HomeMy WebLinkAboutLSA Asscoiates, Inc - Consultant Agrmnt. - 12-21-2022LJUI:UJIIylI CI IVCIVFIC IL/. VLOLIO/OJ-L/JJL/-'fLJ/-OOLy-.'75/JCLlVO IOur-
AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
This Agreement is entered into, effective /oq - ,2% ._c2,Z I by
and between the CITY OF FRESNO, a California municipal corporation (City), Living
Spaces Furniture, LLC. (Developer), and LSA Associates, Inc., a California Corporation
(Consultant).
RECITALS
WHEREAS, the Developer will be submitting necessary applications for Living Spaces,
located southeast of the intersection of East Minarets/East Alluvial Avenue and North
Abby Street, 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. Scooe of Services. 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 November
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7, 2022, the Consultant shall perform, to the satisfaction of the City, 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.
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 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 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. Authority and Regulation of Communications. 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. 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 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
the City, including but not limited to business plans, marketing plans,
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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. Compensation.
(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.
(b) Immediately upon any termination or expiration of this Agreement, the
Consultant shall (i) immediately stop all work hereunder; (ii) immediately
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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. Subsequent Consultant. 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. Discretionary Governmental Actions. 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. Confidential Information. 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. 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 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
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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.
(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
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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.
(d) This section shall survive expiration or termination of this Agreement.
1Z 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
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.
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(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. Notifications and Cooperation by the Cit . 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
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 City'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.
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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.
(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.
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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:
(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
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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 Contractor. 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 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
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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 1- 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. Notices. 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.
21. Binding. 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. Assignment. 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. Compliance 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
DEV-S Three Party Agt FYI (09-2022) 11
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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. Governing Law and Venue. 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
regarding the enforcement or interpretation of this Agreement and any rights and
duties hereunder shall be Fresno County, California.
26. Headinas. 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. 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, which shall remain in full force and effect.
28. 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.
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,
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
DEV-S Three Party Agt FYI (09-2022) 12
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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. Extent of Agreement. 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 negotiations, 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.
34. 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.]
DEV-S Three Party Agt FYI (09-2022) 13
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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
F�-'
I7acu51gned by:
1� �-- 12/21/2022
--746.Ybg HJW K Clark, Director,
Planning and Development
Department
No signature of City Attorney required.
Standard Document #DEV-S Three
Party Agt (09-2022) has been used
without modification, as certified by the
undersigned.
Chris Lang
Planner III
ATTEST:
TODD STERMER, CIVIC
City Clerk
B LDocuSigned by:
r"avr 12/21/2022
6CA1 20944E3..
Date
Deputy
Livng Spaces Furniture,
LLC.
DocuSigned by:
�I
12/17/2022
� �us�.f.�►�.u.
02791E 27M R 1409
Name: Grover Geiselman
Title: CEO and Manager
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
DocuSigned by:
Udum PU S 12/21/2022
a7caela�csar•���...
Name: Anthony Petros
Title: President
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
LSA Associates, Inc.,
A California Corporation
DocuSigned by:
YJ'�sfcw ,ate
23D= ssn7eD5a a
Name: Tustin Cary 12/21/2022
Title:
By:
CFO
Name:
Title:
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
DEV-S Three Party Agt FYI (09-2022) 14
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Addresses:
Addresses:
City:
Planning and Development Department
Chris Lang
Planner III
2600 Fresno Street, Room 3043
Fresno, CA 93721-3604
Phone: (559) 621-8023
E-mail: Chris.Lang@fresno.gov
Developer:
Living Spaces Furniture, LLC.
Attention: Brian Saltikov
Senior Project Manager
14501 Artesia Blvd.
La Mirada, CA 90638
Phone: (714) 713-9931
E-Mail: brian.saltikov@livingspaces.com
LSA Associates, Inc.
