HomeMy WebLinkAboutEconomic & Planning Systems, Inc. - Consultant Services - 10-31-2022AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
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THIS AGREEMENT is made and entered into effective the 11S day of
October, 2022, by and between the CITY OF FRESNO, a California municipal corporation
(hereinafter referred to as CITY), and Economic & Planning Systems, Inc. (EPS) , a
California Corporation, (hereinafter referred to as CONSULTANT).
RECITALS
WHEREAS, CITY desires to obtain professional economic services for Park
Develpoment Impact Fee Nexus Study and Capital Improvement Plan, hereinafter
referred to as the "Project;" and
WHEREAS, CONSULTANT is engaged in the business of furnishing services as
a Municipal Fee and Rate Analyst and hereby represents that it desires to and is
professionally and legally capable of performing the services called for by this Agreement;
and
WHEREAS, CONSULTANT acknowledges that this Agreement is subject to the
requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-
19; and
WHEREAS, this Agreement will be administered for CITY by its Public Works
Director (hereinafter referred to as "Director") or his/her designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and promises hereinafter contained to be kept and performed by the
respective parties, it is mutually agreed as follows:
1. Scope of Services. CONSULTANT shall perform to the satisfaction of CITY
the services described in Exhibit A, including all work incidental to, or necessary to
perform, such services even though not specifically described in Exhibit A.
2. Term of Agreement and Time for Performance. This Agreement shall be
effective from the date first set forth above and shall continue in full force and effect
through the earlier of complete rendition of the services hereunder or December 31, 2023,
subject to any earlier termination in accordance with this Agreement. The services of
CONSULTANT as described in Exhibit A are to commence upon CITY'S issuance of a
written "Notice to Proceed." Work shall be undertaken and completed in a sequence
assuring expeditious completion, but in any event, all such services shall be completed
within 456 consecutive calendar days from such authorization to proceed.
3. Compensation.
(a) CONSULTANT'S sole compensation for satisfactory performance of
all services required or rendered pursuant to this Agreement shall be a total fee of twenty
five thousand dollars ($25,000), and a contingency amount not to exceed five thousand
dollars ($5,000) for any additional work rendered pursuant to Subsection (c) below and
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authorized in writing by the Director. Such fees include all expenses incurred by
CONSULTANT in performance of such services.
(b) Detailed statements shall be rendered monthly and will be payable
in the normal course of CITY business.
(c) The parties may modify this Agreement to increase or decrease the
scope of services or provide for the rendition of services not required by this Agreement,
which modification shall include an adjustment to CONSULTANT'S compensation. Any
change in the scope of services must be made by written amendment to the Agreement
signed by an authorized representative for each party. CONSULTANT shall not be
entitled to any additional compensation if services are performed prior to a signed written
amendment.
4. Termination Remedies and Force Maieure.
(a) This Agreement shall terminate without any liability of CITY to
CONSULTANT upon the earlier of: (i) CONSULTANT'S filing for protection under the
federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced
by a third party against CONSULTANT; (ii) 7 calendar days prior written notice with or
without cause by CITY to CONSULTANT; (iii) CITY'S non -appropriation of funds sufficient
to meet its obligations hereunder during any CITY fiscal year of this Agreement, or
insufficient funding for the Project; or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
CONSULTANT shall (i) immediately stop all work hereunder, (ii) immediately cause any
and all of its subcontractors to cease work; and (iii) return to CITY any and all unearned
payments and all properties and materials in the possession of CONSULTANT that are
owned by CITY. Subject to the terms of this Agreement, CONSULTANT shall be paid
compensation for services satisfactorily performed prior to the effective date of
termination. CONSULTANT shall not be paid for any work or services performed or costs
incurred which reasonably could have been avoided.
(c) In the event of termination due to failure of CONSULTANT to
satisfactorily perform in accordance with the terms of this Agreement, CITY may withhold
an amount that would otherwise be payable as an offset to, but not in excess of, CITY'S
damages caused by such failure. In no event shall any payment by CITY pursuant to this
Agreement constitute a waiver by CITY of any breach of this Agreement which may then
exist on the part of CONSULTANT, nor shall such payment impair or prejudice any
remedy available to CITY with respect to the breach.
(d) Upon any breach of this Agreement by CONSULTANT, CITY may
(i) exercise any right, remedy tin contract, law or equity), or privilege which may be
available to it under applicable laws of the State of California or any other applicable law;
(ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii)
recover all direct, indirect, consequential, economic and incidental damages for the
breach of the Agreement. if it is determined that CITY improperly terminated this
Agreement for default, such termination shall be deemed a termination for convenience.
