Fresno City Council
March 24, 2022

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AGREEMENT

CITY OF FRESNO, CALIFORNIA

CONSULTANT SERVICES

THIS AGREEMENT is made and entered into effective _____________________, by and between the CITY OF FRESNO, a Calif ornia municipal cor poration (City), and Michael K. Nunley & Associates, Inc. , a California Corporation (Consultant).

RECITALS
WHEREAS, the City desires to obtain professional engi neering services for the design of plans and general construction contract documents for the Southwest Recycled Water System Storage Tank and Booster Pump Station (Project); and WHEREAS, the Consultant is engaged in the business of furnishing services as a Professional Engineer and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, the Consultant acknowledges t hat this Agreement is subject to the requirements of Fresno Municipal Code Se ction 4-107 and Administrative Order No. 6- 19; and
WHEREAS, this Agreement will be administe red for the City by its Director of Public Utilities (Director) or the Director’s designee.

AGREEMENT
NOW, THEREFORE, in cons ideration of the foregoi ng and of the covenants, conditions, and promises hereinafter c ontained to be kept and performed by the respective parties, it is mutually agreed as follows:

1. Scope of Services and Completion Sc hedule. The Consultant shall perform the services described herein and in Exhibit A to complete the Project more fully described in Exhibit A , and this shall include all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. The services of the Consultant shall consist of five par ts as described below. A separate “Notice to Proceed” will be issued for each of the aforementioned parts. By entry into this Agreement and upon the City’s issuance of a written "Not ice to Proceed," the City contracts for the services in Part One. The Consultant shall not perform any other part of the Agreement, and this Agreement shall not be a contract for any other part, until further performance is authorized by the City’s issuance of a written “Notice to Proceed.” It shall, however, remain the Consultant’s offer to perform all remaining parts described herein.

In the event the Consultant performs services without the City’s prior written authorization, the Consultant will not be entitled to compensation for such services. (a) Part One. Schem atic Design Phase.
(1) The Consultant shall review the description of the Project set forth in Exhibit A and consult with designated repr esentatives of the City to ascertain the requirements of the Project.
(2) The Consultant shall complete a Basis of Design Report and 30% design plan in accordance with the detailed minimum requirements set forth DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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in Exhibit A. The Basis of Design Report and 30% PS&E shall include sufficient detail for the design of the Project, to dentify foundation design criteria and requirements of the tank and booster pum p station and provide the engineer's opinion of associated capital, operat ional and maintenance costs, and as necessary to obtain the acceptance of the City. The Consultant shall provide the City with an electronic file of the Basi s of Design Report and 30% plans in the following format:

Microsoft Word and Adobe Acrobat.
(3) The Consultant shall conduct studies and investigations as necessary to confirm requirements of design including, but not limited to, (i) consulting with the various utility agencie s, and (ii) obtaining all information and data from the respective responsible City department/division that is available in the City’s records and is required by the Consultant in connection with the consulting services including, but not limited to, maps, reports, information, restrictions and easements.
(4) The Consultant shall provide a preliminary evaluation of the Project taking into consideration the City’s estimate of the cost of construction (Construction Budget) of $7,937,015, includi ng alternative approaches to design and construction of the Project.
(5) Based upon the mutually agreed upon Project requirements and any adjustments authorized by the Cit y in the Construction Budget, the Consultant shall design and prepare sc hematic design drawings and other documents for review, modification, if required, and accept ance by City staff sufficient to show the concept and sc ope of the proposed Pr oject and the scale and relationship of Project components.
(6) The Consultant shall submit a preliminary estimate of construction cost for review and accept ance by the City. "Construction cost" means the cost of construc tion under the general constr uction contract and does not include the Consultant’s compensation. Such estimate shall include, and shall separately state, the cost of any add or deduct altern atives, the cost of any work which may be let on a segregated bid basis and any equipment or fixtures which may be incorporated in or excluded from the general construction contract as may be necessary to stay within the Construction Budget.
(7) The Consultant shall make as many submittals as may be necessary or desirable to obtain the acc eptance by the City and shall assist the City in applying for and obtaining from applicable public agencies any approval permit, or waiver required by law, which assistance shall include, but not be limited to, making Project information available to the City.
(8) The Consultant may not rely upon any as-builts provided by the City, but shall investigate the exis ting conditions and ascertain the adequacy of such as-builts for the Consultant's des ign. The Consultant shall bring to the City's attention any discrepancies in the as-builts that are discovered by the Consultant. The City makes no representations regarding any as-builts.

DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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(9) Services shall be undertaken and completed in a sequence assuring expeditious completion. All services shall be rendered and deliverables submitted within 170 calendar days from the issuance of a Notice to Proceed for this part unless an extension of time is approved in writing by the Director. Re- submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within 14 calendar days from receipt of the City’s comments unless an extension of time is approved in writing by the Director. (b) Part Two. Design Development P hase. After review and acceptance of the schematic design phas e and issuance of a writt en Notice to Proceed with this Part Two:
(1) Based upon the accepted sch ematic design documents and the Construction Budget, including authoriz ed revisions thereto, the Consultant shall prepare for review and acceptanc e by the City the design development documents consisting of dr awings and other documents to fix and describe the size and character of the Project as nece ssary to show treatme nt of significant details. In addition, the Consultant shall provide outline specifications of the work as to kinds of materials, systems, and other such design elements as may be required. Such design development documents and specifications shall be subject to review and acceptance by the City.
(2) The Consultant shall submit a revised estimate of construction cost for review and acceptance by the City. The revised estimate shall include, but shall separately state, the cost of any add or deduct alternates, any work which may be let on a segregated bid basis, and an y furnishings, equipment or fixtures which may be incorporated in or excluded from the gener al construction contract as may be necessary to stay within the Construction Budget, including authorized revisions thereto.
(3) In the event that the revised estimate of construction cost exceeds the preliminary estimate of c onstruction cost previously accepted, excluding therefrom any add alternate, any work which may be let on a segregated bid basis and any furnishing, equipment or fixtures whic h was identified in Part One as that which may be excluded from the general construction contract, the City shall have the option of accepting or rejecting the revised estimate and the Consultant shall, at no additional cost to the City, make such design changes as may be necessary to reduce the revised esti mate so that it shall not exceed the preliminary estimate of construction cost previously accepted by the City. The City shall not increase the scope of the Project except by modification of this Agreement which shall include an agreed upon increase in the Consultant’s compensation. (4) The Consultant shall make as many submittals as may be necessary or desirable to obtain the acc eptance by the City and shall assist the City in applying for and obtaining from applicable public agencies any approval, permit, or waiver required by law, which assistance shall include, but not be limited to, making Project information available to the City.
(5) Services shall be undertaken and completed in a sequence assuring expeditious completion. All services shall be rendered and deliverables DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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submitted within 112 calendar days from the issuance of a Notice to Proceed for this part unless an extension of time is approved in writing by the Director. Re- submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within 14 calendar days from receipt of the City’s comments unless an extension of time is approved in writing by the Director. (c) Part Three. Construction Docu ment Phase. After review and acceptance of the design development phase and issuance of a written Notice to Proceed with this Part Three:
(1) The Consultant shall pr epare from the accepted design development documents, detailed plans and specifications setting forth the complete work to be done, and the mate rials, workmanship, finishes and equipment, fixtures, and site work required. The Consultant shall also prepare necessary bidding information, general and special conditions of the general construction contract, technical specifications of the general construction contract, and the bid proposal and general constructi on contract forms. Such documents shall be subject to the review and acceptan ce by the City. The Consultant shall cooperate with, assist, and be responsive to, the City’s Purchasing Manager in preparation of all documents including, without limitat ion, slip-sheeting final documents for printing when requested. The City’s Standard Specifications must be used by the Consultant where possible. Final drawings shall be drawn, printed or reproduced by a process providing a permanent record in black on vellum, tracing cloth, polyester base film, or high quality bo nd copy. Bid, general conditions, contract and bond document forms or formats regul arly used by the City shall be used by the Consultant unless the Director determines they would be impractical for this Project. The Consultant shall be responsible for assuring that the special conditions, technical specifications and any other documents prepared by the Consultant are consistent with any documents regularly used by the City that are used for this Project.
(2) Upon request of the City, t he Consultant shall provide the calculations used to determine the general construction contract quantities; and structural calculations for the purpose of obtaining any building permits. (3) The Consultant shall make as many submittals as may be necessary or desirable to obtain the acc eptance by the City and shall assist the City in applying for and obtaining from applicable public agencies any approval, permit, report, statement, or waiver required by law, which assistance shall include, but not be limited to, making Project information available to the City. 4) The Consultant shall prov ide the City with six sets of completed plans and six sets of complet ed specifications for review and final acceptance by the City. Should the plans and specifications as submitted by the Consultant not be accepted by the City, t he Consultant shall revise the plans and specifications as needed to obtain final a cceptance at no additional cost to the City.
(5) After acceptance of final corre ctions, if any, the Consultant shall provide the City with one set of accepted reproducible tracings and bid DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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documents for the Project. In addition, t he Consultant shall provide the City with one complete set of CAD/System disk files of drawings and complete disk files of specifications in the following format: microsoft word and adobe acrobat. (6) The Consultant shall submit a final estimate of construction cost for review and acceptance by the City. Such estimate shall be calculated as of the date all general construction contract documents are delivered to the City in final form ready for reproduction and advertising. Such estimate shall include, but shall separately state, the cost of any add or deduct alternates, any work which may be let on a segregated basis, and any equipment, or fixtures which may be incorporated in or excluded from the general construction contract. (7) In the event that the final estimate of construction cost exceeds the revised estimate of construc tion cost previously accepted, excluding therefrom any add alternate, any work which may be let on a segregated bid basis and any furnishings, equipment or fixtures which was identified in the final revised estimate in Part Two as that which may be excluded from the general construction contract, the City shall have the option of accepting or rejecting the final estimate.

If the City elects to reject the final estimate, the Consul tant shall at no additional cost to the City, make such design changes as may be necessary to reduce the final estimate so that it shall not exceed the revised estimate of construction cost previously accepted by the City.
(8) Services shall be undertaken and completed in a sequence assuring expeditious completion. All services shall be rendered and deliverables submitted within 80 calendar days from the issuance of a Notice to Proceed for this part unless an extension of time is approved in writing by the Director. Re- submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within 14 calendar days from receipt of the City’s comments unless an extension of time is approved in writing by the Director. (d) Part Four. Bidding Phase. After review and acceptance of the construction document phase, the City’s decision to proceed to bid shall constitute a written Notice to Proceed with this Part Four:
(1) The Consultant shall assist the City in obtaining bids. The Consultant shall not communicate with pot ential bidders regarding this Project without the express prior written authorization of the City’s Purchasing Manager. (2) Upon request of the City, the Consultant shall expeditiously draft addenda as determined by the City to be reasonable or necessary for the bidding process.
(3) If the lowest responsible bid received for the general construction contract exceeds by 10% or more the final estimate of construction cost previously accepted by the City, excludi ng therefrom any add alternate, any work which may be let on a segregated bid basis and any furnishings, equipment or fixtures which are excluded from the general construction contract, the Consultant shall, within fourteen days of any request by the City, revise the plans and specifications as may be necessary to stay within 10% of such final estimate DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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of construction cost, at no additional cost to the City provided such bid is received within 180 calendar days after completion of services in Section 1(c) of this Agreement. The Consultant shall al so submit such revised plans and specifications, together with a new final estimate of co nstruction cost, to the City for review and acceptance. This proced ure, using the latest accepted final estimate of construction cost, shall, upon written notice to the Consultant from the Director, be repeated until an acceptable bid is received that does not exceed the accepted final estimate of construction cost by more than 10%. (e) Part Five. Construction Phas e and General Construction Contract Administration. The construction phase will begin with the award of the general construction contract, which shall constitu te a written Notice to Proceed with this Part Five, and will terminate when a Notice of Completion is filed. Upon award of a general construction contract for the Project and under the direction of the Director through the City’s designated Construction Manager for the Project:
(1) The Consultant shall attend t he pre-construction conference and, if called upon by the City, act on t he City’s behalf in discussing the various aspects of the construction phase.
(2) The Consultant shall review and recommend in writing to the City acceptance or non-acceptance of shop drawings, equipment and material submittals of the general construction contractor as requi red by the general construction contract and applicable laws and regulations in a timely manner. The period for the Consultant review shall be as specified in the general construction contract, except if such period is not so specified, the period shall be as determined in the pre-construction conference as mutually agreed upon by the City, the Consultant and the general construction contractor.
(3) The Consultant shall, at intervals appropriate to the state of construction, familiarize itself with the progress and quality of the work and determine in general if the work is proceeding in accor dance with the general construction contract documents, and keep the City informed of the progress of the work. In the event that the Consultant’s visit to the site results in the discovery of any defect or deficiencies in the work of the general construction contractor, the Consultant shall immediately advise t he City and document, in writing, the work the Consultant deems substandard, and make recommendations where appropriate to reject any work not conforming to the intended design or specifications. Based on the Consultant’s best knowledge, information and belief, the Consultant shall provi de the City a general written assurance that the work covered by a payment application meets the standards in the general construction contract. As to technical aspects, the Consultant shall provide a written judgment of the acceptability of the work for payment applications and final acceptance, subject to the City’s right to overrule the Consultant. (4) Upon written request by the City, the Consultant shall render interpretations of the general constructi on contract documents necessary for the proper execution or progress of the work.

DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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(5) Upon written request by the City, the Consultant shall render written recommendations on ch ange orders, claims, dis putes or other questions arising out of the general construction contract, in a timely manner.

Recommendations by the Consultant in favor of a change order that is consequently accepted by the City shall constitute approval by the Consultant who shall then approve the chang e order in writing. T he Consultant shall not unreasonably withhold written approval in the event the City accepts a change order that the Consultant recommended to be rejected. In the event of any technical disputes, the Consultant sha ll provide the City with the Consultant’s written interpretation of the contract doc uments. The period for the Consultant review shall be as specified in the general construction contract, except if such period is not so specified, the period shall be as determined in the pre-construction conference as mutually agreed upon by the City, the Consultant and the general construction contractor. If the City, t he Consultant and the respective general construction contractor are unable to mu tually agree on such period for the Consultant review, then the City will make the determination and that determination will be final.
(6) Upon written request by the City, the Consultant shall provide such design and specification services as may be requested by the City to implement change orders necessary for clarification or interpretation of the general construction contract documents or which may have resulted from errors or omissions by the Consultant.
(7) Where change orders arise as a re sult of an increase in the scope of work or are due to unforeseeable conditions, the parties may modify this Agreement, which modification shall include an agreed upon increase in the Consultant’s compensation.
(8) Upon written request of the City, the Consultant shall assist the City in the preparati on of Progress Payment Estimates and other related construction reports.
(9) The Consultant shall provide t he City with two sets of original as-grade plans wet-stamped and signed by the Consultant’s Engineer of Record for the Project submitted for final approv al by the City’s Building and Safety Services Division of the Development and Resource Management Department. (10) The Consultant shall prepar e Record Drawings by updating the accepted general construction documents in Part Three to reflect all changes or deviations that occurred during construction as reflected on or from each of the following: (i) the general construction contractor provided red-lined plans, (ii) those furnished by the City, (iii) the Consultant provi ded Request for Information responses, and (iv) any the Cons ultant bulletins, amendments or clarifications. The Consultant shall provide the City with one set of vellum Record Drawings for the Project wit hin 30 calendar days from re ceipt of red-lined field markups unless an extension of time is ap proved in writing by the Director. Re- submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within 14 calendar days from receipt of the City comments unless an DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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extension of time is approved in writing by the Director. In addition, the Consultant shall provide the City with one complete se t of CAD/System disk files of Record Drawings in the following format: .dwg & .pdf.

2. The City’s responsibilities. The City will:
(a) Provide, upon request and cooperati on of the Consultant, access to, and make all provisions necessa ry to, enter upon public or private lands as required for the Consultant to perform such services and inspections as are required in development of the Project; provided, how ever, if the City is unable to obtain access to enter upon public or private lands, the Cons ultant shall not be relieved fr om performing its services as to those public and private lands that are accessible. (b) Manage and be responsible for all negotiations with owners in connection with land or easement acquisition and provide all required title reports and appraisals.
(c) With the exception of preparing correspondence required for design, hold all required special meetings, serve all public and private notices, receive and act upon all protests, and perform all services cu stomarily performed by owners as are necessary for the orderly pr ogress of the work and the su ccessful completion of the Project, and pay all costs incidental thereto.
(d) Select the testing laboratory and pay the cost of borings, samplings, and other work involved in soils testing during construction. (e) Conduct onsite inspection during construction to check quality and quantity of work as conditions warrant and be responsible fo r assuring that the general construction contractor carries out all construction work in accordance with the plans and specifications. However, this does not releas e the Consultant from its responsibility to make periodic site visits under Section 1(e) for the purpose of observing the work to determine its general conformity with the pl ans and specificati ons and reporting its findings to the City.
(f) Prepare all change orders during construction in cooperation with the Consultant.
(g) Prepare all Progress Payment Es timates in cooperation with the Consultant following its general assuranc e that the work covered by a payment application meets the standards in the general construction contract documents based upon the Consultant’s best knowledge, information and belief. (h) Pay, or cause to be paid, plan c heck fees, conditional use permit fees and site plan review fees.
(i) Arrange for and pay, or cause to be paid, any fees associated with Environmental Impact Reports or Statements.
(j) Give reasonably prompt considerati on to all matters submitted by the Consultant for acceptance to the end that there will be no substantial delays in the Consultant’s program of work. For an acceptance, approval, authorization, a request or any direction to the Consultant to be bi nding upon the City under the terms of this DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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Agreement, such acceptance, approval, authoriz ation, request or dire ction must be in writing, duly authorized by the City and signed on behalf of the City by the Director.

3. Compensation.
(a) The Consultant’s sole compensati on for satisfactory performance of all services required or render ed pursuant to this Agreement shall be a total fee not to exceed $562,316, paid on a time and materials basis in accordance with the schedule of fees contained in Exhibit A, and a conti ngency amount not to exceed $56,000 for any additional work rendered pursuant to Subsecti on (d) below and authorized in writing by the Director.
(b) Detailed statements shall be r endered monthly and will be payable in the normal course of City business. Such statements shall be for an amount no greater than that attributable to the part upon which the Consultant is then engaged as provided in Section 3(c) below. The City shall not be obligated to reimburse any expense for which it has not received a detailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. (c) For purposes of determining the division of the total compensation to the Consultant as provided in Section 3(a) above, or shoul d performance of any succeeding part not be authorized by the City as provided in Section 1 of this Agreement, it is agreed that the total compensation shall be allocat ed to the five parts of the Consultant’s performance as follows: Part One – 43.45%, Part Two – 17.57%, Part Three – 16.80%, Part Four – 3.18% and Part Five – 19.00%. Prior to the award of a general construction contract for the Project, or should such contract not be awarded, the approved parts as provided above shall be utilized for purposes of determining the fee due to the Consultant.
(d) The parties may modify this Ag reement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to the Consultant’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized represent ative for each party. The Consultant shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. Subsequent to the date of completion of Part Three, changes due to Code revisions or enactments adopted after such date shall constitute additional work subject to this Section 3(d).

