HomeMy WebLinkAboutEIR 8542 SLW Consultant Agreement Signed.pdf 1 CONSULTANT AGREEMENT
2 ECORP Consulting, Inc., a California Corporation
3 This Consultant Agreement ("Agreement") is dated VM_ 1V4a WL4
4 ("Effective Date") and is between ECORP Consulting, Inc., a California Corporation
5 ("Consultant"), and the County of Fresno, a political subdivision of the State of California
6 ("County"). Consultant has been selected to prepare an Environmental Impact Report ("EIR")
7 for County for a proposal by the San Louis West Solar LLC. ("Applicant"). County and
8 Consultant may be referred to individually as a "Party," or collectively as "Parties," in this
9 Agreement. Applicant is not a party to this Agreement.
10 RECITALS
11 A. Consultant understands the Applicant has filed with the County an application for
12 Classified Conditional Use Permit Application No. 3781, and have elected to request the
13 preparation of an EIR No. 8542 to meet the requirements of the California Environmental Quality
14 Act (California Public Resources Code, Division 13, section 21000 et seq.), including the
15 implementing CEQA Guidelines thereunder(Title 14, Division 6, Chapter 3, California Code of
16 Regulations, section 15000 et seq.) (collectively, the California Environmental Quality Act,
17 including such CEQA Guidelines thereunder are "CEQX) for the project commonly known as
18 the "[San Luis West Solar]" ("Project").
19 B. The Project proposes to construct and operate a solar and storage facility consisting of
20 a 125-megawatt (mM solar photovoltaic (PV) electric generation facility coupled with an
21 estimated 30 mW battery energy storage system (BESS). The PV portion of the facility will
22 produce electricity by way of the photovoltaic effect which uses a semi-conductor material to
23 convert photons from the sun into electrons for injection into the electrical grid operated by
24 Pacific Gas & Electric (PG&E). The BESS portion of the facility will store electricity either
25 generated by the PV arrays or absorbed from the PG&E grid. In either case,the BESS will make
26 the stored energy available for discharge during periods of peak electrical load. The project will
27 be located on an approximately 1,300 acre project site within the "AE-20" and "AE-40"
28 (Exclusive Agricultural)zoning districts within the Unincorporated area of Fresno County. A copy
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1 of the Project Description is attached hereto as Exhibit A and a copy of the approved Work
2 Program is attached hereto as Exhibit B, and both are incorporated herein by this reference.
3 C. Consultant understands that in order to prepare a legally adequate EIR, the Applicant
4 has selected the Consultant to contract directly with the County for preparation of an EIR on
5 behalf of the County and that CEQA requires that the EIR prepared for the Project reflect the
6 independent judgment of the lead agency as required by the County and by law, the Director of
7 the Fresno County Department of Public Works and Planning ("Director") as the director is
8 responsible for the environmental documents prepared for the Project.
9 D. Consultant understands that it must meet the requirements for an interdisciplinary
10 approach in the preparation of the EIR, as are specified in Article 14 of the CEQA Guidelines
11 (Section 15120 — 15132), and that Consultant must have no interest, financial or otherwise, in
12 the outcome of the proposed Project or any related projects, the Consultant is not in the employ
13 or under contract with the Applicant.
14 E. Consultant represents that it is qualified, able, and willing to prepare a legally adequate
15 EIR and to otherwise deliver the necessary environmental consulting services required by
16 County for the Project, which representation County specifically relies upon.
17 AGREEMENT
18 In consideration of the covenants and conditions set forth herein, the Parties agree as
19 follows:
20 1. OBLIGATIONS OF CONSULTANT
21 A. Scope of Services. Consultant shall perform all the services provided in Exhibit
22 C to this Agreement, titled "Scope of Services."
23 B. Representation. Consultant represents that it is qualified, ready, willing, and
24 able to perform all the services provided in this Agreement.
25 C. Compliance with Laws. Consultant shall, at its own cost, comply with all
26 applicable federal, state, and local laws and regulations in the performance of its
27 obligations under this Agreement, including but not limited to workers
28 compensation, labor, and confidentiality laws and regulations.
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1 D. Communications. All discussions between Applicant and Consultant regarding
2 the Project shall only occur with the County officials involvement. The relevant
3 County staff working on behalf of the project shall be included in all forms of
4 routine correspondence and telecommunications related to Contract
5 performance and all related issues. Such forms of communications are including
6 but not limited to written, telephone, email correspondence, and in-person
7 meetings. To ensure consistent records all emails and all written
8 correspondence must consistently include in the exact project name and
9 number, e.g., "Widget Works Solar Facilities EIR 9876"within the subject line.
10 2. OBLIGATIONS OF COUNTY
11 A. Public Meetings. County shall make arrangements for meetings with public
12 agencies and the public if County requests to conduct such meetings unless
13 specific services are provided for within the work program in Exhibit B.