Attention: Kyle Simpson
Associate
2565 Alluvial Avenue, Suite 172
Clovis, CA 93611
Phone: (559) 490-1212
E-mail: kyle.simpson@lsa.net
Attachments:
Exhibit A - Insurance Requirements
Exhibit B - Disclosure of Conflict of Interest Form
Exhibit C - Scope of Work
DEV-S Three Party Agt FYI (09-2022) 15
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EXHIBIT A
INSURANCE REQUIREMENTS
Consultant Service Agreement between CITY OF FRESNO and
LIVING SPACES FURNITURE, LLC. and LSA ASSOCIATES, INC.
Project: Living Spaces
MINIMUM SCOPE OF INSURANCE
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."
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
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.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
DEV-S Three Party Agt FYI (09-2022) 16
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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 Liabilitv 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 26 04 13, CG 20 12 04 13 or by an
executed manuscript insurance company endorsement providing additional
insured status as broad as that contained in ISO Forms referenced above.
2. The coverage shall contain no special limitations on the scope of protection
afforded to City, its officers, officials, employees, agents, and volunteers.
DEV-S Three Party Agt FYI (09-2022) 17
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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 04 13.
The Workers' Compensation insurancepolicy 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.
Al! 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
endorsements, evidencing renewal of such policy not less than fifteen calendar days prior
to the expiration date of the expiring policy.
DEV-S Three Party Agt FYI (09-2022) 18
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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 the Consultant/Developer should subcontract all or any portion
of the services to be performed under this Agreement, the Consultant/Developer 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 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.
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 (09-2022) 19
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EXHIBIT B
DISCLOSURE OF CONFLICT OF INTEREST
Living Spaces
JYES*
NO
1
Are you currently in litigation with the City of Fresno or any of
❑
x❑
its agents?
2
Do you represent any firm, organization, or person who is in
❑
ix1
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
n
0
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
❑
0
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
C
❑
connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation
LSA is working on the
following projects: Wilson Premier Homes
Tract 6386 and Tract 6360, Scannel
Properties on Nielsen Avenue, Penny
Newman Grain Company on Annex Cup,
and on the Valley Health Team project.
E Additional page(s) attached.
Signature
November 23, 2022
Date
Mike Trotta, CEO
Name
LSA Associates Inc.
Company
20 Executive Park, Suite 200
Address
Irvine, CA 92614
City, State Zip
DEV-S Three Party Agt FYI (09-2022) 20
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CARLSBAD
CLOVIS
LSA IRVINE
LOS AN G E LES
PALM SPRINGS
POINT RICHMOND
RIVERSIDE
EXHIBIT C ROSEVILLE
SAN LUIS OBISPO
November 7, 2022
Brian Saltikov, Senior Project Manager
Real Estate Development
Living Spaces
14501 Artesia Boulevard
La Mirada, CA 90638
Subject: Proposal to Prepare Environmental Review Documentation for Living Spaces Fresno
Dear Mr. Saltikov:
LSA is pleased to provide you with a proposal to assist Living Spaces and the City of Fresno (City)
prepare the environmental review documentation for a proposed retail store pursuant to the
California Environmental Quality Act (CEQA). Based on the information provided, LSA believes that a
Mitigated Negative Declaration (MND) supported by an Initial Study will likely be the appropriate
level of environmental review for the proposed project. This scope of services and cost estimate
reflects this level of effort.
Preparation of the Initial Study/Mitigated Negative Declaration (IS/MND) will be staffed by Amy
Fischer, Principal, who will provide overall quality assurance for all work products, and Kyle
Simpson, Associate, who will oversee and manage the LSA's work. LSA's in-house technical
specialists will prepare the technical studies as described in Task 2.
This letter proposal summarizes our understanding of the proposed project and discusses the
individual tasks that LSA will complete as part of the analysis and preparation of the requested
documentation.
KEY STAFF
This project will be managed from LSA's Clovis office. Key LSA personnel that will manage and
prepare the IS/MND are identified below.
Amy Fischer, Principal, will serve as Principal -In -Charge.
