HomeMy WebLinkAboutAddendum to EIR 7230 Consultant Agreement signed 4.26.24.pdf 1 ADDENDUM TO EIR 7230 CONSULTANT AGREEMENT
2 Environmental Science Associates �
3 This Consultant Agreement (Agreement) is dated A W Z 6, .Z 0 2q-
4 (Effective Date) and is between Environmental Science Associates, a California corporation
5 (Consultant),and the County of Fresno,a political subdivision of the State of California(County).
6 Consultant has been selected to prepare an Environmental Impact Report (EIR)for County for
7 a proposal by the RE Scarlet LLC. (Applicant). County and Consultant may be referred to
8 individually as a "Party," or collectively as "Parties," in this Agreement. Applicant is not a party
9 to this Agreement.
10 RECITALS
11 A. Applicant filed with the County an application for an Environmental Impact Report(EIR)
12 Application No. 7230 for Unclassified Conditional Use Permit Application No. 3555 to allow the
13 construction and operation of a 400-megawatt (MW) solar photovoltaic (PV) generation facility
14 and up to 400 MW energy storage known as the Scarlet Solar Project("Project")and was
15 certified on March 15, 2022
16 B. Applicant proposes to modify the approved CUP for the Project to increase the physical
17 footprint of the approved battery storage system; incorporate an updated hydrology technical
18 memorandum; optimize the Project's approved layout to allow for shared facilities with an
19 adjacent project; transfer a portion of the Project's approved footprint to an adjacent proposed
20 project; incorporate an updated air quality technical memorandum; and allow for phased
21 decommissioning of the Project.
22 C. Consultant understands CEQA requires a lead agency to prepare an addendum to a
23 previously certified EIR for the Project"if some changes or additions are necessary but none of
24 the conditions described in CEQA Guidelines Section 15162 calling for preparation of a
25 subsequent EIR have occurred"(CEQA Guidelines Section 15164). The Applicant has selected
26 the Consultant to contract directly with the County for preparation of an addendum to the
27 certified EIR on behalf of the County.
28 D. Consultant must meet the requirements for an interdisciplinary approach in the
preparation of the addendum to the EIR, as are specified in Article 14 of the CEQA Guidelines
(Section 15120— 15132), and that Consultant must have no interest, financial or otherwise, in
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1 the outcome of the proposed Project or any related projects,the Consultant is not in the employ
2 or under contract with the Applicant.
3 E. Consultant represents that it is qualified, able, and willing to prepare a legally adequate
4 addendum to the EIR and to otherwise deliver the necessary environmental consulting services
5 required by County for the Project, which representation County specifically relies upon.
6 AGREEMENT
7 In consideration of the covenants and conditions set forth herein, the Parties agree as
8 follows:
9 1. OBLIGATIONS OF CONSULTANT
10 A. Scope of Services. Consultant shall perform all of the services provided in
11 Exhibit A to this Agreement, titled "Project Description and Scope of Work."
12 B. Representation. Consultant represents that it is qualified, ready, willing, and
13 able to perform all of the services provided in this Agreement.
14 C. Compliance with Laws. Consultant shall, at its own cost, comply with all
15 applicable federal, state, and local laws and regulations in the performance of its
16 obligations under this Agreement, including but not limited to workers
17 compensation, labor, and confidentiality laws and regulations.
18 2. OBLIGATIONS OF COUNTY
19 A. Public Meetings. County shall make arrangements for meetings with public
20 agencies and the public if County requests to conduct such meetings unless
21 specific services are provided for within the work program in Exhibit A.
22 B. Availability of Information. County shall make available to Consultant
23 documents, studies, and other information, not otherwise confidential or
24 privileged, in its possession related to the Project. County shall review
25 Consultant work and provide comments to Consultant as necessary to ensure
26 the environmental record is complete and accurate.
27 C. Public Notices. County shall mail required notices to public agencies and
28 interest groups. Applicant will be responsible for all postage, shipping, and
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1 courier costs with respect to the delivery and return of physical mail related to
2 this Agreement and the County/Applicant Agreement.
3 D. Deadlines. The deadlines for performance by County or its officers and
4 employees set forth in this Agreement are directory only, and the failure of
5 County to meet such deadlines shall not be a breach of this Agreement.
6 3. COMPENSATION
7 A. Maximum Compensation. County agrees to pay, and Consultant agrees to
8 receive, compensation for the performance of its services under this Agreement
9 in an amount not to exceed Forty-Seven Thousand Four Hundred Forty
10 dollars and no cents ($47,440.00) ("Total Fee"), as described in Exhibit C to this
11 Agreement, titled "Compensation." Except as otherwise provided in Exhibit D to
12 this Agreement, titled "Extra Services," Consultant shall not be entitled to
13 compensation exceeding the Total Fee.
14 B. Limitations on County. Consultant acknowledges that County is a local
15 government entity, and does so with notice that County's powers are limited by
16 the California Constitution and by State law, and with notice that Consultant may
17 receive compensation under this Agreement only for services performed
18 according to the terms of this Agreement and while this Agreement is in effect,
19 and subject to the maximum amount payable under this section. Consultant
20 further acknowledges that County employees have no authority to commit to
21 additional payments or authorize payments to Consultant except as expressly
22 provided in this Agreement as defined in Exhibit D to this Agreement,titled"Extra
23 Services."
24 C. Invoices. County and Consultant agree to allow the preparation of the
25 addendum to the EIR Contract Deliverables to occur in five (5) increments of
26 deliverables (Contract Deliverables A through E), as described in Exhibit C to
27 this Agreement, titled "Compensation", with Applicant providing payment in
28 advance for each Contract Deliverable increment before County may authorize
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1 to commence work on said increment. Invoices for payment for Contract
2 Deliverables shall be submitted only after the work identified for that Contract
3 Deliverable increments has been completed to the satisfaction of County. All
4 Tasks shall be completed according to Exhibit A. Upon completion of a Contract
5 Deliverable and delivery to County, Consultant may submit an invoice with
6 documentation that the Tasks have been fully completed for that Contract
7 Deliverable. County shall then review, approve, and submit the invoice to the
8 County Auditor- Controller/Treasurer-Tax Collector for payment, or reject the
9 claim and return the Claim to the Consultant identifying the work that has not
10 been accepted as completed.
11 In the event that a project is delayed for more than sixty (60) days, based on no
12 fault of the Consultant,The County may, at their discretion of the Director,accept
13 an invoice from the Consultant for a payment of a portion of a Contract
14 Deliverable that has been completed.
15 D. Payment. Payment shall be issued to Consultant after the receipt thereof by
16 County Auditor-Controller/Treasurer Tax Collector within sixty (60) calendar
17 days after the receipt.
18 E. Incidental Expenses. Consultant is solely responsible for all of its costs and
19 expenses that are not specified as payable by the County under this Agreement,
20 whether anticipated or those that may materialize.
21 4. INDEMNITY AND INSURANCE
22 A. Duty to Indemnify. Consultant agrees to indemnify, save, hold harmless, and
23 at County's request, defend the County, its officers, agents, and employees from
24 any and all costs and expenses, damages, liabilities, claims, and losses
25 occurring or resulting to County in connection with the performance, or failure to
26 perform, by Consultant, its officers, agents, or employees under this Agreement,
27 and from any and all costs and expenses,damages, liabilities,claims,and losses
28 occurring or resulting to any person, firm, or corporation who may be injured or
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1 damaged by the performance, or failure to perform, of Consultant, its officers,
2 agents, or employees under this Agreement.
3 B. Insurance Requirements. Consultant shall comply with all the insurance
4 requirements in Exhibit F to this Agreement, titled "Insurance Requirements."
