DPU-S Eng. CSA, Short Form T&M – Contingency (04-2022)
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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 corp oration (City), and AECOM Technical Services, Inc., a California corporation (Consultant).
RECITALS
WHEREAS, the City desires to obtain professional engineering services for wellhead treatment improvements at Pump Station 101A (Project); and WHEREAS, the Consultant is engaged in the business of furnishing services as a Civil Engineer and hereby repr esents 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 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. The Consultant s hall perform to the satisfaction of the City the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A.
2. Term of Agreement and Time for Perf ormance. This Ag reement shall be effective from the date first set forth above and shall continue in full force and effect through the earlier of complete rendition of the services hereunder or December 31, 2024, subject to any earlier termination in accordance with this Agreement. The services of the Consultant as described in Exhibit A are to commence upon the City’s issuance of a written “Notice to Proceed.” Work sha ll be undertaken and completed in a sequence assuring expeditious completion, but in any ev ent, all such services shall be completed within 900 consecutive calendar days from such authorization to proceed.
3. Compensation.
(a) The Consultant’s sole compensat ion for satisfactory performance of all services required or render ed pursuant to this Agreement shall be a total fee not to exceed $233,200, paid on a time and materials basis in accordance with the schedule of fees contained in Exhibit A, and a contingency amount not to exceed $20,000 for any additional work rendered pursuant to Subsecti on (c) 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. T he City shall not be obligated to reimburse any DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
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expense for which it has not received a det ailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. (c) The parties may modify this Agr eement 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.
4. Termination, Remedies , and Force Majeure.
(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 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 prov ide the City with adequate written assurances of future performance, upon Direc tor’s request, 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 DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
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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 Director in writing as soon as it is reasonably possibl e after the commencement of any excusable delay, setting forth the full particulars in co nnection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Director of the cessation of such occurrence.
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 shall not be made av ailable to any individual or organization by the Consultant without the prior written appro val 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, instruments, mo dels, 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 furt her 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 DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
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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 th e furthest extent 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 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 accordance 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 designee 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 become 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 insur ance” 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 DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
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shall apply to all claims and liability regardless 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, 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, officials, employees, agents and volunteers in accordance with the terms of this section, except that any required cert ificates 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 addit ional insured status for the Cit y, its officers, officials, employees, agents and volunteers by using In surance 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 includi ng, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (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 subcon tractors to take, r easonable 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 immediately 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.
DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
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(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. (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 the 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.
(ci) 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 DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
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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 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 provide 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.
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, religious creed, color, national origin, ancestr y, physical disability , mental disability, medical condition, marital status, sex, age, se xual orientation, ethnicity, status as a DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
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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 section 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 manner 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 have absolutely no right to employment rights and benefits available to City employees. T he 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 the City employment benefits, entitlements, programs and/or funds offered 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 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 DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
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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, belo w, 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 parties' 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, the State of California and the Cit y, 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.
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 DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
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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 Agre ement, 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.
29. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. T he previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. [Signatures follow on the next page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
B y :
Brock D. Buche, PE, PLS,
Interim Director of Public Utilities
Department of Public Utilities
ATTEST:
TODD STERMER, CMC
City Clerk
B y :
Deputy
No signature of City Attorney required.
Standard Document #DPU-S Eng.
CSA, Short Form T&M - Contingency
(04-2022) has been used without
modification, as certified by the
undersigned.
B y :
Anita Luera,
Supervising Engineering Techncian
Department of Public Utilities
REVIEWED BY:
Glenn Knapp, PE,
Supervising Professional Engineer
Department of Public Utilities
Addresses:
CITY:
City of Fresno
Attention: Anita Luera,
Supervising Engineering Technician
2101 G Street, Building A
Fresno, CA 93706
Phone: (559) 621-1625
Facsimile (559) 498-4126
E-mail: [email protected]
AECOM Technical Services, Inc.,
A California Corporation
B y :
N a m e :
T i t l e :
(If corporation or LLC., Board Chair, Pres.
or Vice Pres.)
B y :
N a m e :
T i t l e :
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
Any Applicable Professional License:
Number:
N a m e :
Date of Issuance:
CONSULTANT:
AECOM Technical Services, Inc.
