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AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT is made and entered into effective the ____ day of February, 2021, by and between the CITY OF FRESNO, a California municipal corporation (hereinafter referred to as "CITY"), and V&A Consulting Engineers, Inc. , a California Corpoation (hereinafter referred to as "CONSULTANT").
RECITALS
WHEREAS, CITY desires to obtain professional engineering services for conducting an odor and corrosion investigation of the existing sanitary sewer collection system and preparing a Basis of D esign Report outlining corrective odor and corrosion control measures , hereinafter referred to as the “Project;” and
WHEREAS, CONSULTANT is engaged in the business of furnishing services as a Consulting 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, CONSULTANT acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and WHEREAS, this Agreement will be administered for CITY by its Director of Public Utilities (hereinafter referred to as "Director") or his/her designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows:
1. Scope of Services. CONSULTANT shall perform to the satisfaction of 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 Performance. This Agreement 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, 2022 , subject to any earlier termination in accordance with this Agreement. The services of CONSULTANT as described in Exhibit A are to commence upon CITY’S issuance of a written “Notice to Proceed.” Work shall be undertaken and completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed within Six Hundred (600) consecutive calendar days from such authorization to proceed.
3. Compensation.
(a) CONSULTANT’S sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee not to exceed Two Hundred One Thousand, Four Hundred One Dollars ($201,401.00), 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 Twenty Thousand Dollars ($20,000.00) for any additional work rendered pursuant to Subsection (c) below and authorized in writing by the Director.
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(b) Detailed statements shall be rendered monthly and will be payable in the normal course of C ITY business. 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) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not requir ed by this Agreement, which modification shall include an adjustment to CONSULTANT’S compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. 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 CITY to CONSULTANT upon the earlier of: (i) CONSULTANT’S filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against CONSULTANT; (ii) 7 calendar days prior written notice with or without cause by CITY to CONSULTANT; (iii) 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, CONSULTANT shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to CITY any and all unearned payments and all properties and materials in the possession of CONSULTANT that are owned by CITY.
Subject to the terms of this Agreement, CONSULTANT shall be paid compensation for services satisfactorily performed prior to the effective date of termination. CONSULTANT shall not be paid for any work or services performed or costs incurred which reas onably could have been avoided.
(c) In the event of termination due to failure of CONSULTANT to satisfactorily perform in accordance with the terms of this Agreement, CITY may withhold an amount that would otherwise be payable as an offset to, but not in excess of, CITY’S damages caused by such failure. In no event shall any payment by CITY pursuant to this Agreement constitute a waiver by CITY of any breach of this Agreement which may then exist on the part of CONSULTANT, nor shall such payment impair o r prejudice any remedy available to CITY with respect to the breach.
(d) Upon any breach of this Agreement by CONSULTANT , 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 CITY improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience.
(e) CONSULTANT shall provide CITY with adequate written assurances of future performance, upon Director’s request, in the event CONSULTANT fails to comply with any terms or conditions of this Agreement.
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(f) CONSULTANT shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of CONSULTANT and without its fault or negligence such as, acts of God or the public enemy, acts of CITY in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. CONSULTANT shall notif y Director in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection 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 CONSULTANT pursuant to this Agreement shall not be made available to any individual or organization by CONSULTANT without the prior written approval of CITY. During the term of this Agreement, and thereafter, CONSULTANT shall not, without the prior written consent of 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 CITY, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, 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 CITY.
(b) Any and all original sketches, pencil tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by CONSULTANT pursuant to this Agreement ar e the property of CITY at the time of preparation and shall be turned over to CITY upon expiration or termination of the Agreement or default by CONSULTANT. CONSULTANT grants CITY a copyright license to use such drawings and writings. CONSULTANT shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. CITY may modify the design including any drawings or writings. Any use by 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 uncompleted form, without specific written verification by CONSULTANT will be at CITY’S sole risk and without liability or legal exposure to CONSULTANT. CONSULTANT may keep a copy of all drawings and specifications for its sole and exclusive use.
(c) If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, 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 further mutually understood and agreed by and between the parties hereto that inasmuch as CONSULTANT represents to CITY that CONSULTANT and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, CITY relies upon the skill of CONSULTANT and any subcontractors to do and perform such services in a skillful manner and CONSULTANT agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E
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services by CITY shall not operate as a release of CONSULTANT or any subcontractors from said professional standards.
