HomeMy WebLinkAboutPrecision Civil Engineering, Inc. - Consultant Agreement - 4-24-2023LJUL:U0II9.II CIIVCIUpt; ILJ. JJJrI+IiUH-yJ/- I-r1rLr J0LJ000ru
AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
This Agreement is entered into, effective
and between the CITY OF FRESNO, a
PROPERTIES, LLC (Developer), and
(Consultant).
April 24, 2023 , by
California municipal corporation (City), RAY
PRECISION CIVIL ENGINEERING, INC
RECITALS
WHEREAS, the Developer will be submitting necessary applications for a 37-stall Truck
Parking Facility, located on the northeast corner of South Cherry Avenue and East
Annadale Avenue at 2751 South Cherry Avenue, Fresno, CA 93706 (APN: 328-300-21),
within the City of Fresno (Project); and
WHEREAS, the Project will require various Land Use Approvals. For purposes of this
Agreement, Land Use Approvals shall mean any benefits arising from any of the following:
the approval of a General Plan Amendment, Rezone application, Tentative Tract Map,
Conditional Use Permit and Development Permit and any document prepared pursuant
to the California Environmental Quality Act (CEQA) or other law that is approved in
conjunction with aforementioned land use entitlements; and
WHEREAS, the City as the lead agency (CEQA Guidelines Section 15367) has
determined it is in the best interest of the City and the Developer to have a consultant
prepare an Initial Study to determine the appropriate environmental document pursuant
to CEQA Guidelines; and
WHEREAS, the Consultant will prepare and submit the draft documents to the City for
review and the City, as necessary and appropriate in the City's sole discretion to further
the preparation of a legally adequate Initial Study, will share the draft documents, in part
or in whole, with the Developer; and
WHEREAS, the Developer has agreed to have the Consultant prepare the Initial Study
and any related documents required pursuant to CEQA Guidelines for the Project
(collectively, the "Initial Study"); and
WHEREAS, the Consultant is engaged in the business of furnishing technical and
professional consulting and hereby represents it desires to and is professionally and
legally capable of performing the services called for by this Agreement; and
WHEREAS, this Agreement will be administered for the City by its Director of the Planning
and Development Department (Director) or designee.
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions,
and promises hereinafter contained to be kept and performed by the respective parties,
it is mutually agreed as follows:
1. 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
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
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approval of the scope of work, incorporated herein as Exhibit C, dated March 27,
2023, the Consultant shall perform, to the satisfaction of the City, the services
described in the scope of work including all work incidental to, or necessary to
perform, such services even though not specifically described in the scope of work.
The Consultant services shall include, but not be limited to, consultation with the
City staff and the Developer, management of necessary subconsultants,
presentations at public hearings, and other related tasks as described in the scope
of work.
The Consultant shall work solely under the general direction of the City's Planning
and Development Department, Assistant Directors, Planning Managers, and
respective staff in the preparation of the Initial Study required by CEQA. With the
express approval from the City's Planning and Development Department,
Assistant Directors, Planning Managers, and respective City staff as appropriate,
the Consultant may consult with the Developer as needed to facilitate timely
preparation of an accurate and legally defensible environmental document. The
Consultant shall not make any changes to documents to be prepared within the
scope of work without written approval of the City which may be provided via
electronic mail.
The Consultant shall hire all subcontractors in consultation with City staff. The
Developer shall not contract directly with any subcontractors to perform any part
of the work under this Agreement.
2. Term of Ac
ireement and Time for Performance. This Agreement shall be effective
from the date first set forth above and shall continue in full force and effect through
the complete rendition of the services hereunder, subject to any earlier termination
in accordance with this Agreement. The services of the Consultant as described in
Paragraph 1 of this Agreement are to commence upon the effective date first set
forth above, and shall be undertaken and completed in a sequence assuring
expeditious completion.
3. Authority and Regulation of Communications. The City shall have final authority
over the scope of work, and the environmental document preparation process and
content. The City shall coordinate all communication between the Consultant and
the Developer to obtain project information and/or make public presentations
related to the preparation of the initial study and environmental findings.
Communications between the Developer and the Consultant shall occur in
accordance with Section 1 above.
4. Confidential Information and Ownership of Documents.
(a) Any reports, information, or other data prepared or assembled by the
Consultant pursuant to this Agreement shall not be made available to any
individual or organization other than the Developer by the Consultant
without the prior written approval of the Director. During the term of this
Agreement, and thereafter, the Consultant shall not, without the prior written
consent of the City, disclose to anyone any Confidential Information other
than the Developer. The term Confidential Information for the purposes of
this Agreement shall include all proprietary and confidential information of
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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 Consultant shall not permit the reproduction or use thereof by any other
person except as otherwise expressly provided herein.
(c) If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall cause each
subcontractor to also comply with the requirements of this Section 4.
This Section shall survive expiration or termination of this Agreement.
5. Compensation.
(a) All costs associated with the Consultant's performance of the services
described in the scope of work including all work incidental to, or necessary
to perform, such services even though not specifically described in the
scope of work, shall be paid by the Developer under a separate agreement
with the Consultant. The City shall not be liable, either jointly or severally,
for any costs incurred to perform the work set forth in the Scope of Work
attached as Exhibit C, including preparation of the Initial Study and any
other environmental document currently the subject of this Agreement or as
the Agreement may later be amended that is the subject of this Agreement.