Amy Fischer has managed CEQA documents for the cities of Fresno, Clovis, Merced, and
Lemoore. Amy will also serve as the Technical Director for the air quality, GHG emissions, and
noise analyses. She has performed principal -level review or conducted over more than 200
CEQA/NEPA-related and/or stand-alone air quality and GHG impact studies for community
plans, development projects, and infrastructure improvements. In keeping with LSA's
commitment to senior -level management, as the Principal in Charge, Amy maintains
substantive involvement with projects as a means of ensuring high -quality products and
balanced professional consultation. She works closely with project managers and clients and
provides input on and monitors the scope, budget, and scheduling of specific projects. Amy is
ultimately responsible for the quality of all project work and reviews all in-house prepared text,
8/5/22
2565 Alluvial Avenue, Suite 172, Clovis, California 93611 559.490.1210 www.Isa.net
LSA is a business name of LSA Associates, Inc.
L/uuu OlyII clly CluPU IU. uLuLlu I OO-UJJU-'4G:J/-00L7-5U/JCUVu IJuc
tables, and graphics before these materials are presented to the client. She is the Managing
Principal of LSA's Clovis office.
Kyle Simpson, Associate, is LSA's designated Project Manager.
Kyle Simpson has over 15 years of experience in environmental analysis and has served as the
primary planner/project manager for more than 50 projects in the Central Valley and Northern
California. He is skilled at preparing environmental documents ranging from multiple -phase
EIRs to categorical exemptions, and he comprehends complex projects easily and assesses
environmental impacts for both CEQA and NEPA compliance. He has extensive experience
with project -level analysis for retail development, mixed -use development, school facilities,
public facilities, and open space/recreational facilities. Kyle also manages the inputs of LSA's
in-house specialists for CEQA and NEPA documents, and regularly attends public hearings to
present documents and respond to questions.
PROJECT UNDERSTANDING
The project site is located in Fresno at 3457 North Abby Street, southeast of the intersection of East
Minarets/East Alluvial Avenue and North Abby Street. Based on the site plan dated July 19, 2022,
the approximately 8-acre project site is comprised of one parcel (Assessor's Parcel Number [APNj
303-201-27) and is bounded by North Abby Street to the west, a Kohl's department store to the
north, State Route (SR 41) to the east, and a Home Depot store to the south. The project site was
formally the Fresno location of Boomers Parks, which ceased operations in 2017. The project site
has been subsequently cleared of all development and currently only contains ruderal vegetation.
The proposed project includes construction and operation of an approximately 105,000-square-foot
furniture retail store. Vehicle ingress and egress would be provided from North Abby Street. In
addition, the proposed project includes a potential access connection to the project site through the
adjacent Kohl's parking lot to East Alluvial Avenue (this access would require a cross -access
covenant/agreement between the property owners of both parcels).
SCOPE OF WORK
The following tasks will be undertaken as part of this scope of work. It is assumed that the Project
Applicant will provide, if required, a water supply analysis or other documentation regarding the
availability of potable water.
Task 1. Project Initiation
Project initiation will include several subtasks, including a preliminary teleconference meeting with
City staff and the Project Applicant team, a site visit, preparation of a base map, compiling and
distributing relevant documents, data gathering, and contacting responsible agencies and City
departments, as necessary. The Project Description for the environmental document will also be
prepared as part of project initiation subtasks.
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LSA
Task 2. Technical Studies
Based on our initial review of the proposed project, a Biological Resources Assessment, Cultural
Resources Assessment, and Transportation Impact Analysis will be needed to adequately address
these subject areas under CEQA.
