HomeMy WebLinkAboutEIR 8189 - Third Party Adminstrator Agreement with WSP USA Inc.pdf 1 THIRD PARTY ADMINISTRATOR AGREEMENT
2 WSP USA Inc.
3 Third Party Administrator Agreement (Agreement) is Dated "lf'/ (Entered
4 Date) and is between WSP USA Inc. (Consultant), a New York Corporation and the County of
5 Fresno (County), a political subdivision of the State of California. County and Consultant
6 may be referred to individually as a "Party," or collectively as "Parties," in this Agreement.
7 RECITALS
8 A. On October 10, 2024, pursuant to County Resolution No 13063, subject to the conditions
9 listed within; the County Planning Commission certified Environmental Impact Report (EIR) No.
10 8189 (State Clearinghouse No. 2022070414) for the Key Energy Storage Project (Project) and
11 the adopting of a Monitoring Plan for Classified Conditional Use Permit Application (CUP) 3734,
12 3802, 3803 and 3804 attached hereto as Exhibit A "Monitoring Plan", attached and incorporated
13 herein by reference.
14 B. The Project proposes the construction, operation, maintenance, and decommissioning of
15 a battery storage facility on approximately 260-acres, along with a new approximately 2,500-
16 foot-long (up to 0.5-mile) 500-kilovolt transmission line to connect with the existing PG&E Gates
17 Substation located north of the project site.
18 C. Consultant understands that CUP 3734, 3802, 3803 and 3804 requires that Key Energy
19 Storage, LLC (Applicant) enter into an agreement with County to implement a Mitigation
20 Monitoring and Reporting Plan and Condition Compliance Matrix (Monitoring Plan) in
21 accordance with Section 21081.6 of the California Public Resources Code and Section 15097
22 of Title 14, Chapter 3 of the California Code of Regulations. Applicant is not a party to this
23 agreement.
24 D. Consultant understands that they will be responsible for monitoring compliance on the
25 portion of the Project described under CUP No. 3734, 3802, 3803 and 3804 as described in
26 Exhibit A and that this agreement shall cover monitoring the Project's mitigation measures and
Third Party Administrator Agreement—WSP USA Inc. Page 1 of 18
1 conditions of approval as provided in the Monitoring Plan.
2 E. Consultant understands that this agreement shall cover the Consultant's Letter
3 Agreement/Proposal to provide environmental compliance consulting services as described in
4 Exhibit B "Work Program", attached and incorporated herein by reference.
5 F. Consultant understands that all expenses incidental to the performance of the
6 obligations in this Agreement will be the Consultants to bear.
7 G. Consultant represents that it is qualified, able, and willing to monitor the Project's
8 mitigation measures and conditions of approval as required and which the County specifically
9 relies upon.
10 AGREEMENT
11 In consideration of the covenants and conditions set forth herein, the Parties agree as follows:
12 1. TERM
13 A. Effective Date. This agreement shall become effective June , 2025
14 B. Termination Date. This agreement shall terminate on August 30, 2026
15 2. OBLIGATIONS OF CONSULTANT
16 A. Scope of Services. Consultant shall monitor Applicant's compliance with all
17 project mitigation measures and requirements as described and provided in
18 Exhibit A.
19 B. Representation. Consultant represents that it is qualified, ready, willing, and
20 able to perform all the services provided in this Agreement.
21 C. Reporting. Consultant shall provide County a written report of each monitoring
22 visit to document the site conditions on a quarterly basis. If issues are noted on
23 site, the report shall indicate the issue, the person(s) contacted, and corrective
24 action implemented. If a significant noncompliance arises, County shall be
25 notified immediately.
26 D. Satisfactory Completion. County will pay the Consultant in full compensation
Third Party Administrator Agreement—WSP USA Inc. Page 2 of 18
1 for services performed under this Agreement as described in Exhibit B only after
2 County determines the adequateness of performance per item(s) which the
3 Consultant seeks payment. If County informs Consultant of the necessity to act
4 on item(s), for County's determination of satisfactory completion per the terms of
5 this Agreement, Consultant shall undertake all work to complete the item(s) to
6 the satisfaction of the County per the terms of this Agreement at no additional
7 charge to County.
8 E. Communications. All discussions between Applicant and Consultant regarding
9 the Project shall only occur with the County official's involvement. The relevant
10 County staff working on behalf of the project shall be included in all forms of
11 routine correspondence and telecommunications related to Contract performance
12 and all related issues. Such forms of communications are including but not
13 limited to written, telephone, email correspondence, and in-person meetings. To
14 ensure consistent records all emails and all written correspondence must
15 consistently include in the exact project name and number, e.g., "Key Energy
16 Storage Project EIR 8189` within the subject line.
17 F. Standard of Care. Services performed by Consultant will be conducted in a
18 manner consistent with that level of care and skill ordinarily exercised by other
19 reputable professionals practicing contemporaneously, under similar conditions,
20 in the same locality, subject to the time limits and financial, physical, or other
21 constraints applicable to the services.
