HomeMy WebLinkAboutAMAROK Agreement - Electric Fence Permit Application No. P23-02704 9-12-23 AGREEMENT REGARDING AN ELECTRIC PERIMETER SECURITY FENCE
APPROVED BY ELECTRIC FENCE PERMIT APPLICATION NO. P23-02704
THIS AGREEMENT is made by and between the CITY OF FRESNO, a California
municipal corporation, (City) and AMAROK (Permittee), and is first appearing on the
Clerk's Certification of the Planning and Development Department signature.
RECITALS
WHEREAS, Permittee is the owner of an Electric Perimeter Security Fence
proposed to be installed in the City of Fresno, County of Fresno, State of California, at
the Subject Property more particularly described in Exhibit A.
WHEREAS, the Permittee desires to install an Electric Perimeter Security Fence
on the Subject Property; and
WHEREAS, a condition of approval of Electric Fence Permit Application No.
P23-02704 requires compliance with Fresno Municipal Code Sections 15-2009,
related to Security Fences, and 15-2010, related to Electric Fences; and,
WHEREAS, the Permittee and the City desire to enter into an agreement to
indemnify and hold the City harmless pursuant to Fresno Municipal Code Sections 15-
2009-F and 15-2010-I; and,
WHEREAS, the issuance of any special permit may be subject to such conditions
as may be deemed appropriate or necessary to assure compliance with the intent and
purpose of the Zoning Ordinance and established general and specific plans and
policies of the City or to protect the public health, safety, or welfare.
NOW, THEREFORE, in consideration of the above recitals, which recitals are
contractual in nature, the mutual covenants herein contained and such other and further
consideration as is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. The Permittee agrees to construct a security fence, solar powered 12V Battery
Operated, Independent of the power grid. The Electric Perimeter Security Fence is
proposed to be installed 8"-12" inside the existing perimeter fence.
2. The Permittee agrees that the Electric Perimeter Security Fence shall
be constructed to conform to the plans prepared at the Permittee's expense, approved
by the Planning and Development Department, and designed in conformance with
City specifications, local ordinance, California Civil Code Section 835, and the
California Building Code, as may be amended.
3. Pursuant to Section 15-2010-D of the Fresno Municipal Code, no electric
fence shall be installed or used unless it is completely surrounded by a nonelectrical
fence or wall that is a minimum five feet in height. The Permittee agrees that should a
non-electrical fence not exist, one shall be installed prior to the electric fence being
operational.
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4. The Permittee agrees that the Electric Perimeter Security Fence shall not
exceed 10 feet in height.
5. The Permittee agrees that the Electric Perimeter Security Fence shall be
clearly identified with warning signs that read: "Warning-Electric Fence" at intervals of
not less than 30 feet.
6. This Agreement shall in no way be construed as a grant by the City of any
rights to the Permittee to trespass upon land rightfully in the possession of, or owned by
another, whether such land is privately or publicly owned.
7. The City shall not be liable to the Permittee or to any other person, firm,
corporation, or entity whatsoever, for any injury or damage that may result in any person
or property by or from any cause whatsoever in, or about the Subject Property. To the
furthest extent allowed by law, Permittee shall indemnify, hold harmless, and defend the
City and each of its officers, officials, employees, agents, volunteers, boards, and
commissions against all loss, liability, fines, penalties, forfeitures, costs, and damages
(whether in contract, tort, or strict liability including, but not limited to, personal injury,
death at any time, and property damages) incurred by the City, the Permittee or any
other person, and from any and all claims, demands, actions and suits in law or equity
(including attorney's fees and litigation expenses), arising or alleged to have arisen
directly or indirectly out of the performance of this Agreement including, but not limited
to, the design and installation of the landscaping improvements (herein Indemnity
Obligations). The Permittee's obligations under the preceding sentence apply
regardless of whether the City or any of its officers, officials, employees, agents,
volunteers, boards, or commissions are negligent, but does not apply to any loss,
liability, fines, penalties, forfeitures, costs, or damages caused solely by the gross
negligence or willful misconduct of the City or any of its officers, officials, employees,
agents, volunteers, boards, or commissions.
Permittee shall indemnify, hold harmless and defend the City against any action
or suit by a third party challenging the validity of this Agreement.
Permittee's obligations under this section will remain in effect following the
termination and expiration of this Agreement with respect to any Indemnity Obligation
arising prior to such termination or expiration date.