Attention: Eric Garibay, PE,
Senior Engineer
8050 N Palm Avenue, Suite 355
Fresno, CA 93711
Phone: (559) 448-8222
Facsimile” (559) 448-8233
E-mail [email protected]
DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668 5/6/2022
Ben P. Horn, PE
Area Engineering Manager
C23028
PE
5/9/2022
Thomas L Guinn, PE
Associate Vice President
5/9/2022
5/9/2022
Clerk Attesting
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Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
EXHIBIT A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno (City) and AECOM Technical Services, Inc. (Consultant)
Wellhead Treatment Improvements at Pump Station 101A
The Consultant shall provide all labor, materials, equipment, and incidentals required to complete the work. Consulting services shall encompass, but not be limited to, the following:
1. Project Management: Assistance with project management including organization of kick-off and monthly project coordination and status meetings, preparation of meeting agendas and minutes, schedule updates, etc.;
Deliverables:
• Meeting Agendas (.pdf)
• Meeting Minutes (.pdf)
• Project Schedule and Updates (.pdf)
2. CEQA Initial Study and Permitting Assistance: Obtaining the necessary entitlement permit (Conditional Use Permit (CUP), Development Permit, etc.) including preparation of all exhibits, and preparation of an environmental assessment and associated CEQA documents required for the project in coordination with the assigned City Planner. The City anticipates that preparation of an amendment to the previously prepared CUP and Negative Declaration (ND) or Mitigated Negative Declaration (MND) will be required although the Consultant is encouraged to ascertain whether a categorical exemption is appropriate; Deliverables:
• Permit Exhibits (.pdf)
• Supportive CEQA Documents; amendments, categorical exemption, etc. (.pdf)
3. Planning and Engineering: Planning and engineering for construction of wellhead treatment improvements by preparing a topographic survey, geotechnical studies, reviewing existing site improvements and characteristics, evaluating existing groundwater quality and pumping data provided by the City, coordination of pilot testing as necessary, and preparing a Basis of Design Report , conceptual site layout, and construction cost estimates;
Deliverables
• Geotechnical Report (.pdf)
• Topographic Survey (.dwg)
• Basis of Design Report (.pdf)
• 30% Schematic Design (.pdf)
• Construction Cost Estimate (.xls)
DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
4. Plans and Specifications: Based on the approved Basis of Design Report, prepare design documents including, but not limited to: civil, structural, mechanical, electrical, and instrumentation plans. The Consultant will be required to complete all review processes, including Back Check with Building & Safety Division and incorporate all comments into the final set. Consultant shall prepare structural calculations; technical specifications; and updated construction cost estimates .
The Consultant shall also prepare complete plans and specifications for the manganese treatment system. In coordination with the Consultant, the City will prepare plans and specifications for the GAC treatment vessels.
The Consultant shall ensure compliance with all federal, state, and local codes and regulations; and complete processes required by all agencies involved such as Pacific Gas & Electric Co., San Joaquin Valley Air Pollution Control District, Fresno Metropolitan Flood Control District, State Water Resources Control Board, and other City of Fresno Departments, including permitting; Deliverables:
• 60% (.pdf), 90% (.pdf and two hard copies) Plans
• 60% (.pdf), 90% (.pdf and two hard copies) Specifications • 100% Bid-Ready Construction Plans (.pdf)
• 100% Bid-Ready Specifications (.pdf)
• Manganese Treatment Vessel Plans (.dwg and .pdf)
• Manganese Treatment Vessel Technical Specifications (.doc) • Updated Construction Cost Estimate (.xls)
• Permits or other documents as required by other agencies (.pdf)
5. Advertising and Award Assistance : The GAC vessels and manganese filtration system shall be bid ahead of the construction plans so that fabrication can be completed and the systems are ready for installation at the time of construction.
The City will be responsible for advertising a separate set of plans and specifications for the GAC vessels, the manganese filtration system, and for the site improvements. The Consultant shall provide professional engineering support during each of the three phases of bidding including attending pre-bid meetings, if applicable, preparing addenda in response to bidder requests for i nformation (RFIs), and preparing conformed plans and specifications, if required; Deliverables:
• Responses to Bidder RFIs - up to eight (.pdf)
• Addenda - up to four (.doc and .pdf)
• Conformed plans and specifications (.dwg, .doc., .pdf)
6. Construction Phase Engineering Services : Provide professional engineering support during construction by attending the pre-construction meeting, responding to contractor RFIs , reviewing submittals and change orders, attending one initial site meeting, and up to three construction site visits, etc. Consultant shall also be DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
required to provide support during fabrication of the treatment vessels by answering RFIs, reviewing submittals, etc.;
Deliverables:
• Responses to Contractor RFIs - up to 10 (.pdf)
• Submittal Review Responses - up to 15 (.pdf)
7. Prepare Operations Plan and Assist with Start -up and Closeout : Prepare an operations plan in accordance with the requirements of the Division of Drinking Water (DDW). The City will coordinate with DDW as necessary. Consultant shall make up to three site visits to assist with facility start-up and verify proper operation of the facility. Additionally, Consultant shall conduct a final walkthrough and prepare a punch li st. Record Drawings shall be prepared utilizing redlines furnished by the Contractor.