22 3. OBLIGATIONS OF COUNTY
23 A. Compensation. County shall pay to Consultant compensation as described and
24 provided in Exhibit B to this agreement. This will occur within 45 days of receipt
25 of a proper invoice, which County will review and determine whether Consultant
26 has adequately performed to the satisfaction per the terms of this Agreement of
Third Party Administrator Agreement—WSP USA Inc. Page 3 of 18
1 the County the item(s) for which Consultant seeks payment and shall remit
2 payment thereof to Consultant.
3 B. Availability of Information. County shall make available to Consultant
4 documents, studies, and other information, not otherwise confidential or
5 privileged, in its possession related to the Project. Consultant shall be entitled to
6 rely on such documents, studies, and other information provided by County and
7 assumes no liability or responsibility of such.
8 4. 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 Forty-Eight Thousand, One Hundred Dollars and
12 Zero Cents ($48,100.00) (Total Fee) and Consultant shall not be entitled to
13 compensation exceeding the Total Fee for the entire term of this Agreement.
14 Compensation is according to the hourly rate as described in Exhibit B to this
15 Agreement.
16 B. Invoices. Invoices for payment shall be submitted only after the work identified
17 has been completed to the satisfaction of County, per the terms of this
18 Agreement. Within 45 days of receipt of a proper invoice, County shall then
19 review for approval and, if approved, submit the invoice to the County Auditor-
20 Controller/Treasurer-Tax Collector for payment, or reject the invoice and return
21 the invoice to the Consultant identifying the work that has not been accepted as
22 completed.
23 C. Payment. Payment shall be issued to Consultant after the receipt thereof by
24 County Auditor-Controller/Treasurer Tax Collector within sixty (60) calendar days
25 after the receipt.
26 D. Incidental Expenses. Consultant is solely responsible for all of its costs and
Third Party Administrator Agreement—WSP USA Inc. Page 4 of 18
1 expenses that are not specified as payable by the County under this Agreement,
2 whether anticipated or those that may materialize.
3 5. INDEMNITY AND INSURANCE
4 A. Duty to Indemnify. Consultant agrees to indemnify, save, hold harmless, and at
5 County's request, defend the County, its officers, agents, and employees from
6 any and all costs and expenses, damages, liabilities, claims, and losses
7 occurring or resulting to County in connection with the performance, or failure to
8 perform, by Consultant, its officers, agents, or employees under this Agreement,
9 and from any and all costs and expenses, damages, liabilities, claims, and losses
10 occurring or resulting to any person, firm, or corporation who may be injured or
11 damaged by the performance, or failure to perform, of Consultant, its officers,
12 agents, or employees under this Agreement.
13 B. Insurance Requirements. Consultant shall comply with all the insurance
14 requirements in Exhibit D to this Agreement, titled "Insurance Requirements."
15 C. Survival. The terms of this Section 5 shall survive the termination of this
16 Agreement.
17 6. BREACH AND TERMINATION
18 A. Termination by County. This Agreement may be immediately terminated by
19 County upon written notice to Consultant if:
20 1. Consultant fails to comply with any or all the terms of this Agreement,
21 2. Consultant illegally or improperly uses funds,
22 3. Consultant provides a substantial incorrect or incomplete report to the
23 County,
24 4. Consultant inadequately performs services as determined by County,
25 or if:
26 5. Applicant requests that County discontinues processing the project or
Third Party Administrator Agreement—WSP USA Inc. Page 5 of 18
1 discontinues operation of the project,
2 6. Applicant fails to timely remit reimbursement to County for an invoice
3 submitted by consultant.
4 B. Termination by Consultant. Consultant may terminate this Agreement upon
5 thirty (30) days' prior written notice to the other party. If the Consultant terminates
6 the Agreement, the Client will pay Consultant for all work performed by it prior to
7 the notice of termination. Consultant shall reimburse the County up to a
8 maximum of Twenty Thousand Dollars and zero cents ($20,000.00) for the actual
9 expense of issuing a Request For Proposal, engaging a new consultant and the
10 new consultant's cost in becoming familiar with the Project, its operations to date
11 and its compliance with the Mitigation Plan.
