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HomeMy WebLinkAboutBargas Environmental Consulting, LLC - Agrmt - 2-17-2023AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANT SERVICES This Agreement is entered into, effective ?. ,7 2-3 , by and between the CITY OF FRESNO, a Califoniia n,6nicipal corporation (City), Legacy Stone Works, Inc. DBA: Legacy Construction, a California corporation (Developer), and Bargas Environmental Consulting, LCC, a California Limited Liability Corporation (Consultant). RECITALS WHEREAS, the Developer will be submitting necessary applications for developing the 3.5-acre Project site into single -story medical and professional office facilities, annex the unincorproated Fresno County Projectsite into the City of Fresno, and rezone the Project site to CC Commercial - Community, located on Fresno County Assessor's Parcel Numbers 404-481-19S and 404-481-20S near the southwest corner of North Willow Avenue and East Nees Avenue, 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 anyof 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 Consultantwill 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 legallyadequate 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 forthe City by its Director of the Planning and Development Department (Director) or designee. NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of 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 DEV-S Three Party Agt FYI (05-2022) 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 December 5, 2022, the Consultantshall 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 n otspecifically described in thescope of work. The Con sultantservices shall include, but not be limited to, consultation with the City staff and the Developer, management of necessary subconsultants, presentationsat publichearings, and otherrelated tasks as described in the scope of work. The Consultantshall worksolely underthe 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 Consultantshall 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 th rough the complete rendition of the services h ereu n der, su bject to an y earlier termin ation in accordance with th is Agreemen t. Th e services of the Con sultantasdescribed 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 overthe scope of work, and the environmental document preparation process and content. The City shall coordinate all communication between the Consultantand 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 pursuantto this Agreement shall not be made availableto 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 Consultantshall not, with outthe prior written consent of the City, disclose to anyone any Confidential Information other than the Developer. The term Confidential Information forthe purposes of DEV-S Three Party Agt FYI (05-2022) 2 this Agreement shall include all proprietary and confidential information of the City, including but not limited to business plans, marketing plans, financial information, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the City. (b) Any and all writings and documents prepared or provided by the Consultant pursuant to this Agreement are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement with copies made available to the Developer. The Consultantshall notpermitthe reproduction or usethereof by anyother person except as otherwise expressly provided herein. (c) If the Consultant should subcontractall 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 undera 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 documentcurrently the subjectof thisAgreementor as the Agreement may later be amended thatis 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 submitthe copies of these invoices at the same time said invoices are first submitted to the Developerfor payment. 6. Termination. (a) This Agreement shall terminate without any liability of the City to the Consultantorthe Developer upon the earlier of: (i) the Con sultant'sfiling for protection underthe Federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party againstthe 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 sufficientto 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 Developerto the Consultantand the City. (b) Immediately upon any termination or expiration of this Agreement, the Consultant shall (i) immediately stop all work hereunder; (ii) immediately DEV-S Three Party Agt FYI (05-2022) 3 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. S u bseq uentCon sultant. If a subsequentconsultant is required to perform the work contemplated by the Agreement, the Developer shall select the subsequent consultant and the City shall have the rightto 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 pu blicactions 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 cannottake action with respect to such matters before completing the environmental assessmentof the Project underCEQA and any other applicable Iaws.The City cannotand does notcommit in advancethatit 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, su ccessors-in -interestor assigns for any failure of any governmental entity to grant approval on any mattersubjectto discretionary approval. 