Subtosk 2.1 Biological Resources Assessment
LSA proposes to conduct a thorough biological resources assessment required for project review
under CEQA and pertinent local, State, and federal regulations. LSA will prepare the assessment by
completing the following subtasks:
Literature Review and Records Search. Prior to a site visit, LSA will execute and evaluate a
biological resource records search of the most current versions of the California Department of
Fish and Wildlife (CDFW) California Natural Diversity Database (CNDDB), the California Native
Plant Society's Electronic Inventory of Rare and Endangered Vascular Plants of California, and
the United States Fish and Wildlife Service's (USFWS) Information for Planning and Consultation
(iPaQ database. LSA will review the databases for known occurrences of special -status biological
resources and mapped jurisdictional aquatic resources. LSA will also review our previous project
work in the area for applicable biological resources information. Although LSA is intimately
familiar with the biological resources occurring in the vicinity of the subject property,
conducting a current records search is a requisite industry -standard procedure.
Field Work. Following the literature review, an experienced LSA biologist familiar with the
habitats and special -status natural resources of the region will conduct a general survey of the
biological resources in areas that may be directly or indirectly impacted by proposed project
development activities (e.g., the Biological Study Area), particularly to document the occurrence
of any species or habitats of interest or concern and to determine the potential for the presence
of any such resources that may not be detectable at the time of the site survey. All occurrences
of rare plant and/or wildlife species on the project site shall be mapped, along with all
vegetation communities and other land cover types within the Biological Study Area. LSA
anticipates that the general field survey will take one day to complete. This scope of work
assumes only one reconnaissance -level survey will be conducted, and any additional warranted
or required focused surveys would be recommended as project avoidance, minimization, and/or
mitigation measures in the technical memorandum described below.
As part of the field work, potential jurisdictional waters of the United States as well as
streambeds, riparian vegetation, or wetlands subject to State jurisdiction, and/or features
considered sensitive under local ordinances that are identified within the study area would also
be assessed in the field. LSA proposes to include information gathered from this field work in
the technical memorandum described below. A formal, stand-alone jurisdictional delineation
report is not included in this scope, nor is one expected to be required. If a formal jurisdictional
delineation report or additional field surveys are requested, LSA will prepare a revised scope and
budget to complete those tasks.
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l'
�:, '�?�.
Biological Resources Technical Memorandum. Following the fieldwork, LSA will prepare a
biological resources technical memorandum describing the results of the literature review and
field survey. The report will include:
o A description of the survey methodology and regulatory background/definitions;
o A discussion of the of soils, plant communities, and other land cover types;
o Identification and discussion of areas that may potentially be considered jurisdictional
wetlands, waters of the U.S., waters of the State, or streambeds, as defined by the U.S.
Army Corps of Engineers, California State Water Resources Control Board, and the California
Department of Fish and Wildlife;
o A description of observed or otherwise detected special -status species;
o An assessment of potential habitat value for special -status species and identification of
additional focused species surveys that may be necessary (if warranted);
o A discussion of direct, indirect, and cumulative impacts of the proposed project to special -
status biological resources;
o A list of plant and wildlife species observed during the survey; and
o Representative photographs of the project site and graphics showing the project site
location and mapped vegetation communities/land cover types. Additional graphics, as
needed, will show locations of special -status species or sensitive natural communities,
potential special -status species habitat, and areas of designated critical habitat on or
directly adjacent to the project site.
Project -related impacts to biological resources will be evaluated in accordance with the 2022
CEQA Statute and Guidelines and other relevant federal, State, and local regulations/policies. As
applicable, measures will be identified for avoidance, minimization, and/or mitigation of project
impacts.
Requisite Information to be Provided. LSA will require authorization from the property
owner(s) to enter the project site and a site plan displaying the grading limits,
building/structural footprints, landscaping, site drainage elements, and any other
ground/vegetation disturbance areas associated with the proposed project. A digital vector file
(CAD or GIS) showing the limits of the project site in a real -world coordinate system, such as
Stateplane Zone 4, NAD83, Survey Feet, would be helpful to accurately and efficiently quantify
project -related impacts.
Subtask 2.2 Cultural Resources Assessment
LSA will conduct a Cultural Resources Assessment to address the requirements of CEQA. Cultural
Resources Assessment work will consist of background research, a pedestrian field survey of the
project site, and preparation of a letter report documenting the findings.
