HomeMy WebLinkAboutAgreement A-21-547 with Mintier Harnish LP.pdfASSIGNMENT AND CONSENT TO ASSIGNMENT
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ASSIGNMENT OF
AMENDED AND RESTATED CONSULTANT AGREEMENT, NO. 20-144
AND
COUNTY OF FRESNO CONSENT TO ASSIGNMENT
This ASSIGNMENT OF AMENDED AND RESTATED CONSULTANT AGREEMENT, NO. 20-
144, AND COUNTY OF FRESNO CONSENT TO ASSIGNMENT (hereinafter “Assignment and
Consent to Assignment”) is made and entered into this 16th day of November, 2021 (the “Execution
Date”), by and among COUNTY OF FRESNO, a political subdivision of the State of California
(hereinafter “COUNTY”), MINTIER HARNISH, LP, a California limited partnership (hereinafter
“ASSIGNOR”), whose address is 1415 20th Street, Sacramento, CA 95811, and RINCON
CONSULTANTS, INC., a California corporation (hereinafter “ASSIGNEE”), whose address is 7080 N.
Whitney Avenue, Suite 101, Fresno, CA 93720, each a “Party” and, collectively, the “Parties.”
RECITALS:
A.On October 15, 2015, COUNTY and ASSIGNOR executed County of Fresno agreement
number 15-530 (the “Original Agreement”), under which ASSIGNOR was selected to provide
consulting services to COUNTY associated with COUNTY’s General Plan Review and Zoning Ordinance
Update project (the “GPRZOU”).
B.The GPRZOU consists of (i) a review of COUNTY’s 2000 General Plan and
comprehensive update to COUNTY’s Zoning Ordinance to address recent policy direction given by the
Board of Supervisors and address recent changes to State planning law, (ii) the preparation of a program
Environmental Impact Report (EIR), and (iii) conducting public meetings, including but not limited to
those with the Planning Commission and Board of Supervisors necessary for the adoption of the
program EIR, policy documents, and ordinances.
C.On April 14, 2020, COUNTY and ASSIGNOR executed an Amended and Restated
Consultant Agreement, County of Fresno agreement number 20-144 (the “Amended Agreement”),
which superseded and replaced the Original Agreement in its entirety.
D.ASSIGNOR has delivered to COUNTY “Contract Deliverables” numbered I through VIII,
XI, and a portion of XII as defined in subsection 3.B of the Amended Agreement. ASSIGNOR has also
performed certain “Extra Services,” as defined in subsection 3.C of the Amended Agreement.
21-1167 Agreement No. 21-547
ASSIGNMENT AND CONSENT TO ASSIGNMENT
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E. COUNTY has fully compensated ASSIGNOR for its completion of Contract Deliverables
numbered I through VIII, XI, and the above-referenced portion of XII, as well as for the above-referenced
Extra Services. Such compensation amounts to Five Hundred and Seventeen-Thousand, Nine Hundred
and Eighty-Six Dollars and Thirty-Six Cents ($517,986.36) which includes Twenty-Five Thousand, Two
Hundred and Seventy-Four Dollars and Fifty-Six Cents ($25,274.56) in Extra Services.
F. As of the Execution Date of this Assignment and Consent to Assignment, Contract
Deliverables IX, X, portions of XII, and all of XIII through XVI (“Remaining Deliverables”) have not yet
been performed, with an amount not to exceed Five-Hundred and Ten Thousand, Two-Hundred and
Thirteen Dollars and Twenty Cents ($510,213.20) remaining payable for such services once they are
performed. One-Hundred Thousand, Seventy-Five Dollars and Forty-Four Cents ($100,075.44) remain
payable available for Extra Services.
G. Under the Original Agreement and Amended Agreement ASSIGNEE performed work as
a named sub-consultant to ASSIGNOR.
H. The Amended Agreement, at section 19, requires COUNTY consent for ASSIGNOR to
transfer the Amended Agreement or its rights or duties under the Amended Agreement.