9. Confidential Information. Except as provided for in this section, any reports, information, or other data prepared or assembled by the Consultant pursuantto this Agreement shall notbe made availableto any individual ororgan ization bythe 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 forsuch 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 underthe 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 fu rthermutually understood and agreed byand 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 necessaryto perform the services agreed to be done by it underthis Agreement, the City relies upon the skill of the Consultantto do DEV-S Three Party Agt FYI (05-2022) 4 and perform such services in a ski llfuImanner 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 bythe City, the Developeror anyother 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 underthe 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 Consultantshall indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents, and volu nteers from liability for damages (whether in contract, tort or strict liability, including butnotlimited to personal injury, death at anytime 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'sfees and litigation expenses incurred by, or awarded against, the City, including plaintiff sattorney'sfees), arising out of the Consultant's negligence in the performance of this Agreement. The Consultant's obligations underthe 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 anyor its officers, officials, employees, agents, or volunteers, or by anythird party. (c) If the Consultant should subcontract all or any portion of the work to be performed or services to be provided underthis Agreement, the Consultant shall require each subconsultant to indemnify, defend, protect and hold DEV-S Three Party Agt FYI (05-2022) 5 harmless the City and provide the warranties and waivers in accordance with all provisions of this section. (d) This section shall survive expiration ortermination of this Agreement. 12. Insurance. (a) Throughoutthe 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 anytime 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 underthis Agreementshall be discontinued immediately until notice is received bythe City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid fora period satisfactoryto the City. Any failureto 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 Consultantof their responsibilities underthis 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, in dicating 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 un derthe indemnity provisions of this Agreement. The duty to indemnifyshall 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 amountof indemnification to be provided by the Developer or the Consultant Approval or purchase of any insurance contracts or policies shall in noway 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 Developerorthe 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 underthis Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. (e) If the Developer should subcontractall or any portion of the services to be performed under this Agreement, the Developer shall require each DEV-S Three Party Agt FYI (05-2022) 6 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 Consultantshould su bcontract 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 commencementof any services by the subcontractor. 13. Notifications and Cooperation by the Ci . 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 outof eitherthe Developer and/orthe Consultant's negligence in which the City is to be indemnified and held harmless by the Developer or the Consultant pursuantto Section 11 of this Agreement. If the City requests thatthe Developer or the Consultant defend the City, the City shall notify the Developer or the Consultantin 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 selectthe attorney or attorneys who will defend the City. The Con sultantagrees 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 liabilityfor 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 Consultants negligence. 15. The Ci '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 overand 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 eventshall City's participation in the defense of any demand claim, action, proceeding, or litigation affectthe obligations imposed upon the Developer and the Consultantin Section 11 of this Agreement. 16. Conflict of Interest and Non -Solicitation. (a) Prior to the City's execution of this Agreement, the Consultant shall complete a City of Fresno conflictof interest disclosure statement in the DEV-S Three Party Agt FYI (05-2022) 7 form as set forth in Exhibit B. During the term of this Agreement, the Consultantshall 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 Consultantshall 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 regulationsof the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.). At anytime, 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 Consultantshall 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 underthis Agreement, the Consultant shall include the provisions of Section 16 of this Agreement in each subcontract and require its subcontractors to comply therewith. (g) Section 16 of this Agreement shall survive expiration or termination of this Agreement. 17. General Terms. (a) Except as otherwise provided by law, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or designee. DEV-S Three Party Agt FYI (05-2022) 8 (b) Records of the Con sultant'sexpensespertainingtothe Project shall be kept on a generally recognized accounting basis and shall be available to the City or its authorized representatives upon requestduring regularbusiness hours throughoutthe life of this Agreement and for a period of three years after final paymentor, 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 Consultantshall have provided evidenceto the City thatthe Consultantis licensed to perform the services called for by this Agreement or that no license is required. If the Consultantshould subcontractall or any portion of the work or services to be performed under this Agreement, the Consultant shall require each subcontractorto 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, religiouscreed,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 providingthat no person shall, on the groundsof race, religiouscreed,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 Consu Itantwill not discriminate against any employee or applicantfor 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 Consultantshall ensure that applicants are employed, and the employees are treated during employment, withoutregard 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 DEV-S Three Party Agt FYI (05-2022) 9 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 Consultantwill 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 u n derth is section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 