HomeMy WebLinkAboutConsultant Agreement Executed 9.23.2024.pdf 1 CONSULTANT AGREEMENT
2 This Consultant Agreement ("Agreement") is dated SppfG»tb*-on 1 13021
3 ("Effective Date") and is between Environmental Science Associates (ESA) ("Consultant"), and
4 the County of Fresno, a political subdivision of the State of California ("County"). Consultant has
5 been selected to prepare an Environmental Impact Report ("EIR") for County for a proposal by
6 the Rosemary Solar, LLC ("Applicant'). County and Consultant may be referred to individually
7 as a "Party," or collectively as "Parties," in this Agreement. Applicant is not a party to this
8 Agreement.
9 RECITALS
10 A. Consultant understands the Applicant has filed with the County an application for
11 Classified Conditional Use Permit Application Nos. 3795, 3796, 3797 and 3798, and have
12 elected to request the preparation of an EIR No. 8575 to meet the requirements of the California
13 Environmental Quality Act (California Public Resources Code, Division 13, section 21000 et
14 seq.), including the implementing CEQA Guidelines thereunder(Title 14, Division 6, Chapter 3,
15 California Code of Regulations, section 15000 et seq.) (collectively, the California
16 Environmental Quality Act, including such CEQA Guidelines thereunder are "CEQA") for the
17 project commonly known as the "Rosemary Solar" ("Project').
18 B. The Project proposes to construct and operate four solar and storage facilities
19 consisting of four individual facilities on four distinct sites: Rosemary 1: A 70 megawatt (mM
20 solar photovoltaic (PV) electric generation facility coupled with an estimated 70 mW battery
21 energy storage system (BESS) located on approximately 540 acres. Rosemary 2: A 35
22 megawatt (mW) solar photovoltaic (PV) electric generation facility coupled with an estimated
23 35 mW battery energy storage system (BESS) located on approximately 500 acres. Rosemary
24 3: A 35 megawatt (mW) solar photovoltaic (PV) electric generation facility coupled with an
25 estimated 35 mW battery energy storage system (BESS) located on approximately 540 acres.
26 Rosemary Shared facilities: shared facilities including an approximately 1,000-foot-long
27 generation-tie (gen-tie) line, operation and maintenance (O&M) buildings and parking area,
28 and onsite substation area located on approximately 40 acres. The PV portion of the facilities
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1 will produce electricity by way of the photovoltaic effect which uses a semi-conductor material
2 to convert photons from the sun into electrons for injection into the electrical grid operated by
3 Pacific Gas & Electric (PG&E). The BESS portion of the facilities will store electricity either
4 generated by the PV arrays or absorbed from the PG&E grid. In either case, the BESS will
5 make the stored energy available for discharge during periods of peak electrical load. The
6 project will be located on an approximately 1,200-acre project site within the "AE-20"
7 (Exclusive Agricultural) zoning district within the Unincorporated area of Fresno County. A
8 copy of the Project Description is attached hereto as Exhibit A and a copy of the approved
9 Work Program is attached hereto as Exhibit B, and both are incorporated herein by this
10 reference.
11 C. Consultant understands that in order to prepare a legally adequate EIR, the Applicant
12 has selected the Consultant to contract directly with the County for preparation of an EIR on
13 behalf of the County and that CEQA requires that the EIR prepared for the Project reflect the
14 independent judgment of the lead agency as required by the County and by law, the Director of
15 the Fresno County Department of Public Works and Planning ("Director") as the director is
16 responsible for the environmental documents prepared for the Project.
17 D. Consultant understands that it must meet the requirements for an interdisciplinary
18 approach in the preparation of the EIR, as are specified in Article 14 of the CEQA Guidelines
19 (Section 15120 — 15132), and that Consultant must have no interest, financial or otherwise, in
20 the outcome of the proposed Project or any related projects, the Consultant is not in the employ
21 or under contract with the Applicant.