(e) CONSULTANT shall provide CITY with adequate written assurances
of future performance, upon Director's request, in the event CONSULTANT fails to
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comply with any terms or conditions of this Agreement.
(f) CONSULTANT shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of CONSULTANT and without
its fault or negligence such as, acts of God or the public enemy, acts of CITY in its
contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually
severe weather, and delays of common carriers. CONSULTANT shall notify Director in
writing as soon as it is reasonably possible after the commencement of any excusable
delay, setting forth the full particulars in connection therewith, and shall remedy such
occurrence with all reasonable dispatch, and shall promptly give written notice to Director
of the cessation of such occurrence.
5. Confidential Information Ownership of Documents and Co ri ht License.
(a) Any reports, information, or other data prepared or assembled by
CONSULTANT pursuant to this Agreement shall not be made available to any individual
or organization by CONSULTANT without the prior written approval of CITY. During the
term of this Agreement, and thereafter, CONSULTANT shall not. without the prior written
consent of CITY, disclose to anyone any Confidential Information. The term Confidential
Information for the purposes of this Agreement shall include all proprietary and
confidential information of CITY, including but not limited to business plans, marketing
plans, financial information, designs, drawings, specifications, materials, compilations,
documents, instruments, models, source or object codes and other information disclosed
or submitted, orally, in writing, or by any other medium or media. All Confidential
Information shall be and remain confidential and proprietary in CITY.
(b) Any and all original sketches, pencil tracings of working drawings,
plans, computations, specifications, computer disk files, writings and other documents
prepared or provided by CONSULTANT pursuant to this Agreement are the property of
CITY at the time of preparation and shall be turned over to CITY upon expiration or
termination of the Agreement or default by CONSULTANT. CONSULTANT grants CITY
a copyright license to use such drawings and writings. CONSULTANT shall not permit
the reproduction or use thereof by any other person except as otherwise expressly
provided herein. CITY may modify the design including any drawings or writings. Any
use by CITY of the aforesaid sketches, tracings, plans, computations, specifications,
computer disk files, writings and other documents in completed form as to other projects
or extensions of this Project, or in uncompleted form, without specific written verification
by CONSULTANT will be at CITY'S sole risk and without liability or legal exposure to
CONSULTANT. CONSULTANT may keep a copy of all drawings and specifications for
its sole and exclusive use.
(c) If CONSULTANT should subcontract all or any portion of the services
to be performed under this Agreement, CONSULTANT shall cause each subcontractor
to also comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this
Agreement.
6. Professional Skill. It is further mutually understood and agreed by and
between the parties hereto that inasmuch as CONSULTANT represents to CITY that
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CONSULTANT and its subcontractors, if any, are skilled in the profession and shall
perform in accordance with the standards of said profession necessary to perform the
services agreed to be done by it under this Agreement, CITY relies upon the skill of
CONSULTANT and any subcontractors to do and perform such services in a skillful
manner and CONSULTANT agrees to thus perform the services and require the same of
any subcontractors. Therefore, any acceptance of such services by CITY shall not
operate as a release of CONSULTANT or any subcontractors from said professional
standards.
7. Indemnification. To the furthest extent allowed by law, CONSULTANT shall
indemnify, hold harmless and defend CITY and each of its officers, officials, employees,
agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs
and damages (whether in contract, tort or strict liability, including but not limited to
personal injury, death at any time and property damage), and from any and all claims,
demands and actions in law or equity (including reasonable attorney's fees, litigation
expenses and cost to enforce this agreement) that arise out of, pertain to, or relate to the
negligence, recklessness or willful misconduct of CONSULTANT, its principals, officers,
employees, agents or volunteers in the performance of this Agreement.
If CONSULTANT should subcontract all or any portion of the services to
be performed under this Agreement, CONSULTANT shall require each subcontractor to
indemnify, hold, harmless and defend CITY and each of its officers, officials, employees,
agents and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. Insurance.