19. In dependent 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 Cityforany purpose. The City shall have no rightto control, supervise, or direct the manneror method by which the Consultant shall perform its work and functions. However, the City shall retain the right to administerthis 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 Consultantand the City. The Consultantshall have no authorityto 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 pu rsu it th ereof. (b) Because of its status as an independent contractor, the Consultant and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to City employees. The Consultant shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, the Consultant shall be solely responsible, indemnify, defend and hold the City harmless from all matters relating to employment and tax withholding for and paymentofthe Con sultant'semployees, including, without limitation, (i) compliancewith Social Securityand 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 DEV-S Three Party Agt FYI (05-2022) 10 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 performingwork services relatingto this Agreement. It is acknowledged thatduring the term of this Agreement, the Consultant may be providing services to others unrelated to the City orto this Agreement. 20. Notices. Any notice required or intended to be given to any party underthe 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 atthe 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 inuretothe benefitof all parties and each party" respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 22. Assi nment.This Agreement is personal to the Consultantand there shall be no assignment by the Consultantof 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 underthis 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 waiveror a waiver of any subsequent breach of eitherthe 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. Governinci 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 conflictof laws rule which would apply the law of anoth er ju risdiction . Venue for pu rposes of the filing of any action DEV-S Three Party Agt FYI (05-2022) 11 regarding the enforcementor interpretation of this Agreement and any rights and duties hereundershall be Fresno County, California. 26. Headings. The section headings in this Agreement are for convenience and reference only and shall notbe construed or held in anywayto 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 u n enforceability 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 construingthisAgreement 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, languageof the contractshould be interpreted most strongly againstthe 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 otherparty its reasonableattorney's fees and legal expenses. Forthe purposes ofthisAgreement, "attorneys' fees and legal expenses" includes, without limitation, paralegals' fees and expenses, attorneys, con sultantsfees and expenses, expert witness fees and expenses, apd 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 soughtand 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 eventof any conflictbetween the body of this Agreement and any exhibitor 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 exhibitor attachment. Furthermore, any terms or conditions contained within any exhibit or attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement shall be null and void. 32. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive butshall,wherever possible, be cumulativewith all otherremedies 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 DEV-S Three Party Agt FYI (05-2022) 12 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day and year first above written. CITY OF FRESNO, A California municipal corporation By:- Je ri € ,r K. Clark, Director, PI aping and Development Department No signature of City Attorney required. Standard Document #DEV-S Three Party Agt (05-2022) has been used with ou#n�]]edification, as certified by the undersidOed. 1 0 &r;s L.,.% SupervisiKj Planner ATTEST: TODD STERMER, CIVIC City Cl By. aI Date Deputy Legacy ioone Vft Construc n, A Califor is corporati Inc. DBA Le C� Name: lnl . t A"� "i""'1 Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) 0 Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) Bargas Environmental Consqlting, LLC, A Californie-L-�m.ited Liabil' yry Porporation Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) In Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) DEV-S Three Party Agt FYI (05-2022) 14 hereof and supersedes all prior negotiations, representations or agreements, eitherwritten 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 implementthis 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 (05-2022) 13 Addresses: Addresses: City: Planning and Development Department Loll Supervising Planner 2600 Fresno Street, Room 3043 Fresno, CA 93721-3604 Phone: (559) 621-8066 E-mail: Kefge'e.PeFe-,,--@fresno.gov Attachments: Developer: Legacy Stone Works, Construction Inc. DBA: Legacy Attention: Devin Tienken Development Manager 5390 East Pine Avenue Fresno, CA 93727 Phone: (559) 513-1922 E-Mail: Devin@lcfresno.com Bargas Environmental Consulting, LLC Attention: Angela DePaoli President 3604 Fair Oaks Boulevard #180 Sacramento, CA 95864 Phone: (916) 993-9218 E-mail: adepaoli@bargasconsulting.com ExhibitA - Insurance Requirements Exhibit B - Disclosure of Conflict of Interest Form Exhibit C - Scope of Work DEV-S Three Party Agt FYI (05-2022) 15 EXHIBIT A INSURANCE REQUIREMENTS Consultant Service Agreement between CITY OF FRESNO and LEGACY STONE WORKS, INC. DBA: LEGACY CONSTRUCTION and BARGAS ENVIRONMENTAL CONSULTING, LLC Project: Willow -Nees Commercial Project 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 outof 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 forall owned, hired, and non -owned automobiles or other licensed vehicles (Code 1-Any Auto). 