HomeMy WebLinkAboutAMAROK - Agreement - App. P22-04930 - 2-23-2023LIUUU, IJylI CI IVCIUptV ILJ. IJMD/ VVJG-LOr U-'F:J:70-�VL/U-CMJr�0 r4'4l.VV
AGREEMENT REGARDING AN ELECTRIC PERIMETER SECURITY FENCE
APPROVED BY ELECTRIC FENCE PERMIT APPLICATION NO. P22-04930
THIS AGREEMENT is made by and between the CITY OF FRESNO, a municipal
corporation, (City) and AMAROK (Permittee), and is first appearing on the Clerk's
Certification of the Planning and Development Department signature.
RECITALS
WHEREAS, Permittee is the owner of an Electric Perimeter Security Fence
proposed to be installed in the City of Fresno, County of Fresno, State of California, at
the Subject Property more particularly described in Exhibit A, E-1, and E-2.
WHEREAS, the Permittee desires to install an Electric Perimeter Security Fence
on the Subject Property; and
WHEREAS, a condition of approval of Electric Fence Permit Application No. P22-
04930 requires compliance with Fresno Municipal Code Sections 15-2009, related to
Security Fences, and 15-2010, related to Electric Fences; and,
WHEREAS, the Permittee and the City desire to enter into an agreement to
indemnify and hold the City harmless pursuant to Fresno Municipal Code Sections 15-
2009-F and 15-2010-I; and,
WHEREAS, the issuance of any special permit may be subject to such conditions
as may be deemed appropriate or necessary to assure compliance with the intent and
purpose of the Zoning Ordinance and established general and specific plans and policies
of the City or to protect the public health, safety, or welfare.
NOW, THEREFORE, in consideration of the above recitals, which recitals are
contractual in nature, the mutual covenants herein contained and such other and further
consideration as is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. The Permittee agrees to construct an 10' tall battery powered solar operated
perimeter security fence. The Electric Perimeter Security Fence is proposed to be
installed 4"-8" inside the existing perimeter fence.
2. The Permittee agrees that the Electric Perimeter Security Fence shall be
constructed to conform to the plans prepared at the Permittee's expense, approved by
the Planning and Development Department, and designed in conformance with City
specifications, local ordinance, California Civil Code Section 835, and the California
Building Code, as may be amended.
3. Pursuant to Section 15-2010-D of the Fresno Municipal Code, no electric
fence shall be installed or used unless it is completely surrounded by a nonelectrical fence
or wall that is a minimum five feet in height. The Permittee agrees that should a non-
electrical fence not exist, one shall be installed prior to the electric fence being
operational.
4. The Permittee agrees that the Electric Perimeter Security Fence shall not
exceed 10 feet in height.
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5. The Permittee agrees that the Electric Perimeter Security Fence shall be
clearly identified with warning signs that read: "Warning -Electric Fence" at intervals of not
less than 30 feet.
6. This Agreement shall in no way be construed as a grant by the City of any
rights to the Permittee to trespass upon land rightfully in the possession of, or owned by
another, whether such land is privately or publicly owned.
7. The City shall not be liable to the Permittee or to any other person, firm,
corporation, or entity whatsoever, for any injury or damage that may result in any person
or property by or from any cause whatsoever in, or about the Subject Property. To the
furthest extent allowed by law, Permittee shall indemnify, hold harmless, and defend the
City and each of its officers, officials, employees, agents, volunteers, boards, and
commissions against 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 damages) incurred by the City, the Permittee or any other
person, and from any and all claims, demands, actions and suits in law or equity (including
attorney's fees and litigation expenses), arising or alleged to have arisen directly or
indirectly out of the performance of this Agreement including, but not limited to, the design
and installation of the landscaping improvements (herein Indemnity Obligations). The
Permittee's obligations under the preceding sentence apply regardless of whether the
City or any of its officers, officials, employees, agents, volunteers, boards, or commissions
are negligent, but does not apply to any loss, liability, fines, penalties, forfeitures, costs,
or damages caused solely by the gross negligence or willful misconduct of the City or any
of its officers, officials, employees, agents, volunteers, boards, or commissions.