(b) The Consultant shall provide the City with all invoices the Consultant
submits to the Developer for payment or reimbursement. The Consultant
shall submit the copies of these invoices at the same time said invoices are
first submitted to the Developer for payment.
6. Termination.
(a) This Agreement shall terminate without any liability of the City to the
Consultant or the Developer upon the earlier of: (i) the Consultant's filing for
protection under the Federal bankruptcy laws, or any bankruptcy petition or
petition for receiver commenced by a third party against the Consultant; (ii)
seven calendar days prior written notice with or without cause by the City to
the Consultant; (iii) the City's non -appropriation of funds sufficient to meet
its obligations hereunder during any the City fiscal year of this Agreement,
or insufficient funding for the Project; (iv) expiration of this Agreement, or
seven calendar days' prior written notice with or without cause by the
Developer to the Consultant and the City.
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(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 properties and materials in the possession of the Consultant
that are owned by the City.
7. Subsequent Consultant. If a subsequent consultant is required to perform the work
contemplated by the Agreement, the Developer shall select the subsequent
consultant and the City shall have the right to evaluate and approve or disapprove
the subsequent consultant selected by the Developer.
8. Discretionary Governmental Actions. Certain planning, land use, zoning and other
permits and public actions required in connection with the Project including, without
limitation, the Land Use Approvals, the environmental review and analysis under
CEQA or any other statute, and other transactions contemplated by this
Agreement are discretionary government actions. Nothing in this Agreement
obligates the City or any other governmental entity to grant final approval of any
matter described herein. Such actions are legislative, quasi-judicial, or otherwise
discretionary in nature. The City cannot take action with respect to such matters
before completing the environmental assessment of the Project under CEQA and
any other applicable laws. The City cannot and does not commit in advance that it
will give final approval to any matter. The City shall not be liable, in law or equity,
to the Consultant, the Developer or any of the Initial Study or subsequent
environmental documents executors, administrators, transferees, subcontractors,
successors -in -interest or assigns for any failure of any governmental entity to grant
approval on any matter subject to discretionary approval.
9. Confidential Information. Except as provided for in this section, any reports,
information, or other data prepared or assembled by the Consultant pursuant to
this Agreement shall not be made available to any individual or organization by the
Consultant other than the Developer without the prior written approval of the
Director or the City's City Manager; unless required by law and the timeframe in
such a case it is not feasible to obtain prior written consent, although in such a
case, the Consultant must immediately notify the Director or the City's City
Manager of the request or subpoena for such information and immediately deliver
via facsimile or e-mail any legal documents supporting the demand for said
information.
The Consultant shall provide copies of administrative draft documents in
connection with the Project's environmental review to the City under the scope of
work. The City shall then distribute administrative draft documents to the
Developer. The Developer's comments regarding the administrative documents
shall be submitted only to the City, within timeframe established by the City, and
the City shall forward to the Consultant. This section shall not supersede the
provisions of California Public Resources Code Section 21167.6 regarding the
required contents of the record of proceedings.
10. Professional Skill. It is further mutually understood and agreed by and between the
parties hereto that inasmuch as the Consultant represents to the City that the
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Consultant is skilled in the profession and shall perform in accordance with the
standards of said profession necessary to perform the services agreed to be done
by it under this Agreement, the City relies upon the skill of the Consultant to do
and perform such services in a skillful manner and the Consultant agrees to thus
perform the services. Therefore, acceptance of such services by the City shall not
operate as a release of the Consultant from said professional standards.
11. Indemnification.
(a) To the furthest extent allowed by law, the Developer shall indemnify, hold
harmless and defend the City and each of its officers, officials, employees,
agents, and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in contract, tort or strict liability,
including but not limited to personal injury, death at any time and property
damage) incurred by the City, the Developer or any other person, and from
any and all claims, demands and actions in law or equity (including
reasonable attorney's fees and litigation expenses), arising or alleged to
have arisen directly or indirectly out of a violation of the California
Environmental Quality Act relating to the Project. The Developer's
obligations under the preceding sentence shall apply regardless of whether
the City or any of its officers, officials, employees, agents, or volunteers are
negligent, but shall not apply to any loss, liability, fines, penalties,
forfeitures, costs or damages caused solely by the gross negligence, or
caused by the willful misconduct, of the City or any of its officers, officials,
employees, agents, or volunteers. If a claim, demand or action at law or
equity arise within the scope of this provision, the City and the Developer
shall mutually agree on defense counsel.
If the Developer should subcontract all or any portion of the work to be
performed under this Agreement, the Developer shall require each
subcontractor to indemnify, hold harmless and defend the City and each of
its officers, officials, employees, agents, and volunteers in accordance with
the terms of the preceding paragraph.
(b) To the furthest extent allowed by law, the Consultant shall indemnify, hold
harmless and defend the City and each of its officers, officials, employees,
agents, and volunteers from liability for damages (whether in contract, tort
or strict liability, including but not limited to personal injury, death at any time
and property damage) incurred by the City, the Consultant or any other
person, and from any and all claims, demands and actions in law or equity
(including reasonable attorney's fees and litigation expenses incurred by, or
awarded against, the City, including plaintiff's attorney's fees), arising out of
the Consultant's negligence in the performance of this Agreement. The
Consultant's obligations under the preceding sentence shall not apply to
any loss, liability, fines, penalties, forfeitures, costs or damages caused
solely by the gross negligence, or by the willful misconduct of the City or
any or its officers, officials, employees, agents, or volunteers, or by any third
party.