5 C. Survival. The terms of this Section 4 shall survive the termination of this
6 Agreement.
7 5. BREACH AND TERMINATION
8 A. Termination by County. This Agreement may be immediately terminated by
9 County upon written notice to Consultant if Consultant fails to comply with any
10 or all the terms of this Agreement or Applicant requests that County discontinues
11 processing the project. In no event shall any payment by County constitute a
12 waiver by County of any breach of this Agreement or any default which may then
13 exist on the part of Consultant. County's termination of this Agreement due to
14 Consultant's breach shall not limit the rights of County to seek other relief,
15 including the recovery of damages.
16 B. Effect of Termination. If this Agreement is terminated as provided in this
17 section, Consultant shall be compensated for satisfactorily performed services
18 completed to the date of termination based upon the compensation rates set
19 forth in Exhibit A, and subject to the total sum agreed to herein, together with
20 such additional services satisfactorily performed by Consultant after termination
21 which are authorized by County to complete the work performed to the date of
22 termination.
23 6. WORK PRODUCT
24 A. County Control of Work Product. Any and all reports, studies, data, or other
25 information, prepared or assembled by Consultant under this Agreement shall
26 not be provided to any person, association, corporation, or other organization
27 during the term of this Agreement without the prior written consent of County.
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1 B. County Right to Disclose. County shall have the unlimited authority to forever
2 publish, disclose, distribute, and otherwise use throughout the world, in whole or
3 in part, and allow others to do so, any and all reports, studies, data, or other
4 information prepared by Consultant pursuant to this Agreement.
5 C. Ownership of Work Product. All documents prepared or obtained by
6 Consultant shall become the exclusive property of County. Upon termination of
7 this Agreement and prior to any compensation received from County for unpaid
8 services, Consultant shall surrender to County all work products created
9 pursuant to this Agreement without any reservation of rights therein. Consultant
10 may retain such documents only for so long as County authorizes such work
11 product to be retained to allow the completion of work as provided in Subsection
12 5.13 of this Agreement. Consultant may retain copies of any documents prepared
13 or obtained by Consultant and designated as public records under the California
14 Public Records Act (California Government Code, Title 1, Division 7, Chapter
15 3.5, beginning with section 6250), and such documents may be used by
16 Consultant in any manner after this Agreement has been terminated.
17 D. Format of Documents. The Consultant shall provide (submit, reproduce, and
18 distribute) addendum to the EIR, appendices, exhibits and any additional
19 reference material in the quantities and format(s)as specified in Exhibit A of this
20 Agreement. County will require that Consultant provide documents in both
21 Microsoft Word, Office 2016 (or newer)and Portable Document Format(.pdf)file
22 formats.
23 7. TIME OF PERFORMANCE
24 It is understood that weather and other factors beyond Consultant's control may delay
25 the completion of field work necessary for preparation of the addendum to the EIR. Consultant
26 will be allowed as many additional days as are necessary to compensate for days lost due to
27 inclement weather or delays resulting from actions by Applicant including but not limited to
28 changes in the project. If additional time is needed because of a delay caused by factors not
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1 beyond Consultant's control, Consultant shall timely request an extension of time in writing.The
2 granting of such an extension shall be at the discretion of the Director, or the Director's
3 designee. Neither Party shall be held liable or responsible to the other Party nor be deemed to
4 have defaulted under or breached this Agreement for failure or delay in fulfilling or performing
5 any obligation under this Agreement when such failure or delay is caused by or results from
6 causes beyond the reasonable control of the affected Party, including but not limited to fire,
7 floods, embargoes, war, acts of war, insurrections, riots, strikes, lockouts or other labor
8 disturbances, or acts of God; provided, however,that the Party so affected shall use reasonable
9 commercial efforts to avoid or remove such causes of nonperformance, and shall continue
10 performance hereunder with reasonable dispatch whenever such causes are removed. Either
11 Party shall provide the other Party with prompt written notice of any delay or failure to perform
12 that occurs by reason of force majeure.
13 8. INDEPENDENT CONTRACTOR
14 In performance of the work, duties, and obligations assumed by Consultant under this
15 Agreement, it is mutually understood and agreed that Consultant, including any and all of
16 Consultant's officers, agents, employees, and sub-consultants/contractors, will at all times be
17 acting and performing as an independent contractor, and shall act in an independent capacity
18 and not as an officer, agent, servant, employee, joint venture, partner, or associate of County.
19 Furthermore, County shall have no right to control or supervise or direct the manner or method
20 by which Consultant shall perform its works and function. However, County shall retain the right
21 to administer this Agreement so as to verify that Consultant is performing its obligations in
22 accordance with the terms and conditions thereof. Consultant and County shall comply with all
23 applicable provisions of law and the rules and regulations, if any, of Governmental authorities
24 having jurisdiction over matters the subject thereof. Because of its status as an independent
25 contractor, Consultant shall have absolutely no right to employment rights or benefits available
26 to County employees. Consultant shall be solely liable and responsible for providing to, or on
27 behalf of its employees, all legally-required employees benefits. In addition, Consultant shall be
28 solely responsible and save County harmless from all matters relating to payment of
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1 Consultant's employees, including compliance with Social Security withholding, and all other
2 regulations governing such matters. It is acknowledged that during the term of this Agreement,
3 Consultant may be providing services to others unrelated to County or to this Agreement.
4 9. AUDITS AND INSPECTIONS
5 A. Inspection of Documents. Consultant shall make available to County, and
6 County may examine at any time during business hours and as often as County
7 deems necessary, all of Consultant's records and data with respect to the
8 matters covered by this Agreement, excluding attorney-client privileged
9 communications. Consultant shall, upon request by County, permit County to
10 audit and inspect all such records and data to ensure Consultant's compliance
11 with the terms of this Agreement.
12 B. State Audit Requirements. If the compensation to be paid by County under this
13 Agreement exceeds$10,000, Consultant is subject to the examination and audit
14 of the California State Auditor, as provided in Government Code section 8546.7,
15 for a period of three years after final payment under this Agreement. This
16 subsection 9.13 survives the termination of this Agreement.
17 C. Public Records. Under this Agreement, Consultant is not permitted to discuss,
18 disclose or release to the public or any third party this Agreement or any
19 information, record or data related to the Project unless specifically authorized
20 by County. County is not limited in any manner with respect to its public
21 disclosure of this Agreement or any record or data that Consultant may provide
22 to the County. County's public disclosure of this Agreement or any record or data
23 that Consultant may provide to County may include but is not limited to the
24 following:
25 (1) County may voluntarily, or upon request by any member of the public or
26 governmental agency, disclose this Agreement to the public or such
27 governmental agency.
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1 (2) County may voluntarily, or upon request by any member of the public or
2 governmental agency, disclose to the public or such governmental
3 agency any record or data that Consultant may provide to County, unless
4 such disclosure is prohibited by court order.
5 (3) This Agreement, and any record or data that Consultant may provide to
6 County, is subject to public disclosure under the Ralph M. Brown Act
7 (California Government Code, Title 5, Division 2, Part 1, Chapter 9,
8 beginning with section 54950).
9 (4) This Agreement, and any record or data that Consultant may provide to
10 County, is subject to public disclosure as a public record under the
11 California Public Records Act (California Government Code, Title 1,
12 Division 7, Chapter 3.5, beginning with section 6250) ("CPRA").
13 (5) This Agreement, and any record or data that Contractor may provide to
14 County, is subject to public disclosure as information concerning the
15 conduct of the people's business of the State of California under
16 California Constitution, Article 1, section 3, subdivision (b).
17 (6) Any marking of confidentiality or restricted access upon or otherwise
18 made with respect to any record or data that Consultant may provide to
19 County shall be disregarded and have no effect on County's right or duty
20 to disclose to the public or governmental agency any such record or data.