Permittee shall indemnify, hold harmless and defend the City against any action or
suit by a third party challenging the validity of this Agreement.
Permittee's obligations under this section will remain in effect following the
termination and expiration of this Agreement with respect to any Indemnity Obligation
arising prior to such termination or expiration date.
8. Throughout the life of this Agreement, Permittee shall pay for and maintain
in full force and effect all policies of insurance required under 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 not less than "A-VII" in Best's Insurance
Rating Guide, or (ii) authorized by the City's Risk Manager. The following policies of
insurance are required:
(a) COMMERCIAL GENERAL LIABILITY or PERSONAL LIABILITY
insurance that includes coverage:
(i) $1,000,000 per occurrence for bodily injury and property
damage;
(i i) $1,000,000 per occurrence for personal and advertising
injury;
(iii) $2,000,000 aggregate for products and completed operations;
and
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(iv) $2,000,000 general aggregate applying separately to the work
performed under the Contract.
(b) COMMERCIAL AUTOMOBILE LIABILITY provisions with limits of
liability of not less than $1,000,000 per accident for bodily and property damage.
(c) WORKERS' COMPENSATION insurance as required by law. Any
Workers' Compensation insurance policy shall contain a waiver of subrogation as
to City, its officers, officials, agents, employees, and volunteers.
(d) EMPLOYERS' LIABILITY INSURANCE with limits of liability of not
less than $1,000,000 each accident, $1,000,000 disease policy limit, and
$1,000,000 disease each employee.
UMBRELLA OR EXCESS INSURANCE
In the event Permittee 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
Permittee shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and Permittee shall also be responsible for payment
of any self -insured retentions. Any deductibles or self -insured retentions must be
declared on the Certificate of Insurance, and approved by, the City's Risk Manager or
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) Permittee shall provide a financial guarantee, satisfactory to City's
Risk Manager or designee, guaranteeing payment of losses and related
investigations, claim administration and defense expenses. At no time shall City
be responsible for the payment of any deductibles or self -insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
(i) Permittee shall provide the City thirty calendar days prior notice
before any cancellation, non -renewal or reduction in coverage or in limits, upon
issuance by the insurer, broker, or agent of a notice of cancellation, non -renewal,
or reduction in coverage or in limits, Permittee shall furnish City with a new
certificate and applicable endorsements for such policy(ies). In the event any
policy is due to expire during the work to be performed for City, Permittee shall
provide a new certificate, and applicable endorsements, evidencing renewal of
such policy not less than fifteen calendar days prior to the expiration date of the
expiring policy.
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(ii) The Commercial General and Automobile Liability insurance policies
shall be written on an occurrence form.
(iii) The Commercial General and Automobile Liability insurance policies
shall be endorsed to name City, its officers, officials, agents, and volunteers as an
additional insured. Permittee shall establish additional insured status for the City
and for all ongoing and completed operations under Commercial General policy by
use of ISO Forms or an executed manuscript insurance company endorsement
providing additional insured status. The Commercial General endorsements must
be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 &
CG 20 37.
(iv) All such policies of insurance shall be endorsed so the Permittees'
insurance shall be primary and no contribution shall be required of City. The
coverage shall contain no special limitations on the scope of protection afforded to
City, its officers, officials, employees, agents, and volunteers. If Permittee
maintains higher limits of liability than the minimums shown above, City requires
and shall be entitled to coverage for the higher limits of liability maintained by
Permittee.
(v) Should any of these policies provide that the defense costs are paid
within the Limits of Liability, thereby reducing the available limits by defense costs,
then the requirement for the Limits of Liability of these polices will be twice the
above stated limits.
(vi) For any claims related to this Agreement, Permittee's insurance
coverage shall be primary insurance with respect to the City, its officers, officials,
agents, employees, and volunteers. Any insurance or self-insurance maintained
by the City, its officers, officials, agents, employees and volunteers shall be excess
of the Permittee's insurance and shall not contribute with it.
