HomeMy WebLinkAboutRichard Heath & Associates, Inc - Consultant Agrmnt - 2-28-2023DocuSign Envelope ID: 0E6A755D-7D3F-4C8D-9C3C-38A161 EA7ECA
AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT is made and entered into. effective on 2/28/2023
by and between the CITY OF FRESNO, a California municipal corporation (the City), and
RICHARD HEATH & ASSOCIATES, INC., a California Corporation (the Consultant).
RECITALS
WHEREAS, the City desires to obtain professional consultant services for Water Division
Assessment and Revision of Water Conservation Landscape Rebate Programs (Project);
and
WHEREAS, the Consultant is engaged in the business of furnishing services as a
environmental consultant and hereby represents that it desires to and is professionally
and legally capable of performing the services called for by this Agreement; and
WHEREAS, the Consultant acknowledges that this Agreement is subject to the
requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19;
and
WHEREAS, this Agreement will be administered for the City by its
Director of Public Utilities (Administrator) or designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions,
and premises hereinafter contained to be kept and performed by the respective parties,
it is mutually agreed as follows:
1. Scope of Services. The Consultant shall perform to the satisfaction of the City the
services described in Exhibit A, including all work incidental to, or necessary to
perform, such services even though not specifically described in Exhibit A.
2. Term of Aareement and Time for Performance. This Agreement shall be effective
from the date first set forth above (Effective Date) and shall continue in full force
and effect through December 31, 2024, subject to any earlier termination in
accordance with this Agreement. The services of the Consultant as described in
Exhibit A are to commence upon the Effective Date and shall be completed in a
sequence assuring expeditious completion, but in any event, all such services shall
be completed prior to expiration of this Agreement and in accordance with any
performance schedule set forth in Exhibit A.
3. Compensation.
(a) The Consultant's compensation for satisfactory performance of all services
required or rendered pursuant to this Agreement shall be a total fee not to
exceed Forty-nine Thousand Nine Hundred Fourteen Dollars and Thirty -
Four Cents ($49,914.34), paid on the basis of the rates set forth in the
schedule of fees and expenses contained in Exhibit A.
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(b) Detailed statements shall be rendered monthly for services performed in the
preceding month and will be payable in the normal course of the City
business. The City shall not be obligated to reimburse any expense for
which it has not received a detailed invoice with applicable copies of
representative and identifiable receipts or records substantiating such
expense.
(c) The parties may modify this Agreement to increase or decrease the scope
of services or provide for the rendition of services not required by this
Agreement, which modification shall include an adjustment to the
Consultant's compensation. Any change in the scope of services must be
made by written amendment to the Agreement signed by an authorized
representative for each party. The Consultant shall not be entitled to any
additional compensation if services are performed prior to a signed written
amendment.
4. Termination Remedies and Force Mameure.
(a) This Agreement shall terminate without any liability of the City to the
Consultant upon the earlier of: (i) the Consultant's filing for protection under
the federal bankruptcy laws, or any bankruptcy petition or petition for
receiver commenced by a third party against the Consultant, (ii) seven
calendar days prior written notice with or without cause by the City to the
Consultant; (iii) the City's non -appropriation of funds sufficient to meet its
obligations hereunder during any City fiscal year of this Agreement, or
insufficient funding for the Project; or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement, the
Consultant shall (i) immediately stop all work hereunder; (ii) immediately
cause any and all of its subcontractors to cease work; and (iii) return to the
City any and all unearned payments and all properties and materials in the
possession of the Consultant that are owned by the City. Subject to the
terms of this Agreement, the Consultant shall be paid compensation for
services satisfactorily performed prior to the effective date of termination.
The Consultant shall not be paid for any work or services performed or costs
incurred which reasonably could have been avoided.
(c) In the event of termination due to failure of the Consultant to satisfactorily
perform in accordance with the terms of this Agreement, the City may
withhold an amount that would otherwise be payable as an offset to, but not
in excess of, the City's damages caused by such failure. In no event shall
any payment by the City pursuant to this Agreement constitute a waiver by
the City of any breach of this Agreement which may then exist on the part
of the Consultant, nor shall such payment impair or prejudice any remedy
available to the City with respect to the breach.
(d) Upon any breach of this Agreement by the Consultant, the City may
(i) exercise any right, remedy (in contract, law or equity), or privilege which
may be available to it under applicable laws of the State of California or any
other applicable law; (ii) proceed by appropriate court action to enforce the
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terms of the Agreement; and/or (iii) recover all direct, indirect,
consequential, economic and incidental damages for the breach of the
Agreement. If it is determined that the City improperly terminated this
Agreement for default, such termination shall be deemed a termination for
convenience.
(e) The Consultant shall provide the City with adequate written assurances of
future performance, upon Administrator's request, in the event the
Consultant fails to comply with any terms or conditions of this Agreement.