7. Indemnification. To the furthest extent allowed by law, CONSULTANT shall indemnify, hold harmless and defend 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 personal 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 misconduct of CONSULTANT, its principals, officers, employees, agents or volunteers in the performance of this Agreement.
If CONSULTANT should subcontract all or any p ortion of the services to be performed under this Agreement, CONSULTANT shall require each subcontractor to indemnify, hold harmless and defend 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 Agreement, 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 Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner 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 CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amoun ts stated therein. However, the insurance limits available to 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, CONSULTANT or any of its subcontractors /sub-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 CONSULTANT shall be withheld until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve CONSULTANT of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by 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 obtained by CONSULTANT shall not be deemed to release or diminish the liability of CONSULTANT, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY 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 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 DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E
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the supervision of CONSULTANT, vendors, suppliers, invitees, cons ultants, sub- consultants, subcontractors, or anyone employed directly or indirectly by any of them.
(d) If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, 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 certificates and applicable endorsements shall be on file with CONSULTANT and CITY prior to the commencement of any services by the subcontractor.
CONSULTANT and any subcontractor/sub -consultant shall establish additional insured status for CITY, its officers, officials, employees, agents and volunteers by using Insurance Service Office (ISO) F orm 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 CITY’S execution of this Agreement, 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, CONSULTANT shall have the obligation and duty to immediately notify CITY in writing of any change to the information provided by CONSULTANT in such statement.
(b) CONSULTANT shall comply, and require its subcontractors to comply, with all a pplicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, 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 CITY, CONSULTANT shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, CONSULTANT and the respective subcontractor(s) are in full compliance with all laws and regulations. CONSULTANT shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, CONSULTANT shall immediately notify CITY of these facts in writing.
(c) In performing the work or services to be provided hereunder, CONSULTANT shall not employ or retain the services of any person while such person either is employed by CITY or is a member of any CITY council, commission, board, committee, or similar CITY body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved.
(d) CONSULTANT represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this Agreement or any rights/benefits hereunder.
(e) Neither CONSULTANT, nor any of 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.
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CONSULTANT and any of its subcontractors 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 applicable law and fully disclosed to and approved by the City Manager, in advance and in writing.
(f) If CONSULTANT should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, 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 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, CONSULTANT at its sole cost and expense shall:
(i) Immediately establish and maintain a viable and ongoing recycling program, approved by CITY’S Solid Waste Management Division, for each office and facility. Literature describing CITY recycling programs is available from CITY’S Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111.
(ii) Immediately contact 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.
(iii) Cooperate with and demonstrate to the satisfaction of 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 law, all notices expressly required of CITY within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or his/her designee.
(b) Records of CONSULTANT’S expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to 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 CONSULTANT pertaining to the Project shall be available for the purpose of making audits, ex aminations, excerpts, and transcriptions for the 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 available to CITY until such action is resolved, or until the end of said time period whichever shall later occur. If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, 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.
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(c) Prior to execution of this Agreement by CITY, CONSULTANT shall have provided evidence to CITY that CONSULTANT is licensed to perform the services called for by this Agreement (or that no license is required). If CONSULTANT should subcontract all or any portion of the work or services to be performed under this Agreement, CONSULTANT shall require each subcontractor to provide evidence t o CITY that subcontractor is licensed to perform the 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, 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, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, CONSULTANT agrees as follows:
(a) CONSULTANT will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious 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 possible by or resulting from this Agreement.
(b) CONSULTANT will not discriminate against any employee or applicant for employment because of race, religious 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. CONSULTANT shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, m ental 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 CONSULTANT’S employment practices including, but not be limited to, t he 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, including apprenticeship.
CONSULTANT agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause.
(c) CONSULTANT will, in all solicitations or advertisements for employees placed by or on behalf of CONSULTANT in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious 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.
(d) CONSULTANT will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of CONSULTANT’S commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
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(e) If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall cause each subcontractor to also comply with the requirements of this Section 12.
13. Independent Contractor.
(a) In the furnishi ng of the services provided for herein, CONSULTANT is acting solely as an independent contractor. Neither CONSULTANT, nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of CITY for any purpose. CITY shall have no right to control or supervise or direct the manner or method by which CONSULTANT shall perform its work and functions. However, CITY shall retain the right to administer this Agreement so as to verify that 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 CONSULTANT and CITY. CONSULTANT shall have no authority to bind CITY absent CITY’S express written consent. Except to the extent otherwise provided in this Agreement, CONSULTANT shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, CONSULTANT and its officers, agents and employees s hall have absolutely no right to employment rights and benefits available to CITY employees. CONSULTANT shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits i ncluding, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, CONSULTANT shall be solely responsible, indemnify, defend and save CITY harmless from all matters relating to employment and tax withholding for and payment of CONSULTANT'S employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers ’ 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 offered employees of 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, CONSULTANT may be providing services to others unrelated to CITY or to this Agreement.