I. ASSIGNOR represents and warrants to COUNTY that ASSIGNOR wishes to transfer and
assign all of its rights and interest in, and delegate all of its obligations and duties under the Amended
Agreement, in its entirety, as of the Effective Date, to ASSIGNEE, as provided herein.
J. ASSIGNEE represents and warrants to COUNTY that ASSIGNEE desires to, and is
qualified to, accept the transfer and assignment of all of the rights and interest of ASSIGNOR in, and
delegation of all of the obligations and duties of ASSIGNOR under the Amended Agreement, in its
entirety, as of the Effective Date, and agrees to each and every term and condition of the Amended
Agreement, in its entirety, as provided herein.
K. ASSIGNEE understands that the California Environmental Quality Act (CEQA) requires
that the program EIR prepared for the GPRZOU reflect the independent judgment of the lead agency.
L. ASSIGNEE understands that it must meet the requirements for an interdisciplinary
approach in the preparation of the program EIR, as specified in Article 9 of the CEQA Guidelines
(sections 15120 through 15132), and that the ASSIGNEE must have no interest, financial or otherwise,
ASSIGNMENT AND CONSENT TO ASSIGNMENT
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in the outcome of the GPRZOU or any related projects.
M. ASSIGNEE represents that it has no interest, financial or otherwise, in the outcome of
the GPRZOU or any related projects
N. ASSIGNEE represents that it is qualified, able, and willing to prepare a legally adequate
program EIR and to otherwise deliver the necessary environmental consulting services as are required
by COUNTY and as are required by law for the GPRZOU, which representation COUNTY specifically
relies upon.
O. In reliance on the foregoing representations, and under the conditions herein, COUNTY
is agreeable to this Assignment and Consent to Assignment.
NOW THEREFORE, in consideration of the foregoing recitals, which are substantive provisions
of this Assignment and Consent to Assignment, and incorporated herein by reference, and of the
following covenants and conditions, COUNTY, ASSIGNOR, and ASSIGNEE hereby agree as follows:
1. Assignment. Upon the Effective Date, ASSIGNOR, without qualification or reservation
of right, hereby transfers and assigns all of its remaining rights and interest in, and delegates all of its
remaining obligations and duties under, the Amended Agreement, in its entirety, to ASSIGNEE, as of
the Effective Date. Upon the Effective Date, ASSIGNEE, without qualification or reservation of right,
hereby accepts ASSIGNOR’s transfer and assignment of all of ASSIGNOR’s remaining rights and
interest in, and ASSIGNOR’s delegation of all of its remaining obligations and duties under, the
Amended Agreement, in its entirety, as a direct obligation and duty to COUNTY, assumed by
ASSIGNEE.
a. ASSIGNOR hereby relinquishes all remaining rights and interest under the
Amended Agreement, in its entirety, upon and at all times continuing after the Effective Date.
ASSIGNOR shall only be entitled under the Amended Agreement to compensation by COUNTY for
services performed and accepted by COUNTY prior to the Effective Date hereof. ASSIGNOR agrees
that COUNTY has fully compensated ASSIGNOR for its completion of Contract Deliverables numbered
I through VIII, XI, and a portion of XII in the amount of Five Hundred and Seventeen-Thousand, Nine
Hundred and Eighty-Six Dollars and Thirty-Six Cents ($517,986.36) which includes Twenty-Five
Thousand, Two Hundred and Seventy-Four Dollars and Fifty-Six Cents ($25,274.56) in Extra Services.