(a) Throughout the fife of this Agreement, CONSULTANT shall pay for
and maintain in full force and effect all insurance as required in Exhibit B, which is
incorporated into and part of this Agreement, with an insurance company(ies) either
(i) admitted by the California Insurance Commissioner to do business in the State of
California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as
may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and
in his/her sole discretion. The required policies of insurance as stated in Exhibit B shall
maintain limits of liability of not less than those amounts stated therein. However, the
insurance limits available to CITY, its officers, officials, employees, agents and volunteers
as additional insureds, shall be the greater of the minimum limits specified therein or the
full limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension,
CONSULTANT or any of its subcontractors/sub-consultants fail to maintain any required
insurance in full force and effect, all services and work under this Agreement shall be
discontinued immediately, and all payments due or that become due to CONSULTANT
shall be withheld until notice is received by CITY that the required insurance has been
restored to full force and effect and that the premiums therefore have been paid for a
period satisfactory to CITY. Any failure to maintain the required insurance shall be
sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant
to this section shall in any way relieve CONSULTANT of its responsibilities under this
Agreement. The phrase "fail to maintain any required insurance" shall include, without
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limitation, notification received by CITY that an insurer has commenced proceedings, or
has had proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by CONSULTANT shall not be
deemed to release or diminish the liability of CONSULTANT, including, without limitation,
liability under the indemnity provisions of this Agreement. The duty to indemnify CITY
shall apply to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of indemnification
to be provided by CONSULTANT. Approval or purchase of any insurance contracts or
policies shall in no way relieve from liability nor limit the liability of CONSULTANT, its
principals, officers, agents, employees, persons under the supervision of CONSULTANT,
vendors, suppliers, invitees, consultants, sub -consultants, subcontractors, or anyone
employed directly or indirectly by any of them.
(d) If CONSULTANT should subcontract all or any portion of the services
to be performed under this Agreement, CONSULTANT shall require each
subcontractor/sub-consultant to provide insurance protection, as an additional insured, to
the CITY and each of its officers, officials, employees, agents and volunteers in
accordance with the terms of this section, except that any required certificates and
applicable endorsements shall be on file with CONSULTANT and CITY prior to the
commencement of any services by the subcontractor. CONSULTANT and any
subcontractor/sub-consultant shall establish additional insured status for CITY, its
officers, officials, employees, agents and volunteers by using Insurance Service Office
(ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an
executed manuscript company endorsement providing additional insured status as broad
as that contained in ISO Form CG 20 10 11 85.
9. Conflict of Interest and Non -Solicitation.
(a) Prior to CITY'S execution of this Agreement, CONSULTANT shall
complete a City of Fresno conflict of interest: disclosure statement in the form as set forth
in Exhibit C. During the term of this Agreement, CONSULTANT shall have the obligation
and duty to immediately notify CITY in writing of any change to the information provided
by CONSULTANT in such statement.
(b) CONSULTANT shall comply, and require its subcontractors to
comply, with all applicable (i) professional canons and requirements governing avoidance
of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws
and regulations including, without limitation, California Government Code Section 1090
et. seq., the California Political Reform Act (California Government Code Section 87100
et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure
and disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section
4-112 of the Fresno Municipal Code (Ineligibility to Compete), At any time, upon written
request of CITY, CONSULTANT shall provide a written opinion of its legal counsel and
that of any subcontractor that, after a due diligent inquiry, CONSULTANT and the
respective subcontractor(s) are in full compliance with all laws and regulations.
CONSULTANT shall take, and require its subcontractors to take, reasonable steps to
avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to
the appearance of a conflict of interest, CONSULTANT shall immediately notify CITY of
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these facts in writing.
(c) In performing the work or services to be provided hereunder,
CONSULTANT shall not employ or retain the services of any person while such person
either is employed by CITY or is a member of any CITY council, commission, board,
committee, or similar CITY body. This requirement may be waived in writing by the City
Manager, if no actual or potential conflict is involved.
(d) CONSULTANT represents and warrants that it has not paid or
agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or
procure this Agreement or any rights/benefits hereunder.
(e) Neither CONSULTANT, nor any of CONSULTANT'S subcontractors
performing any services on this Project, shell bid for, assist anyone in the preparation of
a bid for, or perform any services pursuant to, any other contract in connection with this
Project. CONSULTANT and any of its subcontractors shall have no interest, direct or
indirect, in any other contract with a third party in connection with this Project unless such
interest is in accordance with all applicable law and fully disclosed to and approved by
the City Manager, in advance and in writing.
(f) If CONSULTANT should subcontract all or any portion of the work to
be performed or services to be provided under this Agreement, CONSULTANT shall
include the provisions of this Section 9 in each subcontract and require its subcontractors
to comply therewith.
(g) This Section 9 shall survive expiration or termination of this
Agreement.
10. Recycling Program. am. In the event CONSULTANT maintains an office or
operates a facility(ies), or is required herein to maintain or operate same, within the
incorporated limits of the City of Fresno, CONSULTANT at its sole cost and expense
shall:
(i) Immediately establish and maintain a viable and ongoing recycling
program, approved by CITY'S Solid Waste Management Division, for each
office and facility. Literature describing CITY recycling programs is
available from CITY'S Solid Waste Management Division and by calling City
of Fresno Recycling Hotline at (559) 621-1111.
