HomeMy WebLinkAboutEIR 8189 Consultant Agreement - Environmental Science Associates.pdf 1CONSULTANT AGREEMENT
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3 THIS AGREEMENT is made and entered into this 8 th day of Julv 2022, by and between
4 COUNTY OF FRESNO a political subdivision of the State of California, hereinafter referred to as the
5 "COUNTY", and Environmental Science Associates, Inc., a California Corporation, hereinafter referred
O to as the "CONSULTANT". COUNTY and CONSULTANT may be referred to individually as a "PARTY",
7 or collectively as "PARTIES", to this AGREEMENT.
8 WITNESSETH
B WHEREAS, CONSULTANT has been selected to prepare an Environmental Impact
10 Report ("EIR") for COUNTY for a proposal by Key Energy Storage, LLC, hereinafter referred to as
11 "APPLICANT'. APPLICANT is not a PARTY to this AGREEMENT. The project consists of Unclassified
12 Conditional Use Permit Application No. 3734, and EIR No. 8189 proposing to allow the construction,
13 operation and ultimate decommissioning of an Energy Storage facility with appurtenant infrastructure on
14 an approximately 208-acre portion of three parcels totaling 318-acres in the AE-40(Exclusive Agriculture;
15 40-acre minimum parcel size) Zone District hereinafter referred to as"PROJECT." The PROJECT site is
16 located on the south side of W. Jayne Avenue approximately one mile east of California Interstate 5, and
17 approximately 4 miles south of the City of Huron. A copy of the Project Description is attached hereto as
18 EXHIBIT A; and
19 WHEREAS, CONSULTANT understands that the California Environmental Quality Act
20 ("CEQA") requires that the BF{ prepared for the project reflect the independent judgment of the lead
21 mgenoy; oDd
22 WHEREAS, CONSULTANT understands that it must meet the requirements for GD
23 interdisciplinary approach in the preparation of the BR, as are specified in Article 14 of the CEQA
24 Guidelines /S8[t|On 15120 — 15132\. and that CONSULTANT must have no intereat, financial or
25 othenwioe, in the outcome of the proposed PROJECT or any related projects; and
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27 WHEREAS, CONSULTANT represents that itioqualified, able, and willing to prepare a
20 legally adequate E|R and to otherwise deliver the necessary environmental consulting services as are
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1 D. CONSULTANT shall review all background information, prior environmental studies
2 and other studies supplied by APPLICANT for evaluation in the EIR, and CONSULTANT or its
3 Subconsultants shall revise and/or complete any studies determined to be inadequate or incomplete.
4 E. CONSULTANT shall not revise the approved WORK PROGRAM or replace any
5 Subconsultant, as identified in the WORK PROGRAM, selected to prepare any part of the EIR without
6 the prior written consent of DIRECTOR. CONSULTANT Project Manager shall be Janna Scott, email
7 JScoft@esassoc.com. Any changes to CONSULTANT Project Manager will require the prior written
8 consent of DIRECTOR.
9 F. CONSULTANT shall at minimum conduct one(1) scoping meeting for the Notice of
10 Preparation (NOP) and one (1) public meeting for the Draft EIR if such meetings are requested by
11 COUNTY.
12 OBLIGATIONS OF COUNTY
13 A. COUNTY shall make arrangements for meetings with public agencies and the public
14 if COUNTY requests CONSULTANT to conduct such meetings.
15 B. COUNTY shall make available to CONSULTANT documents, studies, and other
16 information, not otherwise confidential or privileged, in its possession related to the project.
17 C. COUNTY shall review CONSULTANT work and provide comments to CONSULTANT
18 as necessary to ensure the environmental record is complete and accurate.
19 D. COUNTY shall mail required notices to public agencies and interest groups.
20 E. The deadlines for performance by COUNTY or its officers and employees set forth in
21 this Section 2 are directory only, and the failure of COUNTY to meet such deadlines shall not be a breach
22 of this AGREEMENT. In the event of a failure to meet any such deadlines, COUNTY shall notify
23 CONSULTANT of delay within fifteen (15)working days.
24 2' COMPENSATION
25 A. For the services performed by CONSULTANT pursuant to this AGREEMENT,
26 COUNTY shall pay CONSULTANT a basic fee which shall be a flat fee in the total sum of Three Hundred,
27 Sixty Thoueand, Seven Hundred Eighty-Nine Dollars and no cents ($360.788.00). This flat fee is the
28 entire consideration to be paid by COUNTY to CONSULTANT for all services performed by
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1 (3) Contract Deliverable III shall consist of all work performed by CONSULTANT
2 to complete TASKS identified in the EXHIBIT B WORK PROGRAM including initial Project-specific
3 distribution list, notifications (NOP, NOC), scoping meeting presentation materials, and scoping report.