14 B. Availability of Information. County shall make available to Consultant
15 documents, studies, and other information, not otherwise confidential or
16 privileged, in its possession related to the Project. County shall review
17 Consultant work and provide comments to Consultant as necessary to ensure
18 the environmental record is complete and accurate.
19 C. Public Notices. County shall mail required notices to public agencies and
20 interest groups. Applicant will be responsible for all postage, shipping, and
21 courier costs with respect to the delivery and return of physical mail related to
22 this Agreement and the County/Applicant Agreement.
23 D. Deadlines. The deadlines for performance by County or its officers and
24 employees set forth in this Agreement are directory only, and the failure of
25 County to meet such deadlines shall not be a breach of this Agreement.
26 3. COMPENSATION
27 A. Maximum Compensation. County agrees to pay, and Consultant agrees to
28 receive, compensation for the performance of its services under this Agreement
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1 in an amount not to exceed One Hundred and Eighty-Two Thousand Three
2 Hundred and Ninty-Nine Dollars and no cents ($182,399.00) ("Total Fees with
3 Optional Tasks"), as described in Exhibit D to this Agreement, titled
4 "Compensation." Except as otherwise provided in Exhibit E to this Agreement,
5 titled "Optional Tasks," Consultant shall not be entitled to compensation
6 exceeding the Total Fee.
7 B. Limitations on County. Consultant acknowledges that County is a local
8 government entity and does so with notice that County's powers are limited by
9 the California Constitution and by State law, and with notice that Consultant may
10 receive compensation under this Agreement only for services performed
11 according to the terms of this Agreement and while this Agreement is in effect,
12 and subject to the maximum amount payable under this section. Consultant
13 further acknowledges that County employees have no authority to commit to
14 additional payments or authorize payments to Consultant except as expressly
15 provided in this Agreement as defined in Exhibit B to this Agreement, titled
16 "Optional Tasks."
17 C. Invoices. County and Consultant agree to allow the preparation of the EIR
18 Contract Deliverables to occur in [Five] (5) increments of deliverables (Contract
19 Deliverables 1 through 5), as described in Exhibit D to this Agreement, titled
20 "Compensation", with Applicant providing payment in advance for each Contract
21 Deliverable increment before County may authorize to commence work on said
22 increment. Invoices for payment for Contract Deliverables shall be submitted
23 only after the work identified for that Contract Deliverable increments has been
24 completed to the satisfaction of County. All Tasks shall be completed according
25 to Exhibit B to this agreement, titled "Work Program." Upon completion of a
26 Contract Deliverable and delivery to County, Consultant may submit an invoice
27 with documentation that the Tasks have been fully completed for that Contract
28 Deliverable. County shall then review, approve, and submit the invoice to the
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1 County Auditor- Controller/Treasurer-Tax Collector for payment, or reject the
2 claim and return the Claim to the Consultant identifying the work that has not
3 been accepted as completed. If a project is delayed for more than sixty(60)days,
4 based on no fault of the Consultant, The County may, at their discretion of the
5 Director, accept an invoice from the Consultant for a payment of a portion of a
6 Contract Deliverable that has been completed.
7 D. Payment. Payment shall be issued to Consultant after the receipt thereof by
8 County Auditor-Controller/Treasurer Tax Collector within sixty (60) calendar
9 days after the receipt.
10 E. Incidental Expenses. Consultant is solely responsible for all its costs and
11 expenses that are not specified as payable by the County under this Agreement,
12 whether anticipated or those that may materialize.
13 4. INDEMNITY AND INSURANCE
14 A. Duty to Indemnify. Consultant agrees to indemnify, save, hold harmless, and
15 at County's request, defend the County, its officers, agents, and employees from
16 any and all costs and expenses, damages, liabilities, claims, and losses
17 occurring or resulting to County in connection with the performance, or failure to
18 perform, by Consultant, its officers, agents, or employees under this Agreement,
19 and from any and all costs and expenses,damages, liabilities, claims, and losses
20 occurring or resulting to any person, firm, or corporation who may be injured or
21 damaged by the performance, or failure to perform, of Consultant, its officers,
22 agents, or employees under this Agreement.
23 B. Insurance Requirements. Consultant shall comply with all the insurance
24 requirements in Exhibit G to this Agreement, titled "Insurance Requirements."
25 C. Survival. The terms of this Section 4 shall survive the termination of this
26 Agreement.
27
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1 5. BREACH AND TERMINATION
2 A. Termination by County. This Agreement may be immediately terminated by
3 County upon written notice to Consultant if Consultant fails to comply with any
4 or all the terms of this Agreement or Applicant requests that County discontinues
5 processing the project. In no event shall any payment by County constitute a
6 waiver by County of any breach of this Agreement or any default which may then
7 exist on the part of Consultant. County's termination of this Agreement due to
8 Consultant's breach shall not limit the rights of County to seek other relief,
9 including the recovery of damages.