4. Termination, Remedies, Force Majeure, and Consolidation of Disputes. (a) This Agreement shall terminate without any liability of the City to the Consultant upon the earlier of: (i ) the Consultant’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the Consultant; (ii) seven calen dar days prior written notice with or without cause by the City to the Consultant; (iii) the City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, the Consultant shall (i) immediately stop a ll work hereunder; (ii) immediately cause any DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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and all of its subcontractors to cease work; and (iii) return to the City any and all unearned payments and all properties and materials in the possession of the Consultant that are owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid compensation for services satisfactorily performed prior to the effective date of termination. The Consultant shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided.
(c) In the event of termination due to failure of the Consultant to satisfactorily perform in accordance with the terms of this Agreement, the City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the City’s damages caused by such failure. In no event shall any payment by the City pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement which may then exist on the part of the Cons ultant, nor shall such payment impair or prejudice any remedy available to the City with respect to the breach. (d) Upon any breach of this Agreemen t by the Consultant, the City may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that the Cit y improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) The Consultant shall provi de the City with adequate written assurances of future perfo rmance, upon the request of the Director, or designee, in the event the Consultant fails to comply with any terms or conditions of this Agreement. (f) The Consultant shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Consultant shall notify the Director, or designee, in writing as soon as it is reasonably possibl e after the commencement of any excusable delay, setting forth the full pa rticulars in connection therewith, and shall remedy such occurrence with all reasonable di spatch, and shall promptly give written notice to the Director, or designee, of the cessation of such occurrence. (g) The Consultant agrees that, notwit hstanding any contrary provision in this Agreement, any dispute arising from or relating to this Agreement (including, without limitation, disputes bas ed on contract, tort, equity or statute) may, at the City’s option, be joined and c onsolidated with any other dispute or disputes arising from or relating to the Project so that all disputes ar ising from or relating to the Project may be resolved in a single proceeding. The Consultant hereby specifically waives any objection it may otherwise have to such joinder and consolidation and specifically consents to mediation, arbitration or any other dispute resolution mechanism, forum or proceeding necessary to effectuate the joinder and consolidation contemplated by this provision.

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5. Confidential Information, Ownership of Documents and Copyright License. (a) Any reports, information, or other data prepared or assembled by the Consultant pursuant to this Agreement sha ll not be made available to any individual or organization by the Consultant without the prior wr itten approval of the City. During the term of this Agreement, and thereafter, the Consultant shall not, without the prior written consent of the City, disclose to anyone any Confidential Information. The term “Confidential Information” for the purposes of this Agreement shall include all proprietary and confidential information of the City, including but not limited to business plans, marketing plans, financial information, desi gns, drawings, specifications, materials, compilations, documents, inst ruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media.

All Confidential Information shall be and remain confidential and proprietary in the City. (b) Any and all original sketches, penc il tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by the Cons ultant pursuant to this Ag reement are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement or default by t he Consultant. The Consultant grants the City a copyright license to use such drawi ngs and writings. The Consultant shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. The City may modify the design including any drawings or writings. Any use by the City of the aforesaid sketches, tracings, plans, computations, specifications, computer disk files, writings and other documents in completed form as to other projects or extensions of this Project, or in uncompl eted form, without specific written verification by the Consultant will be at t he City’s sole risk and without liability or legal exposure to the Consultant. The Consult ant may keep a copy of all dr awings and specifications for its sole and exclusive use.
(c) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this Agreement.

6. Professional Skill. It is fu rther mutually under stood and agreed by and between the parties hereto that inasmuch as the Consultant represents to the City that the Consultant and its subcontra ctors, if any, are skilled in the profession and shall perform in accordance with the standards of said professi on necessary to perform the services agreed to be done by it under this Agreement, the City relies upon the skill of the Consultant and any subcontractors to do and per form such services in a skillful manner and the Consultant agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by the City shall not operate as a release of the Consultant or any subcontractors from said professional standards.

7. Indemnification. To the furthest ext ent allowed by law, including California Civil Code section 2782.8, the Consultant shall indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents, and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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strict liability, including but not limited to per sonal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful mi sconduct of the Consultant, its principals, officers, employees, agents, or volunteers in the performance of this Agreement.

If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor to indemnify, hold harmless, and defend the City and each of its officers, officials, employees, agents, and volunteers in accor dance with the terms of the preceding paragraph.

This section shall survive termination or expiration of this Agreement.

8. Insurance.
(a) Throughout the life of this Agreem ent, the Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit B , which is incorporated into and part of this Agr eement, with an insurance company(ies) either (i) admitted by the California Insurance Co mmissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by the City's Risk Manager or des ignee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amount s stated therein. However, the insurance limits available to the City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, the Consultant or any of its subcontractors/s ub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that bec ome due to the Consultant shall be withheld until notice is received by the City that the required insurance has been restored to full force and effect and that t he premiums therefore have been paid for a period satisfactory to the City. Any failure to maintain t he required insurance shall be sufficient cause for the City to terminate this Agreement. No action taken by the City pursuant to this section shall in any way relieve the Consultant of its responsibilities under this Agreement. The phrase “fail to mainta in any required insurance” shall include, without limitation, not ification received by the City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtai ned by the Consult ant shall not be deemed to release or diminish the liability of the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify the City shall apply to all claims and liability regar dless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers, agents, employees, persons under the supervision of the Consultant, DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them.
(d) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the City and each of its officers, official s, employees, agents, and volunteers in accordance with the terms of th is section, except that any required certificates and applicable endorsements shall be on file with the Consultant and the City prior to the commencement of any services by the subcontractor. The Consultant and any subcontractor/sub-consultant shall establish additional insured status for the City, its officers, officials, employees, agents, and vo lunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85.

9. Conflict of Interest and Non-Solicitation.
(a) Prior to the City’s execution of this Agreement, the Consultant shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation and duty to immediately notify the City in writing of any change to the information provided by the Consultant in such statement.
(b) The Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts ; and (ii) federal, stat e and local conflict of interest laws and regulations including, wit hout limitation, California Government Code Section 1090 et. seq., the California Political Reform Ac t (California Government Code Section 87100 et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written request of the City, the Consultant shall provide a written opinion of its legal counsel and that of any subcontractor t hat, after a due diligent inquiry, the Consultant and the respective subcontractor(s) are in full co mpliance with all laws and regulations. The Consultant shall take, and require its subcontr actors to take, reas onable steps to avoid any appearance of a conflict of interest. Upon di scovery of any facts giving rise to the appearance of a conflict of interest, the Consul tant shall immediatel y notify the City of these facts in writing.
(c) In performing the work or se rvices to be provided hereunder, the Consultant shall not employ or retain the services of any person while such person either is employed by the City or is a member of any City council, commission, board, committee, or similar City body. This require ment may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) The Consultant represents and wa rrants that it has not paid or agreed to pay any compensation, c ontingent or otherwise, direct or indirect, to solicit or procure this Agreement or any rights/benefits hereunder.

DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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(e) Neither the Consultant, nor any of the Consultant’s subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to , any other contract in connection with this Project. The Consultant and any of its subcont ractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicabl e law and fully disclosed to and approved by the City Manager, in advance and in writing.
(f) If the Consultant should subcontract all or any portion of the work to be performed or services to be provided u nder this Agreement, the Consultant shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith.
(g) This Section 9 shall survive expiration or termination of this Agreement.

10. Recycling Program. In the event th e Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall:
(a) Immediately establish and maintain a viable and ongoing recycling program, approved by the City’s Solid Waste Management Divis ion, for each office and facility. Literature describing the City recycling programs is available from the City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621- 1111.
(b) Immediately contact the City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to th e satisfaction of the City’s Solid Waste Management Division the establishment of the recycling program in paragraph (i) above and the ongoing maintenance thereof.

11. General Terms.
(a) Except as otherwise provided by la w, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director, or designee. (b) Records of the Consultant’s expen ses pertaining to the Project shall be kept on a generally recognized accounting bas is and shall be available to the City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of the Consultant pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for t he same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made av ailable to the City until such action is resolved, or until the end of said time period whichever shall later occur. If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement.
(c) Prior to execution of this Agreem ent by the City, the Consultant shall have provided evidence to the City that the Consultant is licensed to perform the services called for by this Agreement (or that no licens e is required). If the Consultant should subcontract all or any portion of the work or services to be performed under this Agreement, the Consultant shall require each subcontractor to prov ide evidence to the City that subcontractor is licensed to perform t he services called for by this Agreement (or that no license is required) before beginning work. (d) The Consultant’s services purs uant to this Agreement shall be provided under the supervision of Kevin No rgaard, PE, and shall not assign another to supervise the Consultant’s performance of this Agreement without the prior written approval of the Director.

12. Nondiscrimination. To the extent required by controlling federal, state and local law, the Consultant shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physi cal disability, mental disability, medical condition, marital status, sex, age, sexual or ientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, the Consultant agrees as follows:
(a) The Consultant will co mply with all applicable laws and regulations providing that no person shall, on the grounds of race, relig ious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possibl e by or resulting from this Agreement.
(b) The Consultant will not discr iminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental dis ability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veter an of the Vietnam era. The Consultant shall ensure that applicants ar e employed, and the employees are treated during employment, without regard to their race, religious cr eed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.

Such requirement shall apply to the Consultant’s employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, incl uding apprenticeship. The Consultant agrees to post in conspicuous places, available to employ ees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) The Consultant will, in all so licitations or advertisements for employees placed by or on behalf of the Cons ultant in pursuit hereof, state that all qualified applicants will receive considerati on for employment without regard to race, DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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religious creed, color, national origin, ancestr y, physical disability , mental disability, medical condition, marital status, sex, age, se xual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
(d) The Consultant will send to each labor union or r epresentative of workers with which it has a collective ba rgaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of the Consultant’s commitment under this sectio n and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 12.

13. Independent Contractor.
(a) In the furnishing of the services provided for herein, the Consultant is acting solely as an indep endent contractor. Neither t he Consultant, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of the City for any purpose. The City shall have no right to control or supervise or direct the mann er or method by which the Consultant shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify that the Consultant is performing its obligations in accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between the Consultant and the City. The Consultant shall have no authority to bind the City absent the City’s express written consent. Except to t he extent otherwise provided in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an i ndependent contractor, the Consultant and its officers, agents, and employees shall ha ve absolutely no right to employment rights and benefits available to City employees. The Consultant shall be solely liable and responsible for all payro ll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, the Consultant shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to em ployment and tax withholding for and payment of the Consultant's employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of work ers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in City employment benefits, entitlements, programs and/or funds offer ed employees of the City whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, the Consultant may be providing services to others unrelated to the City or to this Agreement.

14. Notices. Any notice required or in tended to be given to either party under the terms of this Agreement shall be in wr iting and shall be deemed to be duly given if delivered personally, transmitte d by facsimile followed by telephone confirmation of DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described s hall be deemed sufficiently served or given at the time of the mailing thereof.

15. Binding. Subject to Section 16 below , once this Agreement is signed by all parties, it shall be binding u pon, and shall inure to the benef it of, all parties, and each party’s respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives.

16. Assignment.
(a) This Agreement is personal to the Consultant and there shall be no assignment by the Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by the Consultant, its successors or assigns, sha ll be null and void unless approved in writing by the City Manager or designee.
(b) The Consultant hereby agrees not to assign the payment of any monies due the Consultant from the City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). The City retain s the right to pay any and all monies due the Consultant directly to the Consultant.

17. Compliance With Law. In provid ing the services required under this Agreement, the Consultant shall at all times comply with all applicable laws of the United States, including but not limit ed to, the Americans with Disab ilities Act (42 U.S.C. §§ 12101 et seq.), the State of California and t he City, and with all applicable regulations promulgated by federal, state, regional, or local administr ative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement.

18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement.

Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.

19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California.

20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify, or add to the interpretation or meaning of the provisions of this Agreement.

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21. Severability. The pr ovisions of this Agreem ent are severable. The invalidity, or unenforceability of any one provis ion in this Agreement shall not affect the other provisions.

22. Interpretation. The parties acknowled ge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning.

23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses.

24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement.

25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachm ent hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachmen t. Furthermore, any terms or conditions contained within any exhibit or attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agr eement, shall be null and void.

26. Cumulative Remedies. No reme dy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for t he specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties.

28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement . This Agreement represents the entire and integrated agreement between t he parties with respect to the subject matter hereof and supersedes all prior negotiations, representat ions or agreements, either written or oral. This Agreement may be modified only by written inst rument duly authorized and executed by both the City and the Consultant.

[Signatures follow on next page.]
DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221 DPU-S 9.3 /02-2
021
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IN WITNESS WHEREOF, the parties have executed this Agreem ent at Fresno, California, the day and year first above written.

CITY OF FRESNO,
A California municipal corporation
By:

Brock D. Buche, PE, PLS
Interim Director of Public Utilities
Department of Public Utilities
ATTEST:

TODD

STERMER, CMC, MMC
City Clerk
By:

Deputy
No signature of City Attorney required.

Standard Document #D PU-S 9.3/02-2021
has been used without modification, as
certified by the undersigned.