Deliverables:
• Operations Plan (.doc and .pdf and two hard copies)
• Punchlist (.doc)
• Record Drawings (.dwg and .pdf and two hard copies)
8. Optional – Initial Study and ND/ MND: If required and at the option of the City , Consultant shall c onduct an initial study in accordance with the California Environmental Quality Act (CEQA) guidelines , prepare a ND or MND as appropriate, prepare a Mitigation Monitoring and Reporting Program if necessary, coordinate with the assigned City Planner for noticing and distribution including issuance of a Notice of Determination, and respond to and incorporate all comments.
Deliverables:
• Supportive CEQA Documents; eg. Field Investigations, Technical Studies, Tribal Consultation Letters, Notices, Comments, etc. (.pdf) • Generation of a Mitigation Monitoring and Reporting Program, if applicable (.doc and .pdf)
• Administrative Draft, Public Draft, Final Draft – and Initial Study and ND or MND (.doc and .pdf and five hard copies each)
The City will prepare plans and specifications for the granular activated carbon (GAC) vessels with Consultant support as needed. The City will be responsible for coordinating procurement of long lead items such as the GAC vessels and manganese treatment vessels with the City Purchasing Department. The City will also be responsible for advertising the plans and specifications to secure a separate construction contract for the wellhead treatment facilities. The City Construction Management Division will prov ide oversight during construction. The City will coordinate with DDW as necessary for approval of the operations plan.
DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
The City may elect to further expand the scope of services or add new scope of service tasks, should such services provide a benefit in m eeting the City’s ultimate goals and objectives for the project. Examples of such expansion may include, but not be limited to, additional work related to: change of treatment processes; alternate locations selected for treatment; and additional efforts needed to complete the Scope of Work not expressly written. Such scope of service expansion will be subject to the City and Consultant negotiating a mutually agreeable scope and fee, and approval by the City Council, if required.
DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668 Design of Pump Station 101A
Wellhead Treatment
AECOM
AECOM Fee Schedule
Engineers, Planners, Architects, Scientists:
Student Intern $ 60.00 per hour
Technician $ 90.00 per hour
Assistant Engineer I $ 110.00 per hour
Assistant Engineer II $ 125.00 per hour
Associate Engineer $ 140.00 per hour
Senior Engineer I $ 185.00 per hour
Senior Engineer II $ 200.00 per hour
Project Manager $ 200.00 per hour
Senior Project Manager $ 240.00 per hour
Principal Engineer $ 240.00 per hour
Specialty Principal Engineer $ 275.00 per hour
Principal-in-Charge $ 282.00 per hour
Construction Administration Personnel:
Resident Project Representative I $ 110.00 per hour
Resident Project Representative II $ 130.00 per hour
Senior Resident Project Representative $ 160.00 per hour Resident Engineer $ 185.00 per hour
Construction Services Manager $ 250.00 per hour
Technical Support Staff:
Clerical/General Office $ 80.00 per hour
Administrative Specialist I $ 90.00 per hour
Administrative Specialist II $ 100.00 per hour
Drafter/CADD Technician $ 100.00 per hour
Assistant CADD Operator $ 110.00 per hour
Designer/CADD Operator $ 125.00 per hour
Senior Designer/Design CADD Operator $ 140.00 per hour
Design/CADD Supervisor $ 155.00 per hour
Direct Project Expenses
Other Reproduction (8 1/2 x11 / 11x17 color) $1.15 / 1.50 per page Plan Sheet Printing - In House Bond/Vellum/Mylar $3.00/4.00/7.00 per sheet Subcontracted Services/Reproduction Cost + 15%
Subcontracted or Subconsultant Services Cost + 10%
Auto Mileage for Construction Phase Services IRS rate per mile Travel & Subsistence (other than mileage) Cost
Miscellaneous Materials Cost + 15%
R
ates for additional classifications not identified above will be submitted to the client for approval prior to work on task order.