(f) The Consultant shall be liable for default unless nonperformance is caused
by an occurrence beyond the reasonable control of the Consultant and
without its fault or negligence such as, acts of God or the public enemy, acts
of the City in its contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, unusually severe weather, and delays of common
carriers. The Consultant shall notify Administrator in writing as soon as it is
reasonably possible after the commencement of any excusable delay,
setting forth the full particulars in connection therewith, and shall remedy
such occurrence with all reasonable dispatch, and shall promptly give
written notice to Administrator of the cessation of such occurrence.
5. Confidential Information and Ownership of Documents.
(a) Any reports, information, or other data prepared or assembled by the
Consultant pursuant to this Agreement shall not be made available to any
individual or organization by the Consultant without the prior written
approval of the Administrator. During the term of this Agreement, and
thereafter, the Consultant shall not, without the prior written consent of the
City, disclose to anyone any Confidential Information. The term Confidential
Information for the purposes of this Agreement shall include all proprietary
and confidential information of the City, including but not limited to business
plans, marketing plans, financial information, materials, compilations,
documents, instruments, models, source or object codes and other
information disclosed or submitted, orally, in writing, or by any other medium
or media. All Confidential Information shall be and remain confidential and
proprietary in the City.
(b) Any and all writings and documents prepared or provided by the Consultant
pursuant to this Agreement are the property of the City at the time of
preparation and shall be turned over to the City upon expiration or
termination of the Agreement. The Consultant shall not permit the
reproduction or use thereof by any other person except as otherwise
expressly provided herein.
(c) If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall cause each
subcontractor to also comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this Agreement
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6. Professional Skill. It is further mutually understood and agreed by and between the
parties hereto that inasmuch as the Consultant represents to the City that the
Consultant and its subcontractors, if any, are skilled in the profession and shall
perform in accordance with the standards of said profession necessary to perform
the services agreed to be done by it under this Agreement, the City relies upon the
skill of the Consultant and any subcontractors to do and perform such services in
a skillful manner and the Consultant agrees to thus perform the services and
require the same of any subcontractors. Therefore, any acceptance of such
services by the City shall not operate as a release of the Consultant or any
subcontractors from said professional standards.
7. Indemnification. To the furthest extent allowed by law, the Consultant shall
indemnify, hold harmless and defend the City and each of its officers, officials,
employees, agents, and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in contract, tort or strict liability, including
but not limited to personal injury, death at any time and property damage), and
from any and all claims, demands and actions in law or equity (including
reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or
relate to the negligence, recklessness or willful misconduct of the Consultant, its
principals, officers, employees, agents, or volunteers in the performance of this
Agreement.
If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall require each subcontractor
to indemnify, hold harmless and defend the City and each of its officers, officials,
employees, agents, and volunteers in accordance with the terms of the preceding
paragraph.
This section shall survive termination or expiration of this Agreement.
8. Insurance.
(a) Throughout the life of this Agreement, the Consultant shall pay for and
maintain in full force and effect all insurance as required in Exhibit B, which
is incorporated into and part of this Agreement, with an insurance
company(ies) either (i) admitted by the California Insurance Commissioner
to do business in the State of California and rated no less than "A-VII" in the
Best's Insurance Rating Guide, or (ii) as may be authorized in writing by
the City's Risk Manager or designee at any time and in his/her sole
discretion. The required policies of insurance as stated in Exhibit B shall
maintain limits of liability of not less than those amounts stated therein.
However, the insurance limits available to the City, its officers, officials,
employees, agents, and volunteers as additional insureds, shall be the
greater of the minimum limits specified therein or the full limit of any
insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, the
Consultant or any of its subcontractors\sub-consultants fail to maintain any
required insurance in full force and effect, all services and work under this
Agreement shall be discontinued immediately, and all payments due or that
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become due to the Consultant shall be withheld until notice is received by
the City that the required insurance has been restored to full force and effect
and that the premiums therefore have been paid for a period satisfactory to
the City. Any failure to maintain the required insurance shall be sufficient
cause for the City to terminate this Agreement. No action taken by the City
pursuant to this section shall in any way relieve the Consultant of its
responsibilities under this Agreement. The phrase "fail to maintain any
required insurance" shall include, without limitation, notification received by
the City that an insurer has commenced proceedings, or has had
proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by the Consultant shall not be deemed
to release or diminish the liability of the Consultant, including, without
limitation, liability under the indemnity provisions of this Agreement. The
duty to indemnify the City shall apply to all claims and liability regardless of
whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by the
Consultant. Approval or purchase of any insurance contracts or policies
shall in no way relieve from liability nor limit the liability of the Consultant,
its principals, officers, agents, employees, persons under the supervision of
the Consultant, vendors, suppliers, invitees, consultants, sub -consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
(d) If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall require each
subcontractor/sub-consultant to provide insurance protection, as an
additional insured, to the City and each of its officers, officials, employees,
agents, and volunteers in accordance with the terms of this section, except
that any required certificates and applicable endorsements shall be on file
with the Consultant and the City prior to the commencement of any services
by the subcontractor. The Consultant and any subcontractor/sub-consultant
shall establish additional insured status for the City, its officers, officials,
employees, agents, and volunteers by using Insurance Service Office (ISO)
Form CG 20 10 11 85 or both CG 20101001 and CG 20 37 10 01 or by
an executed manuscript company endorsement providing additional
insured status as broad as that contained in ISO Form CG 20 10 11 85.