3. Workers' Compensation insurance as required bythe State of Californiaand Employer's Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to Consultant's profession. MINIMUM LIMITS OF INSURANCE Developerand Consultant, orany party the Developerand 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 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 accidentfor bodily injury and property damage. DEV-S Three Party Agt FYI (05-2022) 16 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; (i i) $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, (i i) $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 benefitof the City, its officers, officials, employees, agents, and volunteers. DEDUCTIBLES AND SELF -INSURED RETENTIONS Developeror Consultantshall be responsible for payment of anydeductibles 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 retentionsmust 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 Consultantshall provide a financial guarantee, satisfactory to City's Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self - insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. City, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds. Developer and Consultantshall 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 (05-2022) 17 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 Consultanfs insurance coverageshall be primary insurancewith respect to the City, its officers, officials, employees, agents, and volunteers. Any insurance orself- insurance maintained by the City, its officers, officials, employees, agents, and volunteers shall be excess of Developerand Consultant's insurance and shall n otcontribute with it. Developer and Consultantshall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers' Compensation insurance Policy is to contain, or be endorsed to contain, the following provision: 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 olic 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, whicheveroccurs 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 ornon-renewed,and notreplaced with anotherclaims- 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 Agreementwork ortermination 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 ortermination of the Agreement. Allpolicies 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. Developerand Consultantare also responsible for providing written notice to the City underthe same terms and conditions. Upon issuance by the insurer, broker, or agentof a notice of cancellation, non-renewal,orreduction in coverage or in limits, Developerand Consultantshall furnish Citywith a new certificate and applicable endorsementsfor 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 calendardays 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 requirementfor the Limits of Liabilityof these polices will be twice the above stated limits. DEV-S Three Parry Agt FYI (05-2022) 18 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 (05-2022) 19 EXHIBIT B DISCLOSURE OF CONFLICT OF INTEREST Willow -Nees Commercial Project 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 ❑j litigation with the City of Fresno? I 3 Do you currently represent or perform work for any clients who ❑ do business with the City of Fresno? 4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with ❑ ` the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in ❑ connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature 12/14/2021 Date Angela DePaoli Name Bargas Environmental Consulting Company 3604 Fair Oaks Blvd, Suite 180 Address Sacramento, CA 95864 City, State Zip ❑ Additional page(s) attached. DEV-S Three Party Agt FYI (06-2021) 20 City of Fresno Three -Party Agreement, CEQA Willow -Nees Commercial Project Exhibit C — Scope of Work December 5, 2022 i. Project Description Stone Works, Inc. DBA Legacy Construction (Developer) proposes to develop a 3.5-acre, single -story medical and professional office facilities consisting of two 11,160 square feet (sf) and one 11,780 sf buildings, parking, landscaping, and associated site improvements (Project) located at 7819 and 7835 North Willow Avenue (Project site) in Fresno, California. The Project site is comprised of Fresno County Assessor Parcel Numbers(APNs) 404-481-19S and 404-481-20S. The proposed Project is currently located within an unincorporated Fresno County (County) island surrounded by the City of Fresno (City) to the north, west, and south, and the City of Clovis to the east. Access to the site will consist of two vehicle driveways to the east along North Willow Avenue, and two vehicle driveways to the south along the unnamed existing alleyway. The project proposes to include 166 onsite standard and ADA parking stalls. The project site is currently located within an unincorporated County island surrounded by the Cities of Fresno and Clovis and is zoned RR — Rural Residential. The Developer proposes to annex the Project site into the City of Fresno and to rezone the site to CC Commercial - Community to be consistent with City zoningfor medical and professional offices. The Project site is surrounded by rural residences to the north, single-family residencesto the west, a church tothe south, and commercial uses to the east across North Willow Avenue. 2. Sco a of Work Bargas Environmental Consulting, LLC (Consultant) will prepare the following scope of workto analyze the Project's potential environmental impacts underthe California Environmental Quality Act (CEQA). The City of Fresno (City) is the lead agency for the project under CEQA. Task 1. CEQA Initial Study and MMRP The Consultant will complete a CEQA Initial Study checklist in accordance with CEQA Guidelines Appendix Gin orderto evaluate the potential environmental impacts of the Project. Appendix G factors will include (but may not be limited to): • Aesthetics • Air Quality ■ Cultural Resources • Geology and Soils • Hazards and Hazardous Materials ■ Land Use and Planning ■ Noise • Public Services • Transportation • Utilities and Service Systems • Mandatory Findings of Significance 1 • Agriculture and Forestry Resources • Biological Resources • Energy • Greenhouse Gas Emissions • Hydrology and Water Quality • Mineral Resources • Population and Housing • Recreation • Tribal Cultural