21 D. Public Records Act Requests. If County receives a written or oral request
22 under the CPRA to publicly disclose any record that is in Consultant's possession
23 or control, and which County has a right, under any provision of this Agreement
24 or applicable law, to possess or control, then County may demand, in writing,
25 that Consultant deliver to County, for purposes of public disclosure, the
26 requested records that may be in the possession or control of Consultant.Within
27 five business days after County's demand, Consultant shall (a) deliver to the
28 County all of the requested records that are in Consultant's possession or
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I control, together with a written statement that Consultant, after conducting a
2 diligent search, has produced all requested records that are in Consultant's
3 possession or control, or (b) provide to County a written statement that
4 Consultant, after conducting a diligent search, does not possess or control any
5 of the requested records. Consultant shall cooperate with County with respect to
6 any County demand for such records. If Consultant wishes to assert that any
7 specific record or data is exempt from disclosure under the CPRA or other
8 applicable law, it must deliver the record or data to County and assert the
9 exemption by citation to specific legal authority within the written statement that
10 it provides to County under this section. Consultant's assertion of any exemption
11 from disclosure is not binding on County, but County will give at least 10 days'
12 advance written notice to the Contractor before disclosing any record subject to
13 Consultant's assertion of exemption from disclosure. Consultant shall indemnify
14 the County for any court-ordered award of costs or attorney's fees under the
15 CPRA that results from Consultant's delay,claim of exemption,failure to produce
16 any such records, or failure to cooperate with County with respect to any County
17 demand for any such records.
18 10. MAINTAIN AND PROVIDE ADMINISTRATIVE RECORD
19 If requested by the County, Consultant shall upon request prepare and assemble the
20 Administrative Record (defined in this Section 10 below)and furnish it to County after the Notice
21 of Determination, including the findings and any Statement of Overriding Consideration, are
22 filed with the County Clerk. The "Administrative Record" is defined as the entirety of the
23 information relied upon to prepare the addendum to the certified EIR, including without limitation
24 all records identified in California Public Resources Code section 21167.6, subdivision (e). The
25 Administrative Record is inclusive of all information and analyses either generated or obtained
26 from other sources or used to support documentation and analyses. A complete Administrative
27 Record is the entirety of the information relied upon within Consultant's possession plus all
28 information in other locations listed in the references. Information listed in the references at
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1 other locations does not have to be included in the Administrative Record, provided the
2 references contain sufficient information for a reasonable member of the public to identify, seek
3 out, and obtain the listed information. Consultant shall organize the information comprising the
4 Administrative Record as an accessible electronic file, indexed by topic to the extent possible,
5 and submit this record to County. The electronically stored information comprising the
6 Administrative Record shall be delivered to the County in in the format in which it is ordinarily
7 maintained.
8 11. CONTRACT ADMINISTRATION
9 Consultant shall notify its appropriate employees of the individual County designates as
10 County Contract Administrator for this addendum to the EIR. All routine correspondence and
11 telecommunications related to Contract performance and related issues should be addressed
12 as follows:
13 David Randall, Senior Planner
Department of Public Works and Planning
14 Development Services and Capital Project Division
2220 Tulare Street, 6th floor
15 Fresno, CA 93721
Phone: (559) 600-4334
16 e-mail: DRandall(a)FresnoCountyCA.gov
17 All other notices to County shall be delivered in accordance with Section 12, below.
18 12. NOTICES
19 A. Addresses for Delivery. Except as otherwise provided in this Agreement, the
20 persons and their addresses having authority to give and receive notices under
21 this Agreement include the following:
22 County:
Director of Public Works and Planning
23 Department of Public Works and Planning
2220 Tulare Street, Eighth Floor
24 Fresno, CA 93721
Attn: Division Manager/Development Services
25
26 Consultant:
Environmental Science Associates
27 787 The Alameda
Suite 250
28 San Jose, CA 95126
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1 B. Change of Contact Information. Either Party may change the information
2 provided in this Agreement by giving notice as provided in this section.
3 C. Method of Delivery. Each notice between the County and the Consultant
4 provided for or permitted under this Agreement must be in writing, state that it is
5 a notice provided under this Agreement, and be delivered either by personal
6 service, by first-class United States mail, by an overnight commercial courier
7 service.
8 (1) A notice delivered by personal service is effective upon service to the
9 recipient.
10 (2) A notice delivered by first-class United States mail is effective three
11 County business days after deposit in the United States mail, postage
12 prepaid, addressed to the recipient.
13 (3) A notice delivered by an overnight commercial courier service is effective
14 one County business day after deposit with the overnight commercial
15 courier service, delivery fees prepaid, with delivery instructions given for
16 next day delivery, addressed to the recipient.
17 D. Claims Presentation. For all claims arising out of or related to this Agreement,
18 nothing in this Section 12 establishes, waives, or modifies any claims
19 presentation requirements or procedures provided by law, including but not
20 limited to the Government Claims Act (Division 3.6 of Title 1 of the Government
21 Code, beginning with section 810).
22 13. DISCLOSURE OF SELF-DEALING TRANSACTIONS
23 A. Applicability. This applies if the Consultant is operating as a corporation or
24 changes its status to operate as a corporation.
25 B. Duty to Disclose. If any member of the Consultant's board of directors is party
26 to a self-dealing transaction, he or she shall disclose the transaction by
27 completing and signing a "Self-Dealing Transaction Disclosure Form" (Exhibit E
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1 to this Agreement) and submitting it to the County before commencing the
2 transaction or immediately after.
3 C. Definition. "Self-dealing transaction" means a transaction to which the
4 Consultant is a party and in which one or more of its directors, as an individual,
5 has a material financial interest.
6 14. GENERAL TERMS
7 A. Effective Date;Term.This Agreement shall become effective upon the Effective
8 Date, and shall continue in effect until the obligations of the Parties under this
9 Agreement are complete or until this Agreement is earlier terminated as provided
10 in Section 5 "Breach and Termination."
11 B. Amendments or Modification.Any changes to this Agreement requested either
12 by County or Consultant may only be affected if mutually agreed upon in writing
13 by duly authorized representatives of the Parties hereto. Except as provided in
14 Section 5, "Breach and Termination,"this Agreement may not be modified, and
15 no waiver is effective, except by written agreement signed by both Parties. The
16 Consultant acknowledges that County employees have no authority to modify
17 this Agreement except as expressly provided in this Agreement.
18 C. Non-Assignment. Neither Party may assign its rights or delegate its obligations
19 under this Agreement without the prior written consent of the other Party.
20 D. Governing Law. The laws of the State of California govern all matters arising
21 from or related to this Agreement.
22 E. Jurisdiction and Venue. This Agreement is signed and performed in Fresno
23 County, California. Consultant consents to California jurisdiction for actions
24 arising from or related to this Agreement, and, subject to the Government Claims
25 Act, all such actions must be brought and maintained in Fresno County.
26 F. Construction. The final form of this Agreement is the result of the Parties'
27 combined efforts. If anything in this Agreement is found by a court of competent
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1 jurisdiction to be ambiguous, that ambiguity shall not be resolved by construing
2 the terms of this Agreement against either Party.