8. Throughout the life of this Agreement, Permittee shall pay for and maintain
in full force and effect all policies of insurance required under this Agreement with an
insurance company(ies) either (i) admitted by the California Insurance Commissioner to
do business in the State of California and rated not less than "A-VII" in Best's Insurance
Rating Guide, or (ii) authorized by the City's Risk Manager. The following policies of
insurance are required:
(a) COMMERCIAL GENERAL LIABILITY or PERSONAL LIABILITY
insurance that includes coverage:
(i) $1,000,000 per occurrence for bodily injury and property
damage;
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(i i) $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 Contract.
(b) COMMERCIAL AUTOMOBILE LIABILITY provisions with limits of
liability of not less than $1,000,000 per accident for bodily and property damage.
(c) WORKERS' COMPENSATION insurance as required by law. Any
Workers' Compensation insurance policy shall contain a waiver of subrogation as
to City, its officers, officials, agents, employees, and volunteers.
(d) EMPLOYERS' LIABILITY INSURANCE with limits of liability of not
less than $1,000,000 each accident, $1,000,000 disease policy limit, and
$1,000,000 disease each employee.
UMBRELLA OR EXCESS INSURANCE
In the event Permittee purchases an Umbrella or Excess insurance policy(ies) to
meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form"
and afford no less coverage than the primary insurance policy(ies). In addition, such
Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-
contributory basis for the benefit of the City, its officers, officials, employees, agents,
and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
Permittee shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and Permittee shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured retentions must
be declared on the Certificate of Insurance, and approved by, the City's Risk Manager
or designee. At the option of the City's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-
insured retentions as respects City, its officers, officials, employees, agents, and
volunteers; or
(ii) Permittee shall provide a financial guarantee, satisfactory to City's
Risk Manager or designee, guaranteeing payment of losses and related
investigations, claim administration and defense expenses. At no time shall City
be responsible for the payment of any deductibles or self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
(i) Permittee shall provide the City thirty calendar days prior notice
before any cancellation, non-renewal or reduction in coverage or in limits, upon
issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal,
or reduction in coverage or in limits, Permittee shall furnish City with a new
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certificate and applicable endorsements for such policy(ies). In the event any
policy is due to expire during the work to be performed for City, Permittee shall
provide a new certificate, and applicable endorsements, evidencing renewal of
such policy not less than fifteen calendar days prior to the expiration date of the
expiring policy.
(ii) The Commercial General and Automobile Liability insurance
policies shall be written on an occurrence form.
(iii) The Commercial General and Automobile Liability insurance
policies shall be endorsed to name City, its officers, officials, agents, and
volunteers as an additional insured. Permittee shall establish additional insured
status for the City and for all ongoing and completed operations under
Commercial General policy by use of ISO Forms or an executed manuscript
insurance company endorsement providing additional insured status. The
Commercial General endorsements must be as broad as that contained in ISO
Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37.
(iv) All such policies of insurance shall be endorsed so the Permittees'
insurance shall be primary and no contribution shall be required of City. The
coverage shall contain no special limitations on the scope of protection afforded
to City, its officers, officials, employees, agents, and volunteers. If Permittee
maintains higher limits of liability than the minimums shown above, City requires
and shall be entitled to coverage for the higher limits of liability maintained by
Permittee.
(v) Should any of these policies provide that the defense costs are paid
within the Limits of Liability, thereby reducing the available limits by defense
costs, then the requirement for the Limits of Liability of these polices will be twice
the above stated limits.
(vi) For any claims related to this Agreement, Permittee's insurance
coverage shall be primary insurance with respect to the City, its officers, officials,
agents, employees, and volunteers. Any insurance or self-insurance maintained
by the City, its officers, officials, agents, employees and volunteers shall be
excess of the Permittee's insurance and shall not contribute with it.
(vii) The Workers' Compensation insurance policy shall contain, or be
endorsed to contain, a waiver of subrogation as to City, its officers, officials,
agents, employees, and volunteers.