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Background research will consist of requesting a record search from the Southern San Joaquin Valley
Information Center (SSJVIC) for the project site and a 0.5-mile search radius, as well as contacting
the Native American Heritage Commission (NAHC) for a review of its Sacred Lands File. Historic
aerial photographs and historic topographic maps, if available, will also be reviewed.
Following receipt of the record search results, an LSA archaeologist will conduct a pedestrian field
survey of the approximately 8-acre project site. Following the site visit, LSA will prepare a letter
report to document the Cultural Resources Assessment methods, results, and management
recommendations. The report will be submitted to the SSJVIC in fulfillment of a requirement to
access their archives.
This scope of work assumes that no cultural resources will be identified within the project site
following the record search or field survey. If cultural resources are identified within the project site,
LSA will contact the Project Applicant immediately to develop a scope and budget for additional
tasks. For example, cultural resources would be required to be recorded on State of California
Department of Parks and Recreation (DPR) Series 523 forms in accordance with the guidelines
established by the State Office of Historic Preservation (OHP).
Subtask2.3 Transportation Impact Analysis
LSA's Transportation Department will prepare a trip generation analysis and vehicle miles traveled
analysis to determine if the proposed project would result in potentially -significant impacts to
transportation.
Trip Generation Memorandum. The City of Fresno Traffic Impact Study Guidelines (dated
February 2, 2009) states that a Traffic Impact Study (TIS) will not be required for a project if it
generates less than 100 peak hour vehicle trips. Based on an initial trip generation estimate, LSA
anticipates that the proposed project will generate less than 100 peak hour vehicle trips.
Therefore, a TIS will not be required for this project. LSA will prepare a Trip Generation
Memorandum for submittal to the City's Traffic Engineer. The purpose of the Trip Generation
Memorandum will be to illustrate that the proposed project would generate less than 100 peak
hour vehicle trips and, therefore, a TIS would not be required.
Vehicle Miles Traveled Analysis. Senate Bill 743 (SB 743) required changes be made to the
CEQA regulations introducing Vehicle Miles Traveled (VMT) as the new metric for determining
project traffic impacts. The VMT evaluation will be based on the City of Fresno CEQA Guidelines
for Vehicle Miles Traveled Thresholds (VMT Guidelines) on June 25, 2020, which includes the
screening criteria, VMT analysis methodology, VMT impact thresholds, and VMT mitigation
measures. Based on the screening criteria provided in the VMT Guidelines, it is anticipated that
a detailed VMT analysis is required for the proposed project.
LSA will utilize the Fresno Council of Governments (Fresno COG) Activity -Based Model (ABM) for
VMT calculations for the proposed project. As per the City's VMT Guidelines, the total VMT for
the region (Fresno County) without and with the proposed project will be evaluated to
determine if the proposed project will generate a significant VMT impact. If the total regional
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VMT with the proposed project is higher than the total regional VMT without the proposed
project, then the proposed project would be determined to create a significant VMT impact.
In case that the proposed project is determined to create a significant VMT Impact, applicable
mitigation measures will be determined based on discussion with City staff. The VMT analysis
will be summarized in a CEQA VMT Analysis Memorandum.
• Meetings. It is anticipated that representatives of LSA's Transportation Department will not be
required to attend any meetings as part of this analysis. If any meeting attendance is required,
the scope can be modified to include meeting attendance on a time and material basis.
Work Products. LSA will prepare one digital draft Trip Generation Analysis Memorandum and
one digital draft CEQA VMT Analysis Memorandum. The draft memorandums will be submitted
to the City staff for review in a Adobe Portable Document Format (PDF). This scope and budget
includes up to one revision of the memorandums to address the City's comments. Additional
rounds of review/revision or provision of hard copies will require an amendment to this scope
and cost estimate. Upon revision, final memorandums will be submitted to the City a PDF
format.
• OPTIONAL TASK. As requested by City staff, vehicle turning templates for the largest vehicle
accessing the project site would be prepared at the project driveways and within the project site
to demonstrate adequacy of turning radii for circulation purposes.
