027 Exhibit C SCOPE OF WORK TASK1.0 PREPARE DRAFT IS/MND QK will prepare an administrative draft IS/MND augmented with additional research and available in-house resources for review and comment by you and the City. The IS/MND will include an introduction chapter that provides an overview of the Project. a brief discussion of why environmental documentation for the Project is required under CEQA, the scope of the IS/MND, impact terminology definitions, and the organization of the IS/MND document. The IS/MND will also have a chapter that includes a Project description with, at a minimum, a vicinity, Project location, and site plan map. This chapter will also include the CEQA IS Checklist (Appendix G of the CEQA 2020 Guidelines). As required by CEQA, the administrative draft IS/MND will include another chapter that lists the preparers of the document. a cover page, table of contents, list of figures, a list of acronyms and abbreviations, the mailing list, Notice of Completion, and references as part of the document. One round of revisions is anticipated . After the City has reviewed and provided comment on the administrative draft IS/MND, QK will revise and prepare a screen-check draft IS/MND prior to distribution by the City for public comment. Once the City approves the screen-check draft IS/MND, QK will provide the City with a PDF of the draft IS/MND along with the mandatory Notice of Completion (NOC) and Summary Form . One round of revisions is anticipated. It is assumed that the City would prepare the Notice of Intent to adopt a Mitigated Negative Declaration and provide the appropriate newspaper with the required advertisement. It is also assumed that the City will reproduce and distribute the IS/MND to the State Clearinghouse and all responsible/trustee agencies and interested parties for public comment, if applicable. This proposal includes the preparation of a Response to Comments (RTC), preparing a final Mitigation Mon itoring and Reporting Program (MMRP), which includes the MEIR mitigation measures, and attendance at any City of Fresno public hearings under a Time and Materials Task 2, below . Deliverables: • Screen-check draft IS/MND in WORD format Task 2.0 Required Technical Reports Subtask 2. 1 Cultural and Tribal Resources The property appears to be highly disturbed . It is surrounded by residential and commercial development. A qualified QK archaeologist will conduct a background/archival cultural resources records research at the Southern San Joaquin Valley Information Center (IC) to determine if there are any previously known cultural resources on the Project site or area. Subtask 2.2 Biological Resources QK will conduct a reconnaissance survey of the proposed approximately 7 8-acre project site and the 50-foot buffer area (where feasible) to document existing site conditions. Based on the location of the Project site, the survey will focus on the identification of small mammals, Western burrowing owl, Swainson's hawk, nesting birds, and other special-status species with the potential to occur on the proposed Project site. Deliverables: • Biological Resources section of the IS/MND in Word Version, except Final version will be PDF Subtask 2.3 Air Quality Under contract to QK, teaming partner Trinity Environmental will prepare an air quality analysis for the project. Based on the San Joaquin Valley Air Pollution Control District requirements, this project meets the criteria for a Small Project Analysis Level review. Complete an analysis of the air quality impacts to the San Joaquin Valley Air Basin as required by the San Joaquin Valley Air Pollution Control District's (SJVAPCD) Guide for Assessing and Mitigating Air Quality Impacts (GAMAQI) -Updated March 19, 2015 based on the subject Project qualifying as a "small project" under SJVAPCD guidelines. Deliverable: • Small Project Analysis Level Report in PDF format. 1. Milestone Timeline a. Studies have not been prepared. The Initial Study, MMRP and special studies will be submitted to the City within 2 months of executing a final 3rd Party Agreement. b. The Developer and Consultant acknowledge and understand that the timeline is based off the date of formal acceptance of the project. A delay in receiving deliverables as outlined in the Scope of Work or multiple revisions will extend the timeline by the number of days equal to the period of the delay. c. The Initial Study will be resubmitted to the City within 5 working days after receiving City staff comments. 2. List of Subcontractors and Qualifications Technical Studies and Technical study experts-a resume for those individuals identified below are included in this Agreement package. a. Air Quality and Greenhouse Gases Analysis: Trinity Environmental Consulting i. Matt Daniel b. Cultural Resources Technical Memo: i. QK Senior Archaeologist-Robert E. Parr, MA, RPA c. Biological Reconnaissance Survey: i. Principal Environmental Scientist-Dave Dayton d. Traffic Impact Study-VRPA i. Erik Ruehr, PE e. Phase 1 ESA-Krazan & Associates i. Art Farkas 3. Conflict of Interest Pursuant to Section 7 6(e) of the Agreement, 'The Consultant is not directly retained by the City. The Consultant has no interest in the approval of the Project. The Consultant is able to perform the work outlined in the Agreement without conflict. This interest is in accordance with all applicable laws and is being fully disclosed." 4. Documents All documents shall be submitted in WORD version to allow for track changes.