By:

Patricia Diep
Supervising Engineering Technician
Michael K. Nunley & Associates, Inc.,
a California corporation
By:

Name:

Title:
(If corporation or LLC., Board Chair, Pres.
or Vice Pres.)
By:

Name:

Title:
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
Any Applicable Profes
sional License:

Number:

Name:

Date of Issuance:

Addresses:

CITY:

City of Fresno
Attention: Patricia Diep,
Supervisi
ng Engineering Technician
2101 G Street, Building A
Fresno, CA 93706
Phone: (559) 621-1609
Facsimile: (559) 498-4126
E-mail: patricia.diep
@fresno.gov
CONSULTANT:

Michael K. Nunley & Associates, Inc.

Attention: Michael K. Nunley,
CEO/President
PO Box 1604
Arroyo Grande, CA 93421
Phone: (805) 904-6530
Facsimile: (805) 904-6532
E-mail: mnunle
[email protected]
Attachments:

1. Exhibit A - Scope of Services

2. Exhibit B - Insurance Requirements

3. Exhibit C - Conflict of Interest Disclosure Form
DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221 2/24/2022
Michael K. Nunley
CEO/President
2/24/2022
Clerk Attesting

DPU-S 9.3 /02-2021

EXHIBIT A

SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno (the City) and MKN & Associates, Inc. (the Consultant)
Southwest Recycled Water System Storage Tank and Booster Pump Station

TASK 1 PROJECT MANAGEMENT AND PROJECT COORDINATION MEETINGS

Task 1.1 Management - The MKN project manager will prepare monthly progress reports summarizing the key activities performed, upcoming work, schedule updates, and any cost or schedule impacts. MKN will also develop and maintain an action-items/decisions made log throughout the duration of the project. The log will document action-items and decisions made throughout the project and tra ck key information such as responsible party, due date, task completion date, etc.

MKN will prepare and maintain a project schedule using MS Project. Tasks and subtasks will be identified including order of execution, duration, and key relationships to other tasks. The monthly updates will include a revis ed schedule which reflects progress and constraint changes. A preliminary schedule is included in this proposal. As part of the part of the 60% design phase, MK N will expand the project sch edule to include bidding, construction, and construction closeout.

Task 1.2 Meetings - The MKN project m anager will coordinate, manage, schedule, and facilitate meetings throughout the project. MKN will a rrange attendees including our subconsultants, prepare and distribute meeting agendas, record, and distribute meeting notes. In addition to day-to-day communicati on with the City, the anticipated project meetings include:

• Kickoff meeting to confirm project objectives, scope of work, approach, schedule, and coordination procedures
• Schematic Desi gn Report review meeting
• 30%, 60%, 90% and 100% Project design review meetings • Prebid meeting
• Preconstruction meeting

The project will begin with an in person or virtual Kickoff Meeting to review the scope of work and document project objectives. In this meeting MKN will work with City staff to determine the City’s preferences for incorporation with the design such as storage tank size, pump type, lighting, security, contro ls, hydraulic scenarios to model, and other customer inputs. In this meeting we will set deta iled schedule dates, and request additional information not included with the RFP.

Task 1.3 Quality Management - MKN tracks our customer inputs throughout the project and check the deliverable to ensure we address a ll inputs. Additionally, a principal level DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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reviewer reviews each project deliverable to ensure MKN work products meet the requirements of the executed scope of services and stipulated requirements of the City.

Task 1 Deliverables:
• Meeting agendas and minut es (for up to twelve meetings) • Project schedules (hard copy and .mpp file) at each design phase • Monthly pr ogress and budget reports
• Action-Items/decisions made log

TASK 2 SCHEMATIC DESIGN PHASE

Task 2.1 Data Review/Utility Search - MKN will gather ex isting data including City provided as-built drawings, recycled wa ter present/future demand information and additional information provided. MKN will perform a utility search with all local utilities (City of Fresno DPU sewer, water recycled wa ter, Fresno Metro Flood, cable/phone, electricity/gas, Fresno Irrigation District, and railroad). MKN will walk the project site and pipeline alignments to identify potential conflicts not identifie d in the utility search. MKN will review the collected information to gain a full understanding of the system conditions.

Task 2.2 Hydraulic Analysis - MKN will work in conjunction with our subconsultant (Akel Engineering) to complete a hy draulic analysis of the existing and future recycled water system. MKN will analyze t he hydraulic modeling output for optimization recommendations. These recommendations will include not only recommended physical changes but also operational guidelines.

Task 2.3 Topographic & Geotechnical Survey - MKN will work in conjunction with our subconsultant (Y&H Engineering) to complete a survey of the project site and pipeline alignments. MKN and Salem Engineering will complete the necessary geotechnical investigations to complete the design of t he project. Salem will pay special attention to ensure the dirt lined canals do not negatively impact the design.

Task 2.4 CUP, PG&E and Vacation - MKN will complete other necessary permitting required to construct, start-up, and test th e project improvements. MKN will work to provide preliminary documentation necessary to obtain a Conditional Use Permit from the City. MKN will also initiate the application process to ensure PG&E provides the new electrical service. MKN will prepare the necessary work to apply for a street vacation request for Franklin Avenue.

Task 2.5 Basis of Design Report (BDR) - MKN will prepare a Basis of Design Report that includes and summarizes the findings from previous analyses and field activities including the hydraulic analysis conducted to meet current and future demand requirements, results of survey and field investigations noti ng existing topography, utilities, and surface features, and the geotechnical report which will inform the City and MKN on subsurface conditions and identify foundation design criteria and requirements. Based on the totality of the data collected, MKN will evaluate the required design c apacity of the tank and booster pump station, evaluate a phased project approach to construction of the facility, DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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review both the number of tanks as well as tank material types to be utilized, identify City operational preferences and ap purtenances, preliminarily identify general equipment types and sizes, and make a recommendation that takes into account both capital costs and ongoing maintenance (or life-cycle) costs. MKN will also review design and procurement methods that will pr ovide the most value to the City for this project. This includes a fully structural design of the tank(s). Depending on the tank size and material type, MKN will also evaluate the need for qualification requirements for contractors and/or specialty items such as specialty prestressing, specific steel roofing systems, et cetera.

MKN proposes the submission of the Basis of Design Report (BDR) prior to completing the 30% plans, specifications and engineers estimate. The BDR evaluates key cost factors of options prior to finishing the 30% deliverables. MKN will hold a BDR review meeting with the City, and re visions made per the City comments. MKN will then move forward with the Basis of Design and 30% design. The BDR will present a pros/cons table, feasibility analysis, construction costs, and lifecycle costs evaluations of the key system components.