If authorized by the Client, an overtime premium multiplier of 1.5 may be applied to the billing rate of hourly personnel who work overtime in order to meet a deadline which cannot be met during normal business hours.
Invoices will be rendered monthly. Payment is due upon presentation. A late payment finance charge of 1.5% per month (but not exceeding the maximum rate allowable by law) will be applied to any unpaid balance commencing 30 days after the date of the original invoice.
DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
DPU-S Eng. CSA, Short Form T&M – Contingency (04-2022)
EXHIBIT B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (City) and AECOM Technical Services, Inc. (Consultant)
Wellhead Treatment Improvements at Pump Station 101A
MINIMUM SCOPE OF INSURANCE
Coverage shall 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).
3. Workers’ Compensation insurance as required by the Stat e of California and Employer’s Liability Insurance.
4. Professional Liability (Errors and Om issions) insurance appropriate to the Consultant’s profession.
MINIMUM LIMITS OF INSURANCE
The 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 the 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 bodily 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.
DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
DPU-S Eng. CSA, Short Form T&M – Contingency (04-2022)
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 disease 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 the Consultant purchases an Um brella 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
The Consultant shall be responsible for pa yment of any deductibles contained in any insurance policy(ies) required herein and the Consultant sha ll 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 the City, it s officers, officials, employees, agents, and volunteers; or
(ii) The Consultant shall provide a financial guarantee, satisfactory to the City’s Risk Manager or des ignee, guaranteeing payment of losses and related investigations , claim administration and defense expenses. At no time shall the 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. The City, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds. The C onsultant shall establish additional insured status for the City and for all ongoing and completed operations under the Commercial General Liability policy by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial General endorsements must be as broad DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
DPU-S Eng. CSA, Short Form T&M – Contingency (04-2022)
as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20
37. 2. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers , officials, 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, the 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, offi cials, employees, agents, and volunteers shall be excess of the Consultant’s insurance and shall not contribute with it. The 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: the Consultant and its in surer shall waive any right of subrogation against the 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 the Consultant.
2. Insurance must be maintained and evi dence of insurance must be provided for at least five years after completion of the Agreement work or termination of the Agreement, whichever occurs firs t, or, in the alternative, the policy shall be endorsed to provide not less than a five-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 co mmencement of work by the Consultant, the Consultant must purchase “extended reporting” coverage for a minimum of five years completion of the Agr eement work or te rmination of the Agreement, whichever occurs first.
4. A copy of the claims reporting requi rements must be submitted to the 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 calendar days’ written notice by certified mail, return re ceipt requested, has been given to the City. The 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 co verage or in limits, the Consultant shall DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
DPU-S Eng. CSA, Short Form T&M – Contingency (04-2022)
furnish the City with a new cert ificate and applicable endorsements for such policy(ies).
In the event any policy is due to expire durin g the work to be performed for the City, the Consultant shall provide a new certificat e, and applicable endo rsements, evidencing renewal of such policy not less than fifteen 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 the Consultant shall not be deemed to release or diminish the liability of the Consultant, incl uding, without limitatio n, 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 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, offi cers, agents, employees , persons under the supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them.
SUBCONTRACTORS - If the Consultant subcontracts any or all of the services to be performed under this Agreement, the Consultant shall require , at the discretion of the City’s Risk Manager or designee, subcontrac tor(s) to enter into a separate Side Agreement with the City to pr ovide required indemnification and insurance protection.
Any required Side Agreement(s) and asso ciated insurance documents for the subcontractor must be reviewed and preapproved by the City Risk Manager or designee.
If no Side Agreement is required, the Consultant will be sole ly responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry.
VERIFICATION OF COVERAGE
The Consultant shall furnish the 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 its de signee prior to the 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 the City, the Consultant s hall immediately furnish the City with a complete copy of any insur ance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement.
DocuSign Envelope ID: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Wellhead Treatment Improvements at Pump Station 101A
YES* NO
1 Are you currently in litigation wi th the City of Fresno or any of its agents?
2 Do you represent any firm, or ganization, 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 princi pals, 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 princi pals, 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 subcontra ctors have, or expect to have, any interest, direct or indire ct, 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: 6AA724E5-8BEC-4B53-AC87-6FF8EC59F668 X
X
X
NA
Fresno Ca 93711
Ben P. Horn, PE
X
X
X
AECOM Technical Services Inc
5/6/2022
8050 N. Palm, Suite 355