4 (4) Contract Deliverable IV shall consist of all work performed by CONSULTANT
5 to complete TASKS identified in the EXHIBIT B WORK PROGRAM including the Administrative Draft
6 EIR.
7 (5)Contract Deliverable V shall consist of all work performed by CONSULTANT to
8 complete Tasks identified in the EXHIBIT B WORK PROGRAM including the screen check Draft EIR,
9 Draft EIR (including cited reference materials), and Notices(NOC, NOA).
10 (6) Contract Deliverable VI shall consist of all work performed by CONSULTANT
11 to complete TASKS identified in the EXHIBIT B WORK PROGRAM including administrative draft
12 responses to comments.
13 (7) Contract Deliverable VII shall consist of all work performed by CONSULTANT
14 to complete TASKS identified in the EXHIBIT B WORK PROGRAM including the screen check Final EIR,
15 Final EIR (including cited reference materials), and NOC.
16 (8) Contract Deliverable VIII shall consist of all work performed by CONSULTANT
17 to complete TASKS identified in the EXHIBIT B WORK PROGRAM including Draft CEQA content for the
18 Staff Report (including Draft Mitigation Monitoring Program), Draft CEQA Findings, and Notice of
19 Determination.
20 Upon execution of this AGREEMENT by the PARTIES hereto and thereafter upon
21 CONSULTANT'S completion of each Contract Deliverable, CONSULTANT shall confirm, in writing, with
22 DIRECTOR or DIRECTOR'S designee, prior to CONSULTANT'S performance of any services under a
23 Contract Deliverable, that the sum representing APPLICANT'S incremental payment for that Contract
24 Deliverable of work to be performed by CONSULTANT has been received by COUNTY from
25 APPLICANT. This total sum shall be paid to CONSULTANT as follows:
26 (a) Contract Deliverable 1: Upon receipt of a proper invoice following
27 acceptance of Contract Deliverable 1, COUNTY shall pay CONSULTANT the first payment of
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1 CONSULTANT shall consist of Eleven Thousand, Four Hundred and Eight Dollars and no cents
2 ($11,408.00). The County shall pay Consultant said amount pursuant to section 3.0 above.
3 (b) Contract Deliverable 11: Upon receipt of a proper invoice following
4 acceptance of Contract Deliverable 11, COUNTY shall pay CONSULTANT said amount pursuant to &C
5 above. The second payment of CONSULTANT shall consist of Sixteen Thousand, Four Hundred Thirty-
6 Nine Dollars and no cents ($16,439.00).
7 (c) Contract Deliverable III: Upon receipt of a proper invoice following
8 acceptance of Contract Deliverable 111, COUNTY shall pay CONSULTANT said amount pursuant to 3.0
9 above. The third payment of CONSULTANT shall consist of Thirteen Thousand, Six Hundred Seventy-
10 Four Dollars and no cents($13,674.00).
11 (d) Contract Deliverable IV: Upon receipt of a proper invoice following
12 acceptance of Contract Deliverable IV, COUNTY shall pay CONSULTANT said amount pursuant to &C
13 above. The fourth payment of CONSULTANT shall consist of Two-Hundred and Fifteen Thousand, One
14 Hundred Twenty-Six Dollars and no cents ($215,126.00).
15 (e) Contract Deliverable V: Upon receipt of a proper invoice following
16 acceptance of Contract Deliverable V, COUNTY shall pay CONSULTANT said amount pursuant to 3.0
17 above. The fifth payment of CONSULTANT shall consist of Nineteen Thousand, Five Hundred Thirty-
18 One Dollars and no cents ($19,531.00).
19 (f) Contract Deliverable VI: Upon receipt of a proper invoice following
20 acceptance of Contract Deliverable VI, COUNTY shall pay CONSULTANT said amount pursuant to 3.C,
21 above. The sixth payment of CONSULTANT shall consist of Forty Thousand, Four Hundred and Twenty-
22 Two Dollars and no cents ($40,422.00).
23 (g) Contract Deliverable VII: Upon receipt of a proper invoice following
24 acceptance of Contract Deliverable VII, COUNTY shall pay CONSULTANT said amount pursuant to&C,
25 above. The sixth payment of CONSULTANT shall consist of Fourteen Thousand, Five Hundred Ninety-