3 G. Headings; Construction; Statutory References. The headings and section
4 titles in this Agreement are for convenience only and are not part of this
5 Agreement. The final form of this Agreement is the result of the Parties'
6 combined efforts and negotiations between the Parties. If anything in this
7 Agreement is found by a court of competent jurisdiction to be ambiguous, that
8 ambiguity shall not be resolved by construing the terms of this Agreement
9 against either Party. The language of this Agreement shall be construed as a
10 whole according to its fair meaning and not strictly for or against any Party. Any
11 rule of construction to the effect that ambiguities are to be resolved against the
12 drafting Party shall not apply in interpreting this Agreement.All references in this
13 Agreement to statutes, regulations, ordinances or resolutions of the United
14 States, the State of California, or County of Fresno shall be deemed to include
15 the same statute, regulation, ordinance, or resolution as hereafter amended or
16 renumbered, or if repealed, to such other provisions as may thereafter govern
17 the same subject. In the event of any inconsistency between the text of this
18 Agreement and the Exhibits attached to this Agreement, such ambiguity shall be
19 resolved in the following order of priority: (1)the text of this Agreement, excluding
20 the Exhibits, (2) Exhibit F (Insurance Requirements), (3) Exhibit E (Self-Dealing
21 Transactions), (4) Exhibit C (Compensation), (5) Exhibit D (Extra Services), (6)
22 Exhibit A (Project Description and Scope of Work).
23 H. Severability. If anything in this Agreement is found by a court of competent
24 jurisdiction to be unlawful or otherwise unenforceable, the balance of this
25 Agreement remains in effect, and the Parties shall make best efforts to replace
26 the unlawful or unenforceable part of this Agreement with lawful and enforceable
27 terms intended to accomplish the Parties' original intent.
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1 I. Nondiscrimination. During the performance of this Agreement, the Consultant
2 shall not unlawfully discriminate against any employee or applicant for
3 employment, or recipient of services, because of race, religious creed, color,
4 national origin, ancestry, physical disability, mental disability, medical condition,
5 genetic information, marital status, sex, gender, gender identity, gender
6 expression, age, sexual orientation, military status or veteran status pursuant to
7 all applicable State of California and federal statutes and regulation.
8 J. No Waiver. Payment, waiver, or discharge by County of any liability or obligation
9 of the Consultant under this Agreement on any one or more occasions is not a
10 waiver of performance of any continuing or other obligation of Consultant and
11 does not prohibit enforcement by the County of any obligation on any other
12 occasion.
13 K. Entire Agreement. This Agreement constitutes the entire Agreement between
14 Consultant and County with respect to the subject matter hereof and supersedes
15 all previous negotiations, proposals, commitments, writing, advertisements,
16 publications,
17 and understandings of any nature whatsoever, including without limitation the
18 Previous Consultant Agreement, unless expressly included in this Agreement.
19 L. No Third Party Beneficiaries. This Agreement does not and is not intended to
20 create any rights or obligations for any person or entity, including without
21 limitation the Applicant, except for the Parties.
22 M. Binding Upon Successors. This Agreement shall be binding upon and inure to
23 the benefit of the Parties and their respective successors in interest, assigns,
24 legal representatives, and heirs.
25 N. Authorized Signatures. The Consultant represents and warrants to County
26 that:
27 (1) Consultant is duly authorized and empowered to sign and perform its
28 obligations under this Agreement.
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1 (2) The individual signing this Agreement on behalf of Consultant is duly
2 authorized to do so and his or her signature on this Agreement legally
3 binds Consultant to the terms of this Agreement.
4 O. Electronic Signatures.The Parties agree that this Agreement may be executed
5 by electronic signature as provided in this section.
6 (1) An "electronic signature" means any symbol or process intended by an
7 individual signing this Agreement to represent their signature, including
8 but not limited to (a)a digital signature; (b)a faxed version of an original
9 handwritten signature; or (c) an electronically scanned and transmitted
10 (for example by PDF document) version of an original handwritten
11 signature.
12 (2) Each electronic signature affixed or attached to this Agreement (a) is
13 deemed equivalent to a valid original handwritten signature of the person
14 signing this Agreement for all purposes, including but not limited to
15 evidentiary proof in any administrative or judicial proceeding, and (b) has
16 the same force and effect as the valid original handwritten signature of
17 that person.
18 (3) The provisions of this section satisfy the requirements of Civil Code
19 section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act
20 (Civil Code, Division 3, Part 2, Title 2.5, beginning with section 1633.1).
21 (4) Each Party using a digital signature represents that it has undertaken and
22 satisfied the requirements of Government Code section 16.5, subdivision
23 (a), paragraphs (1) through (5), and agrees that each other Party may
24 rely upon that representation.
25 (5) This Agreement is not conditioned upon the Parties conducting the
26 transactions under it by electronic means and either Party may sign this
27 Agreement with an original handwritten signature.
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1 P. Counterparts. This Agreement may be signed in counterparts, each of which is
2 an original, and all of which together constitute this Agreement.
3 [Signature page follows.]
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I In witness whereof, the Parties are signing this Agreement as of the Effective Date.
2
3 CONSULTANT: COUNT4�F FRESNO:
4
'7dd-ka Scott
JANNA SCOTT STEVEN E. WHITE PE, PLS
6 DIRECTOR DIRECTOR
ENVIRONMENTAL SCIENCE ASSOCIATES DEPARTMENT OF PUBLIC WORKS
7 AND PLANNING
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EXHIBIT A
787 The Alameda
Suite 250
San Jose,CA 95126
408.660.4000
408.660.4001
memorandum
date December 22,2023
to Ejaz Ahmad and David Randall(County of Fresno,Department of Public Works and Planning,
Development Services and Capital Projects Division)
Madison Novak,Patrick Cousineau,and Timothy Mule(EDP Renewables North America LLC)
from Janna Scott,Director
subject EIR 7230, Scarlet Solar Energy Project: Proposal to Prepare CEQA Addendum
Project Understanding
EDP Renewables North America LLC(EDPR)is proposing to modify the approved Unclassified Conditional Use
Permit(CUP) and reclamation agreement for the Scarlet Solar Energy Project(Scarlet)to authorize an
approximately 10-acre increase in the physical footprint of the approved battery energy storage system within the
existing parcels; incorporation of an updated Water Supply Assessment(WSA)that evaluates changes to the
source and demand of water; optimization of the Project's approved layout to allow for shared facilities with the
adjacent Sonrisa Solar Project(Sonrisa); incorporation of an updated air quality technical memorandum;transfer
a portion of the Scarlet's approved footprint to the adjacent proposed Sonrisa project; and allow for phased
decommissioning of Scarlet. The County of Fresno(County)certified EIR No. 7230 for Scarlet on March 15,
2022,and currently is evaluating the Sonrisa Solar Project(EIR No. 7869)pursuant to the California
Environmental Quality Act(CEQA)and its implementing regulations(the CEQA Guidelines). County approval
of the requested modification to the Scarlet CUP would be a discretionary decision that triggers a requirement
that the County evaluate potential environmental effects and to determine the appropriate level of supplemental
CEQA analysis necessitated by the proposed modification. Schedule is a primary driver for the proposed work,
toward ensuring that the County's CEQA documents for Scarlet and Sonrisa can be considered at the same
Planning Commission meeting.
Proposal
1. Scope of Work
ESA proposes to prepare an addendum to the 2022 Scarlet EIR consistent with CEQA Guidelines Section 15164
because no subsequent EIR.is expected to be required by Public Resources Code Section 21166 and CEQA
Guidelines Section 15162.Briefly,CEQA requires a lead agency to prepare an addendum to a previously certified
EIR"if some changes or additions are necessary but none of the conditions described in CEQA Guidelines
Section 15162 calling for preparation of a subsequent EIR have occurred"(CEQA Guidelines Section 15164).If,
l The physical footprint of the battery energy storage system will total approximately 20 acres,which is a 10-acre increase over the
existing authorized parameter.The expansion will not increase the capacity of the authorized 400 MW system.
EIR 7230,Scarlet Solar Energy Project:Proposal to Prepare CEQA Addendum
based on the analysis,it appears that a subsequent EIR is required,then ESA would advise the County promptly to
schedule further conversations.