10 B. Effect of Termination. If this Agreement is terminated as provided in this
11 section, Consultant shall be compensated for satisfactorily performed services
12 completed to the date of termination based upon the compensation rates set
13 forth in Exhibit B, Work Program, and subject to the total sum agreed to herein,
14 together with such additional services satisfactorily performed by Consultant
15 after termination which are authorized by County to complete the work performed
16 to the date of termination.
17 6. WORK PRODUCT
18 A. County Control of Work Product.All reports, studies, data, or other information
19 prepared or assembled by Consultant under this Agreement shall not be
20 provided to any person, association, corporation, or other organization during the
21 term of this Agreement without the prior written consent of County.
22 B. County Right to Disclose. County shall have the unlimited authority to forever
23 publish, disclose, distribute, and otherwise use throughout the world, in whole or
24 in part, and allow others to do so, all reports, studies, data, or other information
25 prepared by Consultant pursuant to this Agreement.
26 C. Ownership of Work Product. All documents prepared or obtained by
27 Consultant shall become the exclusive property of County. Upon termination of
28 this Agreement and prior to any compensation received from County for unpaid
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1 services, Consultant shall surrender to County all work products created
2 pursuant to this Agreement without any reservation of rights therein. Consultant
3 may retain such documents only for so long as County authorizes such work
4 product to be retained to allow the completion of work as provided in Subsection
5 5.13 of this Agreement. Consultant may retain copies of any documents prepared
6 or obtained by Consultant and designated as public records under the California
7 Public Records Act (California Government Code, Title 1, Division 7, Chapter
8 3.5, beginning with section 6250), and such documents may be used by
9 Consultant in any manner after this Agreement has been terminated.
10 D. Format of Documents. The Consultant shall provide (submit, reproduce, and
11 distribute) Draft EIR, Final EIR, MMRP, appendices, exhibits and any additional
12 reference material in the quantities and format(s) as specified in Exhibit B, Work
13 Program, of this Agreement. County will require that Consultant provide
14 documents in both Microsoft Word, Office 2016 (or newer) and Portable
15 Document Format(.pdf) file formats.
16 7. TIME OF PERFORMANCE
17 It is understood that weather and other factors beyond Consultant's control may delay
18 the completion of field work necessary for preparation of the EIR. Consultant will be allowed as
19 many additional days as are necessary to compensate for days lost due to inclement weather
20 or delays resulting from actions by Applicant including but not limited to changes in the project.
21 If additional time is needed because of a delay caused by factors not beyond Consultant's
22 control, Consultant shall timely request an extension of time in writing. The granting of such an
23 extension shall be at the discretion of the Director, or the Director's designee. Neither Party
24 shall be held liable or responsible to the other Party nor be deemed to have defaulted under or
25 breached this Agreement for failure or delay in fulfilling or performing any obligation under this
26 Agreement when such failure or delay is caused by or results from causes beyond the
27 reasonable control of the affected Party, including but not limited to fire, floods, embargoes,
28 war, acts of war, insurrections, riots, strikes, lockouts or other labor disturbances, or acts of
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I God; provided, however, that the Party so affected shall use reasonable commercial efforts to
2 avoid or remove such causes of nonperformance, and shall continue performance hereunder
3 with reasonable dispatch whenever such causes are removed. Either Party shall provide the
4 other Party with prompt written notice of any delay or failure to perform that occurs by reason
5 of force majeure.
6 8. INDEPENDENT CONTRACTOR
7 In performance of the work, duties, and obligations assumed by Consultant under this
8 Agreement, it is mutually understood and agreed that Consultant, including all of Consultant's
9 officers, agents, employees, and sub-consultants/contractors, will always be acting and
10 performing as an independent contractor, and shall act in an independent capacity and not as
11 an officer, agent, servant, employee,joint venture, partner, or associate of County. Furthermore,
12 County shall have no right to control or supervise or direct the manner or method by which
13 Consultant shall perform its works and function. However, County shall retain the right to
14 administer this Agreement so as to verify that Consultant is performing its obligations in
15 accordance with the terms and conditions thereof. Consultant and County shall comply with all
16 applicable provisions of law and the rules and regulations, if any, of Governmental authorities
17 having jurisdiction over matters the subject thereof. Because of its status as an independent
18 contractor, Consultant shall have no right to employment rights or benefits available to County
19 employees. Consultant shall be solely liable and responsible for providing to, or on behalf of its
20 employees, all legally required employees benefits. In addition, Consultant shall be solely
21 responsible and save County harmless from all matters relating to payment of Consultant's
22 employees, including compliance with Social Security withholding, and all other regulations
23 governing such matters. It is acknowledged that during the term of this Agreement, Consultant
24 may be providing services to others unrelated to County or to this Agreement.
25 9. AUDITS AND INSPECTIONS
26 A. Inspection of Documents. Consultant shall make available to County, and
27 County may examine at any time during business hours and as often as County
28 deems necessary, all of Consultant's records and data with respect to the
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1 matters covered by this Agreement, excluding attorney-client privileged
2 communications. Consultant shall, upon request by County, permit County to
3 audit and inspect all such records and data to ensure Consultant's compliance
4 with the terms of this Agreement.