(vii) The Workers' Compensation insurance policy shall contain, or be
endorsed to contain, a waiver of subrogation as to City, its officers, officials,
agents, employees, and volunteers.
PROVIDING OF DOCUMENTS - Permittee shall furnish City with all certificate(s)
and applicable endorsements effecting coverage required herein. 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, Permittee 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.
MAINTENANCE OF COVERAGE - If at any time during the life of the Agreement
or any extension, Permittee fails to maintain any required insurance in full force and effect,
all work under this Agreement shall be discontinued immediately until notice is received
by City that the required insurance has been restored to full force and effect and that the
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premiums therefore have been paid for a period satisfactory to City. Any failure to
maintain the required insurance shall be sufficient cause for City to terminate this
Agreement. No action taken by City hereunder shall in any way relieve Permittee of its
responsibilities under this Agreement. The phrase "fail to maintain any required
insurance" shall include, without limitation, notification received by City that an insurer
has commenced proceedings, or has had proceedings commenced against it, indicating
that the insurer is insolvent.
The fact that insurance is obtained by Permittee shall not be deemed to release or
diminish the liability of Permittee, including, without limitation, liability under the indemnity
provisions of this Agreement. The duty to indemnify City shall apply to all claims and
liability regardless of whether any insurance policies are applicable. The policy limits do
not act as a limitation upon the amount of indemnification to be provided by Permittee.
Approval or purchase of any insurance contracts or policies shall in no way relieve from
liability nor limit the liability of Permittee, its principals, officers, agents, employees,
persons under the supervision of Permittee, vendors, suppliers, invitees, consultants,
sub -consultants, subcontractors, or anyone employed directly or indirectly by any of them.
SUBCONTRACTOR- Permittee will be solely responsible for ensuring that its
subcontractor maintain insurance coverage at levels no less than those required by
applicable law and is customary in the relevant industry.
9. If either party is required to commence any proceeding or legal action to
enforce or interpret any term or condition of this Agreement, the prevailing party in such
proceeding or action shall be entitled to recover from the other party its reasonable
attorney's fees and legal expenses. For the purposes of this Agreement, "attorneys' fees"
and "legal expenses" include, without limitation, paralegals' fees and expenses, attorneys,
consultants fees and expenses, expert witness fees and expenses, and all other
expenses incurred by the prevailing party's attorneys in the course of the representation
of the prevailing party in anticipation of and/or during the course of litigation, whether or
not otherwise recoverable as "attorneys' fees" or as "costs" under California law, and the
same may be sought and awarded in accordance with California procedure as pertaining
to an award of contractual attorneys' fees.
10. Any notice required or intended to be given to a party under the terms of
this Agreement shall be in writing and shall be deemed to be duly delivered the earlier of
(a) actual receipt by personal delivery to the representative (as defined herein), as the
case may be, or in lieu of such personal service, by way of Federal Express, DHL, or
other similar courier addressed to such party at the appropriate address set forth herein,
(b) the date of receipt by facsimile to the City Representative or the DEVELOPER
Representative, or (c) three business days after the date of mailing (postage pre- paid
return receipt requested). Either party may change its address for the purpose of this
Paragraph by giving written notice of such change to the other.
11. Once this Agreement is signed by all the parties, it shall be binding upon,
and shall inure to the benefit of, the parties, and each party's respective heirs, successors,
assigns, transferees, agents, servants, employees, and representatives. The terms and
conditions of this Agreement, express or implied, exist only for the benefit of the parties
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to this Agreement, their respective successors and assigns. No other person or entity will
be deemed to be a third party beneficiary of this Agreement.
12. There shall be no assignment by any party of its rights or obligations under
this Agreement without the prior written approval of the other party. Any attempted
assignment by a party, its successors or assigns, shall be null and void unless approved
in writing by the other party.
13. The waiver by any 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 approved by
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.