The proposed scope of work is based on the following assumptions and understandings:
1. EDPR will timely provide:
a. A description of the proposed project changes,supported by engineering or other figures as appropriate;
b. An updated air quality emissions analysis technical memorandum;
c. An updated WSA;
d. Responses to any requests or information; and
e. KMZ files of i)the proposed and approved Scarlet site with boundaries/outlines of affected infrastructure
shown;and ii)the study areas of technical studies supporting the 2022 EIR if/as requested to support
preparation of the proposed addendum.
2. Contact Deliverable A,CEQA Process Kickoff.For Contact Deliverable A,ESA will facilitate a kickoff
call to confirm project description details,addendum approach,and the preliminary schedule. ESA's Project
Manager and Project Director will participate. This deliverable also includes 3 percent of the total cost of the
project management services described below.
3. Contact Deliverable B,Review of Technical Data.
Contact Deliverable B consists of ESA's review and incorporation of an updated Air Quality Technical
Memorandum,updated WSA and 20 percent of the total cost of the project management services described
below.
Air Ouality Technical Memorandum: In the 2022 EIR,Mitigation Measure AQ-2 required EDPR to enter into
a Voluntary Emissions Reduction Agreement(VERA)with the San Joaquin Valley Air Pollution Control
District to ensure that the Scarlet project's construction-and decommissioning-related emissions of NOx,
PM10,and PM2.5,and that its operation and maintenance-related emissions of PM10 would not exceed the
District's significance thresholds. EDPR has retained a consultant to remodel equipment and usage emissions
assumptions for consistency with actual equipment types and quantities used during Project construction and
has requested County approval of a revised construction and operational criteria pollutant emissions
assessment to support a partial refund of the air quality mitigation funds paid pursuant to the VERA.
ESA will review modeling output data included in the updated air quality technical memorandum to be
provided by EDPR.ESA's review will be conducted by a qualified environmental professional who has the
relevant credentials and experience.Review will focus on whether the work follows applicable protocols and
otherwise is believed to be accurate and credible.Following review,ESA will submit either a technical
memorandum-specific data request or a brief review memorandum documenting a recommendation to accept
the memorandum as submitted.ESA assumes that EDPR's response to any data request would be delivered
within ten(10)business days of submittal of the request.Clarifying or supplementary data would be reviewed
within five(5)business days. A final review memo will be provided to document for the record that review is
complete for purposes of the VERA and for inclusion in the Addendum.
Water Supply Assessment: EDPR's consultant,Rincon,prepared a WSA for the project in December 2018
that was provided in Appendix K3 to the Draft EIR. The WSA supported three findings: 1)that the project's
construction-related water would not result in adverse effects on water supply or reliability regardless of
whether the water was supplied from groundwater or provided by WWD,2) the project's operational
demand would not result in adverse water supply reliability impacts to the groundwater sources, and 3)the
2
EIR 7230,Scarlet Solar Energy Project:Proposal to Prepare CEQA Addendum
project's incremental contribution to potential cumulative effects to water supply would not be cumulatively
considerable(i.e.,would be less than significant).
ESA will review the updated WSA and submit either a request for additional or clarifying data or a brief review
memorandum documenting a recommendation to accept the updated WSA as submitted.ESA assumes that
EDPR's response to any data request would be delivered within ten(10)business days of submittal of the
request. Clarifying or supplementary data would be reviewed within five(5)business days.A final review
memo will be provided to document for the record that review is complete.
4. Contact Deliverable C,Administrative Draft Addendum.Contact Deliverable C consists of ESA's review
certified EIR 7230 and,assuming the environmental impacts of the proposed changes remain within the
analytical assumptions and conclusions of the County-certified 2022 EIR such that no new or more
substantial significant impact would result than previously disclosed, a CEQA addendum as described below.
Contact Deliverable C also includes 54 percent of the total cost of project management services.
a. Describes the proposed changes to the Scarlet project,based primarily on EDPR team input.
b. Documents whether either of the following is true: i)substantial changes are proposed in the Scarlet
project that will require major revisions of the 2022 EIR due to the involvement of new significant
environmental effects or a substantial increase in the severity of previously identified significant effects,
or ii)substantial changes occur with respect to the circumstances under which the Scarlet project is
undertaken that will require major revisions of the 2022 EIR due to the involvement of new significant
environmental effects or a substantial increase in the severity of previously identified significant effects.2
c. Provides a brief explanation(supported by substantial evidence)of a determination that a subsequent EIR
is not required. The addendum will be formatted as a modified initial study checklist,where column
headings indicating conclusions would be revised to reflect the potential conclusions of new significant
impact,more significant impact than previously disclosed,and no new ore more severe significant impact
that previously disclosed.Brief discussion of rationale for conclusions would be provided.If initial
analysis determines that project changes could result in a new significant impact or a substantial increase
in the severity of previously identified significant effect,then ESA will coordinate with the County and
EDPR to discuss further revision of the project so as to avoid the need for new mitigation.
Additional Assumptions:
i. No change will be made to the original baseline(to enable comparison with prior conclusions)or to
the cumulative scenario.
ii. The study areas for the technical reports supporting the 2022 EIR included all lands directly affected
by the proposed modifications;no field surveys and(except as described in Contract Deliverable B)no
new modeling or database searches that would incur an expense other than associated direct labor
costs will be required to prepare the addendum.
iii. The addendum will not be circulated for public review.
iv. The addendum will be attached to the 2022 EIR for consideration by the Planning Commission prior
to a decision on the proposed modification.
v. Because CEQA does not anticipate that either scoping or public review of the Addendum would occur,
this scope of work does not include a printing or postage budget or a"response to comments"effort.
2 The remaining triggers for a subsequent EIR are understood not to beat issue in the context of the proposed modifications of the
Scarlet project.See Public Resources Code Section 21166 and CEQA Guidelines Section 15162.
3
EIR 7230,Scarlet Solar Energy Project:Proposal to Prepare CEQA Addendum
5. Contact Deliverable D,Final Addendum.Contact Deliverable D consists of ESA's finalization of the
addendum based on County(or County and EDPR)review of the administrative draft addendum certified
EIR 7230 for consideration by the Planning Commission,and 10 percent of total project management costs.
6. Contact Deliverable E,Decision Support.ESA will provide limited decision support,consisting of
approximately 10 hours each by the Project Manager and Project Director,to provide CEQA input to the
County's staff report.Any change to existing,approved MMRP indicated by the addendum will be identified.
Because Sonrisa and Scarlet will share a project management team and(based on an assumption that the Scarlet
and Sonrisa projects will be considered at the same Planning Commission meeting),no separate travel costs are
included in this proposal.ESA will provide a proposed submittal-ready Notice of Determination(NOD)for
filing by the County.ESA assumes that the Planning Commission's decision on Scarlet will not be appealed to
Board of Supervisors,and that EDPR has retained proof of payment of the California Department of Fish and
Wildlife(CDFW)filing fee that ordinarily accompanies the filing of an NOD such that no additional CDFW
filing fee would be required.Contract Deliverable E includes 14 percent of total project management costs.
7. Project Management.ESA estimates that up to 6 months of project management time could be required to
facilitate completion of this proposed scope of work and to coordinate the Scarlet and Sonrisa project
schedules so that the Planning Commission may consider the CEQA documents for both projects at the same
meeting.Key project management responsibilities,from the initiation of formal kick-off meeting planning to
the conclusion of decision support-related activities,will include meeting and communications management,
schedule management, and budget management and invoicing. Overall quality assurance/quality control
review of all contact deliverables is included in the project management budget. Because project management
efforts are incurred in connection with each of the identified contract deliverables,project management costs
have been allocated by percentage of the overall work for purposes of the payment schedule shown in Item 3,
Costs and Payment Schedule.
