HomeMy WebLinkAboutFresno Metropolitan Ministry - Service Agreement - 5-2-2023LJUUUJIIJ. II CI IVCIupt; IL). rr IOVL'JU-OLlMz1--+I4L/-MJ! D'0Ct1 0VUr VUM'4'#
SERVICE AGREEMENT
CITY OF FRESNO, CALIFORNIA
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THIS AGREEMENT is made and entered into effect on
between the CITY OF FRESNO, a California municipal corporation
Metropolitan Ministry, a non-profit corporation (Service Provider).
RECITALS
, by and
(City), and Fresno
WHEREAS, City desires to obtain Community Garden Management services for
operating three (3) community gardens located at:
1) Poplar and Belmont (SW parcel)
2) Al Radka Park, 5897 E Belmont Ave., Fresno, CA 93727, and
3) Peach, south of Butler (APN #47303007T) (Project); and
WHEREAS, Service Provider is engaged in the business of furnishing such
services as a non-profit focused on community food systems and hereby represents that
it desires to and is professionally and legally capable of performing the services called for
by this Agreement; and
WHEREAS, Service Provider acknowledges that this Agreement is subject to the
requirements of Fresno Municipal Code Section 4-107; and
WHEREAS, this Agreement will be administered for City by its Parks Director
(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. Service Provider shall perform to the satisfaction of City
the services described in Exhibit A, including all work incidental to, or necessary to
perform, such services even though not specifically described in Exhibit A.
2. Term of Agreement and Time for Performance. This Agreement shall be
effective from the date first set forth above (Effective Date) and shall continue in full force
and effect through June 30, 2023, subject to any earlier termination in accordance with
this Agreement. The services of Service Provider 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) Service Provider's sole compensation for satisfactory performance
of all services required or rendered pursuant to this Agreement shall be a total fee not to
exceed $49,999, paid on the basis of the rates set forth in the schedule of fees and
expenses contained in Exhibit A. Such fee includes all expenses incurred by Service
Provider in performance of the services between January 1, 2022 through June 30, 2023.
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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 City
business. 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 Service Provider'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. Service Provider shall not be
entitled to any additional compensation if services are performed prior to a signed written
amendment.
4. Termination. Remedies. and Force Ma'eure.
(a) This Agreement shall terminate without any liability of City to Service
Provider upon the earlier of : (i) Service Provider's filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third
party against Service Provider; (ii) seven calendar days' prior written notice with or without
cause by City to Service Provider; (iii) City's non -appropriation of funds sufficient to meet
its obligations hereunder during any City fiscal year of this Agreement, or insufficient
funding for the Project; or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
Service Provider shall (i) immediately stop all work hereunder; (ii) immediately cause any
and all of its subcontractors to cease work; and (iii) return to City any and all unearned
payments and all properties and materials in the possession of Service Provider that are
owned by City. Subject to the terms of this Agreement, Service Provider shall be paid
compensation for services satisfactorily performed prior to the effective date of
termination. Service Provider 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 Service Provider to
satisfactorily perform in accordance with the terms of this Agreement, City may withhold
an amount that would otherwise be payable as an offset to, but not in excess of, City's
damages caused by such failure. In no event shall any payment by City pursuant to this
Agreement constitute a waiver by City of any breach of this Agreement which may then
exist on the part of Service Provider, nor shall such payment impair or prejudice any
remedy available to City with respect to the breach.
(d) Upon any breach of this Agreement by Service Provider, 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 terms of the Agreement; and/or (iii)
recover all direct, indirect, consequential, economic and incidental damages for the
breach of the Agreement. If it is determined that City improperly terminated this
Agreement for default, such termination shall be deemed a termination for convenience.
(e) Service Provider shall provide City with adequate written assurances
of future performance, upon Administrator's request, in the event Service Provider fails to
comply with any terms or conditions of this Agreement.
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(f) Service Provider shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of Service Provider and without
its fault or negligence such as, acts of God or the public enemy, acts of City in its
contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually
severe weather, and delays of common carriers. Service Provider 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
Service Provider pursuant to this Agreement shall not be made available to any individual
or organization by Service Provider without the prior written approval of the Administrator.
During the term of this Agreement, and thereafter, Service Provider shall not, without the
prior written consent of City, disclose to anyone any Confidential Information. The term
Confidential Information for the purposes of this Agreement shall include all proprietary
and confidential information of City, including but not limited to business plans, marketing
plans, financial information, materials, compilations, documents, instruments, models,
source or object codes and other information disclosed or submitted, orally, in writing, or
by any other medium or media. All Confidential Information shall be and remain
confidential and proprietary in City.