Task 3. Evaluation of Environmental Effects
An Initial Study will be prepared in accordance with CEQA and the CEQA Guidelines, and will utilize
the Environmental Checklist Form (Appendix G of the CEQA Guidelines).
LSA will respond to the checklist questions for the various impact topics and will add concise
explanatory comments related to each topic. This scope of work assumes that upon completion of
the Initial Study, a recommendation will be made that an MND will satisfy CEQA documentation
requirements. Preparation of an Environmental Impact Report (EIR) is not included in this scope of
work. LSA will rely on the determinations in studies provided by the Project Applicant team
regarding availability of potable water.
Using the technical studies prepared as part of Task 2, described above, LSA will complete the
environmental checklist responses for the relevant topics in order to demonstrate that no significant
effects related to these topics would result from the proposed project. Should additional analysis be
necessary, LSA will coordinate with the City and Project Applicant team to determine next steps.
The following environmental topics will be evaluated in the Initial Study, consistent with the
requirements of CEQA.
• Aesthetics
• Mineral Resources
• Agriculture and Forestry Resources • Noise
• Air Quality • Population and Housing
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Biological Resources • Public Services
• Cultural Resources • Recreation
• Energy
• Geology and Soils
• Greenhouse Gas Emissions
• Hazards and Hazardous Materials
• Transportation
• Tribal Cultural Resources
• Utilities and Service Systems
• Wildfire
• Hydrology and Water Quality • Mandatory Findings
• Land Use and Planning
Please note the following identified environmental topics will include detailed technical analyses in
the Initial Study:
Air Quality. LSA will prepare the air quality impacts analysis for the proposed project based on
the latest version of the San Joaquin Valley Air Pollution Control District's (SJVAPCD) Guide For
Assessing and Mitigating Air Quality Impacts. The air quality analysis will include the following
components: 1) assessment of project consistency with the SJVAPCD's air quality attainment
plans; 2) quantitative assessment of project construction and operational impacts using the
using the California Emissions Estimator Model (CaIEEMod); and 3) recommendation of
mitigation measures consistent with SJVAPCD guidelines.
Energy. LSA will evaluate the proposed project's impacts related to energy use in response to
the Initial Study checklist questions. This discussion will address the proposed project's
compliance with applicable energy efficiency standards and will cross reference the discussion
provided in the greenhouse gas emissions discussion as necessary. Energy data estimated using
CalEEMod will be reported.
Greenhouse Gas Emissions. According to Section 15183.5 of the State's CEQA Guidelines, a
jurisdiction is allowed to analyze and mitigate the significant effects of GHG emissions at a
programmatic level by adopting a plan for the reduction of GHG emissions. The City of Fresno's
GHG Reduction Plan Update meets the CEQA Guidelines' requirements for a Qualified GHG
Reduction Strategy. Therefore, the proposed project's GHG emissions would not be considered
significant if it would be consistent with the City's GHG Reduction Plan Update. LSA will evaluate
the proposed project's consistency with the GHG Reduction Plan Update Consistency Checklist.
LSA will also recommend mitigation measures to be consistent with the Plan measures, as
necessary.
Noise. LSA will prepare a noise analysis for the proposed project in response to the Initial Study
Checklist questions. The noise analysis will include the following components: (1) a description
of existing noise conditions in and around the project area based on existing data contained in
the City's General Plan; (2) quantitative assessment of noise impacts on sensitive receptors
related to project construction and operation; and if required, (3) preparation of mitigation
measures consistent with best practices.
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Task 4. IS/MND and MMRP
LSA will prepare three drafts of the Initial Study: an Administrative Draft, a Screencheck Draft, and a
Public Review draft. The IS/MND will include responses to comments presented in a memorandum
format, as necessary, and a Mitigation Monitoring and Reporting Program (MMRP), as described
below.
Subtask 4.1 Administrative Draft IS/MND
Using the setting and analysis prepared under Task 2 and Task 3, described above, LSA will prepare
an Administrative Draft IS/MND with the following components. Figures and tables will be provided
as appropriate to illustrate the project site, the proposed components, and the Initial Study's
findings.