ASSIGNMENT AND CONSENT TO ASSIGNMENT
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ASSIGNOR represents that, as of the Effective date, it is not entitled to any further compensation from
COUNTY under the Amended Agreement.
b. ASSIGNEE agrees to be bound, upon the Effective Date and at all times
continuing thereafter until such time as ASSIGNEE has completed all obligations owed under the
Amended Agreement, by each and every term and condition of the Amended Agreement.
c. ASSIGNOR represents and warrants to COUNTY that ASSIGNOR is not in
breach of or default under the Amended Agreement and that ASSIGNOR will provide an orderly
transition of the performance of its obligations and duties under the Amended Agreement from
ASSIGNOR to ASSIGNEE.
d. Upon the Effective Date, ASSIGNEE, without qualification or reservation of right,
hereby accepts ASSIGNOR’s transfer and assignment of all of ASSIGNOR’s remaining rights and
interest in, and ASSIGNOR’s delegation of all of its remaining obligations and duties under, the
Amended Agreement, in its entirety, as of the Effective Date hereof, as a direct obligation and duty to
COUNTY, assumed by ASSIGNEE.
e. Upon the Effective Date and at all times continuing thereafter until such time as
ASSIGNEE has completed all of ASSIGNOR’s remaining obligations and duties owed under the
Amended Agreement, as of the Effective Date, ASSIGNEE agrees to each and every term and condition
of the Amended Agreement, in its entirety, and to perform each and every one of ASSIGNOR’s
remaining obligations and duties under the Amended Agreement, it its entirety, as of the Effective Date,
as though ASSIGNEE was the signatory party to the Amended Agreement, in lieu of ASSIGNOR.
f. ASSIGNEE shall only be entitled under the Amended Agreement to compensation
by COUNTY for Contract Deliverables accepted by COUNTY after the Effect ive Date hereof or “Extra
Services,” as defined in section 3.C of the Amended Agreement, requested by COUNTY after the
Effective Date. ASSIGNEE shall perform the Remaining Deliverables. Compensation shall not exceed
Five Hundred and Ten Thousand, Two Hundred and Thirteen Dollars and Twenty Cents ($510,213.20)
for these Remaining Deliverables and One-Hundred Thousand, Seventy-Five Dollars and Forty-Four
Cents ($100,075.44) for “Extra Services,” as defined in section 3.C of the Amended Agreement.
2. Consent to Assignment. COUNTY hereby gives its written consent to ASSIGNOR’s
ASSIGNMENT AND CONSENT TO ASSIGNMENT
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transfer and assignment of all of ASSIGNOR’s remaining rights and interest in, and ASSIGNOR’s
delegation of all of its remaining obligations and duties under, the Amended Agreement, in its entirety,
as of the Effective Date hereof, to ASSIGNOR, as provided herein, which written consent is given in
reliance upon all of the representations and covenants made herein by ASSIGNOR and ASSIGNEE,
respectively, each of which is a material inducement to COUNTY entering into this Assignment and
Consent to Assignment.
3. Acceptance of Notices under Amended Agreement by ASSIGNEE. Upon the
Effective Date and at all times continuing thereafter until such time as ASSIGNEE has completed all
obligations owed under the Amended Agreement, ASSIGNEE will accept all notices under the Amended
Agreement, pursuant to section 18 of the Amended Agreement at the following address:
Rincon Consultants, Inc.
Attn: Richard Daulton, Vice President
7080 N. Whitney Avenue, Suite 101
Fresno, CA 93720
4. Additional Provisions:
a. Insurance. Within thirty days of the Effective Date, ASSIGNEE shall provide
certificates of all insurance and endorsements required under subsection 4.B of the Amended
Agreement to COUNTY as provided by subsection 5.c hereof. ASSIGNOR represents and warrants that
there are, as of the Effective Date, no material claims or actions under any of the insurance coverages
or policies required under subsection 4.B of the Amended Agreement.