(ii) Immediately contact CITY'S Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such
Division in their conduct of the audit for each office and facility.
(iii) Cooperate with and demonstrate to the satisfaction of CITY'S Solid Waste
Management Division the establishment of the recycling program in
paragraph (i) above and the ongoing maintenance thereof.
11. General Terms.
(a) Except as otherwise provided by law, all notices expressly required
of CITY within the body of this Agreement, and not otherwise specifically provided for,
shall be effective only if signed by the Director or his/her designee.
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(b) Records of CONSULTANT'S expenses pertaining to the Project shall
be kept on a generally recognized accounting basis and shall be available to CITY or its
authorized representatives upon request during regular business hours throughout the
life of this Agreement and for a period of three years after final payment or, if longer, for
any period required by law. In addition, all books, documents, papers, and records of
CONSULTANT pertaining to the Project shall be available for the purpose of making
audits, examinations, excerpts, and transcriptions for the same period of time. If any
litigation, claim, negotiations, audit or other action is commenced before the expiration of
said time period, all records shall be retained and made available to CITY until such action
is resolved, or until the end of said time period whichever shall later occur. If
CONSULTANT should subcontract all or any portion of the services to be performed
under this Agreement, CONSULTANT shall cause each subcontractor to also comply with
the requirements of this paragraph. This Section 11(b) shall survive expiration or
termination of this Agreement.
(c) Prior to execution of this Agreement by CITY, CONSULTANT shall
have provided evidence to CITY that CONSULTANT is licensed to perform the services
called for by this Agreement (or that no license is required). If CONSULTANT should
subcontract all or any portion of the work or services to be performed under this
Agreement, CONSULTANT shall require each subcontractor to provide evidence to CITY
that subcontractor is licensed to perform the services called for by this Agreement (or that
no license is required) before beginning work.
12. Nondiscrimination. To the extent required by controlling federal, state and
local law, CONSULTANT shall not employ discriminatory practices in the provision of
services, employment of personnel, or in any other respect on the basis of race, religious
creed, color, national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled
veteran or veteran of the Vietnam era. Subject to the foregoing and during the
performance of this Agreement, CONSULTANT agrees as follows:
(a) CONSULTANT will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity made possible by or resulting from this
Agreement.
(b) CONSULTANT will not discriminate against any employee or
applicant for employment because of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
CONSULTANT shall ensure that applicants are employed, and the employees are treated
during employment, without regard to their race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
Such requirement shall apply to CONSULTANT'S employment practices including, but
not be limited to, the following: employment, upgrading, demotion or transfer; recruitment
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or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. CONSULTANT
agrees to post in conspicuous places, available to employees and applicants for
employment, notices setting forth the provision of this nondiscrimination clause.
(c) CONSULTANT will, in all solicitations or advertisements for
employees placed by or on behalf of CONSULTANT in pursuit hereof, state that all
qualified applicants will receive consideration for employment without regard to race,
religious creed, color. national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a
disabled veteran or veteran of the Vietnam era.
(d) CONSULTANT will send to each labor union or representative of
workers with which it has a collective bargaining agreement or other contract or
understanding, a notice advising such labor union or workers' representatives of
CONSULTANT'S commitment under this section and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
(e) If CONSULTANT should subcontract all or any portion of the services
to be performed under this Agreement, CONSULTANT shall cause each subcontractor
to also comply with the requirements of this Section 12.
13. Inde enders# Gontractor.
(a) In the furnishing of the services provided for herein, CONSULTANT
is acting solely as an independent contractor. Neither CONSULTANT, nor any of its
officers, agents or employees shall be deemed an officer, agent, employee, joint venturer,
partner or associate of CITY for any purpose. CITY shall have no right to control or
supervise or direct the manner or method by which CONSULTANT shall perform its work
and functions. However, CITY shall retain the right to administer this Agreement so as to
verify that CONSULTANT is performing its obligations in accordance with the terms and
conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture
between CONSULTANT and CITY. CONSULTANT shall have no authority to bind CITY
absent CITY'S express written consent. Except to the extent otherwise provided in this
Agreement, CONSULTANT shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, CONSULTANT
and its officers, agents and employees shall have absolutely no right to employment rights
and benefits available to CITY employees. CONSULTANT shall be solely liable and
responsible for all payroll and tax withholding and for providing to, or on behalf of, its
employees all employee benefits including, without limitation, health, welfare and
retirement benefits. In addition, together with its other obligations under this Agreement,
CONSULTANT shall be solely responsible, indemnify, defend and save CITY harmless
from all matters relating to employment and tax withholding for and payment of
CONSULTANT'S employees, including, without limitation, (i) compliance with Social
Security and unemployment insurance withholding, payment of workers' compensation
benefits, and all other laws and regulations governing matters of employee withholding,
taxes and payment; and (ii) any claim of right or interest in CITY employment benefits,
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entitlements, programs and/or funds offered employees of CITY whether arising by
reason of any common law, de facto, leased, or co -employee rights or other theory. It is
acknowledged that during the term of this Agreement, CONSULTANT may be providing
services to others unrelated to CITY or to this Agreement.