26 Eight Dollars and no cents($14,598.00).
27 (h) Contract Deliverable VIII: Upon receipt of a proper invoice following
28 acceptance of Contract Deliverable VIII,COUNTY shall pay CONSULTANT said amount pursuant to 3.C,
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1 above. The sixth payment of CONSULTANT shall consist of Twenty-Nine Thousand, Five Hundred
2 Ninety-One Dollars and no cents($29,591.00).
3 E. (1)The PARTIES understand that"Optional Tasks"according to EXHIBIT B
4 WORK PROGRAM may be required when during the course of the project. The PARTIES agree that
5 COUNTY may authorize CONSULTANT in writing to perform additional Optional Tasks as described in
6 EXHIBIT B of this AGREEMENT as the County deems needed. Upon receipt of a proper invoice following
7 acceptance of performance of said Optional task by the COUNTY; COUNTY shall pay CONSULTANT
8 said amount according to EXHIBIT B WORK PROGRAM for Optional Tasks pursuant to 3.C, above.
9 F. (1) The PARTIES understand that additional work, not reasonably anticipated
10 during the preparation of the WORK PROGRAM proposal submitted by CONSULTANT and approved by
11 COUNTY, may be necessary to complete the Draft and/or Final EIR. The PARTIES further understand
12 that it is not possible to estimate accurately either the quantity or quality of comments that will be received
13 by COUNTY during the public review period for the Draft EIR. The PARTIES agree that COUNTY may
14 authorize CONSULTANT to perform certain necessary additional work as "Extra Services" pursuant to
15 EXHIBIT C of this AGREEMENT.
16 (2) The Extra Services which may be authorized are limited to those subjects set
17 forth in EXHIBIT C, a copy of which is attached hereto and incorporated herein by reference,
18 CONSULTANT shall not perform any Extra Services without prior written authorization from the
19 DIRECTOR or the DIRECTOR's designee. The total charge for all such Extra Services shall not exceed
20 the sum of Fifty-Four Thousand, One Hundred-Eighteen Dollars and Thirty-Five cents($54,118.35), 15%
21 of the total amount of the basic fee.
22 (3)Whether to authorize Extra Services is within the discretion of COUNTY.
23 Authorization may be granted only if additional information, further analysis or other work is, in the
24 opinion of the DIRECTOR, required to complete the Draft or Final EIR or related activities. However, if
25 the services to be performed could reasonably have been anticipated during the preparation of the WORK
26 PROGRAM proposal, as determined by the DIRECTOR, these services are not "Extra Services" and
27 shall be performed by CONSULTANT within the basic fee of this AGREEMENT. Extra Services may be
28 authorized only after COUNTY's receipt from APPLICANT, pursuant to COUNTY/APPLICANT
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1 AGREEMENT,of the entire sum determined by the DIRECTOR to be the maximum that may be rendered
2 for those Extra Services.CONSULTANT shall confirm with the DIRECTOR or the DIRECTOR'S designee
3 that said sum has been received by COUNTY from APPLICANT prior to its performance of the Extra
4 Services.
5 G. The advance of sufficient funds by APPLICANT to COUNTY for the compensation of
6 both basic fee services and Extra Services prior to such services being performed, and CONSULTANT'S
7 confirmation of same with DIRECTOR, or DIRECTOR'S designee that such sums have been received
8 shall be conditions precedent to COUNTY's obligation to compensate CONSULTANT for such services.
9 In the event that CONSULTANT performs any services under this AGREEMENT and such conditions
10 precedent are not met, COUNTY shall not be obligated to compensate CONSULTANT for the
11 performance thereof.
12 H. It is understood that CONSULTANT shall bear all expenses incidental to the
13 performance of its obligations under this AGREEMENT, except those referenced in the Consultants
14 Scope of Work, whether anticipated or those that may materialize.
15 4. HOLD HARMLESS AND INSURANCE
16 A. CONSULTANT agrees to indemnify, save, hold harmless, and at COUNTY'S request,
17 defend the COUNTY, its officers, agents, and employees from any and all costs and expenses,damages,
18 liabilities, claims, and losses occurring or resulting to COUNTY to the extent caused by the negligent
19 performance, or failure to perform, by CONSULTANT, its officers, agents, or employees under this
20 AGREEMENT, and from any and all costs and expenses, damages, liabilities, claims, and losses
21 occurring or resulting to any person,firm, or corporation who may be injured or damaged by the negligent
22 performance, or failure to perform, of CONSULTANT, its officers, agents, or employees under this