5 B. State Audit Requirements. If the compensation to be paid by County under this
6 Agreement exceeds$10,000, Consultant is subject to the examination and audit
7 of the California State Auditor, as provided in Government Code section 8546.7,
8 for a period of three years after final payment under this Agreement. This
9 subsection 9.13 survives the termination of this Agreement.
10 C. Public Records. Under this Agreement, Consultant is not permitted to discuss,
11 disclose or release to the public or any third party this Agreement or any
12 information, record or data related to the Project unless specifically authorized
13 by County. County is not limited in any manner with respect to its public
14 disclosure of this Agreement or any record or data that Consultant may provide
15 to the County. County's public disclosure of this Agreement or any record or data
16 that Consultant may provide to County may include but is not limited to the
17 following:
18 (1) County may voluntarily, or upon request by any member of the public or
19 governmental agency, disclose this Agreement to the public or such
20 governmental agency.
21 (2) County may voluntarily, or upon request by any member of the public or
22 governmental agency, disclose to the public or such governmental
23 agency any record or data that Consultant may provide to County, unless
24 such disclosure is prohibited by court order.
25 (3) This Agreement, and any record or data that Consultant may provide to
26 County, is subject to public disclosure under the Ralph M. Brown Act
27 (California Government Code, Title 5, Division 2, Part 1, Chapter 9,
28 beginning with section 54950).
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1 (4) This Agreement, and any record or data that Consultant may provide to
2 County, is subject to public disclosure as a public record under the
3 California Public Records Act (California Government Code, Title 1,
4 Division 7, Chapter 3.5, beginning with section 6250) ("CPRA").
5 (5) This Agreement, and any record or data that Contractor may provide to
6 County, is subject to public disclosure as information concerning the
7 conduct of the people's business of the State of California under
8 California Constitution, Article 1, section 3, subdivision (b).
9 (6) Any marking of confidentiality or restricted access upon or otherwise
10 made with respect to any record or data that Consultant may provide to
11 County shall be disregarded and have no effect on County's right or duty
12 to disclose to the public or governmental agency any such record or data.
13 D. Public Records Act Requests. If County receives a written or oral request
14 under the CPRA to publicly disclose any record that is in Consultant's possession
15 or control, and which County has a right, under any provision of this Agreement
16 or applicable law, to possess or control, then County may demand, in writing,
17 that Consultant deliver to County, for purposes of public disclosure, the
18 requested records that may be in the possession or control of Consultant. Within
19 five business days after County's demand, Consultant shall (a) deliver to the
20 County all of the requested records that are in Consultant's possession or
21 control, together with a written statement that Consultant, after conducting a
22 diligent search, has produced all requested records that are in Consultant's
23 possession or control, or (b) provide to County a written statement that
24 Consultant, after conducting a diligent search, does not possess or control any
25 of the requested records. Consultant shall cooperate with County with respect to
26 any County demand for such records. If Consultant wishes to assert that any
27 specific record or data is exempt from disclosure under the CPRA or other
28 applicable law, it must deliver the record or data to County and assert the
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1 exemption by citation to specific legal authority within the written statement that
2 it provides to County under this section. Consultant's assertion of any exemption
3 from disclosure is not binding on County, but County will give at least 10 days'
4 advance written notice to the Contractor before disclosing any record subject to
5 Consultant's assertion of exemption from disclosure. Consultant shall indemnify
6 the County for any court-ordered award of costs or attorney's fees under the
7 CPRA that results from Consultant's delay, claim of exemption,failure to produce
8 any such records, or failure to cooperate with County with respect to any County
9 demand for any such records.
10 10. MAINTAIN AND PROVIDE ADMINISTRATIVE RECORD
11 If requested by the County, Consultant shall upon request prepare and assemble the
12 Administrative Record(defined in this Section 10 below) and furnish it to County after the Notice
13 of Determination, including the findings and any Statement of Overriding Consideration, are
14 filed with the County Clerk. The "Administrative Record" is defined as the entirety of the
15 information relied upon to prepare the EIR, including without limitation all records identified in
16 California Public Resources Code section 21167.6, subdivision (e). The Administrative Record
17 is inclusive of all information and analyses either generated or obtained from other sources or
18 used to support documentation and analyses. A complete Administrative Record is the entirety
19 of the information relied upon within Consultant's possession plus all information in other
20 locations listed in the references. Information listed in the references at other locations does not
21 have to be included in the Administrative Record, provided the references contain sufficient
22 information for a reasonable member of the public to identify, seek out, and obtain the listed
23 information. Consultant shall organize the information comprising the Administrative Record as
24 an accessible electronic file, indexed by topic to the extent possible, and submit this record to
25 County. The electronically stored information comprising the Administrative Record shall be
26 delivered to the County in in the format in which it is ordinarily maintained.