14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted 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 parties may from time to time designate by writt en notice. Notices served by United States mail in the manner above described shall 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 s hall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives.
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16. Assignment.
(a) This Agreement is personal to CONSULTANT and there shall be no assignment by CONSULTANT of its rights or obligations under this Agreement without the prior written approval of the City Manager or his/her designee. Any attempted assignment by CONSULTANT, its successors or assigns, shall be null and void unless approved in writing by the City Manager or his/her designee.
(b) CONSULTANT hereby agrees not to assign the payment of any monies due CONSULTANT from C ITY under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). CITY retains the right to pay any and all monies due CONSULTANT directly to CONSULTANT.
17. Compliance With Law. In providing the services required under t his Agreement, CONSULTANT shall at all times comply with all applicable laws of the United States, the State of California and CITY, and with all applicable regulations promulgated by federal, state, regional, or local administrative 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 provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions.
22. Interpretation. The parties acknowledge 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.
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25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment 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 Attachment. 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 Agreement, shall be null and void.
26. Cumulative Remedies . No remedy 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 the 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 bet ween the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both CITY and CONSULTANT.
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I N WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written.
CI
TY OF FRESNO,
a California municipal corporation
By:
M ichael Carbajal ,
Director
Department of Public Utilities
AT
TEST:
YVONNE SPENCE, CMC
City Clerk
By:
D eputy
N
o signature of City Attorney required.
Standard Document #DPU-S 8.3 has been
used without modification, as certified by
the undersigned.
By:
A nita Luera
Supervising Engineering Technician
Department of Public Utilities
R
EVIEWED BY:
Brock D. Buche, PE,
Assistant Director
Department of Public Utilities
A
ddresses:
CITY:
City of Fresno
Attention: Anita Luera,
Supervising Engineering Technician
2101 G Street, Building A
Fresno, CA 93706
Phone: (559) 621-1625
FAX: (559) 498-4126
V
&A Consulting Engineers, 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 Professional License:
Number:
Name:
Date of Issuance:
CONSULTANT:
V&A Consulting Engineers, Inc.
Attention: Debra Kaye, PE,
V&A President
1000 Broadway, Suite 320 Oakland,
CA 94607
Phone: (858) 576-0226
FAX: (510) 903-6601
A
ttachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
1/7/2011
77221
Debra Kaye, PE (Civil Engineer)
Treasurer
Kim Costa
President
Debra Kaye, P.E.
DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E 1/15/2021
1/15/2021
1/15/2021
1/19/2021
2/5/2021
Marco Martinez
2/9/2021
Exhibit A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno ("City") and V&A Consulting Engineers, Inc. ("Consultant")
Odor and Corrosion Investigation of the Existing Sanitary Sewer Collection System
Basic Services
1. Kickoff Meeting: Conduct and attend a kickoff meeting (virtual or in- person, as requested by the City) to review the project objectives, scope of work, approach, and schedule. Prepare a meeting agenda and communication plan in advance of the meeting. Issue meeting minutes within 2 business days of the conclusion of the meeting and incorporate City comments.
Deliverables
• Kickoff Meeting Agenda and Minutes
• Communication Plan
2. Document Review: Provide a requested list of information to be provided by the City. This i s anticipated to include previous reports, hydraulic model access/outputs, pretreatment standards/data for permitted discharges, CMMS/Asset Management/O&M data, plan and profile drawings of major trunklines, wastewater sampling data, hydrogen sulfide monit oring data, and odor complaint history. Review provided information and identify potential data gaps.
3. Investigation
a. Background Data Analysis: Conduct an analysis of the background data (including collection system hydraulics, hydrogen sulfide data, and odor complaint history) to identify the most critical issues that must be addressed. Collect feedback from the City during the kickoff meeting on known problem areas. Identify key problem areas and specific locations of concern that must be addressed through the study.
b. Program Objectives: Define the program objectives, including odor control goals, desired level of service for the collection system infrastructure, and stakeholder expectations for success.
c. Sampling and Monitoring Program: Prepare a plan that identifies the parameters, locations, and frequency/duration of the sampling and monitoring program. The plan will address the problem areas identified in the background data analysis and the data required to characterize the same based on the program obj ectives. Conduct sampling and monitoring at up to 10 locations within the collection system for a period of two weeks.