14. Notices. Any notice required or intended to be given to either party under
the terms of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation of
receipt, or sent by United States registered or certified mail, with postage prepaid, return
receipt requested, addressed to the party to which notice is to be given at the party's
address set forth on the signature page of this Agreement or at such other address as the
parties may from time to time designate by written notice. Notices served by United
States mail in the manner above described shall be deemed sufficiently served or given
at the time of the mailing thereof.
15. Bin din . Subject to Section 16, below, once this Agreement is signed by all
parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each
parties' respective heirs, successors, assigns, transferees, agents, servants, employees
and representatives.
16. Assignment.
(a) This Agreement is personal to CONSULTANT and there shall be no
assignment by CONSULTANT of its rights or obligations under this Agreement without
the prior written approval of the City Manager or his/her designee. Any attempted
assignment by CONSULTANT, its successors or assigns, shall be null and void unless
approved in writing by the City Manager or his/her designee.
(b) CONSULTANT hereby agrees not to assign the payment of any
monies due CONSULTANT from CITY under the terms of this Agreement to any other
individual(s), corporation(s) or entity(ies). CITY retains the right to pay any and all monies
due CONSULTANT directly to CONSULTANT.
17. Compliance With Law. In providing the services required under this
Agreement, CONSULTANT shall at all times comply with all applicable laws of the United
States, the State of California and CITY, and with all applicable regulations promulgated
by federal, state, regional, or local administrative and regulatory agencies, now in force
and as they may be enacted, issued, or amended during the term of this Agreement.
18. Waiver. The waiver by either party of a breach by the other of any provision
of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions of this
Agreement may be waived unless in writing and signed by all parties to this Agreement.
Waiver of any one provision herein shall not be deemed to be a waiver of any other
provision herein.
19. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction. Venue
for purposes of the filing of any action regarding the enforcement or interpretation of this
Agreement and any rights and duties hereunder shall be Fresno County, California.
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20. Headings. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify or add to
the interpretation or meaning of the provisions of this Agreement.
21. Severabilitty. The provisions of this Agreement are severable. The
invalidity, or unenforceability of any one provision in this Agreement shall not affect the
other provisions.
22. Interpretation. The parties acknowledge that this Agreement in its final form
is the result of the combined efforts of the parties and that, should any provision of this
Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved
by construing this Agreement in favor of or against either party, but rather by construing
the terms in accordance with their generally accepted meaning.
23. Attorne 's Fees. If either party is required to commence any proceeding or
legal action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing party in such proceeding or action shall be entitled to recover from the other
party its reasonable attorneys fees and legal expenses.
24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by
the reference, incorporated into and made a part of this Agreement.
25. Precedence of Documents. In the event of any conflict between the body
of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and conditions
expressed within the Exhibit or Attachment. Furthermore, any terms or conditions
contained within any Exhibit or Attachment hereto which purport to modify the allocation
of risk between the parties, provided for within the body of this Agreement, shall be null
and void.
26. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
27. No Third PartV Beneficiaries. The rights, interests, duties and obligations
defined within this Agreement are intended for the specific parties hereto as identified in
the preamble of this Agreement. Notwithstanding anything stated to the contrary in this
Agreement, it is not intended that any rights or interests in this Agreement benefit or flow
to the interest of any third parties.
28. Extent of Agreement. Each party acknowledges that they have read and
fully understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the parties with respect to the subject matter hereof
and supersedes all prior negotiations, representations or agreements, either written or
oral. This Agreement may be modified only by written instrument duly authorized and
executed by both CITY and CONSULTANT.
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IN WITNESS WHEREOF the parties have executed this Agreement at Fresno,
1
California, the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
By: e_.'" 71—le=
Cott Mozier PE, TE,
Director
Public Works Department
APPROVED AS TO FORM:
RINA M. GONZALES
City Attorney
By.,�.:i �'�at 10125�22
ngela M. Karst Date
Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City CI rk
By:
.tea - , S 'fur.mw sW�
REVIEWED BY
Andrew BeZe4lliPE, TE, Assistant
Director
Public Works Department
Addresses:
CITY..