Resources • Wildfire City of Fresno Three -Party Agreement, CEQA Willow -Nees Commercial Project The Consultantwill reviewthe Project technical studies (Habitat Assessment Memorandum, Noise Study, and Vehicle Miles Traveled Study), Project description, Project maps, plans, drawings, and otherrelevant Project information. The Consultant will additionally evaluate the Project for compliance with pertinent City General Plan, Specific Plans, and/orCommunity Plans. If necessary, the Consultant will contact local municipal, utility, service district, or other jurisdictional entities as need be to ascertain Project impacts to CEQA environmental factors in accordance with Appendix G.The Consultantwill draftas part of the Initial Study a determination of potential project impacts. The Initial Study will identify any potential mitigation measures necessary to mitigate potential Project impacts. All identified mitigation measures will be included within the Initial Study and Mitigation Monitoring and Reporting Plan (MMRP). The MMRP will identify mitigation measures, implementing steps, and identify parties responsible for implementation and monitoring. The Consultantwill submit the Administrative Draft of the Initial Study and MMRP to the City for review and comment. Once the City provides edits and comments, the Consultant will provide responses to the City comme nts a nd pre pare a Final Draft Initial Study and MMRP. Once the Initial Study and MMRP have been review by the public during the Public Comment period, the Consultant will provide draft responses to Public Comments to the City. Deliverables: • CEQA Initial Study Administrative Draft & MMRP (Microsoft Word) • CEQA Initial Study Final Draft & MMRP (Microsoft Word and PDF) • Draft Response to Public Comments (Microsoft Word) Assumptions • The Developerwill provide the Consultant with copies of pertinent Project documents, including site plans, maps, operational statements, drawings, or relevant technical studies that have been previously prepared. • If the Project CEQA impact analysis determinesthe Project may result in a potentially significant impact that cannot be mitigated to a less than significant level, an Environmental Impact Report (EIR) may be warranted. Preparing an EIR is not included within this scope of work. • Public notifications and publishing are not included within this scope of work. • Native American Consultation, including consultation underAB52 orSB 18, is not included within this scope of work. City of Fresno Three -Party Agree ment, CECIA Willow -Nees Commercial Project Task 2. Habitat Assessment Memorandum Literature Review The Consultant will complete a thorough desktop assessment of habitat, special -status species, and jurisdictional wetland databases (both federal and state) as a pre -site visit data gathering task. Historic aerial photographs will be evaluated to aid in the assessment of habitat present on site. The analysis will assessthe potential for biological constraints on the projectsite and to plan forthe site reconnaissance- levelfield survey. Database review will include National Resources Conservation Service (N RCS) soil survey data; California Department of Fish and Wildlife (CDFW) California Natural Diversity Database Biogeographic Information and Observation System (CNDDB/BIOS); United States Fish and Wildlife (USFWS) Information for Planning and Consultation (IPaQ USFWS National Wetlands Inventory (NWI); and USFWS Online Critical Habitat Mapper. Conduct Site Reconnaissance -Level Survey A qualified Bargas Consultant biologist will conduct a reconnaissance -level survey of the Project site to assess the following: the presence of suitable habitat that may support special -status species; the presence of wetland habitat that may be under the jurisdiction of federal or state agencies; and assess the potential for nesting birds. Habitat Assessment Memorandum A qualified Bargas Consultant biologist will compile the pre -site visit database and aerial review results, and site survey findings into a draft habitat assessment memorandum to be submitted to the City for review. A graphic will be prepared detailing potential constraints, or lack thereof. If necessary, the letter reportwill also include a list of possible avoidance and minimization measures and/or potential resou rce agency permits required for unavoidable impactsto special -status species and wetlands.The cost includes a post -re port discussion regarding findings and any potential habitat/species impactsthat would require regulatory agency review and approval. r)PlivPrahles: • Habitat Assessment Memorandum (PDF) Assumptions: Any subsequent necessary specialized reports, focused surveys, or specific permitting requirements will be provided as a separate cost and scope, if warranted. The Consultant will respond to up to one consolidated round of comments before finalizing the report in electronic format. Task 3. Noise study_ A qualified acoustical analysis professional will prepare a noise study that meets the guidelines for the City of Fresno to evaluate the potential for noise impacts on the Project site. The Consultant proposes to use WJV Acoustics (WJVA), a reputable acoustical consultant, as a subconsultantfor this task. The noise study will consist of a site inspection and noise monitoringto evaluate the acoustical characteristics of the site and document noise levels from surrounding land uses that may affect the Project site. Thestudywill also calculate Project site traffic noise exposure for peak hour traffic conditions using the findings of the City of Fresno Three -Party Agreement, CECA Willow -Nees Commercial Project noise monitoring, FHWA Traffic Noise Model, and peak hour traffic count data from the Fresno County Council of Governments (Fresno COG), or other sources as appropriate. If traffic count data is not available, WJVA will conduct peak hour noise level measurements at the Project site. If necessary, WJVA will also review preliminaryplans and construction details for the project buildings and calculate the theoretical outdoor -to -indoor noise level reduction (NLR) performance that would be provided by the proposed construction. WJVA will also compare peak hour (worst -case) interior traffic noise exposure to applicable City of Fresno noise level standards to determine the extent of noise mitigation that may be required. The acoustical analysis professional will also prepare recommendations for noise mitigation as maybe required for compliance with applicable noise compatibility criteria. Finally, WJVA will prepare a written technical report summarizing the data, methods, findings, and recommendations for noise mitigation (if required) of the study. Deliverables: 6 Noise Study (PDF) Assumptions: The Developer will provide site access. The Developer will provide pertinent site plans, drawings, and Project info as need be. Task 4. Vehicle Miles Traveled WMT) Analysis At the request of the City of Fresno, a qualified traffic engineer will prepare a VMT assessment of the Project in compliance with SB 743 and Section 15064.3 to determine how much actual auto travel the proposed Project would create on California roads. Bargas proposes to utilize Peters Engineering Group (Peters), a reputable engineering firm, as a subconsultant for this task. The VMT Analysis will be prepared in general conformance with the CEQA Guidelines for Vehicle Miles Traveled Thresholdsforthe City of Fresno adopted on June 24,2020 (City Guidelines). The traffic engineer will review the Project against VMTscreening maps and trip generation thresholds established in the City Guidelines. They will calculate the number of vehicle trips expected to be generated by the Project utilizing data available in the Institute of Transportation Engineers Trip Generation Manual, 111 Edition. The results of this analysis will be provided in a VMT analysis report. In the eventthatthe Project is expected to cause a significant transportation impact, the traffic engineer will suggest mitigation measures that may be applicable and potentially feasible. Timeline: 6 Completed within four (4) weeks of Project Kickoff. Deliverables: 6 Letter report in PDF electronic format. Assumptions: 6 Client to provide Bargas with all relevant Project information. 4 City of Fresno Three -Party Agree ment, CEQA Willow -Nees Commercial Project Consultation with the City of Fresno for traffic engineering is not needed. Project Traffic Modeling is not required. Should traffic modeling be required, Bargas will provide client with a proposal for the modeling task. Budget assumes one round of client comments and revisions. 3. Milestones Timeline Task No. Milestone I Timeline 2 Habitat Assessment Memorandum 1 4 Weeks after Project Kickoff 4 VMTAssessment 4 Weeks After Project Kickoff 3 Noise Study 5 Weeks after Project Kickoff CEQA Initial Study and MMRP 1 (Administrative Draft) 10 Weeks after Project Kickoff City IS & MMRP Admin Draft 30 Business Days after receiving N/A Comments IS & MMRP Admin Draft CEQA Initial Study and MMRP (Final 1 Week after receiving City 1 Draft) comments or edits 1 Week after receiving all Public 1 Draft Response to Public Comments Comments from City 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 nu mber of days equal to the period of the delay. 4. Staff and List of Subcontractors Task Task Staff Title Company No. Patrick SauIs Project Manager Bargas Kevin Director/Principal Biologist Bargas GhalamKevin r CEQA Initial Evelyn Chandler Director of Cultural Resources Bargas 1 Study & Heather Kaime Cultural Resources Lead Bargas MMRP Coral Fenech Director of Geospatial Services Bargas Daniela Zepeda- GIS Analyst Bargas Vargas Habitat 2 Assessment Rachel Clark Senior Biologist Bargas Memo 3 Noise Study WalterVan President WJV Acoustics Groningen (Subconsultant) 4 VMT John Rowland Senior Traffic Engineer Peters Engineering (Subconsultant) Assessment City of Fresno Three -Party Agreement, CEQA Willow -Nees Commercial Project 5. Qualifications BARGAS ENVIRONMENTAL CONSULTING STAFF Patrick Sauis, Ai_CP — Project Manager Years' Experience: 19 As a Project Manager, Mr. Sauls has a large breadth of experience in CEQA/NEPA, compensatory mitigation, conservation easements, entitlements, land use planning, real estate/development, habitat conservation plan compliance, regulatory compliance, and Phase I Environmental Site Assessments. He has 18 years of experience working with Federal Agencies (including HUD, USFWS, BLM, USFS, FRA and BOP), State Agencies (including California High -Speed Rail, Caltrans, CDFW, DPR, SHPO, and CalRecycle), California Native American Tribes (ChukchansiTribe, Agua Caliente Band of Cahuilla Indians, Dum-Wo Wah Tribal Government), cities/counties, non-profit, and private entities. Mr. Sauls has served as Project Manage rfor numerous CEQA and N EPA projects, including CEQA projects for the City of Fresno, and NEPA projects for the City of Fresno and the Fresno Housing Authority. Kevin Ghalambor— Director Princi al Biolo list Years' Experience: 20 Kevin Ghalambor has more than 20 years of experience in biological resources management with afocus on the resources of southern, central, and northern California. He has managed and participated in surveysfor rare plants and endangered species and has U.S. Fish and Wildlife Service (USFWS) collector, take, and scavenger permits. He is experienced in identifying soil types, watershed assessment and mapping, river assessments, stormwater pollution prevention plans, and conservation practicesforvemal pool habitats. Kevin has conducted protocol -level surveys for Vernal Pool Fairy Shrimp and Tadpole Shrimp, California Red -legged Frog, Giant Gartersnake, Valley Elderberry Long -horn Beetle, California Tiger Salamander, Burrowing Owl, Swainson's Hawk, and other special status birds. He is familiar with vernal pool botanical species and routinely assists clients in the identification of rare plants at construction sites and provides avoidance measures, preconstruction training and monitoring for governmental and private clients. Evelyn Chandler— Director of Cultural Resources Years' Experience: 29 Ms. Chandler has 29 years of experience in cultural resources management with