(b) Any and all writings and documents prepared or provided by Service
Provider pursuant to this Agreement are the property of City at the time of preparation
and shall be turned over to City upon expiration or termination of the Agreement. Service
Provider shall not permit the reproduction or use thereof by any other person except as
otherwise expressly provided herein.
(c) If Service Provider should subcontract all or any portion of the
services to be performed under this Agreement, Service Provider shall cause each
subcontractor to also comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this
Agreement.
6. Level of Skill. It is further mutually understood and agreed by and between
the parties hereto that inasmuch as Service Provider represents to City that Service
Provider and its subcontractors, if any, are skilled in the profession and shall perform in
accordance with the standards of said industry necessary to perform the services agreed
to be done by it under this Agreement, City relies upon the skill of Service Provider and
its subcontractors, if any, to do and perform such services in a skillful manner and Service
Provider agrees to thus perform the services and require the same of any subcontractors.
Therefore, any acceptance of such services by City shall not operate as a release of
Service Provider or any subcontractors from said industry and professional standards.
7. Indemnification. To the furthest extent allowed by law, Service Provider
shall indemnify, hold harmless and defend City and each of its officers, officials,
employees, agents, and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in contract, tort or strict liability, including but not
limited to personal injury, death at any time and property damage), and from any and all
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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 Service Provider, its principals, officers, employees, agents, or
volunteers in the performance of this Agreement.
If Service Provider should subcontract all or any portion of the services to be
performed under this Agreement, Service Provider shall require each subcontractor to
indemnify, hold harmless and defend City and each of its officers, officials, employees,
agents, and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. Insurance.
(a) Throughout the life of this Agreement, Service Provider shall pay for
and maintain in full force and effect all insurance as required in Exhibit B, which is
incorporated into and part of this Agreement, with an insurance company(ies) either
(i) admitted by the California Insurance Commissioner to do business in the State of
California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as
may be authorized in writing by City's Risk Manager or designee at any time and in its
sole discretion. The required policies of insurance as stated in Exhibit B shall maintain
limits of liability of not less than those amounts stated therein. However, the insurance
limits available to City, its officers, officials, employees, agents, and volunteers as
additional insureds, shall be the greater of the minimum limits specified therein or the full
limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension,
Service Provider 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, and all payments due or that become due to Service Provider shall be
withheld until notice is received by City that the required insurance has been restored to
full force and effect and that the premiums therefore have been paid for a period
satisfactory to City. Any failure to maintain the required insurance shall be sufficient
cause for City to terminate this Agreement. No action taken by City pursuant to this
section shall in any way relieve Service Provider 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.
(c) The fact that insurance is obtained by Service Provider shall not be
deemed to release or diminish the liability of Service Provider, 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 Service Provider. Approval or purchase of any insurance contracts or
policies shall in no way relieve from liability nor limit the liability of Service Provider, its
principals, officers, agents, employees, or persons under the supervision of Service
Provider, vendors, suppliers, invitees, consultants, sub -consultants, subcontractors, or
anyone employed directly or indirectly by any of them.
(d) Upon request of City, Service Provider shall immediately furnish City
with a complete copy of any insurance policy required under this Agreement, including all
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endorsements, with said copy certified by the underwriter to be a true and correct copy of
the original policy. This requirement shall survive expiration or termination of this
Agreement.
(e) If Service Provider should subcontract all or any portion of the
services to be performed under this Agreement, Service Provider 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 Service Provider and City prior to the
commencement of any services by the subcontractor. Service Provider and any
subcontractor/sub-consultant shall establish additional insured status for City, its officers,
officials, employees, agents, and volunteers by using Insurance Service Office (ISO)
Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed
manuscript company endorsement providing additional insured status as broad as that
contained in ISO Form CG 20 10 11 85.
9. Conflict of Interest and Non -Solicitation.
(a) Prior to City's execution of this Agreement, Service Provider 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, Service Provider shall have the
obligation and duty to immediately notify City in writing of any change to the information
provided by Service Provider in such statement.
(b) Service Provider 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 City, Service Provider shall provide a written opinion
of its legal counsel and that of any subcontractor that, after a due diligent inquiry, Service
Provider and the respective subcontractor(s) are in full compliance with all laws and
regulations. Service Provider 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, Service Provider shall
immediately notify City of these facts in writing.