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(c) If the Consultant should subcontract all or any portion of the work to be
performed or services to be provided under this Agreement, the Consultant
shall require each subconsultant to indemnify, defend, protect and hold
harmless the City and provide the warranties and waivers in accordance
with all provisions of this section.
(d) This section shall survive expiration or termination of this Agreement.
12. Insurance.
(a) Throughout the life of this Agreement, the Developer and the Consultant
shall pay for and maintain in full force and effect all insurance as required
in Exhibit A or as may be authorized, and any additional insurance as may
be required, in writing by the City's Risk Manager or designee at any time
and in its sole discretion.
(b) If at any time during the life of the Agreement or any extension, the
Developer or the Consultant or any of its subcontractors fail to maintain any
required insurance in full force and effect, all services and work under this
Agreement shall be discontinued immediately until notice is received by the
City that the required insurance has been restored to full force and effect
and that the premiums therefore have been paid for a period satisfactory to
the City. Any failure to maintain the required insurance shall be sufficient
cause for the City to terminate this Agreement. No action taken by the City
pursuant to this section shall in any way relieve the Developer or the
Consultant of their responsibilities under this Agreement. The phrase "fail
to maintain any required insurance" shall include, without limitation,
notification received by the City that an insurer has commenced
proceedings, or has had proceedings commenced against it, indicating that
the insurer is insolvent.
(c) The fact that insurance is obtained by the Developer and the Consultant
shall not be deemed to release or diminish the liability of either the
Developer or the Consultant, including, without limitation, liability under the
indemnity provisions of this Agreement. The duty to indemnify shall apply
to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Developer or the Consultant.
Approval or purchase of any insurance contracts or policies shall in no way
relieve from liability nor limit the liability of the Developer or the Consultant
and their principals, officers, agents, employees, persons under the
supervision of the Developer or the Consultant, vendors, suppliers, invitees,
consultants, sub -consultants, subcontractors, or anyone employed directly
or indirectly by any of them.
(d) Upon request of the City, the Developer and the Consultant shall
immediately furnish the City with a complete copy of any insurance policy
required under this Agreement, including all endorsements, with said copy
certified by the underwriter to be a true and correct copy of the original
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policy. This requirement shall survive expiration or termination of this
Agreement.
(e) If the Developer should subcontract all or any portion of the services to be
performed under this Agreement, the Developer shall require each
subcontractor to provide insurance protection in favor of the City and each
of its officers, officials, employees, agents, and authorized volunteers in
accordance with the terms of this section and Exhibit A, except that any
required certificates and applicable endorsements shall be on file with the
Developer and the City prior to the commencement of any services by the
subcontractor.
(f) If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall require each
subcontractor to provide insurance protection in favor of the City and each
of its officers, officials, employees, agents, and volunteers in accordance
with the terms of this section and Exhibit A, except that any required
certificates and applicable endorsements shall be on file with the
Consultant, the Developer and the City prior to the commencement of any
services by the subcontractor.
13. Notifications and Cooperation b the City. The City shall notify the Developer
and/or the Consultant within a reasonable period of time of its receipt of any
demand, claim, action, proceeding, or litigation arising from liability for damages
arising out of either the Developer and/or the Consultant's negligence in which the
City is to be indemnified and held harmless by the Developer or the Consultant
pursuant to Section 11 of this Agreement. If the City requests that the Developer
or the Consultant defend the City, the City shall notify the Developer or the
Consultant in writing within a reasonable period of time of its receipt of any such
demand, claim, action, proceeding, or litigation and the City shall cooperate fully
in such defense.
14. The City and the Developer shall mutually select the attorney or attorneys who will
defend the City. The Consultant agrees to accept such selection. The Developer
further agrees to be fully responsible for any and all reasonable costs and
attorney's fees generated by the City's attorney(s) in the defense of the City in any
claim, demand, action, proceeding, or litigation from liability for damages arising
out of the Developer's negligence. The Consultant further agrees to be fully
responsible for any and all reasonable costs and attorney's fees generated by the
City's attorney(s) in the defense of the City in any claim, demand, action,
proceeding, or litigation from liability for damages arising out of the Consultant's
negligence.
15. The City's Participating In Defense. Nothing contained herein shall prohibit the
City, in its sole discretion, from participating in the defense of any demand, claim,
action, proceeding, or litigation over and above representation by outside counsel,
or from participating in the defense of any demand, claim, action, proceeding, or
litigation. If City elects to also defend, it shall do so in good faith. In no event shall
City's participation in the defense of any demand claim, action, proceeding, or
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litigation affect the obligations imposed upon the Developer and the Consultant in
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 conflict of interest disclosure statement in the
form as set forth in Exhibit B. During the term of this Agreement, the
Consultant shall have the obligation and duty to immediately notify the City
in writing of any change to the information provided by the Consultant in
such statement.
(b) The Consultant shall comply, and require its subcontractors to comply, with
all applicable (i) professional canons and requirements governing
avoidance of impermissible client conflicts; and (ii) Federal, State and local
conflict of interest laws and regulations including, without limitation,
California Government Code Section 1090 et. seq., the California Political
Reform Act (California Government Code Section 87100 et. seq.) and the
regulations of the Fair Political Practices Commission concerning disclosure
and disqualification (2 California Code of Regulations Section 18700 et.
seq.). At any time, upon written request of the City, the Consultant shall
provide a written opinion of its legal counsel and that of any subcontractor
that, after a due diligent inquiry, the Consultant and the respective
subcontractor(s) are in full compliance with all laws and regulations. The
Consultant shall take, and require its subcontractors to take, reasonable
steps to avoid any appearance of a conflict of interest. Upon discovery of
any facts giving rise to the appearance of a conflict of interest, the
Consultant shall immediately notify the City of these facts in writing.