9. Conflict of Interest and Non -Solicitation.
(a) Prior to the City's execution of this Agreement, the Consultant shall
complete a City of Fresno conflict of interest disclosure statement in the
form as set forth in Exhibit C. During the term of this Agreement, the
Consultant shall have the obligation and duty to immediately notify the City
in writing of any change to the information provided by the Consultant in
such statement.
(b) The Consultant shall comply, and require its subcontractors to comply, with
all applicable (i) professional canons and requirements governing
avoidance of impermissible client conflicts; and (ii) federal, state, and local
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conflict of interest laws and regulations including, without limitation,
California Government Code Section 1090 et. seq., the California Political
Reform Act (California Government Code Section 87100 et. seq.) and the
regulations of the Fair Political Practices Commission concerning disclosure
and disqualification (2 California Code of Regulations Section 18700 et.
seq.). At any time, upon written request of the City, the Consultant shall
provide a written opinion of its legal counsel and that of any subcontractor
that, after a due diligent inquiry, the Consultant and the respective
subcontractor(s) are in full compliance with all laws and regulations. The
Consultant shall take, and require its subcontractors to take, reasonable
steps to avoid any appearance of a conflict of interest. Upon discovery of
any facts giving rise to the appearance of a conflict of interest, the
Consultant shall immediately notify the City of these facts in writing.
(c) In performing the work or services to be provided hereunder, the Consultant
shall not employ or retain the services of any person while such person
either is employed by the City or is a member of any City council,
commission, board, committee, or similar City body. This requirement may
be waived in writing by the City Manager, if no actual or potential conflict is
involved.
(d) The Consultant represents and warrants that it has not paid or agreed to
pay any compensation, contingent or otherwise, direct or indirect, to solicit,
or procure this Agreement or any rights/benefits hereunder.
(e) Neither the Consultant, nor any of the Consultant's subcontractors
performing any services on this Project, shall bid for, assist anyone in the
preparation of a bid for, or perform any services pursuant to, any other
contract in connection with this Project unless fully disclosed to and
approved by the City Manager, in advance and in writing. The Consultant
and any of its subcontractors shall have no interest, direct or indirect, in any
other contract with a third party in connection with this Project unless such
interest is in accordance with all applicable law and fully disclosed to and
approved by the City Manager, in advance and in writing. Notwithstanding
any approval given by the City Manager under this provision, the Consultant
shall remain responsible for complying with Section 9(b), above.
(f) If the Consultant should subcontract all or any portion of the work to be
performed or services to be provided under this Agreement, the Consultant
shall include the provisions of this Section 9 in each subcontract and require
its subcontractors to comply therewith.
(g) This Section 9 shall survive expiration or termination of this Agreement
10. Recycling Program. In the event the Consultant maintains an office or operates a
facility(ies), or is required herein to maintain or operate same, within the
incorporated limits of the City of Fresno, the Consultant at its sole cost and
expense shall:
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(a) Immediately establish and maintain a viable and ongoing recycling
program, approved by the City's Solid Waste Management Division, for
each office and facility. Literature describing the City recycling programs is
available from the City's Solid Waste Management Division and by calling
City of Fresno Recycling Hotline at (559) 621-1111.
(b) Immediately contact the City's Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such
Division in their conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of the City's Solid Waste
Management Division the establishment of the recycling program in
paragraph (i) above and the ongoing maintenance thereof.
11. General Terms.
(a) Except as otherwise provided by law, all notices expressly required of the
City within the body of this Agreement, and not otherwise specifically
provided for, shall be effective only if signed by the Administrator or
designee.
(b) Records of the Consultant's expenses pertaining to the Project shall be kept
on a generally recognized accounting basis and shall be available to the
City or its authorized representatives upon request during regular business
hours throughout the life of this Agreement and for a period of three years
after final payment or, if longer, for any period required by law. In addition,
all books, documents, papers, and records of the Consultant pertaining to
the Project shall be available for the purpose of making audits,
examinations, excerpts, and transcriptions for the same period of time. If
any litigation, claim, negotiations, audit or other action is commenced before
trio expiration of said time period, all records shall be retained and made
available to the City until such action is resolved, or until the end of said
Lime period whichever shall later occur. If the Consultant should subcontract
all or any portion of the services to be performed under this Agreement, the
Consultant shall cause each subcontractor to also comply with the
requirements of this paragraph. This Section 11(b) shall survive expiration
or termination of this Agreement.