12 C: Effect of Termination. If this Agreement is terminated as provided in this
13 section, Consultant shall be compensated for satisfactorily performed services
14 completed to the date of termination based upon the compensation rates set
15 forth in Exhibit B, and subject to the total sum agreed to herein, together with
16 such additional services satisfactorily performed by Consultant after termination
17 which are authorized by County to complete the work performed to the date of
18 termination.
19 7. WORK PRODUCT
20 A. County Control of Work Product. Any and all reports, studies, data, or other
21 information, prepared or assembled by Consultant under this Agreement shall
22 not be provided to any person, association, corporation, or other organization
23 during the term of this Agreement without the prior written consent of County.
24 B. County Right to Disclose. County shall have the unlimited authority to forever
25 publish, disclose, distribute, and otherwise use throughout the world, in whole or
26 in part, and allow others to do so, any and all reports, studies, data, or other
Third Party Administrator Agreement—WSP USA Inc. Page 6 of 18
1 information prepared by Consultant pursuant to this Agreement. Any use of
2 Consultant's work by County, other than as intended by the Monitoring Plan, will
3 be at County's sole risk and without liability to Consultant.
4 C. Ownership of Work Product. All documents prepared or obtained by
5 Consultant shall become the exclusive property of County. Upon termination of
6 this Agreement and prior to any compensation received from County for unpaid
7 services, Consultant shall surrender to County all work products created
8 pursuant to this Agreement without any reservation of rights therein. Consultant
9 may retain such documents only for so long as County authorizes such work
10 product to be retained to allow the completion of work as provided in Subsection
11 5.6 of this Agreement. Consultant may retain copies of any documents prepared
12 or obtained by Consultant and designated as public records under the California
13 Public Records Act (California Government Code, Title 1, Division 7, Chapter 3.5,
14 beginning with section 6250), and such documents may be used by
15 Consultant in any manner after this Agreement has been terminated.
16 D. Format of Documents. The Consultant shall provide reference material in the
17 quantities and format(s) as specified in Exhibit B of this Agreement. County will
18 require that Consultant provide documents in both Microsoft Word, Office 2016
19 (or newer) and Portable Document Format (.pdf) file formats.
20 8. INDEPENDENT CONTRACTOR
21 In performance of the work, duties, and obligations assumed by Consultant under this
22 Agreement, it is mutually understood and agreed that Consultant, including any and all of
23 Consultant's officers, agents, employees, and sub-consultants/contractors, will at all times be
24 acting and performing as an independent contractor, and shall act in an independent capacity
25 and not as an officer, agent, servant, employee, joint venture, partner, or associate of County.
26 Furthermore, County shall have no right to control or supervise or direct the manner or method
Third Party Administrator Agreement—WSP USA Inc. Page 7 of 18
1 by which Consultant shall perform its works and function. However, County shall retain the right to
2 administer this Agreement so as to verify that Consultant is performing its obligations in
3 accordance with the terms and conditions thereof. Consultant and County shall comply with all
4 applicable provisions of law and the rules and regulations, if any, of Governmental authorities
5 having jurisdiction over matters the subject thereof. Because of its status as an independent
6 contractor, Consultant shall have absolutely no right to employment rights or benefits available
7 to County employees. Consultant shall be solely liable and responsible for providing to, or on
8 behalf of its employees, all legally-required employee's benefits. In addition, Consultant shall be
9 solely responsible and save County harmless from all matters relating to payment of
10 Consultant's employees, including compliance with Social Security withholding, and all other
11 regulations governing such matters. It is acknowledged that during the term of this Agreement,
12 Consultant may be providing services to others unrelated to County or to this Agreement.
13 9. AUDITS AND INSPECTIONS
14 A. Inspection of Documents. Consultant shall make available to County, and
15 County may examine at any time during business hours and as often as County
16 deems necessary, all of Consultant's records and data with respect to the
17 matters covered by this Agreement, excluding attorney-client privileged
18 communications. Consultant shall, upon request by County, permit County to
19 audit and inspect all such records and data to ensure Consultant's compliance
20 with the terms of this Agreement.
21 B. State Audit Requirements. If the compensation to be paid by County under this
22 Agreement exceeds $10,000, Consultant is subject to the examination and audit
23 of the California State Auditor, as provided in Government Code section 8546.7,
24 for a period of three years after final payment under this Agreement. This
25 subsection 9.13 survives the termination of this Agreement.
26 C. Public Records. Under this Agreement, Consultant is not permitted to discuss,
Third Party Administrator Agreement—WSP USA Inc. Page 8 of 18
1 disclose or release to the public or any third party this Agreement or any record
2 or data related to the Project unless specifically authorized by County. County is
3 not limited in any manner with respect to its public disclosure of this Agreement
4 or any record or data that Consultant may provide to the County. County's public
5 disclosure of this Agreement or any record or data that Consultant may provide
6 to County may include but is not limited to the following:
7 (1) County may voluntarily, or upon request by any member of the public or
8 governmental agency, disclose this Agreement to the public or such
9 governmental agency.