23 AGREEMENT.
24 B. The terms of this SECTION 4 shall survive the termination of this AGREEMENT.
25 C. Without limiting COUNTY's right to obtain indemnification from CONSULTANT or any
26 third parties, CONSULTANT, at its sole expense, shall maintain in full force and effect, the following
27 insurance policies throughout the term of the AGREEMENT:
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I (a)Commercial General Liability. Commercial General Liability Insurance with limits of not
2 less than Two Million Dollars ($2,000,000.00) per occurrence and an annual aggregate of four
3 million dollars ($4,000,000.00); In the event, the CONTRACTOR purchases an Umbrella or Excess
4 insurance policy(ies) to meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow
5 form" and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or
6 Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of
7 the COUNTY, its officers, officials, employees, agents and volunteers. This policy shall be issued on a
8 per occurrence basis. CONSULTANT shall obtain an endorsement to this policy naming COUNTY, its
9 officers, agents, employees, and volunteers, individually and collectively, as additional insureds, but only
10 insofar as the operations under this AGREEMENT are concerned. Such coverage for additional insureds
11 will apply as primary insurance and any other insurance, or self-insurance, maintained by COUNTY is
12 excess only and not contributing with insurance provided under CONSULTANT policy;
13 (b) Automobile Liability. Comprehensive Automobile Liability Insurance with limits for
14 bodily injury of not less than One Million Dollars ($1,000,000.00) per occurrence for bodily injury and
15 property damages. Coverage must include owned and non-owned vehicles used in connection with this
16 AGREEMENT;
17 (c)Workers Compensation.Worker's Compensation insurance as may be required by the
18 California Labor Code; and
19 (d) Professional Liability. Professional liability insurance with limits of not less than One
20 Million Dollars ($1,000,000.00) per occurrence and an annual aggregate of Three Million Dollars
21 ($3,000,000.00). If this is a claims-made policy, then (1)the retroactive date must be prior to the date on
22 which services began under this AGREEMENT; (2) CONSULTANT shall maintain the policy and provide
23 to COUNTY annual evidence of insurance for not less than five years after completion of services under
24 this AGREEMENT; and(3) if the policy is canceled or not renewed, and not replaced with another claims-
25 made policy with a retroactive date prior to the date on which services begin under this AGREEMENT,
26 then CONSULTANT shall purchase extended reporting coverage on this claims-made policy for a
27 minimum of five years after completion of services under this AGREEMENT.
28 (e) Additional Requirements:
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I i. Verification of Coverage.Within thirty(30)days from the date CONSULTANT signs and
2 executes this AGREEMENT, CONSULTANT shall deliver or cause its broker or producer to deliver, to
3 the County of Fresno, Department of Public Works and Planning, Development Services and Capital
4 Projects Division, Attn: Principal Planner, 2220 Tulare Street, Sixth Floor, Fresno, CA 93721 certificates
5 of insurance and endorsements for all coverages required under this AGREEMENT. If requested by
6 COUNTY, CONSULTANT will deliver or cause its broker or producer to deliver copies of insurance
7 policies as produced by the broker or producer.
8 (1)All insurance certificates must state that:(1)the insurance coverage has been obtained
9 and is in full force; (2) COUNTY, its officers, agents, employees, and volunteers are not responsible for
10 any premiums on the policy, and (3) CONSULTANT has waived its right to recover from COUNTY, its
11 officers, agents, employees, and volunteers any amounts paid under the insurance policy required by
12 this AGREEMENT and that waiver does not invalidate the insurance policy.
13 (2) The commercial general liability insurance certificates must also state that: (1) the
14 County of Fresno, its officers, agents, employees, and volunteers, individually and collectively, are
15 additional insureds insofar as the operations under this AGREEMENT are concerned; (2)the coverage
16 shall apply as primary insurance and any other insurance, or self-insurance, maintained by COUNTY
17 shall be excess only and not contributing with insurance provided under CONSULTANT'S policy.
18 (3)The automobile liability insurance certificate must state that the policy covers any auto
19 sued in connection with this AGREEMENT.
20 (4) The professional liability insurance certificates, if it is a claims-made policy, must also
21 state the retroactive date of the policy, which must be prior to the date on which services began under
22 this AGREEMENT.
23 ii. All insurance policies required under this AGREEMENT must be issued by insurers
24 authorized to do business in the State of California and possessing at all times during the term of this
25 AGREEMENT an A.M. Best, Inc., rating of A FSC V11 or greater.
26 iii. For each insurance policy required under this AGREEMENT, CONSULTANT shall
27 provide to COUNTY, or ensure that the policy requires the insurer to provide to COUNTY, written notice
28 of any cancellation or change in the policy as required in this paragraph. For cancellation of the policy for
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I nonpayment of premium, CONSULTANT shall, or cause the insurer to,provide written notice to COUNTY
2 not less than 10 days in advance of cancellation. For cancellation of the policy for any other reason, and
3 for any other change to the policy, CONSULTANT shall or shall cause the insurer to, provide written
4 notice to COUNTY not less than 30 days in advance of cancellation or change. COUNTY in its sole
5 discretion may determine that the failure of CONSULTANT or its insurer to timely provide a written notice
6 required by this paragraph is a breach of this AGREEMENT.