PROVIDING OF DOCUMENTS - Permittee shall furnish City with all certificate(s)
and applicable endorsements effecting coverage required herein. All certificates and
applicable endorsements are to be received and approved by the City's Risk Manager
or designee prior to City's execution of the Agreement and before work commences. All
non-ISO endorsements amending policy coverage shall be executed by a licensed and
authorized agent or broker. Upon request of City, Permittee shall immediately furnish
City with a complete copy of any insurance policy required under this Agreement,
including all endorsements, with said copy certified by the underwriter to be a true and
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correct copy of the original policy. This requirement shall survive expiration or
termination of this Agreement.
MAINTENANCE OF COVERAGE - If at any time during the life of the Agreement
or any extension, Permittee fails to maintain any required insurance in full force and
effect, all work under this Agreement shall be discontinued immediately until notice is
received by City that the required insurance has been restored to full force and effect
and that the premiums therefore have been paid for a period satisfactory to City. Any
failure to maintain the required insurance shall be sufficient cause for City to terminate
this Agreement. No action taken by City hereunder shall in any way relieve Permittee of
its responsibilities under this Agreement. The phrase "fail to maintain any required
insurance" shall include, without limitation, notification received by City that an insurer
has commenced proceedings, or has had proceedings commenced against it, indicating
that the insurer is insolvent.
The fact that insurance is obtained by Permittee shall not be deemed to release
or diminish the liability of Permittee, including, without limitation, liability under the
indemnity provisions of this Agreement. The duty to indemnify City shall apply to all
claims and liability regardless of whether any insurance policies are applicable. The
policy limits do not act as a limitation upon the amount of indemnification to be provided
by Permittee. Approval or purchase of any insurance contracts or policies shall in no
way relieve from liability nor limit the liability of Permittee, its principals, officers, agents,
employees, persons under the supervision of Permittee, vendors, suppliers, invitees,
consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly
by any of them.
SUBCONTRACTOR- Permittee will be solely responsible for ensuring that its
subcontractor maintain insurance coverage at levels no less than those required by
applicable law and is customary in the relevant industry.
9. If either party is required to commence any proceeding or legal action to
enforce or interpret any term or condition of this Agreement, the prevailing party in such
proceeding or action shall be entitled to recover from the other party its reasonable
attorney's fees and legal expenses. For the purposes of this Agreement, "attorneys'
fees" and "legal expenses" include, without limitation, paralegals' fees and expenses,
attorneys, consultants fees and expenses, expert witness fees and expenses, and all
other expenses incurred by the prevailing party's attorneys in the course of the
representation of the prevailing party in anticipation of and/or during the course of
litigation, whether or not otherwise recoverable as "attorneys' fees" or as "costs" under
California law, and the same may be sought and awarded in accordance with California
procedure as pertaining to an award of contractual attorneys' fees.
10. Any notice required or intended to be given to a party under the terms of
this Agreement shall be in writing and shall be deemed to be duly delivered the earlier
of (a) actual receipt by personal delivery to the representative (as defined herein), as
the case may be, or in lieu of such personal service, by way of Federal Express, DHL,
or other similar courier addressed to such party at the appropriate address set forth
herein, (b) the date of receipt by facsimile to the City Representative or the
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DEVELOPER Representative, or (c) three business days after the date of mailing
(postage pre- paid return receipt requested). Either party may change its address for the
purpose of this Paragraph by giving written notice of such change to the other.
11. Once this Agreement is signed by all the parties, it shall be binding upon,
and shall inure to the benefit of, the parties, and each party's respective heirs,
successors, assigns, transferees, agents, servants, employees, and representatives.
The terms and conditions of this Agreement, express or implied, exist only for the
benefit of the parties to this Agreement, their respective successors and assigns. No
other person or entity will be deemed to be a third party beneficiary of this Agreement.
12. There shall be no assignment by any party of its rights or obligations
under this Agreement without the prior written approval of the other party. Any
attempted assignment by a party, its successors or assigns, shall be null and void
unless approved in writing by the other party.
13. The waiver by any party of a breach by the other of any provision of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement.
No provisions of this Agreement may be waived unless in writing and approved
by and signed by all parties to this Agreement. Waiver of any one provision herein shall
not be deemed to be a waiver of any other provision herein.
No action or omission by either party shall constitute a breach of this Agreement
unless the injured party first notifies the other party of the purported breach in writing
setting forth the alleged breach or default and said party does not cure the same within
a reasonable period of time. The payment of any fee or compensation or performance
of any obligation hereunder by either party shall not constitute a waiver of any breach by
the other party or of any of the rights and remedies which either party may have as a
result of such breach. No waiver by either party of breach of the Agreement shall be
implied from any failure by the other party to take action on account of such breach if
such breach persists or is repeated. Waivers by either party of any covenant, term or
condition contained herein shall not be construed as a waiver of any subsequent breach
of the same covenant, term or condition.
14. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of California. Venue for purposes of the filing of
any action regarding the enforcement or interpretation of this Agreement and any rights
and duties hereunder shall be Fresno, California.
15. The provisions of this Agreement are severable. The invalidity or
unenforceability of any one provision in this Agreement shall not affect the other
provisions.
16. The parties acknowledge that this Agreement in its final form is the result
of the combined efforts of the parties and that, should any provision of this Agreement
be found to be ambiguous in any way, such ambiguity shall not be resolved by
construing this Agreement in favor or against any party, but rather by construing the
terms in accordance with their generally accepted meaning.
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17. Each party hereby represents and warrants to the other party, and agrees
that it has the full power and authority to enter into this Agreement and perform each of
its obligations hereunder, and it is legally authorized and has obtained all necessary
regulatory approvals for the execution, delivery, and performance of this Agreement.
18. It is mutually understood and agreed that the foregoing constitutes the
entire Agreement between the parties. Any modifications or amendments to this
Agreement must be in writing signed by an authorized agent of each party.
[SIGNATURES FOLLOW ON THE NEXT PAGE.]
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IN WITNESS THEREOF, the parties have caused their duly authorized
representatives to execute this Assignment.
CITY PERMITTEE
CITY OF FRESNO, AMAROK
A California municipal corporation
vcu5igned by:
Planr,, q d Development Department rH""_if ocu$3�nc��y: 22E8DdFOC1641E.
ecl- f*-d,,' 9/12/2023 Nathan Leaphart
ennl er . Clark, Director Name:
Title: CFO
(If corporation or LLC., Board Chair,
No signature of City Attorney required. Do P i9�s. or Vice Pres.)
Standard Document #DEV-S Electric 9/12/2023
Fence Agreement (01-2023) has been y ��
used without modification, as certified �by the undersigned. Name: Michael Dorri ngton
By: k4z& . - Title: vice President of sales and Marketing
Matthew Woodward (If corporation or LLC., CFO, Treasurer,
Planner Secretary or Assistant Secretary)
REVIEWED BY:
ATTEST:
TODD STERMER, CMC
City Clerk
DucuSigned by:
YylI 1. q6w 9/12/2023
6CA,388882f 0964"D. Date
Deputy
(Attach City Clerk Certification)
Addresses:
CITY: PERMITTEE:
City of Fresno AMAROK
Attention: Matthew Woodward Attention: Hannah Robinson
Planner Compliance Manager
2600 Fresno St 550 Assembly St
Fresno, CA 93721 Columbia, SC 29201
Phone: (559) 621-8067 Phone: (803) 902-9628
E-mail: E-mail: hrobinson@amarok.com
matthew.woodward@fresno.gov
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Attachment(s):
1. Exhibit A— Legal Description
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EXHIBIT A
Legal Description:
Real property in the City of Fresno, County of Fresno, State of California, described
as follows:
Parcels I and J of Parcel Map No. 2005-13, according to the map thereof recorded
December 14, 2006 in Book 66, pages 87 and 88 of parcel maps, Fresno County
Records.
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Exhibit C
DISCLOSURE OF CONFLICT OF INTEREST
Pro ect Title
PROJECT TITLE
YES* NO
1 Are you currently in litigation with the City of Fresno or any of its ❑
agents?
2 Do you represent any firm, organization or person who is in ❑ 0
litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients who do ❑ 0
business with the City of Fresno?
4 Are you or any of your principals, managers or professionals,
owners or investors in a business which does business with the
City of Fresno, or in a business which is in litigation with the City of
Fresno?
5 Are you or any of your principals, managers or professionals,
related by blood or marriage to any City of Fresno employee who ❑ 1:X1
has any significant role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with
this Project?
* If the answer to any question is yes, please explain in full below.
ocu ig y:
Explanation: Nauun.
not applicable
9/12/2023
Date
Nathan Leaphart
(name)
AMAROK, LLC
(company)
550 Assembly street
(address)
!I Additional page(s) attached. Columbia, Sc 29201
(city state zip)
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