10 (2) County may voluntarily, or upon request by any member of the public or
11 governmental agency, disclose to the public or such governmental
12 agency any record or data that Consultant may provide to County, unless
13 such disclosure is prohibited by court order.
14 (3) This Agreement, and any record or data that Consultant may provide to
15 County, is subject to public disclosure under the Ralph M. Brown Act
16 (California Government Code, Title 5, Division 2, Part 1, Chapter 9,
17 beginning with section 54950).
18 (4) This Agreement, and any record or data that Consultant may provide to
19 County, is subject to public disclosure as a public record under the
20 California Public Records Act (California Government Code, Title 1,
21 Division 7, Chapter 3.5, beginning with section 6250) ("CPRA").
22 (5) This Agreement, and any record or data that Contractor may provide to
23 County, is subject to public disclosure as information concerning the
24 conduct of the people's business of the State of California under
25 California Constitution, Article 1, section 3, subdivision (b).
26 (6) Any marking of confidentiality or restricted access upon or otherwise
Third Party Administrator Agreement—WSP USA Inc. Page 9 of 18
1 made with respect to any record or data that Consultant may provide to
2 County shall be disregarded and have no effect on County's right or duty
3 to disclose to the public or governmental agency any such record or data.
4 D. Public Records Act Requests. If County receives a written or oral request
5 under the CPRA to publicly disclose any record that is in Consultant's possession
6 or control, and which County has a right, under any provision of this Agreement
7 or applicable law, to possess or control, then County may demand, in writing, that
8 Consultant deliver to County, for purposes of public disclosure, the
9 requested records that may be in the possession or control of Consultant. Within
10 five business days after County's demand, Consultant shall (a) deliver to the
11 County all of the requested records that are in Consultant's possession or
12 control, together with a written statement that Consultant, after conducting a
13 diligent search, has produced all requested records that are in Consultant's
14 possession or control, or (b) provide to County a written statement that
15 Consultant, after conducting a diligent search, does not possess or control any of
16 he requested records. Consultant shall cooperate with County with respect to any
17 County demand for such records. If Consultant wishes to assert that any specific
18 record or data is exempt from disclosure under the CPRA or other applicable law,
19 it must deliver the record or data to County and assert the exemption by citation
20 to specific legal authority within the written statement that it provides to County
21 under this section. Consultant's assertion of any exemption from disclosure is not
22 binding on County, but County will give at least 10 days' advance written notice
23 to the Contractor before disclosing any record subject to Consultant's assertion
24 of exemption from disclosure. Consultant shall indemnify the County for any
25 court-ordered award of costs or attorney's fees under the CPRA that results from
26 Consultant's delay, claim of exemption, failure to produce any such records, or
Third Party Administrator Agreement—WSP USA Inc. Page 10 of 18
1 failure to cooperate with County with respect to any County demand for any such
2 records.
3 10. MAINTAIN AND PROVIDE ADMINISTRATIVE RECORD
4 If requested by the County, Consultant shall upon request prepare and assemble the
5 Administrative Record (defined in this Section 10 below) and furnish it to County after the Notice
6 of Determination, including the findings and any Statement of Overriding Consideration, are filed
7 with the County Clerk. The "Administrative Record" is defined as the entirety of the information
8 relied upon to prepare the EIR, including without limitation all records identified in California
9 Public Resources Code section 21167.6, subdivision (e). The Administrative Record is inclusive
10 of all information and analyses either generated or obtained from other sources or used to
11 support documentation and analyses. A complete Administrative Record is the entirety of the
12 information relied upon within Consultant's possession plus all information in other locations
13 listed in the references. Information listed in the references at other locations does not have to
14 be included in the Administrative Record, provided the references contain sufficient information
15 for a reasonable member of the public to identify, seek out, and obtain the listed information.
16 Consultant shall organize the information comprising the Administrative Record as an
17 accessible electronic file, indexed by topic to the extent possible, and submit this record to
18 County. The electronically stored information comprising the Administrative Record shall be
19 delivered to the County in in the format in which it is ordinarily maintained.