(c) In performing the work or services to be provided hereunder, Service
Provider shall not employ or retain the services of any person while such person either is
employed by City or is a member of any City council, commission, board, committee, or
similar City body. This requirement may be waived in writing by the City Manager, if no
actual or potential conflict is involved.
(d) Service Provider 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) Service Provider 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
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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, Service Provider shall remain responsible
for complying with Section 9(a), above.
(f) If Service Provider should subcontract all or any portion of the work
to be performed or services to be provided under this Agreement, Service Provider 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 Prorq am. In the event Service Provider 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, Service Provider at its sole cost and expense
shall:
(a) Immediately establish and maintain a viable and ongoing recycling
program, approved by City's Solid Waste Management Division, for each office and
facility. Literature describing City recycling programs is available from City's Solid Waste
Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111.
(b) Immediately contact City's Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their
conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of City's Solid
Waste Management Division the establishment of the recycling program in paragraph
(i) above and the ongoing maintenance thereof.
11. General Terms.
(a) Except as otherwise provided by law, all notices expressly required
of City within the body of this Agreement, and not otherwise specifically provided for, shall
be effective only if signed by the Administrator or designee.
(b) Records of Service Provider's expenses pertaining to the Project
shall be kept on a generally recognized accounting basis and shall be available to City or
its authorized representatives upon request during regular business hours throughout the
life of this Agreement and for a period of three years after final payment or, if longer, for
any period required by law. In addition, all books, documents, papers, and records of
Service Provider pertaining to the Project shall be available for the purpose of making
audits, examinations, excerpts, and transcriptions for the same period of time. If any
litigation, claim, negotiations, audit or other action is commenced before the expiration of
said time period, all records shall be retained and made available to City until such action
is resolved, or until the end of said time period whichever shall later occur. If Service
Provider should subcontract all or any portion of the services to be performed under this
Agreement, Service Provider shall cause each subcontractor to also comply with the
requirements of this paragraph. This Section 11(b) shall survive expiration or termination
of this Agreement.
(c) Prior to execution of this Agreement by City, Service Provider shall
have provided evidence to City that Service Provider is licensed to perform the services
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called for by this Agreement (or that no license is required). If Service Provider should
subcontract all or any portion of the work or services to be performed under this
Agreement, Service Provider shall require each subcontractor to provide evidence to City
that subcontractor is licensed to perform the services called for by this Agreement (or that
no license is required) before beginning work.
12. Nondiscrimination. To the extent required by controlling federal, state and
local law, Service Provider 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, Service Provider agrees as follows:
(a) Service Provider 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) Service Provider 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. Service
Provider 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 Service Provider'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. Service Provider agrees to post in
conspicuous places, available to employees and applicants for employment, notices
setting forth the provision of this nondiscrimination clause.
(c) Service Provider will, in all solicitations or advertisements for
employees placed by or on behalf of Service Provider 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) Service Provider 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 Service
Provider'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 Service Provider should subcontract all or any portion of the
services to be performed under this Agreement, Service Provider 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, Service Provider
is acting solely as an independent contractor. Neither Service Provider, nor any of its
officers, agents, or employees shall be deemed an officer, agent, employee, joint
venturer, partner, or associate of City for any purpose. City shall have no right to control
or supervise or direct the manner or method by which Service Provider shall perform its
work and functions. However, City shall retain the right to administer this Agreement so
as to verify that Service Provider is performing its obligations in accordance with the terms
and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture
between Service Provider and City. Service Provider shall have no authority to bind City
absent City's express written consent. Except to the extent otherwise provided in this
Agreement, Service Provider shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, Service Provider
and its officers, agents, and employees shall have absolutely no right to employment
rights and benefits available to City employees. Service Provider 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,
Service Provider shall be solely responsible, indemnify, defend and save City harmless
from all matters relating to employment and tax withholding for and payment of Service
Provider'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 employees of City whether arising by reason of any
common law, de facto, leased, or co- employee rights or other theory. It is acknowledged
that during the term of this Agreement, Service Provider may be providing services to
others unrelated to City or to this Agreement.