At each monitoring location, collection of the following grab samples during the installation of the monitoring equipment:
i. Wastewater temperature, pH, and ORP.
ii. Hydrogen sulfide, total mercaptans, and amines gas concentrations within the collection system.
iii. Ambient field olfactometry measurements.
DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E Sampling and monitoring equipment installation is anticipated to be conducted over a consecutive 2-day period.
d. Traffic Control and Permitting: Provide supplemental traffic control, including written plans and permit costs, submittal of traffic control plans to the City and/or County as required for approval, signage and barriers, and labor associated with night time monitoring equipment installation (as required by the permit) for monitoring locations outside of local residential streets, City owned easements, or public right of ways where equipment cannot be installed using temporary traffic control (cones and flagging) during day light hours. Submit encroachment permits and conduct notification as required for monitoring equipment installation. The fee for this task is a not to exceed amount based on information contained in the RFQ and Addendum No. 1.
Deliverables
• Sampling and Monitoring Plan
• Traffic Control Plan(s)
4. Source Identification
a. Hotspot Analysis: Conduct a hotspot analysis of potential sources and causes of hydrogen sulfide generation, odor emissions, and corrosion using information gathered during the investigation task. Identify factors that contribute to the observed odor and corrosion issues a nd use the City’s hydraulic model to conduct a systemwide hotspot analysis.
Prioritize these potential sources in relationship to the results of the investigation. b. Sulfide Generation and Ventilation Modeling: Conduct sulfide generation and ventilation modeling to quantify the factors contributing to collection system odor and corrosion issues, with particular attention to the prioritized sources identified through the hotspot analysis. Compare baseline modeling results with the results of the field investigation and adjust as necessary. Summarize the results within each trunkline basin.
Deliverables
• Technical memorandum summarizing hotspot analysis
• Technical memorandum summarizing Sulfide Generation and Ventilation Modeling
5. Technology Evaluation: Evaluate available odor and corrosion control technologies.
Technologies to be evaluated will included liquid and vapor phase odor control and corrosion barriers (i.e., coating systems). The evaluation will summarize the typical performance characteristics and appl icability of the best available control technologies or combinations thereof. Generate a matrix of common advantages and disadvantages to narrow technologies that address the observed causes and align within the City’s funding and staffing capabilities.
Provide typical unit cost information for the various technologies, relative effectiveness at meeting the odor and corrosion control goals, and potential adverse impacts on the operation of the collection system and treatment facilities.
Deliverables
• Technical memorandum summarizing Technology Evaluation DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E
6. Conceptual Plan: Develop alternative odor control strategies using the preferred odor and corrosion control technologies selected by the City . For each alternative strategy, identify locations, specify design criteria, and provide conceptual site layouts. Develop the opinion of probable capital and O&M costs associated with each strategy. Compare each strategy on the basis of life cycle costs, feasibility, O&M requirements, and overall effectiveness at meeting the odor and corrosion control goals. Real estate acquisition costs will be requested from the City Real Estate Department or other publicly available appraisal records. Parcel boundaries will be obtained from the City’s GIS data.
7. Feasibility Study: Prepare and issue a draft Feasibility Study Report that summarizes the results of the odor and corrosion investigation, source identification, technology evaluation, and conceptual plan. Recommend the preferred strategy for controlling odor and corrosion issues within the City’s collection system, identified by trunkline. Identify short and long- term recommendations, priority of implementation, and sequencing. Prioritize recommendations on the basis of overall odor and corrosion risk mitigation. Incorporate City comments, prepare a final report, and conduct a workshop to present the findings (virtual or in-person, as requested by the City).
Deliverables
• Workshop
• Draft Feasibility Study (5 hard-copies, electronic PDF and MSWord files) • Final Feasibility Study (5 hard-copies, electronic PDF and MSWord files)
8. Basis of Design Report: Allow the City to select the preferred strategies for controlling odor and corrosion . Prepare a Basis of Design Report that identifies the proposed treatment systems and required equipment including, at a minimum, conceptual site layouts, treatment configurations, sizing and capacity of treatment equipment (including the specific manufacturer system model), sizing and capacity of needed plumbing (i.e. water service, process drains, and chemical feed lines), injection rates, types of specific chemicals, electrical service ratings for recommended equipment , telemetry parameters, instrumentation, and integration compatibility. Identify additional engineering studies, if any , that may be required as part of the preliminary engineering and/or 30% design stage. Issue a draft report , incorporate City comments, and issue a final report.