20 11. CONTRACT ADMINISTRATION
21 Consultant shall notify its appropriate employees of the individual County designates as County
22 Contract Administrator for this EIR. All routine correspondence and telecommunications related
23 to Contract performance and related issues should be addressed as follows:
24 Tawanda Mtunga, Principal Planner
25 Department of Public Works and Planning
26 Development Services and Capital Project Division
Third Party Administrator Agreement—WSP USA Inc. Page 11 of 18
1 2220 Tulare Street, 6th floor
2 Fresno, CA 93721
3 Phone: (559) 600-4256
4 e-mail: tmtunga@fresnocountyca.gov
5 All other notices to County shall be delivered in accordance with Section 12, below.
6 12. NOTICES
7 A. Addresses for Delivery. Except as otherwise provided in this Agreement, the
8 persons and their addresses having authority to give and receive notices under
9 this Agreement include the following:
10 County:
11 Director of Public Works and Planning
12 Department of Public Works and Planning
13 2220 Tulare Street, Eighth Floor
14 Fresno, CA 93721
15 Attn: Division Manager/Development Services
16 Consultant:
17 WSP USA Inc. 1670 Corporate Circle, Suite 201
18 Petaluma, CA 94952
19 B. Change of Contact Information. Either Party may change the information
20 provided in this Agreement by giving notice as provided in this section.
21 C. Method of Delivery. Each notice between the County and the Consultant
22 provided for or permitted under this Agreement must be in writing, state that it is
23 a notice provided under this Agreement, and be delivered either by personal
24 service, by first-class United States mail, by an overnight commercial courier
25 service.
26 (1) A notice delivered by personal service is effective upon service to the
Third Party Administrator Agreement—WSP USA Inc. Page 12 of 18
1 recipient.
2 (2) A notice delivered by first-class United States mail is effective three
3 County business days after deposit in the United States mail, postage
4 prepaid, addressed to the recipient.
5 (3) A notice delivered by an overnight commercial courier service is effective
6 one County business day after deposit with the overnight commercial
7 courier service, delivery fees prepaid, with delivery instructions given for
8 next day delivery, addressed to the recipient next day delivery, addressed
9 to the recipient.
10 D. Claims Presentation. For all claims arising out of or related to this Agreement,
11 nothing in this Section 12 establishes, waives, or modifies any claims
12 presentation requirements or procedures provided by law, including but not
13 limited to the Government Claims Act (Division 3.6 of Title 1 of the Government
14 Code, beginning with section 810).
15 13. DISCLOSURE OF SELF-DEALING TRANSACTIONS
16 A. Applicability. This applies if the Consultant is operating as a corporation or
17 changes its status to operate as a corporation.
18 B. Duty to Disclose. If any member of the Consultant's board of directors is party
19 to a self-dealing transaction, he or she shall disclose the transaction by
20 completing and signing a "Self-Dealing Transaction Disclosure Form" (Exhibit C
21 to this Agreement) and submitting it to the County before commencing the
22 transaction or immediately after.
23 C. Definition. "Self-dealing transaction" means a transaction to which the
24 Consultant is a party and in which one or more of its directors, as an individual,
25 has a material financial interest.
26 14. GENERAL TERMS
Third Party Administrator Agreement—WSP USA Inc. Page 13 of 18
1 A. Effective Date; Term. This Agreement shall become effective upon the Effective
2 Date, and shall continue in effect until the obligations of the Parties under this
3 Agreement are complete, until the Termination Date or until this Agreement is
4 earlier terminated as provided in Section 6 "Breach and Termination."
5 B. Amendments or Modification. Any changes to this Agreement requested either
6 by County or Consultant may only be affected if mutually agreed upon in writing
7 by duly authorized representatives of the Parties hereto. Except as provided in
8 Section 6, "Breach and Termination," this Agreement may not be modified, and
9 no waiver is effective, except by written agreement signed by both Parties. The
10 Consultant acknowledges that County employees have no authority to modify
11 this Agreement except as expressly provided in this Agreement.
12 C. Non-Assignment. Neither Party may assign its rights or delegate its obligations
13 under this Agreement without the prior written consent of the other Party.
14 D. Governing Law. The laws of the State of California govern all matters arising
15 from or related to this Agreement.
16 E. Jurisdiction and Venue. This Agreement is signed and performed in Fresno
17 County, California. Consultant consents to California jurisdiction for actions
18 arising from or related to this Agreement, and, subject to the Government Claims
19 Act, all such actions must be brought and maintained in Fresno County.
20 F. Construction. The final form of this Agreement is the result of the Parties'
21 combined efforts. If anything in this Agreement is found by a court of competent
22 jurisdiction to be ambiguous, that ambiguity shall not be resolved by construing
23 the terms of this Agreement against either Party.