7 iv. If CONSULTANT has or obtains insurance with broader coverage, higher limits, or both,
8 than what is required under this AGREEMENT, then COUNTY requires and is entitled to the broader
9 coverage, higher limits, or both.To that end, CONSULTANT shall deliver, or cause its broker or producer
10 to deliver, to COUNTY's Risk Manager copies of insurance policies that have such broader coverage,
11 higher limits, or both, as produced by the broker or producer, and certificates of insurance and
12 endorsements for all of the coverages that have such broader coverage, higher limits, or both,as required
13 under this AGREEMENT.
14 v. CONSULTANT waives its right to recover from COUNTY, its officers, agents,
15 employees, and volunteers any amounts paid under the policy of worker's compensation insurance
16 required by this AGREEMENT. CONSULTANT is solely responsible to obtain any policy endorsement
17 that may be necessary to accomplish that waiver, but OWNERS' waiver of subrogation under this
18 paragraph is effective whether or not OWNERS obtain such an endorsement.
19 vi. If CONSULTANT fails to keep in effect at all times any insurance coverage required
20 under this AGREEMENT, COUNTY may, in addition to any other remedies it may have, suspended or
21 terminate this AGREEMENT upon the occurrence of that failure, or purchase such insurance coverage,
22 and charge the cost of that coverage to CONSULTANT. COUNTY may offset such charges against any
23 amounts owed by COUNTY to CONSULTANT under this AGREEMENT.
24 6. BREACH AND TERMINATION
25 A. This AGREEMENT may be immediately terminated by COUNTY upon written notice to
26 CONSULTANT if CONSULTANT fails to comply with any or all of the terms of this AGREEMENT or
27 APPLICANT requests that COUNTY discontinues processing the project. In no event shall any payment
28 by COUNTY constitute a waiver by COUNTY of any breach of this AGREEMENT or any default which
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I may then exist on the part of CONSULTANT. COUNTY's termination of this AGREEMENT due to
2 CONSULTANT'S breach shall not limit the rights of COUNTY to seek other relief, including the recovery
3 of damages.
4 B. If this AGREEMENT is terminated as provided in this section, CONSULTANT shall be
5 compensated for satisfactorily performed services completed to the date of termination based upon the
6 compensation rates setforth in EXHIBIT BWORK PROGRAM,which is attached hereto and incorporated
7 herein by this reference, and subject to the total sum agreed to herein, together with such additional
8 services satisfactorily performed by CONSULTANT after termination which are authorized by COUNTY
9 to complete the work performed to the date of termination.
10 6. WORK PRODUCT
11 A. Any and all reports, studies, data, or other information, prepared or assembled by
12 CONSULTANT under this AGREEMENT shall not be provided to any person, association, corporation,
13 or other organization during the term of this AGREEMENT without the prior written consent of COUNTY.
14 B. COUNTY shall have the unlimited authority to forever publish, disclose, distribute and
15 otherwise use throughout the world, in whole or in part, and allow others to do so, any and all reports,
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16 studies, data, or other information prepared by CONSULTANT pursuant to this AGREEMENT.
17 C. All documents prepared or obtained by CONSULTANT and provided to the County
18 pursuant to this contract shall become the exclusive property of COUNTY. Upon termination of this
19 AGREEMENT and prior to any compensation received from COUNTY for unpaid services,
20 CONSULTANT shall surrender to COUNTY all work products created pursuant to this AGREEMENT
21 without any reservation of rights therein. CONSULTANT may retain such documents only for so long as
22 COUNTY authorizes such work product to be retained to allow the completion of work as provided in
23 Subsection 5.13 of this AGREEMENT. CONSULTANT may retain copies of any documents prepared or
24 obtained by CONSULTANT and designated as public records under the Public Records Act, and such
25 documents may be used by CONSULTANT in any manner after this AGREEMENT has been terminated.