(c) Prior to execution of this Agreement by the City, the Consultant shall have
provided evidence to the City that the Consultant is licensed to perform the
services called for by this Agreement (or that no license is required). If the
Consultant should subcontract all or any portion of the work or services to
be performed under this Agreement, the Consultant shall require each
subcontractor to provide evidence to the City that subcontractor is licensed
to perform the services called for by this Agreement (or that no license is
required) before beginning work.
12. Nondiscrimination. To the extent required by controlling federal, state and local
law, the Consultant shall not employ discriminatory practices in the provision of
services, employment of personnel, or in any other respect on the basis of race,
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religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, sexual orientation, ethnicity, status as
a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and
during the performance of this Agreement, the Consultant agrees as follows:
(a) The Consultant will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, sexual orientation, ethnicity, status as a
disabled veteran or veteran of the Vietnam era be excluded from
participation in, be denied the benefits of, or be subject to discrimination
under any program or activity made possible by or resulting from this
Agreement.
(b) The Consultant will not discriminate against any employee or applicant for
employment because of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital
status, sex, age, sexual orientation, ethnicity, status as a disabled veteran
or veteran of the Vietnam era. The Consultant shall ensure that applicants
are employed, and the employees are treated during employment, without
regard to their race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era. Such requirement shall apply to the Consultant's employment
practices including, but not be limited to, the following: employment,
upgrading, demotion or transfer; recruitment or recruitment advertising;
layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. The Consultant agrees to
post in conspicuous places, available to employees and applicants for
en-,ployment, notices setting forth the provision of this nondiscrimination
clause.
(c) The Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of the Consultant in pursuit hereof, state that all
qualified applicants will receive consideration for employment without
regard to race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era.
(d) The Consultant will send to each labor union or representative of workers
win which it has a collective bargaining agreement or other contract or
understanding, a notice advising such labor union or workers'
representatives of the Consultant's commitment under this section and shall
post copies of the notice in conspicuous places available to employees and
applicants for employment.
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(e) If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall cause each
subcontractor to also comply with the requirements of this Section 12.
13. Independent Contractor.
(a) In the furnishing of the services provided for herein, the Consultant is acting
solely as an independent contractor. Neither the Consultant, nor any of its
officers, agents, or employees shall be deemed an officer, agent, employee,
joint venturer, partner, or associate of the City for any purpose. The City
shall have no right to control or supervise or direct the manner or method
by which the Consultant shall perform its work and functions. However, the
City shall retain the right to administer this Agreement so as to verify that
the Consultant is performing its obligations in accordance with the terms
and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between
the Consultant and the City. The Consultant shall have no authority to bind
the City absent the City's express written consent. Except to the extent
otherwise provided in this Agreement, the Consultant shall bear its own
costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, the Consultant and its
officers, agents, and employees shall have absolutely no right to
employment rights and benefits available to City employees. The
Consultant shall be solely liable and responsible for all payroll and tax
withholding and for providing to, or on behalf of, its employees all employee
benefits including, without limitation, health, welfare and retirement benefits.
In addition, together with its other obligations under this Agreement, the
Consultant shall be solely responsible, indemnify, defend and save the City
harmless from all matters relating to employment and tax withholding for
and payment of the Consultant's employees, including, without limitation, (i)
compliance with Social Security and unemployment insurance withholding,
payment of workers' compensation benefits, and all other laws and
regulations governing matters of employee withholding, taxes and
payment; and (ii) any claim of right or interest in the City employment
benefits, entitlements, programs and/or funds offered employees of the City
whether arising by reason of any common law, de facto, leased, or co -
employee rights or other theory. It is acknowledged that during the term of
this Agreement, the Consultant may be providing services to others
u ,related to the City or to this Agreement.
14, Notices. Any notice required or intended to be given to either party under the terms
of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation
of receipt, or sent by United States registered or certified mail, with postage
prepaid, return receipt requested, addressed to the party to which notice is to be
given at he party's address set forth on the signature page of this Agreement or
at such ocher address as the parties may from time to time designate by written
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notice. Notices served by United States mail in the manner above described shall
be deemed sufficiently served or given at the time of the mailing thereof.
15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties,
it shall be binding upon, and shall inure to the benefit of, all parties, and each
parties' respective heirs, successors, assigns, transferees, agents, servants,
employees, and representatives.
16. Assignment.
(a) This Agreement is personal to the Consultant and there shall be no
assignment by the Consultant of its rights or obligations under this
Agreement without the prior written approval of the City Manager or
designee. Any attempted assignment by the Consultant, its successors or
assigns, shall be null and void unless approved in writing by the City
Manager or designee.
(b) The Consultant hereby agrees not to assign the payment of any monies due
the Consultant from the City under the terms of this Agreement to any other
individual(s), corporation(s) or entity(ies). The City retains the right to pay
any and all monies due the Consultant directly to the Consultant.