City of Fresno
Attention: Andrew Benelli,
Assistant Director
2600 Fresno Street
Fresno, CA 93721
Phone: (559) 621-8723
FAX: (559) 457-1313
Attachments.
Economic & Planning Systems, Inc.
(EPS),
By:
Name: Jason Moody
Title: President
(if corporation or LLC, Board
Chair, Pres. or Vice Pres.)
By:
7
Name: Jamie Gomes
Title: CFO
(if corporation or LLC, CFO,
Treasurer, Secretary or Assistant
Secretary)
Any Applicable Professional License:
Number: n/a
Name: n/a
Date of Issuance: n/a
CONSULTANT:
Economic and Planning Systems, Inc.
Attention: Jamie Gomes,
Managing Principal
455 Capitol Mall, Suite 701
Sacramento, CA 95814
Phone: (916) 649-8010
FAX: (916) 649-2070
Exhibit A - Scope of Services and Billing Rate
DPW-B Short Form Total Fee - Contingency (04-30-14)
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Exhibit B - Insurance Requirements
Exhibit C - Conflict of Interest Disclosure Form
DPW-B Short Form Total Fee - Contingency (04-30-14)
-12-
Exhibit A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno (City)
and Ecomomic & Planning Systems, Inc. (EPS) (Consultant)
Park Development Impact Fee Nexus Stud
PROJECT TITLE
DPW-B Short Form Total Fee - Contingency (04-30-14)
Page 1 of 1
Exhibit A
Exhibit A
July 29, 2022
Exhibit A
Proposed Scope of Work
Fresno Park Development Impact Fee Program
Nexus Study Update
Project Understanding and Approach
At the City's request, EPS has prepared this Proposed Scope of Work outlining the
proposed work program to prepare a City Park Development Impact Fee Nexus
Study Update (Park Nexus Study) that will serve as the basis for updating the
citywide park development and land acquisition fees (Park Fees).
In April of this year, EPS completed a Draft Park Nexus Study, which the City
decided not to present to the City Council for adoption at that time. Instead, the
City has requested that EPS revise the Park Nexus Study and Park Fees to
address requirements of the newly enacted California AB 602.
The specific tasks and subtasks EPS proposes to complete the work program are
outlined below and discussed in detail in the sections to follow:
Task 1: Update Park Nexus Study
— Subtask 1.1: Initiate Project and Gather Data
Subtask 1.2: Develop Methodology for Establishing Park Fees by Building
Square Foot
Subtask 1.3: Prepare Capital Improvement Plan
- Subtask 1.4: Prepare Park Nexus Study Calculations
Subtask 1.5: Prepare and Present Park Nexus Study
Task 1: Update Park Nexus Study
Subtask 1.1: Initiate Project and Gather Data
EPS will meet with the City to finalize the expected work product and project
schedule. At this kickoff meeting, EPS and the City will discuss the necessary
modifications to the Park Nexus Study to comply with the requirements of
AB 602, including the following major items:
Economic & Planning Systems, Inc. (EPS)
Exhibit A
July 29, 2022
• General approach to updating the fees to be expressed on a per -square -foot
basis.
• Requirements for the Capital Improvement Plan.
EPS will work with the City to obtain or develop the following data and information
that will be required to update the Park Fees:
Residential building permit data for the past 5 to 10 years that include
dwelling unit sizes.
• Projected unit sizes for planned developments.
• Current Parks Master Plan.
• Park prototypes for different park types.
• Planned location and timing of future parks.
Subtask 1.2: Develop Methodology for Establishing Park Fees by
Building Square Foot
Using the residential land use data obtained for Subtask 1.1, EPS will work with
the City to establish a methodology for establishing Park Fees by residential
building square foot. The City and EPS will consider various options for
establishing the fees. The following variables will be considered:
Number and type of residential fee categories.
• Average unit sizes.
Base fees by category based on the average unit size.
• Maximum and minimum fees.
Subtask 1.3: Prepare Capital Improvement Plan
Leveraging information from the Parks Master Plan and working with City parks
department staff, EPS will assemble a Parks Capital Improvement Plan (CIP) for
inclusion in the Park Nexus Study, as required by AB 602. The CIP will be
developed to meet City park development standards and requirements. EPS and
the City will work together to develop several park prototypes for different types
of neighborhood and community parks and to program parks throughout the City.
The CIP will include the following elements:
• Number and location of parks for each park prototype through 2035.
• Phasing of parks.
Park costs.
• Park funding sources.