26 D. The Consultant shall provide (submit, reproduce, and distribute) Draft EIR, Final EIR,
27 KAPWRP, oppendiceo, exhibits and any additional reference material in the quantities and fonnut(m) as
28 specified in EXHIBIT B WORK PROGRAM of this AGREEMENT. COUNTY will require that
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1 CONSULTANT provide documents in both Microsoft Word, Office 2016 (or newer) and Portable
2 Document Format(.pdo file formats.
3 7. TIME OF PERFORMANCE
4 It is understood that weather and other factors beyond CONSULTANT'S control may delay
5 the completion of field work necessary for preparation of the EIR. CONSULTANT will be allowed as many
6 additional days as are necessary to compensate for days lost due to inclement weather or delays resulting
7 from actions by APPLICANT including but not limited to changes in the project. If additional time is needed
8 because of delay caused by factors beyond CONSULTANT'S control,CONSULTANT shall timely request
9 an extension of time in writing. The granting of such an extension shall be at the discretion of the
10 DIRECTOR, or the DIRECTOR'S designee. Neither party shall be held liable or responsible to the other
11 party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling
12 or performing any obligation under this Agreement when such failure or delay is caused by or results
13 from causes beyond the reasonable control of the affected party, including but not limited to fire, floods,
14 embargoes, war, acts of war, insurrections, riots, strikes, lockouts or other labor disturbances, or acts of
15 God; provided, however, that the party so affected shall use reasonable commercial efforts to avoid or
16 remove such causes of nonperformance, and shall continue performance hereunder with reasonable
17 dispatch whenever such causes are removed. Either party shall provide the other party with prompt
18 written notice of any delay or failure to perform that occurs by reason of force majeure.
19 8. INDEPENDENT CONTRACTOR
20 In performance of the work, duties,and obligations assumed by CONSULTANT under this
21 AGREEMENT, it is mutually understood and agreed that CONSULTANT, including any and all of
22 CONSULTANT'S officers, agents, employees, and Sub-consultants, will at all times be acting and
23 performing as an independent contractor, and shall act in an independent capacity and not as an officer,
24 agent, servant, employee,joint venture, partner, or associate of COUNTY. Furthermore, COUNTY shall
25 have no right to control or supervise or direct the manner or method by which CONSULTANT shall
26 perform its works and function. However, COUNTY shall retain the right to administer this AGREEMENT
27 so as to verify that CONSULTANT is performing its obligations in accordance with the terms and
28 conditions thereof. CONSULTANT and COUNTY shall comply with all applicable provisions of law and
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I the rules and regulations, if any, of Governmental authorities having jurisdiction over matters the subject
2 thereof. Because of its status as an independent contractor, CONSULTANT shall have absolutely no
3 right to any and all employment rights and benefits available to COUNTY employees. CONSULTANT
4 shall be solely liable and responsible for providing to, or on behalf of its employees, all legally-required
5 employees benefits. In addition, CONSULTANT shall be solely responsible and save COUNTY harmless
6 from all matters relating to payment of CONSULTANT'S employees, including compliance with Social
7 Security withholding, and all other regulations governing such matters. It is acknowledged that during the
8 term of this AGREEMENT, CONSULTANT may be providing services to others unrelated to COUNTY or
9 to this AGREEMENT.
10 9. CONFLICT OF INTEREST
11 CONSULTANT, Sub-consultants and CONSULTANT'S employees shall adhere to the
12 Conflict-of-Interest Code of the Department of Public Works and Planning (EXHIBIT D).
13 10. GOVERNING LAW AND VENUE
14 The rights and obligations of the PARTIES and all interpretations and performance of this
15 AGREEMENT shall be governed in all respects by the laws of the State of California.
16 Any controversy or claim arising out of or relating to this AGREEMENT which cannot be
17 amicably settled without court action shall be litigated either in a state court for Fresno County,California
18 or in the U.S. District Court for the Eastern District of California located in Fresno County, California-
19 11. AMENDMENTS
20 Any changes to this AGREEMENT requested either by COUNTY or CONSULTANT may
21 only be affected if mutually agreed upon in writing by duly authorized representatives of the PARTIES
22 hereto.This AGREEMENT shall not be modified or amended or any rights of a PARTY to it waived except
23 by such a writing.
24 12. COMPLIANCE WITH LAWS
25 CONSULTANT shall comply with all Federal, State, and local laws, ordinances,
26 regulations, and Fresno County Charter Provisions applicable in the performance of its services.
27 13. AUDITS AND INSPECTIONS
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I CONSULTANT shall at any time during business hours, and as often as COUNTY may
2 deem necessary, make available to COUNTY for examination all of its records and data with respect to
3 the matters covered by this AGREEMENT. CONSULTANT shall, upon request by COUNTY, permit
4 COUNTY to audit and inspect all of such records and data necessary to ensure CONSULTANT'S
5 compliance with the terms of this AGREEMENT. If this AGREEMENT exceeds ten thousand dollars
6 ($10,000.00), CONSULTANT shall be subject to the examination and audit of the Auditor General for a
7 period of three (3) years after final payment under contract(Government Code Section 8546.7).