27
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1 11. CONTRACT ADMINISTRATION
2 Consultant shall notify its appropriate employees of the individual County designates as
3 County Contract Administrator for this EIR. All routine correspondence and telecommunications
4 related to Contract performance and related issues should be addressed as follows:
5 David Randall, Senior Planner
Department of Public Works and Planning
6 Development Services and Capital Project Division
2220 Tulare Street, 6th floor
7 Fresno, CA 93721
Phone: (559) 600-4334
8 e-mail: DRandall(a)FresnoCountyCA.gov
9 All other notices to County shall be delivered in accordance with Section 12, below.
10 12. NOTICES
11 A. Addresses for Delivery. Except as otherwise provided in this Agreement, the
12 persons and their addresses having authority to give and receive notices under
13 this Agreement include the following:
14 County:
Director of Public Works and Planning
15 Department of Public Works and Planning
2220 Tulare Street, Eighth Floor
16 Fresno, CA 93721
Attn: Division Manager/Development Services
17
Consultant:
18 Donald R. Mitchell, Vice President
ECORP Consulting, Inc.
19 215 N. 5th Street
Redlands, CA 92374
20
21 B. Change of Contact Information. Either Party may change the information
22 provided in this Agreement by giving notice as provided in this section.
C. Method of Delivery. Each notice between the County and the Consultant
23
24 provided for or permitted under this Agreement must be in writing, state that it is
25 a notice provided under this Agreement, and be delivered either by personal
service, by first-class United States mail, by an overnight commercial courier
26
service.
27
(1) A notice delivered by personal service is effective upon service to the
28
recipient.
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1 (2) A notice delivered by first-class United States mail is effective three
2 County business days after deposit in the United States mail, postage
3 prepaid, addressed to the recipient.
4 (3) A notice delivered by an overnight commercial courier service is effective
5 one County business day after deposit with the overnight commercial
6 courier service, delivery fees prepaid, with delivery instructions given for
7 next day delivery, addressed to the recipient.
8 D. Claims Presentation. For all claims arising out of or related to this Agreement,
9 nothing in this Section 12 establishes, waives, or modifies any claims
10 presentation requirements or procedures provided by law, including but not
11 limited to the Government Claims Act(Division 3.6 of Title 1 of the Government
12 Code, beginning with section 810).
13 13. DISCLOSURE OF SELF-DEALING TRANSACTIONS
14 A. Applicability. This applies if the Consultant is operating as a corporation or
15 changes its status to operate as a corporation.
16 B. Duty to Disclose. If any member of the Consultant's board of directors is party
17 to a self-dealing transaction, he or she shall disclose the transaction by
18 completing and signing a "Self-Dealing Transaction Disclosure Form" (Exhibit F
19 to this Agreement) and submitting it to the County before commencing the
20 transaction or immediately after.
21 C. Definition. "Self-dealing transaction" means a transaction to which the
22 Consultant is a party and in which one or more of its directors, as an individual,
23 has a material financial interest.
24 14. GENERAL TERMS
25 A. Effective Date;Term.This Agreement shall become effective upon the Effective
26 Date and shall continue in effect until the obligations of the Parties under this
27 Agreement are complete or until this Agreement is earlier terminated as provided
28 in Section 5 "Breach and Termination."
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I B. Amendments or Modification.Any changes to this Agreement requested either
2 by County or Consultant may only be affected if mutually agreed upon in writing
3 by duly authorized representatives of the Parties hereto. Except as provided in
4 Section 5, "Breach and Termination," this Agreement may not be modified, and
5 no waiver is effective, except by written agreement signed by both Parties. The
6 Consultant acknowledges that County employees have no authority to modify
7 this Agreement except as expressly provided in this Agreement.
8 C. Non-Assignment. Neither Party may assign its rights or delegate its obligations
9 under this Agreement without the prior written consent of the other Party.
10 D. Governing Law. The laws of the State of California govern all matters arising
11 from or related to this Agreement.
12 E. Jurisdiction and Venue. This Agreement is signed and performed in Fresno
13 County, California. Consultant consents to California jurisdiction for actions
14 arising from or related to this Agreement, and, subject to the Government Claims
15 Act, all such actions must be brought and maintained in Fresno County.
16 F. Construction. The final form of this Agreement is the result of the Parties'
17 combined efforts. If anything in this Agreement is found by a court of competent
18 jurisdiction to be ambiguous, that ambiguity shall not be resolved by construing
19 the terms of this Agreement against either Party.