• Project Description
• CEQA Environmental Checklist Form
• Mandatory Findings of Significance
• Contacts and Bibliography
■ Mitigated Negative Declaration
The Administrative Draft IS/MND, as well as the draft Technical Studies, completed under Task 2,
and the MMRP, completed under Subtask 4.5, will be provided to the City for review and comment.
The MMRP, will include applicable PEIR mitigation measures and any project specific mitigation
measures, if applicable. LSA will provide one electronic version in MS Word and PDF format for
review by City staff.
Subtask 4.2 Screencheck Draft IS/MND
Based on a single set of consolidated and non -contradictory comments from City staff, LSA will
amend the Administrative Draft IS/MND, Technical Studies, and MMRP, and will prepare a
Screencheck Draft IS/MND for review. We have allotted time for responding to changes; however,
if this subtask exceeds the cost allotted in the budget due to changes in Project Description or
requests for additional analysis that are not necessary to prepare a legally -adequate document, a
budget adjustment may be required.
LSA will provide one electronic version in each MS Word and PDF formats for review by City staff to
verify that all requested changes have been made and all appendix materials, references, and final
graphics are acceptable. LSA will also provide the City with an electronic compare version of the
Screencheck Draft IS/MND. This version will show text changes made to the Administrative Draft
IS/MND in underline and strikeout for the City to more easily confirm that all comments and edits
are fully incorporated into the Screencheck Draft IS/MND.
Subtask4.3 Public Review IS/MND
LSA will make any minor necessary revisions to the Screencheck Draft IS/MND and prepare the
Public Review IS/MND. LSA will prepare a draft Notice of Intent to Adopt (NOI), in accordance with
the CEQA Guidelines for use by the City. LSA will provide one electronic version in MS Word and PDF
format to the City. The City will be responsible for noticing and distribution of the Public Review
IS/MND.
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Sub task4.4 Response to Comments Memorandum
Following a 30-day public review period, LSA will review public and agency comments received on
the Public Review IS/MND, and will prepare responses to CEQA comments in a memorandum
format, as necessary. This scope and budget assume up to approximately 12 hours to prepare
responses to comments. Should an unexpectedly large volume of comments be submitted, LSA will
request an adjustment in the budget to cover work beyond the assumed level. LSA will provide one
electronic version in MS Word and PDF format for review by City staff. LSA will prepare a final draft
of the response to comments memorandum in response to a consolidated and non -contradictory
set of comments from City staff.
Subtosk 4.5 Mitigation Monitoring and Reporting Program
LSA will complete the Program Environmental Impact Report Mitigation Measures Checklist, and a
Project Specific Mitigation Measures Checklist, if applicable. Electronic copies of the draft MMRP will
be submitted to the City with the Administrative Draft IS/MND. LSA will prepare a final MMRP in
response to a consolidated and non -contradictory set of comments from City staff.
Task S. Meetings
Amy Fischer and Kyle Simpson will be available throughout the environmental review period to
meet with the City and Project Applicant team to gather information, review progress, review
preliminary findings, discuss staff comments, offer input into discussions on project modifications,
and consult on CEQA procedural matters. The cost estimate includes attendance by Amy and/or Kyle
at up to three teleconferences of approximately one hour.
Attendance at any additional team meetings or public hearings is not included in this scope of work
or in the cost estimate. Attendance at any additional meetings can be billed on a time and materials
basis upon authorization.
Task 6. Project Management
Amy and Kyle will undertake a variety of general project management tasks throughout the
preparation of the IS/MND. Amy will provide input on the scope, budget, contract negotiations and
management, and scheduling, and will be responsible for the overall quality of all work undertaken.
She will also be available for consultation on CEQA procedural matters as well as application of the
CEQA Guidelines to this proposed project.