Economic & Planning Systems, Inc. (EPS)
Exhibit A
July 29, 2022
Subtask 1.4: Prepare Park Nexus Study Calculations
EPS will prepare an initial set of park facilities fee calculations that incorporate the
updated fee methodology and the updated CIP costs, funding, and phasing.
Following City review and feedback, EPS will revise the draft tables as necessary
to prepare the final Park Fees calculations.
Subtask 1.5: Prepare and Present Park Nexus Study
EPS will revise the April 2022 Draft Park Nexus Study to include the updated fee
methodology and the CIP from the prior subtasks. EPS will prepare an
Administrative Draft Park Nexus Study for City staff review and comment. The
study will state the maximum justifiable fees for each land use and the necessary
supporting analysis and findings. Following the internal review, EPS will prepare a
Public Review Draft Park Nexus Study for stakeholder review. With the feedback
and comments obtained from these reviews, EPS will prepare a Final Draft Park
Nexus Study for the City Council and will seek approval or direction.
Deliverables
Table Set #1: Residential Land Use Assumptions/Park Prototypes and Phasing
• Table Set #2: Draft Park CIP
• Draft Park Fee Calculations
Administrative Draft Park Nexus Study
Public Review Draft Park Nexus Study
• Final Draft Park Nexus Study for City Council Consideration
Meetings
4 Video Conference Meetings
1 City Council Meeting
Economic & Planning Systems, Inc. (EPS)
Exhibit A
2022 EPS Hourly Billing Rates
Sacramento Office
Managing Principal
Senior Principal
Principal
Executive/Senior Vice President
Senior Consultant
Vice President
Senior Technical Associate
Senior Associate
Associate
Research Analyst II
Research Analyst I
Production and Administrative Staff
Billing rates updated annually.
$295-$310
$360
$275
$250
$250
$225
$205
$195
$175
$140
$100
Exhibit B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (CITY)
and EPS (CONSULTANT)
Park Impact Fee Nexus Study and Capital Improvement Plan
PROJECT TITLE
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 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.
3. Workers' Compensation insurance as required by the State of California
and Employer's Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to
CONSULTANT'S profession. Architect's and engineer's coverage is to be
endorsed to include contractual liability.
MINIMUM LIMITS OF INSURANCE
CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits of
liability of not less than those set forth below. However, insurance limits available to CITY,
its officers, officials, employees, agents and volunteers as additional insureds, shall be the
greater of the minimum limits specified herein or the full limit of any insurance proceeds
available to the named insured:
COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
DPW-B Short Form Total Fee - Contingency (04-30-14)
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(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
$2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event CONSULTANT purchases an Umbrella or Excess insurance policy(ies) to
meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and
afford no less coverage than the primary insurance policy(ies). In addition. such Umbrella
or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis
for the benefit of the CITY, its officers, officials, employees, agents and volunteers.
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DEDUCTIBLES AND SELF -INSURED RETENTIONS
CONSULTANT shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and CONSULTANT shall also be responsible for
payment of any self -insured retentions. Any deductibles or self -insured retentions must
be declared on the Certificate of Insurance, and approved by, the CITY'S Risk Manager
or his/her designee.
(i) The insurer shall reduce or eliminate such deductibles or self -insured
retentions as respects CITY, its officers, employees, agents and
volunteers; or
CONSULTANT shall provide a financial guarantee, satisfactory to
CITY'S Risk Manager or his/her designee, guaranteeing payment
of losses and related investigations, claim administration and
defense deductibles or self -insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance pplicies are to contain, or be
endorsed to contain, the following provisions:
1. CITY, its officers, officials, employees, agents and volunteers are to be
covered as additional insureds. CONSULTANT shall establish additional
insured status for the City and for all ongoing and completed operations by
use of ISO Form CG 20 10 11 85 or both CG 20 04 13 and CG 20 37 04
013 or by an executed manuscript insurance company endorsement
providing additional insured status as broad as that contained in ISO Form
CG 20 10 11 85.
2. The coverage shall contain no special limitations on the scope of protection
afforded to CITY, its officers, officials, employees, agents and volunteers.
Any available insurance proceeds in excess of the specified minimum limits
and coverage shall be available to the Additional Insured.
3. For any claims related to this Agreement, CONSULTANT'S insurance
coverage shall be primary insurance with respect to the CITY, its officers,
officials, employees, agents and volunteers. Any insurance or self-
insurance maintained by the CITY, its officers, officials, employees, agents
and volunteers shall be excess of CONSULTANT'S insurance and shall not
contribute with it. CONSULTANT shall establish primary and non-
contributory status by using ISO Form CG 20 01 04 13 or by an executed
manuscript insurance company endorsement that provides primary and
DPW-B Short Form Total Fee - Contingency (04-30-14)
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non-contributory status as broad as that contained in ISO Form CG
2001 0413.