20 G. Headings; Construction; Statutory References. The headings and section
21 titles in this Agreement are for convenience only and are not part of this
22 Agreement. The final form of this Agreement is the result of the Parties'
23 combined efforts and negotiations between the Parties. If anything in this
24 Agreement is found by a court of competent jurisdiction to be ambiguous, that
25 ambiguity shall not be resolved by construing the terms of this Agreement
26 against either Party. The language of this Agreement shall be construed as a
27 whole according to its fair meaning and not strictly for or against any Party. Any
28 rule of construction to the effect that ambiguities are to be resolved against the
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1 drafting Party shall not apply in interpreting this Agreement. All references in this
2 Agreement to statutes, regulations, ordinances or resolutions of the United
3 States, the State of California, or County of Fresno shall be deemed to include
4 the same statute, regulation, ordinance, or resolution as hereafter amended or
5 renumbered, or if repealed, to such other provisions as may thereafter govern
6 the same subject. In the event of any inconsistency between the text of this
7 Agreement and the Exhibits attached to this Agreement, such ambiguity shall be
8 resolved in the following order of priority: (1)the text of this Agreement, excluding
9 the Exhibits, (2) Exhibit G (Insurance Requirements), (3) Exhibit F (Self-Dealing
10 Transactions), (4) Exhibit D (Compensation), (5) Exhibit E (Extra Services), (6)
11 Exhibit C (Scope of Services), (7) Exhibit B (Work Program), and (8) Exhibit A
12 (Project Description).
13 H. Severability. If anything in this Agreement is found by a court of competent
14 jurisdiction to be unlawful or otherwise unenforceable, the balance of this
15 Agreement remains in effect, and the Parties shall make best efforts to replace
16 the unlawful or unenforceable part of this Agreement with lawful and enforceable
17 terms intended to accomplish the Parties' original intent.
18 I. Nondiscrimination. During the performance of this Agreement, the Consultant
19 shall not unlawfully discriminate against any employee or applicant for
20 employment, or recipient of services, because of race, religious creed, color,
21 national origin, ancestry, physical disability, mental disability, medical condition,
22 genetic information, marital status, sex, gender, gender identity, gender
23 expression, age, sexual orientation, military status or veteran status pursuant to
24 all applicable State of California and federal statutes and regulation.
25 J. No Waiver. Payment, waiver, or discharge by County of any liability or obligation
26 of the Consultant under this Agreement on any one or more occasions is not a
27 waiver of performance of any continuing or other obligation of Consultant and
28
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1 does not prohibit enforcement by the County of any obligation on any other
2 occasion.
3 K. Entire Agreement. This Agreement constitutes the entire Agreement between
4 Consultant and County with respect to the subject matter hereof and supersedes
5 all previous negotiations, proposals, commitments, writing, advertisements,
6 publications,
7 and understandings of any nature whatsoever, including without limitation the
8 Previous Consultant Agreement, unless expressly included in this Agreement.
9 L. No Third-Party Beneficiaries. This Agreement does not and is not intended to
10 create any rights or obligations for any person or entity, including without
11 limitation the Applicant, except for the Parties.
12 M. Binding Upon Successors. This Agreement shall be binding upon and inure to
13 the benefit of the Parties and their respective successors in interest, assigns,
14 legal representatives, and heirs.
15 N. Authorized Signatures. The Consultant represents and warrants to County
16 that:
17 (1) Consultant is duly authorized and empowered to sign and perform its
18 obligations under this Agreement.
19 (2) The individual signing this Agreement on behalf of Consultant is duly
20 authorized to do so and his or her signature on this Agreement legally
21 binds Consultant to the terms of this Agreement.
22 O. Electronic Signatures.The Parties agree that this Agreement may be executed
23 by electronic signature as provided in this section.
24 (1) An "electronic signature" means any symbol or process intended by an
25 individual signing this Agreement to represent their signature, including
26 but not limited to (a) a digital signature; (b) a faxed version of an original
27 handwritten signature; or (c) an electronically scanned and transmitted
28
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1 (for example by PDF document) version of an original handwritten
2 signature.
3 (2) Each electronic signature affixed or attached to this Agreement (a) is
4 deemed equivalent to a valid original handwritten signature of the person
5 signing this Agreement for all purposes, including but not limited to
6 evidentiary proof in any administrative or judicial proceeding, and (b) has
7 the same force and effect as the valid original handwritten signature of
8 that person.
9 (3) The provisions of this section satisfy the requirements of Civil Code
10 section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act
11 (Civil Code, Division 3, Part 2, Title 2.5, beginning with section 1633.1).
12 (4) Each Party using a digital signature represents that it has undertaken and
13 satisfied the requirements of Government Code section 16.5, subdivision
14 (a), paragraphs (1) through (5), and agrees that each other Party may
15 rely upon that representation.
16 (5) This Agreement is not conditioned upon the Parties conducting the
17 transactions under it by electronic means and either Party may sign this
18 Agreement with an original handwritten signature.
19 P. Counterparts. This Agreement may be signed in counterparts, each of which is
20 an original, and all of which together constitute this Agreement.
21 [Signature page follows.]
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Consultant Agreement—ECORP Consulting, Inc., a California Corporation
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1 In witness whereof, the Parties are signing this Agreement as of the Effective Date.
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3 CONSULTANT: COUNTY F FRESNO:
ECORP Consulting Inc.