Task 2.6 30% PS&E - MKN will prepare 30% comp letion level plans, an outline of the technical specifications, an engineering esti mate of probably construction costs, and provide an updated schedule for design, bidding, and constr uction of the project. The 30% design submittal will include:
• Site plan including major equipmen t locations, building size and locations, and storage tank location(s), and preliminary yard piping plans • Prelimin ary P&ID, Electrical single line diagram
• Pi ping alignments
• MKN will provide a list of additi onal drawing sheets needed for the 60% design level
• MKN will provide an outline of specification sections for inclusion with the 60% design level
• Opinion of Probable Construction Cost (OPCC). Class 3 Estimate will be prepared in accordance with the AACE Cost Estimate Classification System • Updated Project Schedule

Task 2.7 CEQA - MKN will work in conjunction with our subconsultant (LSA) to complete an addendum to the IS/MND.

Task 2.8 Basis of Design Workshop - The MKN team will conduct a workshop with City staff to present the findi ngs developed during the prelim inary engineering phase. MKN will work with the City to select and refine the design during the workshop. Following the design workshop MKN will summarize the evaluation and decisions in a Final Schematic Design Report.

MKN will submit six copies of the draft SDR and electronic .pdf copy to the City for review and comments. Following receipt of the City’s comments on the SDR, MKN will incorporate the comments and issue Six copies of the final SDR.

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Task Group 2 Deliverables
• Topographic Survey Files
• Basis of Design Report (s ix hard copies and electronic .pdf copy) • Design Workshop Agenda and Notes
• Franklin Ave vaca tion request application package
• Draft IS/MND
• 30% design plans (six hard c opies and an electronic .pdf format copy)

TASK 3 DESIGN DEVELOPMENT

Task 3.1 60% PS&E - The MKN team will in corporate comments and questions from previous review meetings and to prepare pl ans, specifications, and construction cost estimates to the 60% design level. At the 60% level of completion MKN will further define the tank roof type, appurtenance’s locations, and details. MKN will refine the site layout and grading, mechanical piping and site yard piping in plan and profile as appropriate, and structural, electrical, and process and MKN will provide instrumentation drawings and details for the tank(s) and pump station. MKN will also develop technical specifications in CSI format. MKN will provide pre liminary project information for insertion into the City’s boilerplate front-end documents.

MKN will work with the City Staff to develop a list of experience requirements for inclusion with the bid documents. This will ensure only qualified contractors bid the project.

a. MKN will work with City staff to develop outreach materials for potential customers which include information on the recycled water system construction, recycled water quality, benefits to the community, and benefits to the customers.

MKN will submit the 60% PS&E to the City fo r review and comment. After the City has reviewed the 60% design, MKN will conduct a workshop review meeting with the City to address comments for incorporation into the 90% design.

Task Group 3 Deliverables
• CUP application package
• PG&E application package
• Design Workshop Agenda and Notes
• Six full-size (22”x 34”) hard copies and an electronic .pdf of the 60% Plans, outline of the technical specifications, and estimate
• 60% Design Re view Meeting Agenda and Notes

TASK 4 CONSTRUCTION DOCUMENTS

Task 4.1 90% PS&E - MKN will prepare the constr uction plans, technical specifications, and engineer’s estimate of probable constructi on cost to the 90% completion level for final review by the City. At the 90% design level, MKN will finalize the front-end contract documents/general provisions (developed in conjunction wit h the City using the City’s front-end documents), bid schedule, and special conditions.

DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

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MKN will submit the 90% PS&E to the City fo r review and comment. After the City has reviewed the 90% design, MKN will conduct a workshop review meeting with the City to address comments for inclusion with the final bid package.

Task 4.2 Final PS&E (Bid Documents) - Following receipt of final comments from the 90% PS&E review, MKN will prepare the Final PS&E for bidding.

Task Group 4 Deliverables
• Six full-size (22” x34”) hard copies of the plans, Six bound hard copies of the technical specifications, and electronic .pdf of the 90% PS&E • One Microso ft Word file of the specifications and one Microsoft Excel file of the engineer’s estimate of probable construction cost.
• 90% Design Re view Meeting Agenda and Notes
• Final PS&E (Six fu ll-size hard copies, one full size Velum copy and electronic .pdf copy)
• Final IS/MND

TASK 5 BIDDING

Prior to advertisement of t he project for bidding, MKN wil l support the City with general contractor outreach efforts. During bidd ing, MKN will respond to questions from prospective bidders and will prepare addenda. Addenda will clearly identify additions, deletions, or modifications by specification section or drawing number to facilitate bidder understanding. MKN will attend the Prebid meeting, job walk and the bid opening, review the bids for general conformanc e with the contract document s, and assist the City in evaluation of the bid proposals to identify the apparent low bidder.

Task Group 5 Deliverables
• Addenda iss ued during the bidding phase
• Prebid me eting agenda and minutes

TASK 6 Construction Support Services

Task 6.1 Meetings - MKN will attend the preconstruction meeting and provide an overview of the project components. MKN will make visits to the construction site to determine, in general, if the work is proceeding in accordance with the construction contract documents and provide field observation notes to the City accordingly and answer and design related questions (up to five site visits).

Task 6.2 Shop Drawings and Submittals - MK N will review shop drawings, submittals, and material test reports from the contractor in accordance with the construction contract documents (Up to eighty (80) shop drawi ngs/submittals). MKN will log the shop drawings/submittals and track them for comp liance with City stipulated review periods.

MKN will coordinate with Contractor to prioritize review of critical path items.

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Task 6.3 Requests for Information and Proposal s- MKN will review and respond to Requests for Information (RFI) from the cont ractor (up to 40 RFIs). MKN will prepare, issues and review Requests for Proposals (R FP) as required to complete the project scope (up to 5 RFP’s)

Task 6.4 Review Progress Payment - MKN wil l review and make recommendations to either process or request modifications to each progress payment request submitted by the Contractor.

Task 6.5 Startup/Commissioning Services - The MKN design engineer and project manager will attend the st artup and commissioning to help address questions or problems.

Task 6.6 Final Walk Through and Prepare Punch List - MKN will participate in a final walk through with City staff and prepare a punch list for Contractor correction.

Task 6.7 Record Drawings - MKN will prepare record drawings based on the contractor’s redlined as-builts. MKN will incorporat e the design changes issued via addenda or change orders into the record drawings.