8 14. MAINTAIN AND PROVIDE ADMINISTRATIVE RECORD
9 If requested by County, CONSULTANT shall prepare and assemble the Administrative
10 Record and furnish it to COUNTY after the Notice of Determination, including the findings,and Statement
11 of Overriding Consideration are filed with the County Clerk Officer. The Administrative Record is the
12 entirety of the information relied upon to prepare the EIR. The Administrative Record is inclusive of all
13 information and analyses either generated or obtained from other sources, or used to support
14 documentation and analyses. A complete Administrative Record is the entirety of the information relied
15 upon within CONSULTANT'S possession plus all information in other locations listed in the references.
16 Information listed in the references at other locations does not have to be included. CONSULTANT shall
17 organize the information comprising the Administrative Record as an accessible file, indexed by topic to
18 the extent possible, and submit this record to COUNTY.
19 16. CONTRACT ADMINISTRATION
20 CONSULTANT shall notify its appropriate employees of the individual COUNTY
21 designates as COUNTY Contract Administrator for this EIR. All routine correspondence and
22 telecommunications related to Contract performance and related issues should be addressed as follows:
23 Jeremy Shaw, Planner
24 Department of Public Works and Planning
25 Development Services and Capital Project Division
26 2220 Tulare Street, 6th floor
27 Fresno, CA 93721
28 Phone- (559)600-4207
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I e-mail: JShaw@FresnoCountyCA.gov
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3 16. ENTIRE AGREEMENT
4 This AGREEMENT constitutes the entire AGREEMENT umumee/' CONSULTANT and
5 COUNTY with respect tothe subject matter hereof and supersedes all previous negotiations, pn0000els.
G onnn,nitmento, wrdng, adverUnementa, pubUoationo, and understandings of any nature whatsoever
7 un|oeo expressly included in this AGREEMENT.
B 17, NOTICES
9 The persons and their addresses having authority to g\wo and receive notices under this
10 AGREEMENT include the following:
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12 C0yNTY;
13 Steven E. VVhKe. PE, PLG, Director
14 Department nf Public Works and Planning
15 2220 Tulare Street, Eighth Floor
16 Fresno, CA93721
17 Attn: Division K4ona0er/Deve|opmantGervinem
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19 CONSULTANT:
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21 JonnaA Scott, Director/Project K8anagar
22 Environmental Science ASSOCIATES
23 787 The Alameda, Suite 25O
24 San Jose, CA8512O
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28 Any and all notices between COUNTY and CONSULTANT provided for or permitted under
27 this AGREEMENT o[ bv law shall be in writing and aheU bo deemed duly served when personally
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I delivered to one of the PARTIES, or in lieu of such personal service, deposited in the United States Mail,
2 postage prepaid, addressed to such PARTY.
3 18. NON-ASSIGNMENT
4 Neither PARTY shall assign, transfer or sub-contract this AGREEMENT nor their rights or
5 duties under this AGREEMENT without the written consent of the other PARTY.
6 19. CONSULTANT'S LEGAL AUTHORITY
7 Each individual executing or attesting this AGREEMENT on behalf of CONSULTANT
8 hereby covenants, warrants, and represents: (i) that he or she is authorized on behalf of the corporation
9 in accordance with a duly adopted resolution of the corporation's board of directors and in accordance
10 with such corporation's articles of incorporation or charter and bylaws ; and (ii) that this Agreement is
11 binding on the corporation; and (iii) that the APPLICANT is a duly organized and legally existing
12 corporation in good standing in the State of California.
13 20. BINDING UPON SUCCESSORS
14 This AGREEMENT shall be binding upon and inure to the benefit of the PARTIES and
15 their respective successors in interest, assigns, legal representatives, and heirs.
16 21. DISCLOSURE OF SELF-DEALING TRANSACTIONS
17 This provision is only applicable if CONSULTANT is operating as a corporation (a for-
18 profit or non-profit corporation) or if during the term of this AGREEMENT, CONSULTANT changes its
19 status to operate as a corporation.
20 Members of CONSULTANT'S Board of Directors shall disclose any self-dealing
21 transactions they are a party to while CONSULTANT is providing goods or performing services under
22 this AGREEMENT.A self-dealing transaction shall mean a transaction to which CONSULTANT is a party
23 and in which one or more of its directors has a material financial interest. Members of the Board of
24 Directors shall disclose any self-dealing transactions that they are a party to by completing and signing
25 a Self-Dealing Transaction Disclosure Form (EXHIBIT E) and submitting it to COUNTY prior to
26 commencing with the self-dealing transaction or immediately thereafter.