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BY: BY:
7 Donald R. Mitchel STEVEN E. W TE PE, PLS
Vice President DIRECTOR
8 DEPARTMENT OF PUBLIC WORKS
AND PLANNING
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ORG. NO.: 4360-0200
11 SUBCLASS NO.: 10000
FUND NO.: 0001
12 ACCOUNT NO.: 7295
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Consultant Agreement—ECORP Consulting, Inc., a California Corporation
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1 Exhibit A
2 Project Description
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4 (See Attached)
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Consultant Agreement—ECORP Consulting, Inc., a California Corporation
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1 Exhibit B
2 Work Program
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4 (See Attached)
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Consultant Agreement- ECORP Consulting, Inc., a California Corporation
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1 Exhibit C
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 EIR for the Project which shall comply with CEQA
5 and conform to the Work Program, as described in Exhibit B to this Agreement, and
6 Schedule, as defined in Exhibit B to this Agreement, submitted by Consultant and
7 approved by Director.
8 2. Consultant shall determine, at the earliest feasible time,those factors which could severely
9 inhibit or prohibit the approval and development of the proposed project. Consultant shall
10 promptly notify County of Consultant's findings regarding such factors and conclusions
11 related thereto for the purpose of determining the feasibility of continuing with preparation
12 of the EIR according to said Work Program.
13 3. Consultant shall include a County staff member in any meeting or other contact between
14 Consultant and Applicant, unless otherwise authorized by County in which case
15 Consultant shall provide a written summary of the meeting. County shall specifically
16 authorize each instance of written correspondence between Consultant and Applicant,
17 and the sender shall provide County a copy of all such correspondence.
18 4. Consultant shall review all background information, prior environmental studies and other
19 studies supplied by Applicant for evaluation in the EIR, and Consultant or its
20 Subconsultants shall revise and/or complete any studies determined to be inadequate or
21 incomplete.
22 5. Consultant shall not revise the approved Work Program or replace any Subconsultant, as
23 identified in the Work Program, selected to prepare any part of the EIR without the prior
24 written consent of Director. Project Manager shall be David Atwater, email
25 datwater@ecorpconsulting.com. Any changes to Consultant Project Manager will require
26 the prior written consent of Director.
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Consultant Agreement—ECORP Consulting, Inc., a California Corporation
C-1
1 6. Consultant shall at minimum conduct one(1)scoping meeting for the Notice of Preparation
2 (NOP) and one (1) public meeting for the Draft EIR if such meetings are requested by
3 County.
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Consultant Agreement—ECORP Consulting, Inc., a California Corporation
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1 Exhibit D
2 Compensation
3 Consultant will be compensated for performance of its services under this Agreement as
4 provided in this Exhibit D. Consultant is not entitled to any compensation except as expressly
5 provided in this Exhibit D.
6 1. Contract Deliverables: to occur in five (5) increments
7 (a) Contract Deliverable A: (Project Kick-Off) shall consist of all work
8 performed by Consultant to complete TASKS Al-A6 identified in the Exhibit D Work
9 Program concluding with the end of the Public Scoping period.
10 (b) Contract Deliverable B: shall consist of all work performed by
11 Consultant to complete TASK B1- B3 identified in the Exhibit D Work Program concluding
12 with the close of the Public Review Period for the Draft EIR.
13 (c) Contract Deliverable C: shall consist of all work performed by
14 Consultant to complete TASK Cl-C6 as identified in the Exhibit D Work Program
15 concluding with the publication of the Final EIR.
16 (d) Contract Deliverable D: shall consist of all work performed by
17 Consultant to complete TASK D1-D4 identified in the Exhibit D Work Program concluding
18 with submission of the administrative record.
19 (e) Contract Deliverable E: shall consist of all work performed by
20 Consultant to complete TASK E1 and E2 identified in the Exhibit D Work Program
21 concluding with submission of the administrative record.
22 2. Payment for Contract Deliverables: Upon execution of this Agreement by the Parties
23 hereto and thereafter upon Consultant's completion of each Contract Deliverable,
24 Consultant shall confirm, in writing, with Director or Director's designee, prior to
25 Consultant's performance of any services under a Contract Deliverable, that the sum
26 representing Applicant's incremental payment for that Contract Deliverable of work to be
27 performed by Consultant has been received by County from Applicant.This total sum shall
28 be paid to Consultant as follows:
Consultant Agreement—ECORP Consulting, Inc., a California Corporation
D-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 Thirteen Thousand Four Hundred and Eighty Five Dollars and no
4 cents ($13,485.00). The County shall pay Consultant said amounts pursuant to Section 3
5 of the 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 Seventy Eight Thousand Nine Hundred and Eighty Dollars and no
9 cents ($78,980.00). The County shall pay Consultant said amount pursuant to Section 3
10 of the Agreement.