Deliverables
• Draft Basis of Design Report (5 hard-copies, electronic PDF and MSWord files) • Final Basis of Design Report (5 hard-copies, electronic PDF and MSWord files)
9. Project Management: Manage the schedule, budget, and quality of the project. Coordinate activities between the Project Team and the City. Conduct monthly progress meetings (1-hour teleconference), including providing a written agenda and meeting minutes for the duration of the project. Provide monthly invoices, including billing by task and a progress report. Provide monthly project schedule updates.
DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E
Deliverables
• Meeting Agenda and Minutes
• Monthly Schedule Updates
Optional Services
1. Supplemental Monitoring: For an additional fee, conduct supplemental sampling and monitoring at 10 locations within the collection system for a period of two weeks. The monitoring may be conducted in parallel with the Basic Services monitoring program to add additional locations or during a separate monitoring period to capture seasonal variations.
2. Real Estate Acquisition Services: For an additional fee, p rovide a third -party appraisal of selected sites to develop real estate acquisition costs that are unavailable from the City or other publicly available appraisal information. The fee for this task is a not to exceed amount based on information contained in the RFQ.
DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E
1000 Broadway
Suite 320
Oakland, CA 94607
510.903.6600 Tel
510.903.6601 Fax
vaengineering.com
V&A Consulting Engineers
2021 Fee Schedule
Rates include Overhead & Profit
Position Rate
Principal-in-Charge
(PIC) $297
Senior Project Manager $259
Project Manager $239
Senior Project Engineer $223
Project Engineer $199
Associate Engineer $178
Assistant Engineer $145
CADD Designer $145
Engineering Assistant $134
Senior Technician $128
Technician $111
Project Admin/Clerical $89
Forensic Engineering $425
Deposition/Court Appearance $550
Other Direct Costs
Mileage: $0.575/Mile
Truck: $85/Day
Travel (Hotel/Per Diem): @ Cost
Hydrogen Sulfide Monitor: $250/Week
Differential Pressure Monitor: $250/Week
Nasal Ranger: $50/Day
Grab Samples: $50/Location
Printing/Reproduction/Shipping: @ Cost
DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E
2/2/2018
MINIMUM SCOPE OF INSURANCE
Cover
age shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. 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, without limitation, indemnity 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, employees, agents , and volunteers are to be listed as additional insureds.
3. Workers’ Compensation insurance as required by the State 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 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.
Exhibit B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (“CITY”) and V&A Consulting Engineers, Inc. (“CONSULTANT”)
Odor and Corrosion Investigation of the Existing Sanitary Sewer Collection System DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E
2/2/2018
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 CONSULTANT purchases an Umbrella 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 payment of any deductibles contained in any insurance policy(ies) required herein and CONSULTANT 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 CIT Y’s Risk Manager or designee. At the option of the CITY’s Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self - insured retentions as respects CITY, its officers, officials, employees, agents, and volunteers; or
(ii) CONSULTANT shall provide a financial guarantee, satisfactory to CITY’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall CITY be responsible for the payment o f 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, employees, agents , and volunteers are to be covered as additional insureds. CONSULTANT 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.
DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E
2/2/2018
2. The coverage shall contain no special limitations on the scope of protection afforded to 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, CONSULTANT’ s insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, employees, agents , and volunteers. 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 Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement 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: CONSULTANT 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 evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs 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 commencement of work by CONSULTANT, CONSULTANT must purchase “extended 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 requirements must be submitted to CITY for review.
5. These requirements shall survive 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 certified mail, return receipt 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 pol icy is due to expire during the work to be performed for CITY, CONSULTANT shall provide a new certificate, and applicable DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E
2/2/2018
endorsements, evidencing 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 policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available 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, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limit s 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, officer s, 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 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: 117DAD89-3964-4094-8646-B3AFBA47496E
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Odor and Corrosion Investigation of the Existing Sanitary Sewer Collection System
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)
X
X
X
X
X
X
Oakland, CA 94607
1000 Broadway, Suite 320
V&A Consulting Engineers, Inc.
Debra Kaye, P.E.
V&A provides subconsulting
engineering services to several A/E
firms (including Akel Engineering Group
and Blair, Church, & Flynn) on City
projects.
DocuSign Envelope ID: 117DAD89-3964-4094-8646-B3AFBA47496E 1/15/2021