17. Complian _:e With Law. In providing the services required under this Agreement,
the Consultant shall at all times comply with all applicable laws of the United
States, the State of California and the City, and with all applicable regulations
promulgated by federal, state, regional, or local administrative and regulatory
agencies, now in force and as they may be enacted, issued, or amended during
the term of this Agreement.
1 & 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 ot-ler provision herein.
19. Governing Law and Venue. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction.
Venue for purposes of the filing of any action regarding the enforcement or
interpretation of this Agreement and any rights and duties hereunder shall be
Fresno County, California.
20. Headin , . 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. Severabil The provisions of this Agreement are severable. The invalidity or
unenforceability of any one provision in this Agreement shall not affect the other
provisions.
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22. Inier retation. 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. Atiornev's Fees. If either party is required to commence any proceeding or legal
action to enforce or interpret any term, covenant or condition of this Agreement,
the prevailing party in such proceeding or action shall be entitled to recover from
the other party its reasonable attorney's fees and legal expenses.
24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
25. Precedence of Documents. In the event of any conflict between the body of this
Agreement and any exhibit or attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and
conditions expressed within the exhibit or attachment. Furthermore, any terms or
conditions contained within any exhibit or attachment hereto which purport to
modify the allocation of risk between the parties, provided for within the body of
this Agreement, shall be null and void.
26. Cumulative_ Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
27. No Thin' Flarty 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, _Agreemeni:. Each party acknowledges that they have read and fully
understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the parties with respect to the subject matter
hereof and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be modified only by written instrument
duly authorized and executed by both the City and the Consultant.
29. The City Manager, or designee, is hereby authorized and directed to execute and
implement this Agreement. The previous sentence is not intended to delegate any
authority to the City Manager to administer the Agreement, any delegation of
authority must be expressly included in the Agreement.
[SIGNATURES FOLLOW ON THE NEXT PAGE.]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO,
a Califjaig,�y�nicipal corporation
By,
Brock D. Buche, PE, PLS
Director
Department Public Utilities
No signature of City Attorney required.
Standard Document ALL-S GCS Agt
Not to Exceed (04-2022) has been used
without modification, as certified by the
undersiined.
p Signed �syr
By: uuu�,4 (,over its
Wendy t✓- nelius
Water Conservation Supervisor
ATTEST:
TODD STERMER, CMC
City CkQKi1.,d111
By:
Addresses:
CITY:
City of Fresno
Attention: Wendy Cornelius,
Water Conservation Supervisor
1910 E. University Ave.
Fresno, CA 93703
Phone: (559) 621-5395
E-mail: wendy.cornelius@fresno.gov
RICHARD HEATH & ASSOCIATES,
INC.,
a California Corporation
t-Do uSignedby:
By: ,�oun,ts �'}°jounlnd�n.
Name:
James o'Bannon
Title: chairman of the board
(If corporation or LLC., Board Chair,
Pr,ess or Vice Pres.)
7.
Richard Heath
Name.
Title: secretary/Treasurer
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
Any Applicable rofessional License:
nzojl990
Number:
Name: R'
Chard Heath
Date of Issuance: ` 1 / —,
CONSULTANT:
Richard Heath & Associates, Inc.
Attention: Cynthia B Rafferty,
CEO
590 W. Locust Ave., Ste. 103
Fresno, CA, 93650
Phone: (559) 573-3544
E-mail: cbrafferty@rhainc.com
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
-12-
ALL-S GCS Agt Not to Exceed (04-2022)
DocuSign Envelope ID: 0E6A755D-7D3F-4C8D-9C3C-38A161 EA7ECA
EXHIBIT A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno (the City)
and Richard Heath & Associates, Inc. (the Consultant)
Water Division Assessment and Revision of Water Conservation Lgli a Rebate
Programs
1. REVIEW THE CITY'S CURRENT LANDSCAPE PROGRAMS
RHA's project team will review all aspects of the City's current landscape rebate
programs including:
• Rebate structures and incentives
• Rebate terms and conditions
• Application and approval processes
• Rebate paperwork and informational materials
• Payment processing
• Rebate outreach
RHA will schedule regular meeting sessions with the City's Water Division staff for
insight on existing programs and to collect current marketing materials and forms. If
available, we will also review testimonials from rebate program participants to assess
the impact achieved or perceived through participation. If allowable, RHA will plan to
conduct direct outreach to a limited number of program participants to obtain feedback
on rebate program reception. Additionally, the RHA project team will review the City's
rebate program web pages to identify how current programs are currently presented
online.