24 G. Headings; Construction; Statutory References. The headings and section
25 titles in this Agreement are for convenience only and are not part of this
26 Agreement. The final form of this Agreement is the result of the Parties'
Third Party Administrator Agreement—WSP USA Inc. Page 14 of 18
1 combined efforts and negotiations between the Parties. If anything in this
2 Agreement is found by a court of competent jurisdiction to be ambiguous, that
3 ambiguity shall not be resolved by construing the terms of this Agreement
4 against either Party. The language of this Agreement shall be construed as a
5 whole according to its fair meaning and not strictly for or against any Party. Any
6 rule of construction to the effect that ambiguities are to be resolved against the
7 drafting Party shall not apply in interpreting this Agreement. All references in this
8 Agreement to statutes, regulations, ordinances or resolutions of the United
9 States, the State of California, or County of Fresno shall be deemed to include
10 the same statute, regulation, ordinance, or resolution as hereafter amended or
11 renumbered, or if repealed, to such other provisions as may thereafter govern the
12 same subject. In the event of any inconsistency between the text of this
13 Agreement and the Exhibits attached to this Agreement, such ambiguity shall be
14 resolved in the following order of priority: (1) the text of this Agreement, excluding
15 the Exhibits, (2) Exhibit D (Insurance Requirements), (3) Exhibit C (Self-Dealing
16 Transactions), (4) Exhibit B (Work Program), and (5) Exhibit A (Monitoring Plan).
17 Severability. If anything in this Agreement is found by a court of competent
18 jurisdiction to be unlawful or otherwise unenforceable, the balance of this
19 Agreement remains in effect, and the Parties shall make best efforts to replace
20 the unlawful or unenforceable part of this Agreement with lawful and enforceable
21 terms intended to accomplish the Parties' original intent.
22 I. Nondiscrimination. During the performance of this Agreement, the Consultant
23 shall not unlawfully discriminate against any employee or applicant for
24 employment, or recipient of services, because of race, religious creed, color,
25 national origin, ancestry, physical disability, mental disability, medical condition,
26 genetic information, marital status, sex, gender, gender identity, gender
Third Party Administrator Agreement—WSP USA Inc. Page 15 of 18
1 expression, age, sexual orientation, military status or veteran status pursuant to
2 all applicable State of California and federal statutes and regulation.
3 J. No Waiver. Payment, waiver, or discharge by County of any liability or obligation
4 of the Consultant under this Agreement on any one or more occasions is not a
5 waiver of performance of any continuing or other obligation of Consultant and
6 does not prohibit enforcement by the County of any obligation on any other
7 occasion.
8 K. Entire Agreement. This Agreement constitutes the entire Agreement between
9 Consultant and County with respect to the subject matter hereof and supersedes
10 all previous negotiations, proposals, commitments, writing, advertisements,
11 publications, and understandings of any nature whatsoever, including without
12 limitation the Previous Consultant Agreement, unless expressly included in this
13 Agreement.
14 L. No Third Party Beneficiaries. This Agreement does not and is not intended to
15 create any rights or obligations for any person or entity, including without
16 limitation the Applicant, except for the Parties.
17 M. Binding Upon Successors. This Agreement shall be binding upon and inure to
18 the benefit of the Parties and their respective successors in interest, assigns,
19 legal representatives, and heirs.
20 N. Authorized Signatures. The Consultant represents and warrants to County that:
21 (1) Consultant is duly authorized and empowered to sign and perform its
22 obligations under this Agreement.
23 (2) The individual signing this Agreement on behalf of Consultant is duly
24 authorized to do so and his or her signature on this Agreement legally
25 binds Consultant to the terms of this Agreement.
26 O. Electronic Signatures. The Parties agree that this Agreement may be executed
Third Party Administrator Agreement—WSP USA Inc. Page 16 of 18
1 by electronic signature as provided in this section.
2 (1) An "electronic signature" means any symbol or process intended by an
3 individual signing this Agreement to represent their signature, including
4 but not limited to (a) a digital signature; (b) a faxed version of an original
5 handwritten signature; or (c) an electronically scanned and transmitted
6 (for example, by PDF document) version of an original handwritten
7 signature.
8 (2) Each electronic signature affixed or attached to this Agreement (a) is
9 deemed equivalent to a valid original handwritten signature of the person
10 signing this Agreement for all purposes, including but not limited to
11 evidentiary proof in any administrative or judicial proceeding, and (b) has
12 the same force and effect as the valid original handwritten signature of
13 that person.
14 (3) The provisions of this section satisfy the requirements of Civil Code
15 section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act
16 (Civil Code, Division 3, Part 2, Title 2.5, beginning with section 1633.1).
17 (4) Each Party using a digital signature represents that it has undertaken and
18 satisfied the requirements of Government Code section 16.5, subdivision
19 (a), paragraphs (1) through (5), and agrees that each other Party may rely
20 upon that representation.