Kyle will coordinate the day-to-day activities associated with LSA's scope of work and coordination
with the City regarding the execution of the three -party agreement between the Project Applicant,
LSA, and the City. This will include regular client contact, oversight of team members, schedule
coordination, and development of products. He will also provide direction to all team members that
will ensure an internally -consistent, coherent document. Amy and Kyle will review all in-house
prepared text, tables, and graphics before these materials are presented to the City as
administrative review documents.
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SCHEDULE AND BUDGET
The preliminary work schedule for preparation and completion of the environmental review process
is shown in Table 1. LSA will finalize the schedule, including deliverable dates with the City and
Project Applicant once we are authorized to proceed and once preliminary development plans and
all requested background materials listed in this scope of work are provided. Please note that this
preliminary timeline is aggressive, yet flexible, and we are happy to work with the City and Project
Applicant team to adapt the schedule to fit ongoing priorities and scheduling or work products
prepared by the Project Applicant. The durations of City review periods is consistent with City
requirements. Also, as typically requested by the City, the following note regarding the schedule is
acknowledged:
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.
Table 1: Preliminary Schedule
Milestone
Responsible
Party
Business
Days to
Complete
Cumulative
Weeks
Authorization to Proceed
Project Applicant
—
—
Prepare Project Description
LSA
10
2
Review Project Description
Prepare Administrative Draft IS/MND, draft Technical Studies, and
draft MMRP
Review Administrative Draft IS/MND, draft Technical Studies, and
draft MMRP
Prepare Screencheck Draft IS/MND, final Technical Studies, and final
MMRP
Review Screencheck Draft IS/MND, final Technical Studies, and final
MMRP
City/Project Applicant
30
8
LSA
40
16
City
30
22
LSA
10
24
City
30
30
Prepare Public Review IS/MND
LSA/City
5
31
Public Review Period
—
30
35
Prepare Draft Response to Comments Memorandum and MMRP
LSA
10
37
Review Draft Response to Comments Memorandum and MMRP
City
30
41
Prepare Final Response to Comments Memorandum and MMRP
LSA
5
42
IS/MND Adoption
City
—
—
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Exhibit C
DISCLOSURE OF CONFLICT OF INTEREST
[Project Title]
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
❑21
litigation with the City of Fresno?
3
Do you currently represent or perform work for any clients who do
❑Ed
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
❑i
Lx�
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
❑
n
this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
:1 Additional page(s) attached.
Signature
Date
(name)
(company)
(address)
(city state zip)
Page 1 of 1
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CERTIFICATE OF INCUMBENCY AND AUTHORITY
LIVING SPACES FURNITURE, LLC —
AGREEMENT WITH CITY OF FRESNO AND LSA ASSOCIATES, INC.
The undersigned, Michael Zinser of Living Spaces Furniture, LLC, a Delaware
limited liability company (hereinafter, the "Company"), hereby certifies as follows:
That he is the duly elected, qualified and acting President and Chief Operating Officer
of the Company.
2. That the following named person(s) have been designated and appointed to the
position(s) indicated below, and that said person(s) does/do continue to hold such position(s)
at this time, and the signature(s) set forth opposite the name(s) are genuine signatures.
NAME Sl9gn—�, TITLE
Grover GeiseITTlan �-- Chief Executive Officer
[4WADAA67i5B42E
3. That the person(s) designated to serve in the above -entitled capacity have sufficient
authority to act on behalf of and to bind the Company with respect to the construction and
development of a furniture store located at 7354 N. Abby Street within the City of Fresno, and
that the execution by said person(s) of documents related to such project, including without
limitation the execution of the agreement between and among the City of Fresno, Company
and LSA Associates, Inc. and related schedules, appendices and exhibits thereto, constitute
legally binding and enforceable obligations of the Company.
4. That the undersigned has the power and authority to execute this certificate on behalf
of the Company and that he has so executed this certificate as of November 29, 2022.
DocuSigned by:
Signature: 14 ltwst V
Name: 6I 9@11Z? §er
Title: President and Chief Operating Officer