22 E. Consultant represents that it is qualified, able, and willing to prepare a legally adequate
23 EIR and to otherwise deliver the necessary environmental consulting services required by
24 County for the Project, which representation County specifically relies upon.
25 AGREEMENT
26 In consideration of the covenants and conditions set forth herein, the Parties agree as
27 follows:
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1 1. OBLIGATIONS OF CONSULTANT
2 A. Scope of Services. Consultant shall perform all the services provided in Exhibit
3 C to this Agreement, titled "Scope of Services."
4 B. Representation. Consultant represents that it is qualified, ready, willing, and
5 able to perform all the services provided in this Agreement.
6 C. Compliance with Laws. Consultant shall, at its own cost, comply with all
7 applicable federal, state, and local laws and regulations in the performance of its
8 obligations under this Agreement, including but not limited to workers
9 compensation, labor, and confidentiality laws and regulations.
10 D. Communications. All discussions between Applicant and Consultant regarding
11 the Project shall only occur with the County officials involvement. The relevant
12 County staff working on behalf of the project shall be included in all forms of
13 routine correspondence and telecommunications related to Contract
14 performance and all related issues. Such forms of communications are including
15 but not limited to written, telephone, email correspondence, and in-person
16 meetings. To ensure consistent records all emails and all written
17 correspondence must consistently include in the exact project name and
18 number, e.g., "Widget Works Solar Facilities EIR 9876"within the subject line.
19 2. OBLIGATIONS OF COUNTY
20 A. Public Meetings. County shall make arrangements for meetings with public
21 agencies and the public if County requests to conduct such meetings unless
22 specific services are provided for within the work program in Exhibit B.
23 B. Availability of Information. County shall make available to Consultant
24 documents, studies, and other information, not otherwise confidential or
25 privileged, in its possession related to the Project. County shall review
26 Consultant work and provide comments to Consultant as necessary to ensure
27 the environmental record is complete and accurate.
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1 C. Public Notices. County shall mail required notices to public agencies and
2 interest groups. Applicant will be responsible for all postage, shipping, and
3 courier costs with respect to the delivery and return of physical mail related to
4 this Agreement and the County/Applicant Agreement.
5 D. Deadlines. The deadlines for performance by County or its officers and
6 employees set forth in this Agreement are directory only, and the failure of
7 County to meet such deadlines shall not be a breach of this Agreement.
8 3. COMPENSATION
9 A. Maximum Compensation. County agrees to pay, and Consultant agrees to
10 receive, compensation for the performance of its services under this Agreement
11 in an amount not to exceed Four Hundred and Six Thousand Three Hundred and
12 Fourty Three and no cents ($406,343.00) ("Total Fees with Optional Tasks"), as
13 described in Exhibit D to this Agreement, titled "Compensation." Except as
14 otherwise provided in Exhibit E to this Agreement, titled "Optional Tasks,"
15 Consultant shall not be entitled to compensation exceeding the Total Fee.
16 B. Limitations on County. Consultant acknowledges that County is a local
17 government entity and does so with notice that County's powers are limited by
18 the California Constitution and by State law, and with notice that Consultant may
19 receive compensation under this Agreement only for services performed
20 according to the terms of this Agreement and while this Agreement is in effect,
21 and subject to the maximum amount payable under this section. Consultant
22 further acknowledges that County employees have no authority to commit to
23 additional payments or authorize payments to Consultant except as expressly
24 provided in this Agreement as defined in Exhibit E to this Agreement, titled
25 "Optional Tasks."
26 C. Invoices. County and Consultant agree to allow the preparation of the EIR
27 Contract Deliverables to occur in eight increments of deliverables (Contract
28 Deliverables 1 through 8), as described in Exhibit D to this Agreement, titled
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1 "Compensation", with Applicant providing payment in advance for each Contract
2 Deliverable increment before County may authorize to commence work on said
3 increment. Invoices for payment for Contract Deliverables shall be submitted
4 only after the work identified for that Contract Deliverable increments has been
5 completed to the satisfaction of County. All Tasks shall be completed according
6 to Exhibit B to this agreement, titled "Work Program." Upon completion of a
7 Contract Deliverable and delivery to County, Consultant may submit an invoice
8 with documentation that the Tasks have been fully completed for that Contract
9 Deliverable. County shall then review, approve, and submit the invoice to the
10 County Auditor- Controller/Treasurer-Tax Collector for payment, or reject the
11 claim and return the Claim to the Consultant identifying the work that has not
12 been accepted as completed. If a project is delayed for more than sixty(60)days,
13 based on no fault of the Consultant, The County may, at their discretion of the