2. INVESTIGATE OTHER WATER AGENCIES' LANDSCAPE REBATE
PROGRAMS
In addition to reviewing the City's current landscape rebate programs, RHA's project
team will conduct in-depth research on existing landscape rebate programs currently
being offered by municipalities, investor -owned utilities and others including but not
limited to:
Alameda County Water District
California American Water
• California Water Service
• City of Sacramento
• Contra Costa Water District
Long Beach Water Department
ALL-S GCS Agt Not to Exceed (04-2022) Page 1 of 5
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• Long Beach Water
Los Angeles County Waterworks Districts
• Los Angeles Department of Water & Power
Metropolitan Water District of Southern California
San Diego County Water Authority
Solano County Water Agency
• Southern Nevada Water Authority
• Valley Water
• Zone 7 Water Agency
RHA has partnered or discussed water conservation partnerships with many of the
agencies listed above. In doing so, RHA has worked to establish an excellent rapport
with each one. RHA will schedule meetings with its contacts from these agencies to
gather their feedback on their existing landscape rebate programs. RHA will discuss
aspects such as level of performance, participation, challenges, strengths, weaknesses
and other important aspects of program performance.
RHA's research assistant will gather details from other water agency landscape rebates
through sources including water agency websites, program literature and marketing,
and direct outreach to rebate program staff. The RHA project team will also leverage
past RHA research from 2020 to expedite cataloging the existing water conservation
and rebate programs offered throughout California.
3. MAKE RECOMMENDATIONS FOR REVISIONS TO THE CITY'S LANDSCAPE
REBATE PROGRAMS
After RHA has conducted all necessary research and outreach activities, the project
team will focus on analyzing the characteristics of the City's landscape rebate programs
in comparison to the offerings from other agencies. RHA will also take into consideration
the feedback from its current and prospective water agency partners on the successful
elements of their landscape rebate programs.
Additionally, RHA will seek feedback from the City's Water Division to determine which
components of she landscape rebate program should remain moving forward. Following
RHA's internal analysis, RHA will schedule regular meetings with the City's Water
Division team to propose recommendations for residential and commercial, industrial,
and institutional Lawn to Garden programs. RHA will also schedule regular meetings to
propose recommendations for the Micro (Drip) Irrigation Rebate and the Smart Irrigation
Controller Rebate. These recommendations will include changes to the following
components, if applicable:
ALL-S GCS Agt Not to Exceed (04-2022) Page 2 of 5
DocuSign Envelope ID: 0E6A755D-7D3F-4C8D-9C3C-38A161EA7ECA
a. Revisions to rebate structures
Maximum square footage, distinguishing between residential and
CII properties
Rebate amounts
b. Revisions to rebate terms & conditions
Length of time the conversion must remain in place
ii. Change of ownership issues
C. Revisions to rebate paperwork
Applications, program information sheets, etc.
d. Revisions to rebate outreach efforts
Website content
Community outreach
RHA will ensure that sufficient time is set aside to allow for follow-up meetings with the
City's Water Division team to guarantee that amendments to the proposed changes can
be incorporated before the final reporting stage begins.
4. PREPARE A FINAL REPORT OUTLINING THE REVISED LANDSCAPE
REBATE PROGRAMS
RHA's project team will draft a comprehensive final report that outlines the research
methods, results and recommendations for revisions to the City's existing landscape
rebate programs. RHA understands that the two main objectives of the final report are
to justify the changes to the City's rebate programs and support future grant
applications for rebate program funding opportunities. With these objectives in mind, the
project team will work collaboratively with the City's Water Division to present the data
in a manner that helps achieve these two goals. RHA will establish regular check -in
meetings with Water Division staff throughout the development of the final report to
ensure it is aligned with their expectations on content, formatting and structure.
5. PROJECT TIMELINE
Table 1 below provides the proposed timeline for completion of all project tasks:
ALL-S GCS Agt Not to Exceed (04-2022) Page 3 of 5
DocuSign Envelope ID: OE6A755D-7D3F-4C8D-9C3C-38A1 61 EA7ECA
Table 1 - Project Timeline
Key program dates
No
106 days
11/16/2022 '
03/02/2023
1 proposal submission
Yes
1 day
12/08/2022
12/08/2022 '
2 RFQ review
No
9 days
12/10/2022
12/19/2022
3 Contract negotiations
No
4 days
12/19/2022
12/23/2022
4 Contract execution
Yes
1 day
12/23/2022
12/23/2022 I
5 Task 1: Review the City's current
Yes
13 days
12/27/2022
01/09/2023
landscape rebate programs
6 Task 2: Investigate other water
Yes
21 days
112/27/2022 101/17/2023
I
agencies' landscape rebate programs
Task 3: Make recommendations for
�
7 revisions to the City's landscape
Yes
28 days
01/18/2023
02/15/2023
rebate programs
Task 4: Prepare a final report
8 outlining the revised landscape
Yes
15 days
02/16/2023
03/02/2023
rebate programs
ALL-S GCS Agt Not to Exceed (04-2022) Page 4 of 5
DocuSign Envelope ID: OE6A755D-7D3F-4C8D-9C3C-38A161EA7ECA
SCHEDULE OF FEES AND EXPENSES
Table 2 below included the estimated number of hours of labor for each task and the
total estimated costs.