The Workers' Compensation insurance polic is to contain, or be endorsed to contain, the
following provision: CONSULTANT and its insurer shall waive any right of subrogation
against CITY, its officers, officials, employees, agents and volunteers.
If the Professional Liability Errors and Omissions insurance policy is written on a claims -
made form:
1. The retroactive date must be shown and must be before the effective date
of the Agreement or the commencement of work by CONSULTANT.
2. Insurance must be maintained and evidence of insurance must be provided
for at least five (5) years after completion of the Agreement work or
termination of the Agreement, whichever occurs first, or, in the alternative,
the policy shall be endorsed to provide not less than a five (5) year discovery
period.
3. If coverage is canceled or non -renewed, and not replaced with another
claims -made policy form with a retroactive date prior to the effective date of
the Agreement or the commencement of work by CONSULTANT,
CONSULTANT must purchase "extended reporting" coverage for a
minimum of five (5) years after completion of the Agreement work or
termination of the Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to CITY for
review.
5. These requirements shall survive expiration or termination of the
Agreement.
CONSULTANT is responsible for providing written notice to the CITY under the same
terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of
cancellation, non -renewal, or reduction in coverage or in limits, CONSULTANT shall
furnish CITY with a new certificate and applicable endorsements for such policy(ies). In
the event any policy is due to expire during the work to be performed for CITY,
CONSULTANT shall provide a new certificate, and applicable endorsements, evidencing
renewal of such policy not less than fifteen (15) calendar days prior to the expiration date
of the expiring policy.
Should any of the required policies provide that the defense costs are paid within the
Limits of Liability, thereby reducing the available limits by any defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated limits.
DPW-B Short Form Total Fee - Contingency (04-30-14)
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The fact that insurance is obtained by CONSULTANT shall not be deemed to release or
diminish the liability of CONSULTANT, including, without limitation, liability under the
indemnity provisions of this Agreement. The policy limits do not act as a limitation upon
the amount of indemnification to be provided by CONSULTANT. Approval or purchase
of any insurance contracts or policies shall in no way relieve from liability nor limit the
liability of CONSULTANT, its principals, officers, agents, employees, persons under the
supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub -consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
VERIFICATION OF COVERAGE
CONSULTANT shall furnish CITY with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements
are to be received and approved by the CITY'S Risk Manager or his/her designee prior
to CITY'S execution of the Agreement and before work commences. All non -ISO
endorsements amending policy coverage shall be executed by a licensed and authorized
agent or broker. Upon request of CITY, CONSULTANT shall immediately furnish City
with a complete copy of any insurance policy required under this Agreement, including all
endorsements, with said copy certified by the underwriter to be a true and correct copy of
the original policy. This requirement shall survive expiration or termination of this
Agreement.
SUBCONTRACTORS - If CONSULTANT subcontracts any or all of the services to be
performed under this Agreement, CONSULTANT shall require, at the discretion of the
CITY Risk Manager or designee, subcontractors) to enter into a separate side agreement
with the City to provide required indemnification and insurance protection. Any required
side agreement(s) and associated insurance documents for the subcontractor must be
reviewed and preapproved by CITY Risk Manager or designee. If no side agreement is
required, CONSULTANT shall require and verify that subcontractors maintain insurance
meeting all the requirements stated herein and CONSULTANT shall ensure that CITY, its
officers, officials, employees, agents, and volunteers are additional insureds. The
subcontractors' certificates and endorsements shall be on file with CONSULTANT, and
CITY, prior to commencement of any work by the subcontractor.
DPW-B Short Form Total Fee - Contingency (04-30-14)
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Exhibit C
DISCLOSURE OF CONFLICT OF INTEREST
Park Development Impact Fee Nexus Study and Capital Improvement Plan
PROJECT TITLE
YES* NO
1
Are you currently in litigation with the City of Fresno or any of its
❑
agents?
2
Do you represent any firm, organization or person who is in litigation
❑
with the City of Fresno?
3
Do you currently represent or perform work for any clients who do
❑
business with the City of Fresno?
4
Are you or any of your principals, managers or professionals, owners
or investors in a business which does business with the City of
0
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:
Signatu e
October 26, 2022
Date
Jamie Gomes
(name)
Economic & Planning Systems, Inc. (EPS)
(company)
455 Capitol Mall, Suite 701
(address)
❑ Additional page(s) attached. Sacramento, CA 95814
(city state zip)