2. Schedule
ESA assumes that the schedule for implementation of the proposed scope of work will run concurrently with or
slightly ahead of the Sonrisa EIR process to ensure timely completion for the Planning Commission's
consideration of both projects at the same meeting.A detailed working schedule is provided in Table 1.
3. Costs and Payment Schedule
ESA proposes to complete this scope of work within the anticipated timeframe for a lump sum fee of$47,440.
ESA anticipates that this amount would be allocated as indicated in the contract deliverable-based payment
schedule provided in Table 2.Absent schedule delays greater than 60 days,if any should occur for reasons
beyond ESA's control,ESA does not anticipate submitting any requests for payment of interim milestones.
4
EIR 7230,Scarlet Solar Energy Project:Proposal to Prepare CEQA Addendum
Table 1:Detailed Working Schedule-Addendum to Scarlet Solar Project EIR No.7230
Fresno County Department of Public Works and Planning Development Services and Capital Projects Division
Jeremy Shaw,Planner
Date of schedule update: Friday,December 22,2023
Task Start Finish Duration Notes and Assumptions
County authorizes ESA to Friday,December 22,2023 Monday,January 22,2024 31 Start=submittal of revised scope,schedule
begin work and cost to County for contacting;finish=
NTP issued based on Applicant funding
ESA's receipt of Applicant Monday,January 22,2024 Saturday,January 27,2024 5 Assumes receipt within 5d of NTP,and at
input least 2d in advance of(virtual)kickoff
meeting _
Addendum kickoff meeting Saturday,January 27,2024 Monday,January 29,2024 2 Scheduled to be held within 7d of NTP,2d
after receipt of Applicant input
AQ Tech Memo data review, Monday,January 22,2024 Monday,February 5,2024 14 Assumes ESA's receipt of tech memo upon
submittal of RFI(if needed) receipt of County NTP
EDPR response to RFI,if Monday,February 5,2024 Thursday,February 15,2024 10
needed
ESA review of response, Thursday,February 15,2024 Tuesday,February 20,2024 5
if needed
ESA to prepare final Tuesday,February 20,2024 Wednesday,February 21,2024 i 1
review memo _
WSA review,submittal of RFI Monday,January 22,2024 Monday,February 5,2024 14 Assumes ESA's receipt of WSA upon receipt
if needed of County NTP
EDPR response to RFI,if Monday,February 5,2024 Thursday,February 15,2024 10
needed
ESA review of response, Thursday,February 15,2024 Tuesday,February 20,2024 5
if needed
ESA to prepare final Tuesday,February 20,2024 Wednesday,February 21,2024 1
review memo _
Project description Monday,January 22,2024 Monday,February 5,2024 14 Assumes ESA's receipt of project change
development details upon receipt of County NTP.ESA's
submittal of draft project description may
contain requests for data or clarification.
Applicant PD review:Fact- Monday,February 5,2024 Monday,February 12,2024 7 Scheduled as 7 days.Not expected to be
check clarify lengthy.
Preparation of Addendum Monday,February 12,2024 Saturday,March 30,2024 47 This schedule will be coordinated/integrated
with the CEQA schedule for the Sonrisa EIR to
allow for final consistency check regarding
the overlapping facilities.
County and Applicant review Saturday,March 30,2024 Tuesday,April 30,2024 31 Assumes submittal at minimum 18d after
later to occur of final AQ tech memo&final
WSA
ESA to revise in response to Tuesday,April 30,2024 Tuesday,May 7,2024 7
input received
County review of screen Tuesday,May 7,2024 Tuesday,May 14,2024 7
check,approve for issuance
ESA production process Tuesday,May 14,2024 Saturday,May 18,2024 4
Addendum submitted for Monday,May 20,2024 Monday,May 20,2024 0
County consideration
County staff report process Monday,May 20,2024 Thursday,May 30,2024 10 Assumes County preparation of staff report,
with ESA input as to CEQA
County Planning Commission Thursday,May 30,2024 Monday,July 15,2024 46 To be considered in advance of,but at the
Hearing same meeting as,the Sonrisa Solar Project.
Assumes Planning Commission meeting
approximately 30d after submittal of
dstend�am,
Notice of Determination Monday,July 15,2024 Friday,July 19,2024 4 To be submitted within 5d after Planning
Commission approval of the project
modifications
All dates that fall on a weekend or holiday will be adjusted to the following work day.
5
Table 2:Contract Deliverables-Scarlet Solar Project Addendum
Flat fee to be paid in five installments,one for each of five contract deliverables.
Contract Deliverable A:CEQA Process Kickoff
$ 1,211 Kick-off call agenda and notes
3%of Project Management costs
Contract Deliverable B: Review of Technical Data
Air Quality Technical Memorandum Review Memo
$ 9,384 WSA Review Memo
20%of Project Management costs
Contract Deliverable C:Administrative Draft Addendum
$ 25,771 Submittal of Administrative Draft Addendum
54%of Project Management costs
Contract Deliverable D: Final Addendum
$ 4,554 Submittal of Final Addendum
10%of Project Management costs
Contract Deliverable E:Decision Support
$ 1,442 CEQA Input to County Staff
14%of Project Management costs
$ 47,440 TOTAL
Incremental
Costs
$ 1,040
$ 248
$ 4,717
$ 3,152
$ 1,515
$ 20,808
$ 4,963
$ 3,677
$ 877
$ 5,202
$ 1,241
1 Exhibit B
2 Scope of Services
3 1. Upon Consultant's receipt of written requests by County to proceed with identified work,
4 Consultant shall prepare, in phases, an addendum to the EIR for the Project which shall
5 comply with CEQA and conform to the Scope of Work, as described in Exhibit A to this
6 Agreement submitted by Consultant and approved by Director.
7 2. Consultant shall determine, at the earliest feasible time,those factors which could severely
8 inhibit or prohibit the approval and development of the proposed project. Consultant shall
9 promptly notify County of Consultant's findings regarding such factors and conclusions
10 related thereto for the purpose of determining the feasibility of continuing with preparation
11 of the addendum to the EIR according to said Work Program.
12 3. Consultant shall include a County staff member in any meeting or other contact between
13 Consultant and Applicant, unless otherwise authorized by County in which case
14 Consultant shall provide a written summary of the meeting. County shall specifically
15 authorize each instance of written correspondence between Consultant and Applicant,
16 and the sender shall provide County a copy of all such correspondence.
17 4. Consultant shall review all background information, prior environmental studies and other
18 studies supplied by Applicant for evaluation in the addendum to the EIR, and Consultant
19 or its Subconsultants shall revise and/or complete any studies determined to be
20 inadequate or incomplete.
21 5. Consultant shall not revise the approved Work Program or replace any Subconsultant, as
22 identified in the Work Program, selected to prepare any part of the addendum to the EIR
23 without the prior written consent of Director. Project Manager shall be Janna Scott, email
24 jscott@esassoc.com. Any changes to Consultant Project Manager will require the prior
25 written consent of Director.
26
27
28
Consultant Agreement—Environmental Science Associates
B-1
1 Exhibit C
2 Compensation
3 Consultant will be compensated for performance of its services under this Agreement as
4 provided in this Exhibit C. Consultant is not entitled to any compensation except as expressly
5 provided in this Exhibit C.
6 1. Contract Deliverables: to occur in four(5) increments
7 (a) Contract Deliverable A: (CEQA Process Kick-Off) shall consist of all
8 work performed by Consultant to complete the tasks identified in the Exhibit A.
9 (b) Contract Deliverable B: shall consist of all work performed by
10 Consultant to complete tasks identified in the Exhibit A concluding with the submittal of
11 the Air Quality Technical Memorandum.
12 (c) Contract Deliverable C: shall consist of all work performed by
13 Consultant to complete takss as identified in the Exhibit A concluding with the submittal of
14 the Administrative Draft Addendum.