(c) In performing the work or services to be provided hereunder, the Consultant
shall not employ or retain the services of any person while such person
either is employed by the City or is a member of any City council,
commission, board, committee, or similar City body. This requirement may
be waived in writing by the City's City Manager, if no actual or potential
conflict is involved.
(d) The Consultant represents and warrants it has not paid or agreed to pay
any compensation, contingent or otherwise, direct or indirect, to solicit, or
procure this Agreement or any rights/benefits hereunder.
(e) The Consultant is not directly retained by the City. The Consultant has no
interest in the approval of the Project. The Consultant is able to perform the
work outlined in the Agreement without conflict. This interest is in
accordance will all applicable laws and is being fully disclosed.
(f) If the Consultant should subcontract all or any portion of the work to be
performed or services to be provided under this Agreement, the Consultant
shall include the provisions of Section 16 of this Agreement in each
subcontract and require its subcontractors to comply therewith.
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(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.
(b) Records of the Consultant's expenses pertaining to the Project shall be kept
on a generally recognized accounting basis and shall be available to the
City or its authorized representatives upon request during regular business
hours throughout the life of this Agreement and for a period of three years
after final payment or, if longer; for any period required by law. In addition,
all books, documents, papers, and records of the Consultant pertaining to
the Project shall be available for the purpose of making audits,
examinations, excerpts, and transcriptions for the same period of time.
Section 17(b) of this Agreement shall survive expiration or termination of
this Agreement.
(c) Prior to execution of this Agreement by the City, the Consultant shall have
provided evidence to the City that the Consultant is licensed to perform the
services called for by this Agreement or that no license is required. If the
Consultant should subcontract all or any portion of the work or services to
be performed under this Agreement, the Consultant shall require each
subcontractor to provide evidence to the City that subcontractor is licensed
to perform the services called for by this Agreement, or that no license is
required before beginning work.
18. Nondiscrimination. To the extent required by controlling Federal, State and local
law, the Consultant shall not employ discriminatory practices in the provision of
services, employment of personnel, or in any other respect on the basis of race,
religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, sexual orientation, ethnicity, status as
a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and
during the performance of this Agreement, the Consultant agrees as follows:
(a) The Consultant will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, sexual orientation, ethnicity, status as a
disabled veteran or veteran of the Vietnam era be excluded from
participation in, be denied the benefits of, or be subject to discrimination
under any program or activity made possible by or resulting from this
Agreement.
(b) The Consultant will not discriminate against any employee or applicant for
employment because of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital
status, sex, age, sexual orientation, ethnicity, or status as a disabled
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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 race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital
status, sex, age, sexual orientation, ethnicity, status as a disabled veteran
or veteran of the Vietnam era. Such requirement shall apply to the
Consultant's employment practices including, but not be limited to, the
following: employment, upgrading, demotion, or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The
Consultant agrees to post in conspicuous places, available to employees
and applicants for employment, notices setting forth the provision of this
nondiscrimination clause.
(c) The Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of the Consultant in pursuit hereof, state that all
qualified applicants will receive consideration for employment without
regard to race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era.
(d) The Consultant will send to each labor union or representative of workers
with which it has a collective bargaining agreement or other contract or
understanding, a notice advising such labor union or workers'
representatives of the Consultant's commitment under this section and shall
post copies of the notice in conspicuous places available to employees and
applicants for employment.
19. Independent Contractor. In the furnishing of the services provided for herein, the
Consultant is acting solely as an independent contractor. Neither the Consultant,
nor any of its officers, agents, or employees shall be deemed an officer, agent,
employee, joint venturer, partner, or associate of the City for any purpose. The City
shall have no right to control, supervise, or direct the manner or method by which
the Consultant shall perform its work and functions. However, the City shall retain
the right to administer this Agreement so as to verify the Consultant is performing
its obligations in accordance with the terms and conditions thereof.
(a) This Agreement does not evidence a partnership or joint venture between
the Consultant and the City. The Consultant shall have no authority to bind
the City absent the City's express written consent. Except to the extent
otherwise provided in this Agreement, the Consultant shall bear its own
costs and expenses in pursuit thereof.
(b) Because of its status as an independent contractor, the Consultant and its
officers, agents, and employees shall have absolutely no right to
employment rights and benefits available to City employees. The
Consultant shall be solely liable and responsible for all payroll and tax
withholding and for providing to, or on behalf of, its employees all employee
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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 payment of the Consultant's employees, including, without limitation, (i)
compliance with Social Security and unemployment insurance withholding,
payment of workers compensation benefits, and all other laws and
regulations governing matters of employee withholding, taxes and payment;
and (ii) any claim of right or interest in City employment benefits,
entitlements, programs and/or funds offered to employees of the City
whether arising by reason of any common law, de facto, leased, or co -
employee rights or other theory. The Consultant shall be solely liable and
responsible for ensuring that its officers, agents, and employees are in
compliance with federal immigration laws.
The Consultant is required to furnish the City, upon reasonable request, copies of
Forms 1- 9 and supporting documentation for all officers, agents, and employees
performing work services relating to this Agreement. It is acknowledged that during
the term of this Agreement, the Consultant may be providing services to others
unrelated to the City or to this Agreement.