14 Director, accept an invoice from the Consultant for a payment of a portion of a
15 Contract Deliverable that has been completed.
16 D. Payment. Payment shall be issued to Consultant after the receipt thereof by
17 County Auditor-Controller/Treasurer Tax Collector within sixty (60) calendar
18 days after the receipt.
19 E. Incidental Expenses. Consultant is solely responsible for all its costs and
20 expenses that are not specified as payable by the County under this Agreement,
21 whether anticipated or those that may materialize.
22 4. INDEMNITY AND INSURANCE
23 A. Duty to Indemnify. Consultant agrees to indemnify, save, hold harmless, and
24 at County's request, defend the County, its officers, agents, and employees from
25 any and all costs and expenses, damages, liabilities, claims, and losses
26 occurring or resulting to County in connection with the performance, or failure to
27 perform, by Consultant, its officers, agents, or employees under this Agreement,
28 and from any and all costs and expenses, damages, liabilities, claims, and losses
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1 occurring or resulting to any person, firm, or corporation who may be injured or
2 damaged by the performance, or failure to perform, of Consultant, its officers,
3 agents, or employees under this Agreement.
4 B. Insurance Requirements. Consultant shall comply with all the insurance
5 requirements in Exhibit G to this Agreement, titled "Insurance Requirements."
6 C. Survival. The terms of this Section 4 shall survive the termination of this
7 Agreement.
8 5. BREACH AND TERMINATION
9 A. Termination by County. This Agreement may be immediately terminated by
10 County upon written notice to Consultant if Consultant fails to comply with any
11 or all the terms of this Agreement or Applicant requests that County discontinues
12 processing the project. In no event shall any payment by County constitute a
13 waiver by County of any breach of this Agreement or any default which may then
14 exist on the part of Consultant. County's termination of this Agreement due to
15 Consultant's breach shall not limit the rights of County to seek other relief,
16 including the recovery of damages.
17 B. Effect of Termination. If this Agreement is terminated as provided in this
18 section, Consultant shall be compensated for satisfactorily performed services
19 completed to the date of termination based upon the compensation rates set
20 forth in Exhibit B, Work Program, and subject to the total sum agreed to herein,
21 together with such additional services satisfactorily performed by Consultant
22 after termination which are authorized by County to complete the work performed
23 to the date of termination.
24 6. WORK PRODUCT
25 A. County Control of Work Product.All reports, studies, data, or other information
26 prepared or assembled by Consultant under this Agreement shall not be
27 provided to any person, association, corporation, or other organization during the
28 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, all reports, studies, data, or other information
4 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 5.6 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) Draft EIR, Final EIR, MMRP, appendices, exhibits and any additional
19 reference material in the quantities and format(s) as specified in Exhibit B, Work
20 Program, of this Agreement. County will require that Consultant provide
21 documents in both Microsoft Word, Office 2016 (or newer) and Portable
22 Document Format (.pdf) file 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 EIR. Consultant will be allowed as
26 many additional days as are necessary to compensate for days lost due to inclement weather
27 or delays resulting from actions by Applicant including but not limited to changes in the project.