14. Notices. Any notice required or intended to be given to either party under
the terms of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation of
receipt, or sent by United States registered or certified mail, with postage prepaid, return
receipt requested, addressed to the party to which notice is to be given at the party's
address' set forth on the signature page of this Agreement or at such other address as the
parties may from time to time designate by written notice. Notices served by United
States mail in the manner above described shall be deemed sufficiently served or given
at the time of the mailing thereof.
15. 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.
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16. Assignment.
(a) This Agreement is personal to Service Provider and there shall be
no assignment by Service Provider of its rights or obligations under this Agreement
without the prior written approval of the City Manager or designee. Any attempted
assignment by Service Provider, its successors or assigns, shall be null and void unless
approved in writing by the City Manager or designee.
(b) Service Provider hereby agrees not to assign the payment of any
monies due Service Provider from City under the terms of this Agreement to any other
individual(s), corporation(s) or entity(ies). City retains the right to pay any and all monies
due Service Provider directly to Service Provider.
17. Compliance With Law. In providing the services required under this
Agreement, Service Provider shall at all times comply with all applicable laws of the United
States, the State of California and City, and with all applicable regulations promulgated
by federal, state, regional, or local administrative and regulatory agencies, now in force
and as they may be enacted, issued, or amended during the term of this Agreement.
18. Waiver. The waiver by either party of a breach by the other of any provision
of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions of this
Agreement may be waived unless in writing and signed by all parties to this Agreement.
Waiver of any one provision herein shall not be deemed to be a waiver of any other
provision herein.
19. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction. Venue
for purposes of the filing of any action regarding the enforcement or interpretation of this
Agreement and any rights and duties hereunder shall be Fresno County, California.
20. Headings. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify or add to
the interpretation or meaning of the provisions of this Agreement.
21. 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.
22. Interpretation, The parties acknowledge that this Agreement in its final form
is the result of the combined efforts of the parties and that, should any provision of this
Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved
by construing this Agreement in favor of or against either party, but rather by construing
the terms in accordance with their generally accepted meaning.
23. Attorne 's Fees- If either party is required to commence any proceeding or
legal action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing party in such proceeding or action shall be entitled to recover from the other
party its reasonable 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.
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25. Precedence of Documents. In the event of any conflict between the body
of this Agreement and any exhibit or attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and conditions
expressed within the exhibit or attachment. Furthermore, any terms or conditions
contained within any exhibit or attachment hereto which purport to modify the allocation
of risk between the parties, provided for within the body of this Agreement, shall be null
and void.
26. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
27. No Third Party Beneficiaries. The rights, interests, duties, and obligations
defined within this Agreement are intended for the specific parties hereto as identified in
the preamble of this Agreement. Notwithstanding anything stated to the contrary in this
Agreement, it is not intended that any rights or interests in this Agreement benefit or flow
to the interest of any third parties.
28. Extent of Agreement. Each party acknowledges that they have read and
fully understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the parties with respect to the subject matter hereof
and supersedes all prior negotiations, representations or agreements, either written or
oral. This Agreement may be modified only by written instrument duly authorized and
executed by both City and Service Provider.
[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 California municipal corporation
DocuSigneedd by:
By:
White,
City Manager
APPROVED AS TO FORM:
Andrew Janz
City Ate �Rgr'd by:
B CbS�a 5/1/2023
y 5--�,sra�'!
I,risti Costa Date
Senior Deputy City Attorney
ATTEST:
Todd Stermer, CMC
City Clerk
By: rO".�s!"cd by.
1Z qW.
Deputy
Addresses:
CITY:
City of Fresno
Attention: Aaron Aguirre, Director
1515 E. Divisadero Street
Fresno, CA 93721
Phone: (559) 621-2900
FAX: (559) 457-1575
Fresno Metropolitan Ministry,
a non-profit corporation
gocu$Ignod by:
By. E"t4-t NcG�oy.
Name: Emogene Nelson
Title: Executive Direcotr
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
F72—"_
Wby:
By:
Name: Vicki Taylor
Title: Deputy Director
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
SERVICE PROVIDER:
Fresno Metro Ministry
Attention: Emogene Nelson, Executive
Director
3845 N. Clark Street Suite 101
Fresno, CA 93726
Phone: 559-485-1416
FAX: 559-485-9109
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
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EXHIBIT A
SCOPE OF SERVICES
Service Agreement between City of Fresno
and Fresno Metro Ministry
Community Garden Management
City of Fresno
City to provide the following assistance:
1. Prepare garden locations, including but not limited to, ground preparation, soil
testing as warranted, work necessary to bring water to each plot, fencing and
permit costs prior to gardeners' possession.