The hourly labor rates in Table 3 are inclusive of direct and indirect costs.
Table 2 - Proposal Fee Estimate by Task
Ir
Hours l Cost
Jacob
Hours
Kearney j
Cost
Martha Lucey
Hours I Cost
Georgia Evans
Hours Cost
Hours
Total
Cost
Task 1: Review
the t'dy's current 5
$345.30
5
$481.80
2
$365.94
0
$ -
12
$1,192.94
landscape rebate
programs
Task 2:
I Investigate other 100
$6,906.00
30
$2,890.80
5
$914.60
0
$ -
135
$10,711.40
water agencies'
rebate programs
Task S. Make
recommendation
s tot he CiWS 120
$8,287.20
150
$14,454.00
15
$2,743.80
20
$1,740.80
305
$27,225.80
landscape rebate
program.
Task4: Prepare 1 50
$3,453-00
30
$2,890.80
10
$1,829.20
30
$2,611.20
120
$10,784.20
Final Report
572
$49,914.34
Totals 275 $18,992.50 215
$20,727.40
32
1 $5,853.44
50
$4,352.00
Table 3 - Current Standard Labor Rate Schedule
Martha Lucey
Jacob Kearney
Georgia Evans
Jennifer Lona
Director $182.92
Manager $96.36
writer $87.04
Research Assistant $69.06
ALL-S GCS Agt Not to Exceed (04-2022) Page 5 of 5
DocuSign Envelope ID: 0E6A755D-7D3F-4C8D-9C3C-38A1 61 EA7ECA
EXHIBIT B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (the City)
and Richard Heath & Associates, Inc (the Consultant)
Water Division Assessment and Revision of Water Conservation Landscape Rebate
Programs
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 00 01, providing liability coverage
arising out of your business operations. The Commercial General Liability
policy shall be written on an occurrence form and shall provide coverage for
"bodily injury," "property damage" and "personal and advertising injury" with
coverage for premises and operations (including the use of owned and non -
owned equipment), products and completed operations, and contractual
liability (including, without limitation, indemnity obligations under the
Agreement) with limits of liability not less than those set forth under
"Minimum Limits of Insurance."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00
01, providing liability coverage arising out of the ownership, maintenance or
use of automobiles in the course of your business operations. The
Automobile Policy shall be written on an occurrence form and shall provide
coverage for all owned, hired, and non -owned automobiles or other licensed
vehicles (Code 1- Any Auto). If personal automobile coverage is used, the
City, its officers, officials, employees, agents, and volunteers are to be listed
as additional insureds.
3. Workers' Compensation insurance as required by the State of California
and Employer's Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to the
Consultant's profession. Architect's and engineer's coverage is to be
endorsed to include contractual liability.
MINIMUM LIMITS OF INSURANCE
the Consultant, or any party the Consultant subcontracts with, shall maintain limits of
liability of not less than those set forth below. However, insurance limits available to the
City, its officers, officials, employees, agents, and volunteers as additional insureds, shall
be the greater of the minimum limits specified herein or the full limit of any insurance
proceeds available to the named insured:
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;
ALL-S GCS Agt Not to Exceed (04-2022) Page 1 of 4
DocuSign Envelope ID: 0E6A755D-7D3F-4C8D-9C3C-38A161 EA7ECA
(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. E'tl.`�PLCDYE.R's LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) S1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. C:F`SSIONAL. LABILITY (Errors and Omissions):
(:', S 000,000 per claim/occurrence; and,
(: S2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event th, O'o;,suitant purchases an Umbrella or Excess insurance policy(ies) to
meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and
afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella
or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis
for the benefit of the City, its officers, officials, employees, agents, and volunteers.
DEDUCTIBLES AND SELF -INSURED RETENTIONS
The Consultant shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and the Consultant shall also be responsible for
payment of any self -insured retentions. Any deductibles or self -insured retentions must
be declared to on the Certificate of Insurance, and approved by, the City's Risk Manager
or designee. At the option of the City's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self -insured
retentions as respects the City, its officers, officials, employees,
agents, and volunteers; or
(ii) The Consultant shall provide a financial guarantee, satisfactory to
the City's Risk Manager or designee, guaranteeing payment of
losses and related investigations, claim administration and defense
expenses. At no time shall the City be responsible for the payment
of any deductibles or self -insured retentions.
OTHER INSUF ANCE PROVISIONS/ENDORSEMENTS
The General Liabilitv and Automobile Liability insurance policies are to contain, or be
endorsed to contain, the following provisions:
The City, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. The Consultant shall establish additional
insured status for the City and for all ongoing and completed operations by
ALL-S GCS Agt Not to Exceed (04-2022) Page 2 of 4
DocuSign Envelope ID: 0E6A755D-7D3F-4C8D-9C3C-38A161 EA7ECA
use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and
CG 20 37 10 01 or by an executed manuscript insurance company
endorsement providing additional insured status as broad as that contained
in ISO Form CG 20 10 11 85.