a focus on the cultural resources of the inland areas of southern and central California. She has developed an expertise in compliance with the cultural resources requirements of the California Environmental Quality Act (CEQA) and Section 106 of the National Historic Preservation Act (NHPA). She routinely manages cultural resources inventories, test excavations, and evaluations of archaeological sites and historic resources for eligibility to the National Registerof Historic Places (NRHP) and California Registerof Historical Resources (CRHR) for public and private clients. She is skilled in impact assessment and the development and implementation of mitigation measures, including data recovery and construction monitoring. Ms. Chandler regularly assists clients with coordination with Native American groups and with the State Historic Preservation Officer. She has authored numerous cultural resources technical reports, research designs, and cultural resource management plans, and has contributed to and reviewed a variety of environmental compliance documents including Environmental Impact Statements (EISs) and a City of Fresno Three -Party Agreement, CEQA Willow -Nees Commercial Project Environmental Impact Reports (EIRs). Ms. Chandler is qualified as a Principal Investigator under the Secretary of Interior's Professional Qualification Standards and the California Department of Transportation (Caltrans) standards for Professionally Qualified Staff for Archaeology. Heather Kaime — Cultural Resources Lead Years' Experience: 9 Ms. Kamine is a Registered Professional Archaeologist with more than seven years of archaeological fieldwork experience, nine years of archaeological laboratory experience, and six years of cultural resource management experience. Her analytical specialty is identification and excavation of human remains. In her role as a Project Manager and Cultural Resources Lead, Ms. Kamine overseesthe Bargas Cultural Resources Program and all associated staff. In addition, she manages and coordinates all archaeological monitoring, Phase I, II, III level archaeological investigations, conducts background research through public resources; requests record searches through the California Historical Resources Information System; coordinates with the Native American Heritage Commission for Sacred Lands Files searches; consults with project related Native American tribes and groups; compiles and analyzes databases; provides recommendations for the mitigation and treatment of environmental and cultural resource impacts; generates technical compositions in compliance with both state and federal regulations; and provides any needed environmental and cultural resource training. Finally, Ms. Kamine has 2 years of biological experience conducting limited biological monitoring in the field, biological desktop reviews, and assisting in the composition of biological technical reports. Coral Fenech — Director of Geospatial Services Years' Experience: 20 Ms. Fenech is an expert in the GIS field with over 20 years experience, utilizing a wide variety of platforms for Geospatial Data Management. Ms. Fenech possesses an extensive understanding of cartographic and graphic design principles for map production in print and online. She is highly competent in statistical analysis and experienced with geodatabase design, creation, and maintenance of both spatial and non - spatial data. Ms. Fenech brings strong environmental experience in analyzing and evaluating a wide variety of technical documents, environmental analyses, and associated with programmatic -level projects. She has extensive experience managingthe GIS and GPS on large transmission projects and as a Project Coordinator on SCE Covered Conductor Projects. Daniela Zepeda-Vargas — GIS Analyst Years' Experience: 5 Daniela Zepeda-Vargas is a GIS Analyst with over 5 years of experience utilizing GIS software for developing GIS databases, creating high quality cartographic map products, and an excellent ability to collect and interpret geographical data. Daniela has a proven capacity to gain diverse experience in multiple operating systems, commercial and proprietary software packages. She continuously looks at ways to add value, take the initiative in improving processes, and identify opportunities. Rachel Clark— Senior Biologist Years' Experience: 9 With over nine years of experience engaging with biological resources, Ms. Clark is experienced in conducting surveys for nesting birds and other taxonomic groups utilizing various techniques, performing habitat assessment surveys, monitoring construction activities in orderto ensure compliance with federal II City of Fresno Three -Party Agree ment, CEC+A Willow -Nees Commercial Project and state -issued environmental permits and regulations (USFWS Biological Opinion, Incidental Take permit, California and federal Endangered SpeciesAct, Migratory Bird Treaty Act), and preparing technical reports. SUBCONSULTANTS Walter Van Gronigen (WJV Acoustics) Years' Experience: 16 Mr. Van Groningen is the founding consultant of WJV Acoustics, Inc. His technical skills include the prediction and analysis of aircraft, traffic, railroad and construction noise and the evaluation of communitynoise problemsand litigation support. He has prepared technical noise studiesfora varietyof projects requiring CEQA or NEPA documentation and has developed noise level criteria and implementation programs for addressing noise -related conflicts and long-range noise compatibility planning. Mr. Van Groningen has particular expertise in preparing traffic noise assessmentsforfederally funded roadway improvement projects using the Caltrans Protocol. Mr. Van Groningen has also prepared general plan noise elements and noise element updates for several California jurisdictions. John Rowland (Peter's Engineering) Years' Experience: 30 Mr. Rowland has over over 30 years of experience in the fields of civil, traffic, and geotechnical engineering. As the seniortrafficengineerfor Peters Engineering Group, Mr. Rowland primarily performs traffic signal and street lighting designs and traffic analysis projects that include traffic impact studies, speed studies, parking studies, and traffic signal warrants. Mr. Rowland also has substantial experience preparing pavement delineation plans, sign plans, and traffic handling plans. CALIFORNIA CERTIFICATE OF ACKNOWLEDGMENT An otary public or other officer completing this certificate verifies only the Identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Da On Isp Ili before me, ��, (here insert name and title of the officer) personally appeared -� 1 U Q V who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. r Signature jajaiz�,:� SABRINA GIF?