27 22. HEADINGS; CONSTRUCTION; STATUTORY REFERENCES
17
1 The headings of the sections and paragraphs of this AunEcwEw/ are for convenience
2 only and shall not ba used to interpret this AGREEMENT.This AGREEMENT ie the product ufnegotiation
3 between the PARTIES. The language of this AGREEMENT shall be construed as a whole according to
4 its fair nnaon/n0 and not strictly for or against any PARTY. Any rule of construction to the effect that
5 ambiguities are to be resolved against the drafting PARTY shall not apply in interpreting this
G AGREEMENT. All n»hananoeo in this AGREEMENT to particular odetubes, nsgu|cdiono, ordinances or
7 resolutions of the United States, the State of California, or County of Fresno shall be deemed to include
8 the same otatute, negu/otiun, ondinunce, or resolution as hereafter amended or renumbered, or if
S repealed, to such other provisions as may thereafter govern the same subject-
10 23' ELECTRONIC SIGNATURES
11 The Parties agree that this Agreement may be executed by,electronic signature as
12 as provided in this section.
13 i. An "electronic signature' means any symbol or process intended by an individual
14 signing this Agreement hn represent their signature, including but not limited ho
15 (1) o digital signature;
16 (2) u faxed version ofan original handwritten signature; or
17 (3) an electronically scanned and transmitted (for example by PDF
18 document) ofa handwritten signature.
19 ii. Each electronic signature affixed or attached tn this Agreement (1) is deemed
20 equivalent toa valid original handwritten signature ofthaperoonni ningthioAgnaannentforaUpurpuaea.
21 including but not limited to evidentiary proof in any administrative or judicial proceeding, and(2) has the
22 same force and effect as the valid original handwritten signature of that person.
23 iii. The provisions of this section satisfy the requirements of Civil Code section 1833.5.
24 subdivision (b), in the Uniform Electronic Transaction Ant (Ck/i| Code. Division 3, Part 2, Title 2.5.
25 beginning with section 1833.1).
26 iv. Each Party using a digital signature represents that it has undertaken and satisfied
37 the requirements of Government Code section 16.5. subdivision (o). paragraphs (1) through (5). and
28 agrees that each other Party may rely upon that representation.
18
I V. This Agreement is not conditioned upon the Parties conducting the transactions
2 under it by electronic means and either Party may sign this Agreement with an original handwritten
3 signature.
4 24. COUNTERPARTS
5 This AGREEMENT may be executed in two or more counterparts, each of which shall be
6 deemed to be an original, and all of which taken together shall constitute one and the same instrument.
7 25. PUBLIC RECORD
8 The PARTIES agree that this AGREEMENT, including its contents, is a publicly
9 disclosable public record under the California Public Records Act (Government Code Section 6250, et
10 seq.), the Ralph M. Brown Act(Government Code Section 54950, et seq.), and all other applicable laws
11 pertaining to disclosure by public entities. County is not limited in any manner whatsoever with respect
12 to public disclosure of this AGREEMENT, in whole or in part.
13 26. NO THIRD-PARTY BENEFICIARIES
14 Notwithstanding anything else to the contrary herein, the PARTIES acknowledge and
15 agree that no other person,firm, corporation, or entity(including without limitation the APPLICANT) shall
16 be deemed an intended third-party beneficiary of this AGREEMENT.
17 IN WITNESS WHEREOF,the PARTIES hereto have caused this AGREEMENT to
18 be executed as of the day and year first above written.
19 CONSULTANT: COUNTY OF FRESNO:
20 ENVIRONMENTAL SCIENCE REVIEWED AND REC ENDED FOR
21 ASSOCIATES, INC. APPROVAL
22 c f4 �tt
23 By: Janna Scott(Jun 16,2022 17:06 PDT) BY:
24 JANNA A. SCOTT, DIRECTOR STEVEN E. WHITE PE, PLS
25 DIRECTOR
26 DEPARTMENT OF PUBLIC WORKS
27 AND PLANNING
28
19
ORG. NO.: 4360-0200
2 SUBCLASS NO.: 10000
3 FUND NO.: 0001
4 ACCOUNT NO.: 7295
5
6 G:\4360Devs&Pln%PROJSECkPROJDOCS\EnvironmentalkEIR - EISV 8189 Key Energy Storage\Agreements\Consultant Agreement\DR JS
7 Draft Consultant Agreemen 3.30.30.docx
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