2. The coverage shall contain no special limitations on the scope of protection
afforded to the City, its officers, officials, employees, agents, and
volunteers. Any available insurance proceeds in excess of the specified
minimum limits and coverage shall be available to the Additional Insured.
3. For any claims relating to this Agreement, the Consultant's insurance
overage 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 volumeers shall be excess of the Consultant's insurance and shall not
contribute with it. The Consultant shall establish primary and non-
cci-itribuL-ory status by using ISO Form CG 20 01 04 13 or by an executed
r.-.anuscrip- insurance company endorsement that provides primary and
rc -contributory status as broad as that contained in ISO Form CG
20 01 04 3.
The Workers' Compensation insurance policy is to contain, or be endorsed to contain, the
following provision: the Consultant and its insurer shall waive any right of subrogation
against the City, its officers, officials, employees, agents, and volunteers.
If the (Errors and Omissions) insurance policy is written on a claims -
made form:
1. - he retroactive date must be shown, and must be before the effective date
of the Agreement or the commencement of work by the Consultant.
2. Insurance must be maintained and evidence of insurance must be provided
for at least five years after completion of the Agreement work or termination
of the Agreement, whichever occurs first, or, in the alternative, the policy
shall be endorsed to provide not less than a five-year discovery period.
3. If coverage is canceled or non -renewed, and not replaced with another
claims -made policy form with a retroactive date prior to the effective date of
the Agreement or the commencement of work by the Consultant, the
Consultant must purchase "extended reporting" coverage for a minimum of
five years completion of the Agreement work or termination of the
Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to the City
for review.
5_ These requirements shall survive expiration or termination of the
A.creement.
Ali policies of ._ntsaranca 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
ALL-S GCS Agt Not to Exceed (04-2022) Page 3 of 4
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the City. The Consultant is also responsible for providing written notice to the City under
the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice
of cancellation, non -renewal, or reduction in coverage or in limits, the Consultant shall
furnish the City with a new certificate and applicable endorsements for such policy(ies).
In the event any policy is due to expire during the work to be performed for the City, the
Consultant sha!1 provide a new certificate, and applicable endorsements, evidencing
renewal of suc,,i policy not less than fifteen calendar days prior to the expiration date of
the expiring policy.
Should any of the required policies provide that the defense costs are paid within the
Limits of Liability, thereby reducing the available limits by any defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated limits.
The fact that insurance is obtained by the Consultant shall not be deemed to release or
diminish the liability of the Consultant, including, without limitation, liability under the
indemnity provisions of this Agreement. The policy limits do not act as a limitation upon
the amount of indemnification to be provided by the Consultant. Approval or purchase of
any insurance contracts or policies shall in no way relieve from liability nor limit the liability
of the Consu:La;I:, its principals, officers, agents, employees, persons under the
supervision of ',yO- Consultant, vendors, suppliers, invitees, consultants, sub -consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
SUBCONTRA.C- ORS - If the Consultant subcontracts any or all of the services to be
performed under this Agreement, the Consultant shall require, at the discretion of the City
Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with
the City to provicie required indemnification and insurance protection. Any required Side
Agreement(s) and associated insurance documents for the subcontractor must be
reviewed and roved by the City Risk Manager or designee. If no Side Agreement
is required, thc 3ons,;!ta ;t vvi!I be solely responsible for ensuring that its subcontractors
maintain insurance coverage at levels no less than those required by applicable law and
is customary i.- relevant industry.
VERIFICATIC`_ "�'ii- CCVE!Fb.OF.
The Consultant shall furnish the City with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements
are to be received and approved by the City's Risk Manager or designee prior to the City's
execution of the Agreement and before work commences. All non -ISO endorsements
amending policy coverage shall be executed by a licensed and authorized agent or
broker. Upon request of the City, the Consultant shall immediately furnish City with a
complete copy of any insurance policy required under this Agreement, including all
endorsements, with said copy certified by the underwriter to be a true and correct copy of
the original policy. This requirement shall survive expiration or termination of this
Agreement.
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EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Water Division Assessment and Revision of
Water Conservation Landscape Rebate Programs
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
❑
El
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?
I' 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 �
I
service?
6
Do you or any of your subcontractors have, or expect to have,
any interest, direct or indirect, in any other contract in
❑
-
connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation
❑ Additional page(s) attached.
K"�
Signs ury ��
2/13/2023
Date
Richard Heath
(Name)
Richard Heath & Associates, Inc.
(Company)
590 W. Locust Ave Suite 103
(Address)
Fresno, CA 93650
DocuSign Envelope ID: OE6A755D-7D3F-4C8D-9C3C-38A1 61 EA7ECA
(City, State Zip)
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