11 (c) Contract Deliverable C: Upon receipt of a proper invoice in accordance
12 with Contract Deliverable C and following acceptance, County shall pay Consultant an
13 amount not to exceed an amount not to exceed Sixty Eight Thousand Eight Hundred and
14 Nine Dollars and no cents ($68,809). The County shall pay Consultant said amount
15 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 Sixteen Thousand Two Hundred and Ninety Dollars and no cents
19 ($16,290.00). 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 accordance
22 with Contract Deliverable E1 and E2 and following acceptance, County shall pay
23 Consultant an amount not to exceed Four Thousand Seven Hundred and Seventy Five
24 Dollars and no cents ($4,775.00). The County shall pay Consultant said amount pursuant
25 to Section 3 of the Agreement.
26 3. OPTIONAL TASKS: The Parties understand that"Optional Tasks" (Task E) according to
27 Exhibit B Work Program may be required during the course of the project. The Parties
28 agree that County may authorize Consultant in writing to perform additional Optional
Consultant Agreement—ECORP Consulting, Inc., a California Corporation
D-2
1 Tasks as described in Exhibit B of this Agreement as the County deems needed. Upon
2 receipt of a proper invoice following acceptance of performance of said Optional task by
3 the County; County shall pay Consultant said amount according to Exhibit B Work
4 Program for Optional Tasks pursuant Section 3 of the Agreement.
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Consultant Agreement—ECORP Consulting, Inc., a California Corporation
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1 Exhibit E
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 Draft and/or Final EIR. The Parties further
6 understand that it is not possible to estimate accurately either the quantity or quality of
7 comments that will be received by County during the public review period for the Draft
8 EIR. The Parties agree that County may authorize Consultant to perform certain
9 necessary additional work as "Extra Services" pursuant to Exhibit B of this Agreement.
10 2. The Extra Services which may be authorized are limited to those subjects set forth in
11 Exhibit B. Consultant shall not perform any Extra Services without prior written
12 authorization from the Director or the Director's designee. The total charge for all such
13 Extra Services shall not exceed the sum of Twenty Four Thousand Five Hundred Ninety
14 One and Sixty Cents ($24,591.60), approximately 15% of the Total Fee.
15 3. Whether to authorize Extra Services is within the discretion of County. Authorization may
16 be granted only if additional information, further analysis, or other work is, in the opinion
17 of the Director, required to complete the Draft or Final EIR or related activities. However,
18 if the services to be performed could reasonably have been anticipated during the
19 preparation of the Work Program proposal, as determined by the Director, these services
20 are not"Extra Services" and shall be performed by Consultant within the Total Fee of this
21 Agreement. Extra Services may be authorized only after County's receipt from Applicant,
22 pursuant to County/Applicant Agreement, of the entire sum determined by the Director to
23 be the maximum that may be rendered for those Extra Services. Consultant shall confirm
24 with the Director or the Director's designee that said sum has been received by County
25 from Applicant prior to its performance of the Extra Services.
26 4. Any work performed by the Consultant at County's request is always considered
27 included in the Scope of Work pursuant to Exhibit B unless prior explicit written
28 authorization, that includes a proposed Scope of Work for Extra Services and total cost
Consultant Agreement—ECORP Consulting, Inc., a California Corporation
E-1
1 for services, has been obtained. County staff does not have the authority to provide
2 verbal commitments to amendments to agreements or verbally approve Extra Services;
3 any verbal direction or comments from staff does not make a commitment that any
4 written approval for changes in compensation will be authorized or provided. Failure of
5 Consultant to secure prior explicit written authorization for extra services before
6 performing said work shall be deem an acknowledgement that the work is within the
7 scope of the work previously agreed to, and shall constitute a waiver of all rights to an
8 amendment in the contract price or Extra Service request for such unauthorized extra
9 work and Consultant thereafter shall be entitled to no compensation or reimbursement
10 whatsoever for the performance of such work.
11 5. The advance of sufficient funds by Applicant to County for the compensation of both Total
12 Fee services and Extra Services prior to such services being performed shall be paid
13 upfront, and Consultant's confirmation of same with Director, or Director's designee, that
14 such sums have been received shall be conditions precedent to County's obligation to
15 compensate Consultant for such services. If Consultant performs any services under this
16 Agreement and such conditions precedent are not met, County shall not be obligated to
17 compensate Consultant for the performance thereof.
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Consultant Agreement—ECORP Consulting, Inc., a California Corporation
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1 Exhibit F
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).
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Consultant Agreement— ECORP Consulting, Inc., a California Corporation
F-1
1 (1) Company Board Member Information:
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Name: Date:
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4 Job Title:
5 (2) Company/Agency Name and Address:
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11 (3) Disclosure (Please describe the nature of the self-dealing transaction you are a party
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18 (4) Explain why this self-dealing transaction is consistent with the requirements of
19 Corporations Code§ 5233 (a)
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26 (6)Authorized Signature
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Signature: Date:
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Consultant Agreement— ECORP Consulting, Inc., a California Corporation
F-2
1 Exhibit G
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—ECORP Consulting, Inc., a California Corporation
G-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—ECORP Consulting, Inc., a California Corporation
G-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—ECORP Consulting, Inc., a California Corporation
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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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