21 (5) This Agreement is not conditioned upon the Parties conducting the
22 transactions under it by electronic means and either Party may sign this
23 Agreement with an original handwritten signature.
24 P. Counterparts. This Agreement may be signed in counterparts, each of which is
25 an original, and all of which together constitute this Agreement.
26
Third Party Administrator Agreement—WSP USA Inc. Page 17 of 18
1
2 In witness whereof, the Parties are signing this Agreement as of the Effective Date.
3
4 CONSULTANT: COUNTY OF FRESNO:
5 WSP USA Inc.
6
7
8 BY: BY:
9 Shannon Bottenberg STEVEN E. WHITE PE, PLS
10 Vice President, EIAP DIRECTOR
11 DEPARTMENT OF PUBLIC WORKS
12 AND PLANNING
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Third Party Administrator Agreement—WSP USA Inc. Page 18 of 18
1 Exhibit A
2 Monitoring Plan
3
4 (See Attached)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Third Party Administrator Agreement—WSP USA Inc. A-1
1 Exhibit B
2 Work Program
3
4 (See Attached)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Third Party Administrator Agreement—WSP USA Inc. B-1
1 Exhibit C
2 Self-Dealing Transaction Disclosure Form
3 In order to conduct business with the County of Fresno ("County"), members of a Consultant's
4 board of directors, must disclose any self-dealing transactions that they are a party to while
5 providing goods, performing services, or both for the County. A self-dealing transaction is
6 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
12 being 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
15 to the County. At a minimum, include a description of the following:
16 a. The name of the agency/company with which the corporation has the
17 transaction; and
18 b. The nature of the material financial interest in the Corporation's
19 transaction that the board member has.
20 (4) Describe in detail why the self-dealing transaction is appropriate based on
21 applicable provisions of the Corporations Code. The form must be signed by the
22 board member that is involved in the self-dealing transaction described in
23 Sections (3) and (4).
24
25
26
Third Party Administrator Agreement—WSP USA Inc. C-1
1 (1) Company Board Member Information:
2 Name: Date:
3 Job Title:
4 (2) Company/Agency Name and Address:
5
6
7
8
9 (3) Disclosure (Please describe the nature of the self-dealing transaction you are a
10 party to)
11
12
13
14
15 4) Explain why this self-dealing transaction is consistent with the requirements
16 of Corporations Code § 5233 (a)
17
18
19
20
21
22 5) Authorized Signature
23 Signatures: Date:
24
25
26
Third Party Administrator Agreement—WSP USA Inc. C-2
1 Exhibit D
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
8 not less than Two Million Dollars ($2,000,000) per occurrence and an annual
9 aggregate of Four Million Dollars ($4,000,000). In addition, such Umbrella or
10 Excess insurance policy(ies) shall also apply on a primary and non-contributory
11 basis for the benefit of the County, its officers, officials, employees, agents, and
12 volunteers. This policy must be issued on a per occurrence basis. Coverage
13 must include products, completed operations, property damage, bodily injury,
14 personal injury, and advertising injury. The Consultant shall obtain an
15 endorsement to this policy naming the County of Fresno, its officers, agents,
16 employees, and volunteers, individually and collectively, as additional insureds,
17 but only insofar as the operations under this Agreement are concerned. Such
18 coverage for additional insureds will apply as primary insurance and any other
19 insurance, or self-insurance, maintained by the County is excess only and not
20 contributing with insurance provided under the Consultant's policy.
21 (B) Automobile Liability. Automobile liability insurance with limits of not less than One
22 Million Dollars ($1,000,000) per occurrence for bodily injury and for property
23 damages. Coverage must include any owned and non-owned vehicles used in
24 connection with this Agreement.
25 (C) Workers Compensation. Workers compensation insurance as required by the
26 laws of the State of California with statutory limits.
Third Party Administrator Agreement—WSP USA Inc. D-1
1 (D) Employer's Liability. Employer's liability insurance with limits of not less than One
2 Million Dollars ($1,000,000) per occurrence for bodily injury and for disease.
3 (E) Professional Liability. Professional liability insurance with limits of One Million
4 Dollars ($1,000,000) any one claim and an annual aggregate of Three Million
5 Dollars ($3,000,000). If this is a claims-made policy, then (1) the retroactive date
6 must be prior to the date on which services began under this Agreement; (2) the
7 Consultant shall maintain the policy and provide to the County annual evidence
8 of insurance for a period of three years after completion of services under this
9 Agreement; and (3) if the policy is canceled or not renewed, and not replaced
10 with another claims-made policy with a retroactive date prior to the date on which
11 services begin under this Agreement, then the Consultant shall purchase
12 extended reporting coverage on its claims-made policy for a minimum of five
13 years after completion of services under this Agreement.