Task Group 6 Deliverables
• Progress reports following each site visit
• Request For Information responses
• Requests for Proposals
• Record drawings in AutoCAD .dwg and electronic .pdf format and one half- and full-size (11”x17” and 22”x34”) hard copies

Project Assumptions
• The City will supp ly the front-end contract documents for MKN to complete • The City will pay for all permits
• The City will pay for Title searches
• MKN shall be entitled to rely on t he accuracy of data and information provided by or through the City and will use professional judgment in reviewing and evaluating such information. MKN will notify the City if MKN identifies any error or inaccuracy in data or information provided by or through the City or determines that additional data or information is needed to perform the services.
• City is responsible fo r advertising the project for bidding • Construction staking will be the responsibility of the Contractor. • The construction contractor is solely responsible for maintaining on site safety during all phases of the work items
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SCHEDULE OF FEES

ENGINEERS AND TECHNICAL SUPPORT STAFF
Engineering Intern $65/HR Administrative Assistant $84/HR Supervising Drafter $152/HR Assistant Engineer II $148/HR Project Engineer $172/HR Senior Project Engineer $195/HR Project Manager $200/HR
Principal Engineer $207/HR

Routine office expenses such as computer usage, software licenses and fees, telephone charges, office equipment and supplies, incidental postage, copying, and faxes are included as a 3% fee on labor cost.

DIRECT PROJECT EXPENSES
Outside Reproduction Cost + 10% Subcontracted or Subconsultant Services Cost + 10% Travel & Subsistence (other than mileage) Cost Auto Mileage Current IRS Rate - $.56w/mi.

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Exhibit B

INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (“CITY”) and MKN & Associates, Inc. (“CONSULTANT”)
Southwest Recycled Water System Storage Tank and Booster Pump Station

PROJECT TITLE

MINIMUM SCOPE OF INSURANCE
Coverage s
hall be at least as broad as:

1. The most current version of Insur ance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operati ons. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, wit hout limitation, indemnit y obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.”

2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). If personal automobile coverage is used, the CITY, its officers, officials, empl oyees, agents, and volunteers are to be listed as additional insureds.

3. Workers’ Compensation insurance as required by the Stat e of California and Employer’s Liability Insurance.

4. Professional Liability (Errors and Omissions) insurance appropriate to CONSULTANT’s profession.

MINIMUM LIMITS OF INSURANCE
CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured:

1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bod ily injury and property damage; (ii)
$1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement.

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2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.

3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits.

4. EMPLOYER’S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 diseas e each employee; and,
(iii) $1,000,000 disease policy limit.

5. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.

UMBRELLA OR EXCESS INSURANCE
In the event CONSULTANT purchases an Umbr ella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents, and volunteers.

DEDUCTIBLES AND SELF-INSURED RETENTIONS
CONSULTANT shall be responsible for paym ent of any deductibles contained in any insurance policy(ies) required herein and CO NSULTANT shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the CITY’s Risk Manager or designee. At the option of the CITY’s Risk Manager or designee, either:
(i) The insurer shall reduce or elimin ate such deductibles or self-insured retentions as respects CITY, its officers, officials, employees, agents, and volunteers; or
(ii) CONSULTANT shall provide a financial guaran tee, satisfactory to CITY’s Risk Manager or designee, guaranteeing payment of losses and related investigations, clai m administration and defense expenses. At no time shall CITY be responsible for the payment of any deductibles or self-insured retentions.

OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions:

1. CITY, its officers, officials, em ployees, agents, and volunteers are to be covered as additional insureds. CONSUL TANT shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85.

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2. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, offici als, employees, agents, and volunteers.

Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured.

3. For any claims relating to this Agreement, CONSULTANT’s insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, employees, agents, and vol unteers. Any insurance or self- insurance maintained by the CITY, its officers, officials, employees, agents, and volunteers shall be excess of CONSULTANT’s insurance and shall not contribute with it. CONSULTANT shall establish primary and non- contributory status by using ISO Fo rm CG 20 01 04 13 or by an executed manuscript insurance company endorseme nt that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13.

The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: CONSULTA NT and its insurer shall waive any right of subrogation against CITY, its officers, officials, employees, agents, and volunteers.

If the Professional Liability (Errors and Omissions) insurance policy is written on a claims- made form:

1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by CONSULTANT.

2. Insurance must be maintained and evi dence of insurance must be provided for at least five (5) years after co mpletion of the Agreement work or termination of the Agreement, whichever o ccurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period.

3. If coverage is canceled or non -renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencem ent of work by CONSULTANT, CONSULTANT must purchase “e xtended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first.

4. A copy of the claims reporting require ments must be submitted to CITY for review.

5. These requirements shall surviv e expiration or termination of the Agreement.

All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certifi ed mail, return receip t requested, has been given to CITY. CONSULTANT is also responsible for providing written notice to the CITY under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, CONSULTANT shall furnish CITY with a new certificate and applicable endorsements for such policy(ies).

In the event any policy is due to expire during the work to be performed for CITY, CONSULTANT shall provide a new certificate, and applicable endorsements, evidencing DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

2/2/2018
renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy.

Should any of the required po licies provide that the def ense costs are paid within the Limits of Liability, thereby reducing the av ailable limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits.

The fact that insurance is obtained by CONSULTANT shall not be deemed to release or diminish the liability of CONSULTANT, incl uding, without limitati on, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONSULTANT, its principals, officers, agents, employees, persons under the supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them.

SUBCONTRACTORS - If CONSULTANT subcontracts any or all of the services to be performed under this Agreement, CONSULTANT shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection.

Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee.

If no Side Agreement is required, CONSULTANT will be solely responsible for ensuring that it’s subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry.

VERIFICATION OF COVERAGE
CONSULTANT shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY ’S Risk Manager or his/her designee prior to CITY’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, CONSULTANT shall immediately furnish City with a complete copy of any insurance policy r equired under this Agr eement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requi rement shall survive expiration or termination of this Agreement.

DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

EXHIBIT C

DISCLOSURE OF CONFLICT OF INTEREST
Southwest Recycled Water System Storage Tank and Booster Pump Station

YES* NO
1 Are you currently in litigation with the City of Fresno or any of its agents?

2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno?

3 Do you currently represent or perform work for any clients who do business with the City of Fresno?

4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno?

5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service?

6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project?

* If the answer to any question is yes, please explain in full below.

Explanation:

Signature

Date

(Name)

(Company)

(Address)

Additional page(s) attached. (City, State Zip)

DocuSign Envelope ID: 4BC45229-C324-4732-A046-961D30010221

Michael K. Nunley
X
X

PO Box 1604
X
Michael K. Nunley & Associates, Inc.

X
Not used

X
X

2/24/2022
Arroyo Grande, CA 93420