No action or omission by either party shall constitute a breach of this Agreement
unless the injured party first notifies the other party of the purported breach in writing
setting forth the alleged breach or default and said party does not cure the same within a
reasonable period of time. The payment of any fee or compensation or performance of
any obligation hereunder by either party shall not constitute a waiver of any breach by the
other party or of any of the rights and remedies which either party may have as a result
of such breach. No waiver by either party of breach of the Agreement shall be implied
from any failure by the other party to take action on account of such breach if such breach
persists or is repeated. Waivers by either party of any covenant, term or condition
contained herein shall not be construed as a waiver of any subsequent breach of the
same covenant, term or condition.
14. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of California. 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, California.
15. The provisions of this Agreement are severable. The invalidity or
unenforceability of any one provision in this Agreement shall not affect the other
provisions.
16. 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 or against any party, but rather by construing the terms in
accordance with their generally accepted meaning.
17. Each party hereby represents and warrants to the other party, and agrees
that it has the full power and authority to enter into this Agreement and perform each of
its obligations hereunder, and it is legally authorized and has obtained all necessary
regulatory approvals for the execution, delivery, and performance of this Agreement.
18. It is mutually understood and agreed that the foregoing constitutes the entire
Agreement between the parties. Any modifications or amendments to this Agreement
must be in writing signed by an authorized agent of each party.
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[SIGNATURES FOLLOW ON THE NEXT PAGE.]
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IN WITNESS THEREOF, the parties have caused their duly authorized
representatives to execute this Assignment.
CITY
CITY OF FRESNO,
A California municipal corporation
Planning and Development Department
QaruSigned by:
y;,
';��r '��. Clark, Director
No signature of City Attorney required.
Standard Document #DEV-S Electric
Fence Agreement (08-2022) has been
used without modification, as certified
b ,p,g,4rsigned.
2/23/2023
Saul Perez
Planner
ATTEST:
TODD STERMER, CMC
City Clerk
Docu&gned by:
y2/23/2023
�in.A. f�bu�
$CAIM62084P Date
Deputy
(Attach City Clerk Certification)
Addresses:
CITY:
City of Fresno
Attention: Saul Perez
Planner
2600 Fresno St
Fresno, CA 93721
Phone: (559) 621-8321
E-mail: saul.perez@fresno.gov
PERMITTEE
AMAROK
ZL�
Nathan Leaphart
Name:
Title: "o
(If corporation or LLC., Board Chair,
oosPrg sd by, Vice Pres.)
2/23/2023
Michael Dorrington
Name:
Title: vice President of Sales and Marketing
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
REVIEWED BY:
PERMITTEE:
AMAROK
Attention: Hannah Robinson
Compliance Manager
550 Assembly St
Columbia, SC 29201
Phone: (803) 920-9628
E-mail: hrobinson@amarok.com
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Attachment(s):
1. Exhibit A —Legal Description
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EXHIBIT A
Legal Description:
Real property in the City of Fresno, County of Fresno, State of California, described as
follows:
Lots 17, 18, 19, 20 and 21 m Block 372 of the City of Fresno, in the City of Fresno, County
of Fresno, State of California, according to the map thereof recorded in Book 1, Page 78
of Plats, in the office of the County Recorder of said County.
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Exhibit C
DISCLOSURE OF CONFLICT OF INTEREST
[Project Title
PROJECT TITLE
YES*
NO
1
Are you currently in litigation with the City of Fresno or any of its
❑
❑
agents?
2
Do you represent any firm, organization or person who is in
❑
litigation with the City of Fresno?
3
Do you currently represent or perform work for any clients who do
❑
business with the City of Fresno?
4
Are you or any of your principals, managers or professionals,
owners or investors in a business which does business with the
❑
City of 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
❑
ER
this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
none
❑ Additional page(s) attached.
�Na%(�.a�n.
sa���Pl'�
2/22/2023
Date
Nathan Leaphart
(name)
AMAROK, LLC
(company)
550 Assembly street, Fifth Floor
(address)
Columbia, SC 29201
(city state zip)
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