2. Provide an assessment of existing ADA conditions and include required ADA
improvements in the PARCS Department's ADA Transition and Capital
Improvement Plans.
3. Pay utilities including water utilized for drip irrigating each garden site.
4. Notice and promote community garden plots, as needed, in conjunction with
Fresno Metro Ministry.
5. Repair and replace raised beds and irrigation as determined necessary.
Fresno Metro Ministry
Fresno Metro Ministry will provide community garden management, including but not
limited to:
1. Gardener selection and completion of sign-up agreements.
a. An agreement must be in place, including signed wavier, prior to
community member use of their plot.
b. Garden agreements must include risk language and be reviewed
and approved by the City.
c. Only 1 plot shall be allocated per household on a go -forward
basis, to allow access to as many households as possible.
d. Copies of applications shall be available to the City upon request
and retained for three (3) years after the conclusion of the
contract.
e. The selection process shall be based on a first come first serve
basis.
2. Establishment of rules related to plot use.
a. Rules shall be documented and approved by the City of Fresno.
b. A copy of approved rules shall be provided to community
gardeners; posted in English, Hmong, Punjabi and Spanish at
each garden site; reviewed at the time of garden application and
reviewed with all gardeners on an annual basis.
c. Hours of operation shall be posted.
3. Monitoring and enforcement of the rules related to plot use.
4. Communication with each park site gardening group.
5. Reporting maintenance needs utilizing FresGO and "311 ".
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6. Communication with PARCS Area Operations Managers for Area C and
Area D.
7. Collecting and tracking rent from gardeners according to the City of
Fresno Master Fee Schedule.
8. The proceeds from rent monies collected shall be accumulated and
invested back into the community garden twice per year. Eligible use of
these funds include purchase of materials, supplies, educational
workshops and equipment that equally benefit all gardeners. Examples
include: compost, shared tools, drip irrigation materials, non -permanent
seating, etc.
9. Maintain a waiting list for each garden site including the names and
contact information for interested parties.
10.Adhere to reporting requirements which include quarterly reports
submitted with invoices. Quarterly reports shall include the following
information:
a. Total number of garden plots at each location including: number
of garden plots rented, number of plots available for rent, and
number of plots fallow due to need for repairs.
b. Total number of people on waiting lists at each location.
c. Photos from each garden highlighting what is being grown.
d. A description of training, supplies or materials provided.
e. A summary of any challenges or recurring issues.
f. Other data that illustrates outcomes, success stories and impacts
of community garden operations: for example, pounds of
compost, pounds of food grown, etc.
g. Reports should be submitted electronically to
PARCSContracts@Fresno.gov
11. Meet with the City at least twice per year to provide an update on the
garden.
12.Assume responsibility for the security of individual plots and any storage
facilities. Coordinate with City of Fresno as needed to identify security
solutions.
13. Require and enforce drip irrigation and water wise practices.
14. Manage green waste and refuse through composting and proper disposal.
15. Notice and promote community garden plots as needed, in conjunction
with the City of Fresno PARCS department.
16. No structures or other improvements shall be installed during the time of
this agreement without written permission from the City of Fresno PARCS
Director.
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Schedule of Fees
Fresno Metro Ministry shall be reimbursed up to $8,500 per quarter (not to exceed
$49,999 over the life of this agreement) for the management of three community
garden sites, as follows:
Time period
January 1- March 30, 2022
April 1- June 30, 2022
July 1 — September 30, 2022
October 1 — December 31, 2022
January 1 — March 31, 2023
April 1 — June 30, 2023
Invoice/ Report Due
April 15, 2022
July 15, 2022
October 15, 2022
January 15, 2023
April 15, 2023
June 30, 2023
Invoicing & Reporting
Quarterly reports must be submitted with each invoice for services.
Invoices should be submitted to PARCSContracts Fresno. ov and shall include
itemization of direct costs, as well as any overhead expenses up to 10% of direct
expenses. Cost detail to include hourly rate for staff involved in site management,
as well as any supplies and materials directly related to performing site
management activities.