15 (d) Contract Deliverable D: shall consist of all work performed by
16 Consultant to complete TASK 5 identified in the Exhibit A concluding with submittal of the
17 Final Addendum.
18 (e) Contract Deliverable E: shall consist of all work performed by
19 Consultant to complete tasks identified in the Exhibit A concluding with CEQA input to
20 County Staff.
21 2. Payment for Contract Deliverables: Upon execution of this Agreement by the Parties
22 hereto and thereafter upon Consultant's completion of each Contract Deliverable,
23 Consultant shall confirm, in writing, with Director or Director's designee, prior to
24 Consultant's performance of any services under a Contract Deliverable, that the sum
25 representing Applicant's incremental payment for that Contract Deliverable of work to be
26 performed by Consultant has been received by County from Applicant.This total sum shall
27 be paid to Consultant as follows:
28
Consultant Agreement—Environmental Science Associates
C-1
1 (a) Contract Deliverable A: Upon receipt of a proper invoice in accordance
2 with Contract Deliverable A and following acceptance, County shall pay Consultant an
3 amount not to exceed One Thousand Two Hundred Eighty-Eight dollars and no cent
4 ($1,288.00). The County shall pay Consultant said amounts pursuant to Section 3 of th
5 Agreement.
6 (b) Contract Deliverable B: Upon receipt of a proper invoice in accordance
7 with Contract Deliverable B and following acceptance, County shall pay Consultant an
8 amount not to exceed Nine Thousand Three Hundred Eighty-Four dollars and no cent
9 ($9,384.00). The County shall pay Consultant said amount pursuant to Section 3 of the
10 Agreement.
11 (c) Contract Deliverable C: Upon receipt of a proper invoice in accordant
12 with Contract Deliverable C and following acceptance, County shall pay Consultant an
13 amount not to exceed an amount not to exceed Twenty-Five Thousand Seven
14 Hundred Seventy-Four dollars and no cents ($25,774.00). The County shall pa
15 Consultant said amount pursuant to Section 3 of the Agreement.
16 (d) Contract Deliverable D: Upon receipt of a proper invoice in accordance
17 with Contract Deliverable D and following acceptance, County shall pay Consultant an
18 amount not to exceed Four Thousand Five Hundred Fifty-Four dollars and no cent
19 ($4,554.00). The County shall pay Consultant said amount pursuant to Section 3 of the
20 Agreement.
21 (e) Contract Deliverable E: Upon receipt of a proper invoice in accordanc
22 with Contract Deliverable D and following acceptance, County shall pay Consultant an
23 amount not to exceed Six Thousand Four Hundred Forty-Two dollars and n
24 cents ($6,442.00). The County shall pay Consultant said amount pursuant to Section
25 of the Agreement.
26
27
28
Consultant Agreement— Environmental Science Associates
C-2
1 Exhibit D
2 Extra Services
3 1. The Parties understand that additional work, not reasonably anticipated during the
4 preparation of the Work Program proposal submitted by Consultant and approved by
5 County, may be necessary to complete the addendum to the EIR. The Parties agree that
6 County may authorize Consultant to perform certain necessary additional work as "Extra
7 Services" pursuant to Exhibit B of this Agreement.
8 2. The Extra Services which may be authorized are limited to those subjects set forth in
9 Exhibit B. Consultant shall not perform any Extra Services without prior written
10 authorization from the Director or the Director's designee. The total charge for all such
11 Extra Services shall not exceed the sum of Seven Thousand One Hundred Sixteen
12 Dollars and no cents ($7,116.00), approximately 15% of the Total Fee.
13 3. Whether to authorize Extra Services is within the discretion of County. Authorization may
14 be granted only if additional information, further analysis, or other work is, in the opinion
15 of the Director, required to complete the addendum to the EIR or related activities.
16 However, if the services to be performed could reasonably have been anticipated during
17 the preparation of the Work Program proposal, as determined by the Director, these
18 services are not "Extra Services" and shall be performed by Consultant within the Total
19 Fee of this Agreement. Extra Services may be authorized only after County's receipt from
20 Applicant, pursuant to County/Applicant Agreement, of the entire sum determined by the
21 Director to be the maximum that may be rendered for those Extra Services. Consultant
22 shall confirm with the Director or the Director's designee that said sum has been received
23 by County from Applicant prior to its performance of the Extra Services.
24 4. Any work performed by the Consultant at County's request is always considered included
25 in the Scope of Work pursuant to Exhibit B unless prior explicit written authorization, that
26 includes a proposed Scope of Work for Extra Services and total cost for services, has
27 been obtained. County staff does not have the authority to provide verbal commitments
28 to amendments to agreements or verbally approve Extra Services; any verbal direction or
Consultant Agreement—Environmental Science Associates
D-1
1 comments from staff does not make a commitment that any written approval for changes
2 in compensation will be authorized or provided. Failure of Consultant to secure prior
3 explicit written authorization for extra services before performing said work shall be deem
4 an acknowledgement that the work is within the scope of the work previously agreed to,
5 and shall constitute a waiver of all rights to an amendment in the contract price or Extra
6 Service request for such unauthorized extra work and Consultant thereafter shall be
7 entitled to no compensation or reimbursement whatsoever for the performance of such
8 work.
9 5. The advance of sufficient funds by Applicant to County for the compensation of both Total
10 Fee services and Extra Services prior to such services being performed shall be paid
11 upfront, and Consultant's confirmation of same with Director, or Director's designee, that
12 such sums have been received shall be conditions precedent to County's obligation to
13 compensate Consultant for such services. If Consultant performs any services under this
14 Agreement and such conditions precedent are not met, County shall not be obligated to
15 compensate Consultant for the performance thereof.
16
17
18
19
20
21
22
23
24
25
26
27
28
Consultant Agreement—Environmental Science Associates
D-2
I Exhibit E
2 Self-Dealing Transaction Disclosure Form
3 In order to conduct business with the County of Fresno ("County"), members of a
4 Consultant's board of directors, must disclose any self-dealing transactions that they are a party
5 to while providing goods, performing services, or both for the County. A self-dealing transaction
6 is defined below:
7 "A self-dealing transaction means a transaction to which the corporation is a party and in
8 which one or more of its directors has a material financial interest."
9 The definition above will be used for purposes of completing this disclosure form.
10 Instructions
11 (1) Enter board member's name, job title (if applicable), and date this disclosure is being
12 made.
13 (2) Enter the board member's company/agency name and address.
14 (3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
15 County. At a minimum, include a description of the following:
16 a. The name of the agency/company with which the corporation has the transaction;
17 and
18 b. The nature of the material financial interest in the Corporation's transaction that
19 the board member has.
20 (4) Describe in detail why the self-dealing transaction is appropriate based on applicable
21 provisions of the Corporations Code.
22 The form must be signed by the board member that is involved in the self-dealing
23 transaction described in Sections (3) and (4).
24
25
26
27
28
Consultant Agreement—Environmental Science Associates
E-1
1 (1) Company Board Member Information:
2
Name: Date:
3
4 Job Title:
5 (2) Company/Agency Name and Address:
6
7
8
9
10
11 (3) Disclosure (Please describe the nature of the self-dealing transaction you are a party
12 to)
13
14
15
16
17
18 (4) Explain why this self-dealing transaction is consistent with the requirements of
19 Corporations Code§ 5233 (a)
20
21
22
23
24
25
26 (5)Authorized Signature
27
Signature: Date:
28
Consultant Agreement— Environmental Science Associates
E-2
1 Exhibit F
2 Insurance Requirements
3 1. Required Policies
4 Without limiting the County's right to obtain indemnification from the Consultant or any third-
5 parties, Consultant, at its sole expense, shall maintain in full force and effect the following
6 insurance policies throughout the term of this Agreement.