28 If additional time is needed because of a delay caused by factors not beyond Consultant's
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1 control, Consultant shall timely request an extension of time in writing. The granting of such an
2 extension shall be at the discretion of the Director, or the Director's designee. Neither Party
3 shall be held liable or responsible to the other Party nor be deemed to have defaulted under or
4 breached this Agreement for failure or delay in fulfilling or performing any obligation under this
5 Agreement when such failure or delay is caused by or results from causes beyond the
6 reasonable control of the affected Party, including but not limited to fire, floods, embargoes,
7 war, acts of war, insurrections, riots, strikes, lockouts or other labor disturbances, or acts of
8 God; provided, however, that the Party so affected shall use reasonable commercial efforts to
9 avoid or remove such causes of nonperformance, and shall continue performance hereunder
10 with reasonable dispatch whenever such causes are removed. Either Party shall provide the
11 other Party with prompt written notice of any delay or failure to perform that occurs by reason
12 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 all of Consultant's
16 officers, agents, employees, and sub-consultants/contractors, will always be acting and
17 performing as an independent contractor, and shall act in an independent capacity and not as
18 an officer, agent, servant, employee,joint venture, partner, or associate of County. Furthermore,
19 County shall have no right to control or supervise or direct the manner or method by which
20 Consultant shall perform its works and function. However, County shall retain the right to
21 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 no right to employment rights or benefits available to County
26 employees. Consultant shall be solely liable and responsible for providing to, or on behalf of its
27 employees, all legally required employees benefits. In addition, Consultant shall be solely
28 responsible and save County harmless from all matters relating to payment of Consultant's
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I employees, including compliance with Social Security withholding, and all other regulations
2 governing such matters. It is acknowledged that during the term of this Agreement, Consultant
3 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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1 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 EIR, including without limitation all records identified in
24 California Public Resources Code section 21167.6, subdivision (e). The Administrative Record
25 is inclusive of all information and analyses either generated or obtained from other sources or
26 used to support documentation and analyses. A complete Administrative Record is the entirety
27 of the information relied upon within Consultant's possession plus all information in other
28 locations listed in the references. Information listed in the references at other locations does not
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1 have to be included in the Administrative Record, provided the references contain sufficient
2 information for a reasonable member of the public to identify, seek out, and obtain the listed
3 information. Consultant shall organize the information comprising the Administrative Record as
4 an accessible electronic file, indexed by topic to the extent possible, and submit this record to
5 County. The electronically stored information comprising the Administrative Record shall be
6 delivered to the County in in the format in which it is ordinarily maintained.
7
8
9 11. CONTRACT ADMINISTRATION
10 Consultant shall notify its appropriate employees of the individual County designates as
11 County Contract Administrator for this EIR. All routine correspondence and telecommunications
12 related to Contract performance and related issues should be addressed 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(WresnoCountyCA.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
Consultant:
26 Janna A. Scott, Project Manager
Environmental Science Associates
27 550 Kearny Street, Suite 800
28 San Francisco, CA 94108
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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 F
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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 G (Insurance Requirements), (3) Exhibit F (Self-Dealing
21 Transactions), (4) Exhibit D (Compensation), (5) Exhibit E (Extra Services), (6)
22 Exhibit C (Scope of Services), (7) Exhibit B (Work Program), and (8) Exhibit A
23 (Project Description).
24 H. Severability. If anything in this Agreement is found by a court of competent
25 jurisdiction to be unlawful or otherwise unenforceable, the balance of this
26 Agreement remains in effect, and the Parties shall make best efforts to replace
27 the unlawful or unenforceable part of this Agreement with lawful and enforceable
28 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.
Consultant Agreement— Environmental Science Associates, A California Corporation
addressed at 550 Kearny Street, Suite 800San Francisco, CA 94108
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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.
28
Consultant Agreement— Environmental Science Associates, A California Corporation
addressed at 550 Kearny Street, Suite 800San Francisco, CA 94108
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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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Consultant Agreement— Environmental Science Associates, A California Corporation
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1 In witness whereof, the Parties are signing this Agreement as of the Effective Date.
2
3 CONSULTANT: COUNTY OF ESNO:
Environmental Science Associates
4
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6 78"a Scott
BY: Janna Scott(Sep 17,202414:50 POT( BY:
7 JANNA A. SCOTT, DIRECTOR STEVEN E. WFRTE PE, PLS
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— Environmental Science Associates, A California Corporation
addressed at 550 Kearny Street, Suite 800San Francisco, CA 94108
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