14 2. Additional Requirements
15 (A) Verification of Coverage. Within 30 days after the Consultant signs this
16 Agreement, and at any time during the term of this Agreement as requested by
17 the County's Risk Manager or the County Administrative Office, the Consultant
18 shall deliver, or cause its broker or producer to deliver, to the County Risk
19 Manager, at 2220 Tulare Street, 16th Floor, Fresno, California 93721, or
20 HRRiskManagement@fresnocountyca.gov, and by mail or email to the person
21 identified to receive notices under this Agreement, certificates of insurance and
22 endorsements for all of the coverages required under this Agreement.
23 (i) Each insurance certificate must state that: (1) the insurance coverage has
24 been obtained and is in full force; (2) the County, its officers, agents,
25 employees, and volunteers are not responsible for any premiums on the
26 policy; and (3) the Consultant has, except under the professional liability
Third Party Administrator Agreement—WSP USA Inc. D-2
1 policy, waived its right to recover from the County, its officers, agents,
2 employees, and volunteers any amounts paid under any insurance policy
3 required by this Agreement and that waiver does not invalidate the
4 insurance policy.
5 (ii) The commercial general liability insurance certificate must also state, and
6 include an endorsement, that the County of Fresno, its officers, agents,
7 employees, and volunteers, individually and collectively, are additional
8 insureds insofar as the operations under this Agreement are concerned.
9 The commercial general liability insurance certificate must also state that
10 the coverage shall apply as primary insurance and any other insurance,
11 or self-insurance, maintained by the County shall be excess only and not
12 contributing with insurance provided under the Consultant's policy.
13 (iii) The automobile liability insurance certificate must state that the policy
14 covers any auto used in connection with this Agreement.
15 (iv) The professional liability insurance certificate, if it is a claims-made policy,
16 must also state the retroactive date of the policy, which must be prior to
17 the date on which services began under this Agreement.
18 (B) Acceptability of Insurers. All insurance policies required under this Agreement
19 must be issued by authorized insurers licensed to do business in the State of
20 California and always possessing during the term of this Agreement an A.M.
21 Best, Inc. rating of no less than A: VII.
22 (C) Notice of Cancellation or Change. For each insurance policy required under this
23 Agreement, the Consultant shall provide to the County, or ensure that the policy
24 requires the insurer to provide to the County, written notice of any cancellation or
25 change in the policy, directly impacting the coverage required herein, as required
26 in this paragraph. For cancellation of the policy for nonpayment of premium, the
Third Party Administrator Agreement—WSP USA Inc. D-3
1 Consultant shall, or shall cause the insurer to, provide written notice to the
2 County not less than 10 days in advance of cancellation. For cancellation of the
3 policy for any other reason, and for any other change to the policy, the
4 Consultant shall, or shall cause the insurer to, provide written notice to the
5 County not less than 30 days in advance of cancellation or material change. The
6 County in its sole discretion may determine that the failure of the Consultant or its
7 insurer to timely provide a written notice required by this paragraph is a breach of
8 this Agreement.
9 (D) County's Entitlement to Greater Coverage. If the Consultant has or obtains
10 insurance with broader coverage, higher limits, or both, than what is required
11 under this Agreement, then the County requires and is entitled to the broader
12 coverage, higher limits, or both.
13 (E) Waiver of Subrogation. The Consultant waives any right to recover from the
14 County, its officers, agents, employees, and volunteers any amounts paid under
15 the policy of worker's compensation insurance required by this Agreement. The
16 Consultant is solely responsible to obtain any policy endorsement that may be
17 necessary to accomplish that waiver, but the Consultant's waiver of subrogation
18 under this paragraph is effective whether the Consultant obtains such an
19 endorsement.
20 (F) County's Remedy for Consultant's Failure to Maintain. If the Consultant fails to
21 always keep in effect any insurance coverage required under this Agreement, the
22 County may, in addition to any other remedies it may have, suspend, or
23 terminate this Agreement upon the occurrence of that failure, or purchase such
24 insurance coverage, and charge the cost of that coverage to the Consultant. The
25 County may offset such charges against any amounts owed by the County to the
26 Consultant under this Agreement.
Third Party Administrator Agreement—WSP USA Inc. D-4
1 (G) Subconsultants. The Consultant shall require and verify that all subconsultants
2 used by the Consultant to provide services under this Agreement maintain
3 insurance meeting all insurance requirements provided in this Agreement. This
4 paragraph does not authorize the Consultant to provide services under this
5 Agreement using subconsultants.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Third Party Administrator Agreement—WSP USA Inc. D-5