7 (A) Commercial General Liability. Commercial general liability insurance with limits of not
8 less than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of
9 Four Million Dollars ($4,000,000). In addition, such Umbrella or Excess insurance
10 policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the
11 County, its officers, officials, employees, agents, and volunteers. This policy must be
12 issued on a per occurrence basis. Coverage must include products,completed operations,
13 property damage, bodily injury, personal injury, and advertising injury. The Consultant
14 shall obtain an endorsement to this policy naming the County of Fresno, its officers,
15 agents, employees, and volunteers, individually and collectively, as additional insureds,
16 but only insofar as the operations under this Agreement are concerned. Such coverage
17 for additional insureds will apply as primary insurance and any other insurance, or self-
18 insurance, maintained by the County is excess only and not contributing with insurance
19 provided under the Consultant's policy.
20 (B)Automobile Liability.Automobile liability insurance with limits of not less than One Million
21 Dollars ($1,000,000)per occurrence for bodily injury and for property damages. Coverage
22 must include any owned and non-owned vehicles used in connection with this Agreement.
23 (C)Workers Compensation. Workers compensation insurance as required by the laws of
24 the State of California with statutory limits.
25 (D) Employer's Liability. Employer's liability insurance with limits of not less than One Million
26 Dollars ($1,000,000) per occurrence for bodily injury and for disease.
27 (E) Professional Liability. Professional liability insurance with limits of not less than One
28 Million Dollars ($1,000,000) per occurrence and an annual aggregate of Three Million
Consultant Agreement—Environmental Science Associates
F-1
1 Dollars ($3,000,000). If this is a claims-made policy, then (1)the retroactive date must be
2 prior to the date on which services began under this Agreement; (2)the Consultant shall
3 maintain the policy and provide to the County annual evidence of insurance for not less
4 than five years after completion of services under this Agreement; and (3) if the policy is
5 canceled or not renewed, and not replaced with another claims-made policy with a
6 retroactive date prior to the date on which services begin under this Agreement, then the
7 Consultant shall purchase extended reporting coverage on its claims-made policy for a
8 minimum of five years after completion of services under this Agreement.
9 2. Additional Requirements
10 (A)Verification of Coverage. Within 30 days after the Consultant signs this Agreement, and
11 at any time during the term of this Agreement as requested by the County's Risk Manager
12 or the County Administrative Office, the Consultant shall deliver, or cause its broker or
13 producer to deliver,to the County Risk Manager, at 2220 Tulare Street, 16th Floor, Fresno,
14 California 93721, or HRRiskManagement@fresnocountyca.gov, and by mail or email to
15 the person identified to receive notices under this Agreement, certificates of insurance and
16 endorsements for all of the coverages required under this Agreement.
17 (i) Each insurance certificate must state.that: (1) the insurance coverage has been
18 obtained and is in full force; (2) the County, its officers, agents, employees, and
19 volunteers are not responsible for any premiums on the policy; and (3) the
20 Consultant has waived its right to recover from the County, its officers, agents,
21 employees, and volunteers any amounts paid under any insurance policy required
22 by this Agreement and that waiver does not invalidate the insurance policy.
23 (ii) The commercial general liability insurance certificate must also state, and include
24 an endorsement, that the County of Fresno, its officers, agents, employees, and
25 volunteers, individually and collectively, are additional insureds insofar as the
26 operations under this Agreement are concerned. The commercial general liability
27 insurance certificate must also state that the coverage shall apply as primary
28 insurance and any other insurance, or self-insurance, maintained by the County
Consultant Agreement—Environmental Science Associates
F-2
1 shall be excess only and not contributing with insurance provided under the
2 Consultant's policy.
3 (iii) The automobile liability insurance certificate must state that the policy covers any
4 auto used in connection with this Agreement.
5 (iv) The professional liability insurance certificate, if it is a claims-made policy, must
6 also state the retroactive date of the policy, which must be prior to the date on
7 which services began under this Agreement.
8 (B)Acceptability of Insurers. All insurance policies required under this Agreement must be
9 issued by admitted insurers licensed to do business in the State of California and always
10 possessing during the term of this Agreement an A.M. Best, Inc. rating of no less than A:
11 VII.
12 (C)Notice of Cancellation or Change. For each insurance policy required under this
13 Agreement, the Consultant shall provide to the County, or ensure that the policy requires
14 the insurer to provide to the County, written notice of any cancellation or change in the
15 policy as required in this paragraph. For cancellation of the policy for nonpayment of
16 premium, the Consultant shall, or shall cause the insurer to, provide written notice to the
17 County not less than 10 days in advance of cancellation. For cancellation of the policy for
18 any other reason, and for any other change to the policy, the Consultant shall, or shall
19 cause the insurer to, provide written notice to the County not less than 30 days in advance
20 of cancellation or change. The County in its sole discretion may determine that the failure
21 of the Consultant or its insurer to timely provide a written notice required by this paragraph
22 is a breach of this Agreement.
23 (D)County's Entitlement to Greater Coverage. If the Consultant has or obtains insurance
24 with broader coverage, higher limits, or both, than what is required under this Agreement,
25 then the County requires and is entitled to the broader coverage, higher limits, or both. To
26 that end, the Consultant shall deliver, or cause its broker or producer to deliver, to the
27 County's Risk Manager certificates of insurance and endorsements for all the coverages
28 that have such broader coverage, higher limits, or both, as required under this Agreement.
Consultant Agreement—Environmental Science Associates
F-3
1 (E)Waiver of Subrogation. The Consultant waives any right to recover from the County, its
2 officers, agents, employees, and volunteers any amounts paid under the policy of worker's
3 compensation insurance required by this Agreement. The Consultant is solely responsible
4 to obtain any policy endorsement that may be necessary to accomplish that waiver, but
5 the Consultant's waiver of subrogation under this paragraph is effective whether the
6 Consultant obtains such an endorsement.
7 (F)County's Remedy for Consultant's Failure to Maintain. If the Consultant fails to always
8 keep in effect any insurance coverage required under this Agreement, the County may, in
9 addition to any other remedies it may have, suspend, or terminate this Agreement upon
10 the occurrence of that failure, or purchase such insurance coverage, and charge the cost
11 of that coverage to the Consultant. The County may offset such charges against any
12 amounts owed by the County to the Consultant under this Agreement.
13 (G)Subconsultants. The Consultant shall require and verify that all subconsultants used by
14 the Consultant to provide services under this Agreement maintain insurance meeting all
15 insurance requirements provided in this Agreement. This paragraph does not authorize
16 the Consultant to provide services under this Agreement using subconsultants.
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Consultant Agreement—Environmental Science Associates
F-4
Updated-Consultant Agreement Addendum EIR
7230 wI th exhibits
Final Audit Report 2024-03-04
Created: 2024-03-04
By: Daniela Michel(DMichel@esassoc.com)
Status: Signed
Transaction ID: CBJCHBCAABAAOGwfrh-91fNf309gc4p4AYOiQjOP3d2s
"Updated-Consultant Agreement Addendum EIR 7230 with exhi
bits" History
-5 Document created by Daniela Michel(DMichel@esassoc.com)
2024-03-04-11:34:38 PM GMT
C"4 Document emailed to Janna Scott Oscoft@esassoc.com)for signature
2024-03-04-11:35:50 PM GMT
55 Email viewed by Janna Scott ascott@esassoc.com)
2024-03-04-11:36:50 PM GMT
J 0 Document e-signed by Janna Scott ascott@esassoc.com)
Signature Date:2024-03-04-11:37:01 PM GMT-Time Source:server
Agreement completed.
2024-03-04-11:37:01 PM GMT
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