b. Representations and Warranties. ASSIGNOR and ASSIGNEE each
individually represent and warrant to COUNTY that (i) the execution, delivery and performance by the
ASSIGNOR or ASSIGNEE, respectively, under this Assignment and Consent to Assignment shall not,
by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or
breach of or default under any provision contained in any agreement, instrument, or document to which
the ASSIGNOR or ASSIGNEE, respectively, is bound, (ii) that there are no proceedings pending or
threatened against ASSIGNOR or ASSIGNEE, respectively, before any court or administrative agency
that may adversely affect ASSIGNOR’s or ASSIGNEE’s, respectively, ability to fulfill all of its obligations
under this Assignment and Consent to Assignment, (iii) no filing or petition under the United States
ASSIGNMENT AND CONSENT TO ASSIGNMENT
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Bankruptcy Law or any insolvency laws, or any laws for composition of indebtedness or for the
reorganization of debtors has been filed or threatened with regard to ASSIGNOR or ASSIGNEE,
respectively, or is expected to be filed with regard to ASSIGNOR or ASSIGNEE, respectively, within any
period of time that would adversely affect the transactions contemplated under this Assignment and
Consent to Assignment, and (iv) ASSIGNOR or ASSIGNEE, respectively, has taken all actions and has
obtained all consents and approvals necessary to enable such Party to enter into this Assignment and
Consent to Assignment, to be bound hereby, to consummate the transactions contemplated hereby and
to fulfill all of its obligations hereunder, including giving the representations and warranties hereunder to
COUNTY. ASSIGNOR represents and covenants to COUNTY that ASSIGNOR has not transferred or
assigned any right or interest in the Amended Agreement, or delegated any obligations or duties under
the Amended Agreement to any other party.
c. Notices. All notices, consents, approvals, requests, correspondence, documents,
reports, demands and other communications (collectively, “notice”) which the Parties are required or
desire to serve upon or deliver to one another under this Assignment and Consent to Assignment shall
be in writing and shall be sent by any of the following methods: (a) personal delivery, in which case
notice is effective upon delivery; (b) certified or registered United States mail, return receipt requested,
in which case notice shall be deemed effective upon receipt if delivery is confirmed by a return receipt;
or (c) nationally recognized overnight courier, with charges prepaid or charged to the sender’s account,
in which case notice is effective on delivery if delivery is confirmed by the delivery service addressed in
the appropriate manner for the method of service, as set forth below:
COUNTY:
Director of Public Works and Planning
County of Fresno
2220 Tulare Street, Eighth Floor
Fresno, CA 93721
With Copies to:
Fresno County Counsel
2220 Tulare Street, Fifth Floor
Fresno, CA 93721
ASSIGNOR:
Mintier Harnsih, LP
1415 20th Street
Sacramento, CA 95811
ASSIGNEE:
Rincon Consultants, Inc.
Attn: Richard Daulton
7080 N. Whitney Avenue, Suite 101
Fresno, CA 93720
For all claims arising out of or related to this Assignment and Consent to Assignment, nothing in this
ASSIGNMENT AND CONSENT TO ASSIGNMENT
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Section 6 establishes, waives, or modifies any claims presentation requirements or procedures provided
by law, including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government
Code, beginning with section 810).
d. Assignment. This Assignment and Consent to Assignment shall not be
transferred or assigned, nor shall any obligation or duty hereunder be delegated, by any Party hereto,
or its successor or assign.
e. Governing Law and Venue. This Assignment and Consent to Assignment is
made and entered into in the State of California and shall be deemed to have been executed and
delivered within the State of California, and the rights and obligations of the parties hereunder shall be
governed by, and construed, and enforced in accordance with the laws of the State of California. Any
suits brought pursuant to this Assignment and Consent to Assignment shall be filed and heard in courts
having jurisdiction and located in the Fresno County, State of California.
f. Construction. The Parties hereby acknowledge that they and their respective
counsel have cooperated in the drafting and preparation of this Assignment and Consent to Assignment,
for which reason this Assignment and Consent to Assignment shall not be construed against any Party
as the drafter hereof.
g. Headings. The headings contained in this Assignment and Consent to
Assignment are for reference purposes only and shall not affect in any way the meaning or interpretation
hereof.
h. No Third-Party Beneficiaries. The Parties acknowledge and agree that no other
person, firm, corporation, or entity shall be deemed an intended third-party beneficiary of this
Assignment and Consent to Assignment.