20. Notices. Any notice required or intended to be given to any party under the terms
of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation
of receipt, or sent by United States registered or certified mail, with postage
prepaid, return receipt requested, or by overnight delivery via a nationally or
regionally recognized courier with confirmation of receipt, addressed to the party
to which notice is to be given at the party's address set forth on the signature page
of this Agreement or at such other address as the parties may from time to time
designate by written notice. Notices served, by United States mail, in the manner
above described shall be deemed sufficiently served or given at the time of the
mailing thereof.
21. Binding. Once this Agreement is signed by all parties, it shall be binding upon, and
shall inure to the benefit of all parties and each party" respective heirs, successors,
assigns, transferees, agents, servants, employees, and representatives.
22. Assignment. This Agreement is personal to the Consultant and there shall be no
assignment by the Consultant of its rights or obligations under this Agreement
without the prior written approval of the City's City Manager or designee. Any
attempted assignment by the Consultant, its successors or assigns, shall be null
and void unless approved in writing by the City's City Manager or designee.
23. Compliance With Law. In providing the services required under this Agreement,
the Consultant shall at all times use due professional care to comply with all
applicable laws of the United States, the State of California and the City, and with
all applicable regulations promulgated by federal, state, regional, or local
administrative and regulatory agencies, now in force and as they may be enacted,
issued, or amended during the term of this Agreement.
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24. Waiver. The waiver by either party of a breach by the other of any provision of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions
of this Agreement may be waived unless in writing and signed by all parties to this
Agreement. Waiver of any one provision herein shall not be deemed to be a waiver
of any other provision herein.
25. Governing Law and Venue. This Agreement and the documents referred to herein
shall be governed by, and construed and enforced in accordance with, the laws of
the State of California, excluding, however, any conflict of laws rule which would
apply the law of another jurisdiction. Venue for purposes of the filing of any action
regarding the enforcement or interpretation of this Agreement and any rights and
duties hereunder shall be Fresno County, California.
26. Headings. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify, or
add to the interpretation or meaning of the provisions of this Agreement.
27. Severability. The provisions of this Agreement are severable. The invalidity or
unenforceability of any one provision in this Agreement shall not affect the other
provisions, which shall remain in full force and effect.
28. Interpretation. The parties acknowledge that this Agreement in its final form is the
result of the combined efforts of the parties and that, should any provision of this
Agreement be found to be ambiguous in any way, such ambiguity shall not be
resolved by construing this Agreement in favor of or against either party, but rather
by construing the terms in accordance with their generally accepted meaning.
Accordingly, the parties hereby waive the benefit of California Civil Code §1654
and any successor or amended statute, providing that in the case of uncertainty,
language of the contract should be interpreted most strongly against the party who
advised the uncertainty to exist.
29. Attorney's Fees. If any party is required to commence any proceeding or legal
action to enforce or interpret any term, covenant or condition of this Agreement,
the prevailing party in such proceeding or action shall be entitled to recover from
the other party its reasonable attorney's fees and legal expenses. For the purposes
of this Agreement, "attorneys' fees and legal expenses" includes, without limitation,
paralegals' fees and expenses, attorneys, consultants fees and expenses, expert
witness fees and expenses, and all other expenses incurred by the prevailing
party's attorneys in the course of the representation of the prevailing party in
anticipation of and/or during the course of litigation, whether or not otherwise
recoverable as "attorneys' fees" or as "costs" under California law, and the same
may be sought and awarded in accordance with California procedure as pertaining
to an award of contractual attorneys' fees.
30. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
31. Precedence of Documents. In the event of any conflict between the body of this
Agreement and any exhibit or attachment hereto, the terms and conditions of the
DEV-S Three Party Agt FYI (09-2022) 12
UUL;uc)1�f.I I CI IVCIUpt: IU.:J:JJ rI+I+UM-y JG 1-+Dry-MVD 1-Mr// JJVJDJrU
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.
32. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law
or in equity.
33. Extent of Agreement. Each party acknowledges they have read and fully
understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the parties with respect to the subject matter
hereof and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be modified only by written instrument
duly authorized and executed by the City, the Developer, and the Consultant.
34. The City Manager, or designee, is hereby authorized and directed to execute and
implement this Agreement. The previous sentence is not intended to delegate any
authority to the City Manager to administer the Agreement, any delegation of
authority must be expressly included in the Agreement.
[Signatures follow on the next page.]
DEV-S Three Party Agt FYI (09-2022) 13
UuuUJny. l l r-i m:nupu IU.:JUJrIJ IiVM-yuL I-KOr�-h19D l-MrG! JJ VJOJr V
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
FDacus{geed by:
� 4/24/2023
�"
�741J16fifrifffK. Clark, Director,
Planning and Development
Department
No signature of City Attorney required.
Standard Document #DEV-S Three
Party Agt (09-2022) has been used
without modification, as certified by the
undersigned.
DocuSigned by:
4/24/2023
'THRUng
Planner III
ATTEST:
TODD STERMER, CMC
City Clerk
[DocuSigned by:
Btv_'L qbw4/24/2023
8CA1388820954EI.. Date
Deputy
RAY PROPERTIES,
LLC
❑oeuSigned by:
�e� 4/21/2023
y s����,�43 A.A..