----j COMM. #2363553 z a: Notary Public • California --0 Z Sacramento County MX Comm. Expires June 3o, 2025 (Seal) Optional Information Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document titled/for the purpose of fie- r�n,r)�'� p c�o S��CQs containing 9L?-, pages, and dated The signer(s) capacity or authority is/are as: ❑ Individual(s) ❑ Attorney -in -Fact {{ Q Corporate Officer(s) 6't-- L vG 7e Title(s) ❑ Guardian/Conservator ❑ Partner - Limited/General ❑ Trustee(s) ❑ Other: At representing: `C 'L\N1(C3fN i ; ame(s) of Person(s) or Entity(ies) Signer is Representing Method of Signer Identification Proved / to me on the basis of satisfactory evidence: (3 form(s) of identification Vzredlble witness(es) Notarial event is detailed in notaryjournal on: Page # q. — Z, Entry # Notary contact: Other ❑ Additional Signer(s) ❑ Signer(s)Thumbprint(s) El c_cp�2 O —r © Copyright 2007-2020 Notary Rotary, PO Box 4)400, Des Moines, IA 50311-0507. All Rights Reserved. Item Number 101772, Please contact your Authorized Reseller to purchase copies of this form. BARGAS Environmental Consulting Certification of Signature Authorization I, Angela DePaoli, certify that I am the President/Founder of the limited liability company named herein; that Angela DePaoli who signed this Agreement on behalf of Bargas Environmental Consulting, LLC., was then President/Founder of Bargas Environmental Consulting, LLC.; that said Agreement is within the scope of its organizational powers and was duly signed for and on behalf of Bargas Environmental Consulting, LLC. by authority of its governing body, as evidenced by the attached true and correct copy of the Operating Agreement which has not been modified and is in full force and effect. By: Name: Angela DePaoli Title: President/Founder Date:12/16/2022 Sacramento -ww-- Orange AMP Pasadena AIWm- San Bernardino AW& Temecula AWw'- San Diego www.BargasConsulting.com CALIFORNIA CERTIFICATE OF ACKNOWLEDGMENT Any notaryy ublic or other officer completing this certificate verifies only the identity of the ind Qua€ who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or va€idity of that document. State of California ) County of S a C- On "L �� 22 before me, SCE GS<-\CA r ub�\C- ' (here insert name and title of the ❑ er) personally appeared n � U `'Ni CAQ `\ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Optional Information SRBRIN,,k GIER COMM. #2363553 Z o .. Notary Public • California o 5aLf9mento County z Comm. Ex ires June 3A, 2{125 (Seal) Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document titled/for the purpose of C,-e y An -Fi La, *nCA—, C41 containing \ pages, and dated 1'L( i_t, VL�1' The signer(s) capacity or authority is/are as: ❑ Individual(s) ❑ Attorney -in -Fact Corporate Officer(s)� S U Title(s) ❑ Guardian/Conservator ❑ Partner - Limited/General ❑ Trustee(s) ❑ Other: representing: bwi f 0 nA-A\ 1.k��lrlq Nameia) of Person(s) or Entity(ies) Signer is Representing J I Method of Signer Identification Proved to me on the basis of satisfactory evidence: tSKform(s) of identification credible witness(es) Notarial event is detailed in notaryjournal on: Page #0,—� Entry.# Notary contact: Other ❑ AdditionalSigner(s) ❑ Signer(s)Thumbprint(s) El 0 Copyright 2007-2020 Notary Rotary, PO Box 41400, Des Moines, IA 50311-0507. All Rights Reserved. Item Number 101772. Please contact your Authorized Reseller to purchase copies of this form. ' � �>'• 7tr: 4 � ' � .. � • i - �� } _ AMENDMENT TO AMENDED AND RESTATED OPERATING AGREEMENT FOR BARGAS ENVIRONMENTAL CONSULTING, LLC THIS AMENDMENT TO AMENDED AND RESTATED OPERATING AGREEMENT (the "Amendment") is made as of March 29, 2021 as follows: 1. Background. This Amendment is made with reference to that certain Amended and Restated Operating Agreement for Bargas Environmental Consulting, LLC, a California limited liability company, dated effective as of January 1, 2018 (the "Agreement"). Capitalized terms used herein shall have the meanings ascribed to such terms in the Agreement, unless otherwise defined herein. 2. Amendment to Manager Authority" The Agreement is hereby amended to add Section 6.7, as follows: 6.7 Delegation Authori1y. The Manager may delegate all or any of its powers, rights and obligations hereunder and may appoint, employ, contract or otherwise deal with any Person for the transaction of the business of the Company, which Person may, under supervision of the Manager, perform any acts or services for the Company as the Manager may approve and specify. 3. Effect of Amendment. Except as expressly set forth in this Amendment, the terms of the Agreement shall remain unchanged and in full force and effect and the terms of the same are hereby ratified and affirmed. 4. Inte rg ation. All rights, remedies, powers and interest provided in this Amendment are in addition to the rights, remedies, powers and interests provided in the Agreement, the terms and provisions of which are incorporated herein by this reference. If and to the extent that any term or provision hereof is inconsistent with any term or provision of the Agreement, the term or provision of this Amendment shall prevail. 5. Countg arts. This Amendment may be executed in counterparts and all counterparts together shall be considered part of one Amendment, binding on all parties hereto. [SIGNATURES ON FOLLOWING PAGE] (3130513.DOC;) IN WITNESS WHEREOF, the Member and Manager have executed this Amendment, effective as of the date first written above. MEMBER: AAAATA!'_DD 1 (3130513.DOC;) J