i. Legal Authority. Each Party represents and warrants to each other Party that
such Party is duly authorized and empowered to execute, enter into, and perform its obligations set forth
in this Assignment and Consent to Assignment, and that the individual signing this Assignment and
Consent to Assignment on behalf of such Party has been duly authorized to execute this Assignment
and Consent to Assignment on behalf of such Party, and will, by signing this Assignment and Consent
to Assignment on such Party's behalf, legally bind such Party to the terms, covenants, and conditions of
ASSIGNMENT AND CONSENT TO ASSIGNMENT
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this Assignment and Consent to Assignment. Each Party further represents and warrants to each other
Party that no other person or entity is required to give its approval or consent to this Assignment and
Consent to Assignment in order for such Party to authorize, enter into, and perform its obligations under
this Assignment and Consent to Assignment, or that if such approval or consent to this Assignment and
Consent to Assignment is required, that such approval or consent has been obtained.
j. Counterparts. This Assignment and Consent to Assignment may be executed in
one or more original counterparts, all of which together will constitute one and the same agreement.
k. Entire Agreement. This Assignment and Consent to Assignment constitutes the
entire agreement between COUNTY, ASSIGNOR, and ASSIGNEE with respect to the subject matter
hereof, namely the assignment of the Agreement, as amended by the Amendment, and supersedes all
previous agreements, negotiations, proposals, commitments, writings, advertisements, publications,
and understanding of any nature whatsoever, except for the Amended Agreement as provided in this
Assignment and Consent to Assignment.
l. Electronic Signatures. The Parties agree that this Assignment and Consent to
Assignment may be executed by electronic signature as provided in this section.
i. An “electronic signature” means any symbol or process intended by an
individual signing this Assignment and Consent to Assignment to represent their signature, including but
not limited to (1) a digital signature; (2) a faxed version of an original handwritten signature; or (3) an
electronically scanned and transmitted (for example by PDF document) of a handwritten signature.
ii. Each electronic signature affixed or attached to this Assignment and
Consent to Assignment (1) is deemed equivalent to a valid original handwritten signature of the person
signing this Assignment and Consent to Assignment for all purposes, including but not limited to
evidentiary proof in any administrative or judicial proceeding, and (2) has the same force and effect as
the valid original handwritten signature of that person.
iii. The provisions of this section satisfy the requirements of Civil Code
section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2,
Title 2.5, beginning with section 1633.1).
iv. Each Party using a digital signature represents that it has undertaken and
ASSIGNMENT AND CONSENT TO ASSIGNMENT
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satisfied the requirements of Government Code section 16.5, subdivision (a), paragraphs (1) through
(5), and agrees that each other Party may rely upon that representation.
v. This Assignment and Consent to Assignment is not conditioned upon the
Parties conducting the transactions under it by electronic means and either Party may sign this
Assignment and Consent to Assignment with an original handwritten signature.
m. Effective Date. This Assignment and Consent to Assignment becomes effective
immediately upon execution of the first amendment to the Agreement (or first agreement amending and
restating the Agreement) to be executed by COUNTY and ASSIGNEE following the Execution Date
hereof.
(Signature page follows.)
,,
l
1 The undersigned Parties hereby execute this Assignment and Consent to Assignment by their
2 si~natures.
3 !
4 ASSIGNOR:
MINTIER HARNISH, LP,
5 a California · mited ar~ne:-ship
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I
Tille:
11 ASSIGNEE:
12 RJNCON CONSUL TAMTS, lNC.,
a California Corporation
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By : ___________ _
Print Name: ----------
COUNlY OF FRESNO
Steve Brandau, Chairman of the
Board of Suµervisors of the
County of Fresno
ATTEST:
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno, State of California
By ct ~~ Deputy
ASSIGNMENT AND COMSENT TO ASSIGNMENT
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ACCOUNTING INFORMATION
FUND NO: 0001
SUBCLASS NO: 10000
ORG 2540
ACCOUNTY 7295