]onney Takhar
Name:
Owner/CEO
Title:
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
By:
Name:
Title:
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
PRECISION CIVIL ENGINEERING,
INC
DocuSigned by
L
b� `
uvu 4/18/2023
32EEfA44C45A4D7..
Name:
Bonique Emerson
Title:
vice President
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
By:
Name:
Title:
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
DEV-S Three Party Agt FYI (09-2022) 14
DocuSign Envelope ID: 553FCCOA-9521-4BF9-A9B7-AF2733D3B3FD
Addresses:
City:
Planning and Development Department
Chris Lang
Planner III
2600 Fresno Street, Room 3043
Fresno, CA 93721-3604
Phone: (559) 621-8023
E-mail: Chris. Lang@fresno.gov
Addresses:
Developer:
RAY PROPERTIES, LLC
Attention: Jonney Takhar
Manager
710 Van Ness Avenue Unit #260
Fresno, CA 93721
Phone: (806) 670-0035
E-Mail: team@raypropertiesilc.net
PRECISION CIVIL ENGINEERIN, INC
Attention: Bonique Emerson, AICP
VP of Planning Division/Senior Project
Manager
1234 O Street
Fresno, CA 93721
Phone: (559) 449-4500
E-mail: bemerson@precisioneng.net
Attachments:
Exhibit A - Insurance Requirements
Exhibit B - Disclosure of Conflict of Interest Form
Exhibit C - Scope of Work
DEV-S Three Party Agt FYI (09-2022) 15
DocuSign Envelope ID: 553FCCOA-9521-4BF9-A9B7-AF2733D3B3FD
EXHIBIT A
INSURANCE REQUIREMENTS
Consultant Service Agreement between CITY OF FRESNO and
RAY PROPERTIES, LLC and PRECISION CIVIL ENGINEERING, INC
Project: 37-stall Truck Parking Facilities
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 00 01, providing liability coverage
arising out of your business operations. The Commercial General Liability
policy shall be written on an occurrence form and shall provide coverage for
"bodily injury," "property damage" and "personal and advertising injury" with
coverage for premises and operations (including the use of owned and non -
owned equipment), products and completed operations, and contractual
liability (including, without limitation, indemnity obligations under the
Agreement) with limits of liability not less than those set forth under
"Minimum Limits of Insurance."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00
01, providing liability coverage arising out of the ownership, maintenance or
use of automobiles in the course of your business operations. The
Automobile Policy shall be written on an occurrence form and shall provide
coverage for all owned, hired, and non -owned automobiles or other licensed
vehicles (Code 1- Any Auto).
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to
Consultant's profession.
MINIMUM LIMITS OF INSURANCE
Developer and Consultant, or any party the Developer and Consultant subcontracts with,
shall maintain limits of liability of not less than those set forth below. However, insurance
limits available to City, its officers, officials, employees, agents, and volunteers as
additional insureds, shall be the greater of the minimum limits specified herein or the full
limit of any insurance proceeds available to the named insured:
Developer and Consultant must both provide the following
COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate.
2. COMMERCIAL AUTOMOBILE LIABILITY.-
$1,000,000 per accident for bodily injury and property damage.
DEV-S Three Party Agt FYI (09-2022) 16
DocuSign Envelope ID: 553FCCOA-9521-4BF9-A9B7-AF2733D3B3FD
3. Workers' Compensation Insurance as required by the State of
California with statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury,
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
Only Consultant must provide:
5. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event Developer or Consultant purchases an Umbrella or Excess insurance
policy(ies) to meet the "Minimum Limits of Insurance," this insurance policy(ies) shall
"follow form" and afford no less coverage than the primary insurance policy(ies). In
addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and
non-contributory basis for the benefit of the City, its officers, officials, employees, agents,
and volunteers.
DEDUCTIBLES AND SELF -INSURED RETENTIONS
Developer or Consultant shall be responsible for payment of any deductibles contained in
any insurance policy(ies) required herein and Developer or Consultant shall also be
responsible for payment of any self -insured retentions. Any deductibles or self -insured
retentions must be declared to on the Certificate of Insurance, and approved by, the City's
Risk Manager or designee. At the option of the City's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self -insured
retentions as respects City, its officers, officials, employees, agents, and
volunteers; or
(ii) Developer or Consultant shall provide a financial guarantee, satisfactory to
City's Risk Manager or designee, guaranteeing payment of losses and
related investigations, claim administration and defense expenses. At no
time shall City be responsible for the payment of any deductibles or self -
insured retentions.
OTHER INSURANCE PROVISIONSIENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be
endorsed to contain, the following provisions:
City, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. Developer and Consultant shall establish
additional insured status for the City and for all ongoing and completed
operations by use of ISO Form CG 20 26 04 13, CG 20 12 04 13 or by an
executed manuscript insurance company endorsement providing additional
insured status as broad as that contained in ISO Forms referenced above.
2. The coverage shall contain no special limitations on the scope of protection
afforded to City, its officers, officials, employees, agents, and volunteers.
DEV-S Three Party Agt FYI (09-2022) 17
DocuSign Envelope ID: 553FCCOA-9521-4BF9-A9B7-AF2733D3B3FD
Any available insurance proceeds in excess of the specified minimum limits
and coverage shall be available to the Additional Insured.