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Community Garden Maps
Lowell Community Garden
Located at: southwest corner of Belmont and Poplar
Size: approximately .60 Acres
Total plots: 31
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Al Radka Community Garden
Located at: 5897 E Belmont Ave, Fresno, CA 93727
Size: approximately 1.14 acres
Number of plots: 55
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Peach and Butler Community Garden
Located at: 2021 S Peach Ave., Fresno, CA, 93727
Size: approximately 2.5 acres
Number of plots: 96
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EXHIBIT B
INSURANCE REQUIREMENTS
Service Agreement between City of Fresno (City)
and Fresno Metro Ministry (Service Provider)
Community Garden Management
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). 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.
MINIMUM LIMITS OF INSURANCE
SERVICE PROVIDER, or any party the SERVICE PROVIDER 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:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
Page 18 of 22
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(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
UMBRELLA OR EXCESS INSURANCE
In the event SERVICE PROVIDER 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
SERVICE PROVIDER shall be responsible for payment of any deductibles contained in
any insurance policy(ies) required herein and SERVICE PROVIDER 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 his/her designee. At the option of the CITY'S Risk Manager or
his/her 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) SERVICE PROVIDER shall provide a financial guarantee,
satisfactory to CITY'S Risk Manager or his/her designee,
guaranteeing payment of losses and related investigations, claim
administration and defense expenses. At no time shall CITY be
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responsible for the payment of any deductibles or self -insured
retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be
endorsed to contain, the following provisions:
1. CITY, its officers, officials, employees, agents and volunteers are to be
covered as additional insureds. SERVICE PROVIDER shall establish
additional insured status for the City and for all ongoing and completed
operations by use of ISO Form CG 20 10 11 85 or both CG 20 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 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, SERVICE PROVIDER'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 SERVICE PROVIDER'S insurance and
shall not contribute with it. SERVICE PROVIDER 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' Con ensation insurance polic is to contain, or be endorsed to contain, the
following provision: SERVICE PROVIDER and its insurer shall waive any right of
subrogation against CITY, its officers, officials, employees, agents and volunteers.
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
(30) calendar days written notice by certified mail, return receipt requested, has been
given to CITY. SERVICE PROVIDER 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,
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SERVICE PROVIDER 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, SERVICE PROVIDER shall provide a new certificate, and
applicable endorsements, evidencing renewal of such policy not less than fifteen (15)
calendar days prior to the expiration date of the expiring policy.
Should any of 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.
The fact that insurance is obtained by SERVICE PROVIDER shall not be deemed to
release or diminish the liability of SERVICE PROVIDER, 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 SERVICE PROVIDER.
Approval or purchase of any insurance contracts or policies shall in no way relieve from
liability nor limit the liability of SERVICE PROVIDER, its principals, officers, agents,
employees, persons under the supervision of SERVICE PROVIDER, vendors, suppliers,
invitees, consultants, sub -consultants, subcontractors, or anyone employed directly or
indirectly by any of them.
VERIFICATION OF COVERAGE
SERVICE PROVIDER shall furnish CITY with all certificate(s) and applicable
endorsements effecting coverage required hereunder. All certificates and applicable
endorsements are to be received and approved by the CITY'S Risk Manager or his/her
designee prior to CITY'S execution of the Agreement and before work commences. All
non -ISO endorsements amending policy coverage shall be executed by a licensed and
authorized agent or broker. Upon request of CITY, SERVICE PROVIDER shall
immediately furnish City with a complete copy of any insurance policy required under this
Agreement, including all endorsements, with said copy certified by the underwriter to be
a true and correct copy of the original policy. This requirement shall survive expiration or
termination of this Agreement.
SUBCONTRACTORS
If SERVICE PROVIDER should subcontract all or any portion of the services to be
performed under this Agreement, SERVICE PROVIDER shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated herein and
SERVICE PROVIDER shall ensure that CITY, its officers, officials, employees, agents
and volunteers are additional insureds. The subcontractors' certificates and
endorsements shall be on file with SERVICE PROVIDER and CITY prior to the
commencement of any work by the subcontractor.
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EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Community Garden Management
YES*
NO
1
Are you currently in litigation with the City of Fresno or any of its
❑
o
agents?
2
Do you represent any firm, organization, or person who is in litigation
❑
0
with the City of Fresno?
3
Do you currently represent or perform work for any clients who do
❑
DX
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
❑
D
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
❑
FXI
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
❑
x❑
this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
n/a
Additional page(s) attached.
tE—,p" Nd"f.
CW&EHCAE.--
4/27/2023
Date
Emogene Nelson
Name
Fresno Metro Ministry
Company
3845 N. Clark St. Ste 101
Address
Fresno, CA 93726
City, State, Zip