3. For any claims relating to this Agreement, Developer and Consultant's
insurance coverage shall be primary insurance with respect to the City, its
officers, officials, employees, agents, and volunteers. Any insurance or self-
insurance maintained by the City, its officers, officials, employees, agents,
and volunteers shall be excess of Developer and Consultant's insurance and
shall not contribute with it. Developer and Consultant shall establish primary
and non-contributory status by using ISO Form CG 20 01 04 13 or by an
executed manuscript insurance company endorsement that provides
primary and non-contributory status as broad as that contained in ISO Form
CG 20 01 04 13.
The Workers' Compensation 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 policy is written on a claims
made form:
1. The retroactive date must be shown, and must be before the effective date of
the Agreement or the commencement of work by Consultant.
2. Insurance must be maintained and evidence of insurance must be provided
for at least five years after completion of the Agreement work or termination
of the Agreement, whichever occurs first, or, in the alternative, the policy shall
be endorsed to provide not less than a five-year discovery period.
3. If coverage is canceled or non -renewed, and not replaced with another claims -
made policy form with a retroactive date prior to the effective date of the
Agreement or the commencement of work by Consultant, Consultant must
purchase "extended reporting" coverage for a minimum of five years'
completion of the Agreement work or termination of the Agreement, whichever
occurs first.
4. A copy of the claims reporting requirements must be submitted to City for
review.
5. These requirements shall survive expiration or termination of the Agreement.
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non -renewed, reduced in coverage or in limits except after thirty
calendar days' written notice by certified mail, return receipt requested, has been given to
City. Developer and Consultant are also responsible for providing written notice to the City
under the same terms and conditions. Upon issuance by the insurer, broker, or agent of
a notice of cancellation, non -renewal, or reduction in coverage or in limits, Developer and
Consultant shall furnish City with a new certificate and applicable endorsements for such
policy(ies). In the event any policy is due to expire during the work to be performed for
City, Developer, and Consultant shall provide a new certificate, and applicable
endorsements, evidencing renewal of such policy not less than fifteen calendar days prior
to the expiration date of the expiring policy.
DEV-S Three Party Agt FYI (09-2022) 18
DocuSign Envelope ID: 553FCCOA-9521-4BF9-A9B7-AF2733D3B3FD
Should any of the required policies provide that the defense costs are paid within the
Limits of Liability, thereby reducing the available limits by any defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated limits.
The fact that insurance is obtained by Developer and Consultant shall not be deemed to
release or diminish the liability of Developer and Consultant, including, without limitation,
liability under the indemnity provisions of this Agreement. The policy limits do not act as a
limitation upon the amount of indemnification to be provided by Developer and Consultant.
Approval or purchase of any insurance contracts or policies shall in no way relieve from
liability nor limit the liability of Developer and Consultant, its principals, officers, agents,
employees, persons under the supervision of Developer or Consultant, vendors,
suppliers, invitees, consultants, sub -consultants, subcontractors, or anyone employed
directly or indirectly by any of them.
SUBCONTRACTORS - If the Consultant/Developer should subcontract all or any portion
of the services to be performed under this Agreement, the Consultant/Developer shall
require each subcontractor to provide insurance protection in favor of the City and each
of its officers, officials, employees, agents, and volunteers in accordance with the terms
of Exhibit A, except that any required certificates and applicable endorsements shall be
on file with the Consultant, the Developer and the City prior to the commencement of any
services by the subcontractor.
VERIFICATION OF COVERAGE
Developer and Consultant shall furnish City with all certificate(s) and applicable
endorsements effecting coverage required hereunder. All certificates and applicable
endorsements are to be received and approved by the City's Risk Manager or designee
prior to City's execution of the Agreement and before work commences. All non -ISO
endorsements amending policy coverage shall be executed by a licensed and authorized
agent or broker. Upon request of City, Developer and Consultant shall immediately furnish
City with a complete copy of any insurance policy required under this Agreement, including
all endorsements, with said copy certified by the underwriter to be a true and correct copy
of the original policy. This requirement shall survive expiration or termination of this
Agreement.
DEV-S Three Party Agt FYI (09-2022) 19
DocuSign Envelope ID: 553FCCOA-9521-4BF9-A967-AF2733D3B3FD
EXHIBIT B
DISCLOSURE OF CONFLICT OF INTEREST
37-Stall Truck Parking Facility
YES*
NO
1
Are you currently in litigation with the City of Fresno or any of
f j
X
its agents?
2
Do you represent any firm, organization, or person who is in
❑
X
litigation with the City of Fresno?
3
Do you currently represent or perform work for any clients who
X
❑
do business with the City of Fresno?
i
4
Are you or any of your principals, managers, or professionals,
owners or investors in a business which does business with
❑
X
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
❑
X
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
❑
X
connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation: PCE represents clients who
do business with the City of Fresno.
However, we have no conflict with this
client in any capacity on this or any other
projects.
❑ Additional page(s) attached.
DEV-S Three Party Agt FYI (09-2022) 20
. v,.
4/18/2023
Date
Bonique Emerson, VP of Planning Division
Name
Precision Civil Engineering
Company
1234 O Street
Address
Fresno, CA 93721
City, State Zip
DocuSign Envelope ID: 553FCCOA-9521-4BF9-A9B7-AF2733D3B3FD
Exhibit C
Scope of Work
March 27, 2023
PROJECT UNDERSTANDING
Based on the information provided to Precision Civil Engineering, Inc. (PCE) by the
Applicant, our understanding of the project is as follows: The project site is located on the
northeast corner of South Cherry Avenue and East Annadale Avenue at 2751 South
Cherry Avenue, Fresno, CA 93706 and is identified by the Fresno County Assessor as
Assessor's Parcel Number (APN) 328-300-21, totaling approximately 2.32 acres. The
project consists of a truck parking facility development with four (4) 720-square foot
mobile office trailer, 37 truck parking stalls, and ten (10) automobile parking stalls, and
will require a Development Permit.
SCOPE OF WORK
Preparation of Categorical Exemption (CatEx) Document
PCE will prepare a CatEx document in accordance with California Environmental
Quality Act (CEQA) Guidelines Section 15332/Class 32, where the Project is
exempt from CEQA requirements. The document will include a project description,
environmental determination, and analysis to determine compliance according to
applicable categorical exemption criteria listed in CEQA Guidelines Article 19.
As part of drafting the CatEx, PCE will do the following:
■ Utilize the applicant's operational statement and project drawings to prepare a
more detailed project description/operational statement for the CatEx
document.
Establish thresholds of significance and analyze the project in relation to these
thresholds for the impact sections identified in the 2023 CEQA Guidelines,
Article 19.
Analyze and determine compliance of each criteria applicable in Article 19.
PCE will prepare the CatEx document with the following assumptions:
It is assumed that the initial analysis will result in a finding that the Project is
eligible for a categorical exemption and that a CatEx will be sufficient. After the
preparation of the CatEx, if it is determined that significant impacts exist and
the preparation of an Initial Study (IS) and Negative Declaration/Mitigated
Negative Declaration (ND/MND) is required, this will require an additional fee
for the preparation of additional documents.
■ The City will provide the consultant with the comments received from internal
and external agencies and departments received during the development
permit/entitlement process so any project comments/concerns can be
incorporated into the CatEx, if applicable.
Three -Party Agreement: Exhibit C 1 March 27, 2023
DocuSign Envelope ID: 553FCCOA-9521-4BF9-A9B7-AF2733D3B3FD
The City will prepare the Notice of Intent and Notice of Determination, file
documents with County Clerk, and provide public notice of actions.
TIMELINE
PCE will complete the draft CatEx document within 6 weeks from the City accepting the
Project Application and/or within 2 weeks from receiving all Project comments during the
entitlement review process. Technical studies will be completed within 4-6 weeks from
the date of application acceptance by the City of Fresno.
The Developer and Consultant acknowledge and understand that the timeline is based
off the date of formal acceptance of the project. A delay in receiving deliverables as
outlined in the Scope of Work or multiple revisions will extend the timeline by the number
of days equal to the period of the delay.
PCE understands that when the CatEx document is submitted to the City for comments,
it will be 30 business days for review. If multiple revisions are required, each review period
for the city could be up to 30 business days. PCE will make modifications within 14 days
of receiving comments and feedback from the City.
PREPARERS
The firms identified below are primary preparers and will oversee the documents. Staff
within the individual firms will assist in the preparation of the documents.
1. Precision Civil Engineering, Inc. (Primary Consultant): PCE will prepare the
Categorical Exemption document. The following individuals will be involved in the
preparation:
a. Bonique Emerson, MAUP, AICP, VP of Planning Division/Senior Project
Manager
b. Jenna Chilingerian, MCRP, AICP, Senior Associate Planner
c. Shin Tu, MUP, Associate Planner
QUALIFICATIONS
Staff of firms listed above have many years of experience producing these types of
documents and analysis. Qualifications are as follows.
Bonique Emerson, MAUP, AICP
Bonique brings 18 years of experience as an urban and environmental planner. As the
former division manager of the City of Fresno's Current Planning Division, she has
substantial experience preparing and overseeing CEQA documents for hundreds of
development projects, including several for City of Fresno street widening, facilities, and
trail projects. In addition, Mrs. Emerson has managed several EIRs for large scale
development projects during her career. Her past trainings include: NEPA/CEQA
Workshop, Association of Environmental Professionals (AEP), California (various), -
Three -Party Agreement: Exhibit C 2 March 27, 2023
DocuSign Envelope ID: 553FCCOA-9521-4BF9-A9B7-AF2733D3B3FD
California LTAP: Federal Requirements for Local Agency Transportation Projects "OFF"
the State Highway System (November 2020).
Jenna Chilingerian, MCRP, AICP
Jenna brings more than 9 years of experience in planning, community and economic
development, and program management in the nonprofit and public sectors. At PCE,
Jenna provides CEQA services for public and private sector projects, on -call planning
services for local agencies, and development and entitlement services for private sector
clients. Jenna is an active AEP and APA member, participating in webinars and
workshops to remain up to date on current environmental legislation, procedures, and
best practices. Her trainings include How to Write an EIR Workshop, AEP (July 2022),
CEQA Advanced Workshop, AEP (April 2021), CEQA Intermediate Workshop, AEP
(February 2021), and Federal Aid Series: Environmental Requirements, California Local
Technical Assistance Program (November 2020).
Shin Tu, MUP
Shin Tu brings her knowledge of communications, site planning, and data analysis. With
a Master of Urban Planning degree at Texas A&M University and graduate certificates in
Environmental Hazard Management & Geographic Information Science, Shin has
experience working in the public, private, and academic sectors. Her trainings include
How to Write an EIR Workshop, AEP (July 2022), CEQA Advanced Workshop, AEP
(March 2021), and CEQA Essentials Workshop, AEP (October 2021).
Three -Party Agreement: Exhibit C 3 March 27, 2023