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AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT (Agreement) is m ade and entered into effect on ___________________________, by and between the CITY OF FRESNO, a California municipal corporation (City), and PBK ARCHITECTS, a California (Consultant).
RECITALS
WHEREAS, the City desires to obtain pr ofessional Architectural & Engineering services for the design of plans and gener al construction contract documents for Municipal Service Center Security (Project); and
WHEREAS, the Consultant is engaged in the business of furnishing services as a licensed architect and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, the Consultant acknowledges t hat this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and
WHEREAS, this Agreement will be admin istered for the City by its General Services Department Director (Director) or the Director’s designee.
AGREEMENT
NOW, THEREFORE, in consideration 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 shall perform the services described herein and in Exhibit A to complete the Projec t more fully described in Exhibit A, and this shall include all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A . The services of the Consultant shall consist of five parts as described below. A separate “Notice to Proceed: will be issued for each of the aforementioned parts. By entry in to this Agreement and upon the City’s issuance of a written "Notice to Proceed," the City contracts for the services in Part One.
The Consultant shall not perfo rm any other part of the Ag reement, and this Agreement shall not be a contract for any other part, un til further performance is authorized by the City’s issuance of a written “Notice to Proceed.” It shall, however, remain the Consultant’s offer to perform all remaining parts described herein. In the event the Consultant performs services without the City’s prior written authorization, the Consultant will not be entitled to compensation for such services.
(a) Part One. Schemat ic Design Phase.
(1) The Consultant shall review t he description of the Project set forth in Exhibit A and consult with designated repr esentatives of the City to
ascertain the requirements of the Project.
(2) The Consultant shall complete a set of schematic documents in accordance with the detailed minimum r equirements set forth in Exhibit A. The
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Schematic documents shall include sufficient detail for the design of the Project, to establish City of Fresno standards, and as necessary to obtain the acceptance of the City. The Consultant shall provi de the City with an electronic file of the schematic documents in the following format: PDF.
(3) The Consultant shall conduct studies and investigations as necessary to confirm requirements of design including, but not limited to, (i) consulting with the various utility agencie s, and (ii) obtaining all information and data from the respective responsible the City department/division that is available in the City’s records and is required by the Consultant in connection with the consulting services including, but not limited to, maps, surveys, reports, information, restrictions and easements. Th e Consultant shall notify the City if a topographic survey is required.
(4) The Consultant shall provide a preliminary evaluation of the Project taking into consideration the City’s estimate of the cost of construction (Construction Budget) of TBD, includi ng alternative approaches to design and construction of the Project.
(5) Based upon the mutually agreed upon Project requirements and any adjustments authorized by the City in the Construction Budget, the Consultant shall design and prepare sc hematic design drawings and other documents for review, modification, if r equired, and acceptance by the City staff sufficient to show the concept and sc ope of the proposed Pr oject and the scale and relationship of Project components.
(6) The Consultant shall submit a preliminary estimate of construction cost for review and acc eptance by the City. As used herein, "construction cost" means the cost of construction under the general construction contract and does not include the Consultant’s compensation as herein provided.
Such estimate shall include, and shall sepa rately state, the co st of any add or deduct alternatives, the cost of any wo rk which may be let on a segregated bid basis and any equipment or fixtures which may be incorporated in or excluded from the general construction contract as may be necessary to stay within the Construction Budget.
(7) The Consultant shall make as many submittals as may be necessary or desirable to obtain the acc eptance by the City and shall assist the City in applying for and obtaining from applicable public agencies any approval permit, or waiver required by law, which assistance shall include, but not be limited to, making Project information available to the City.
(8) The Consultant may not rely upon any as-builts provided by the City, but shall investigate the exis ting conditions and ascertain the adequacy of such as-builts for the Consultant's des ign. The Consultant shall bring to the City's attention any discrepancies in the as-builts that are discovered by the Consultant. The City makes no representations regarding any as-builts. (9) Services shall be undertaken and completed in a sequence assuring expeditious completion. All services shall be rendered and deliverables
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submitted within fifteen calendar days from the issuance of a Notice to Proceed for this part unless an extension of time is approved in writing by the Director. Re- submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within five calendar days from receipt of the City’s comments unless an extension of time is approved in writing by the Director. (b) Part Two. Design Development Phase. After review and acceptance of the schematic design phase and issuance of a written Notice to Proceed with this Part Two:
(1) Based upon the accepted sch ematic design documents and the Construction Budget, including authoriz ed revisions thereto, the Consultant shall prepare for review and acceptanc e by the City the design development documents consisting of dr awings and other documents to fix and describe the size and character of the Project as nece ssary to show treatment of significant details. In addition, the Consultant shall provide outline s pecifications of the work as to kinds of materials, systems, and other such design elements as may be required. Such design development documents and specifications shall be subject to review and acceptance by the City.
(2) The Consultant shall submit a revised estimate of construction cost for review and acceptance by the City. The revised estimate shall include, but shall separately state, the cost of any add or deduct alternates, any work which may be let on a segregated bid basis, and an y furnishings, equipment or fixtures which may be incorporated in or excluded from the gener al construction contract as may be necessary to stay within the Construction Budget, including authorized revisions thereto.
(3) In the event that the revised estimate of construction cost exceeds the preliminary estimate of c onstruction cost previously accepted, excluding therefrom any add alternate, any work which may be let on a segregated bid basis and any furnishing, equipment or fixtures whic h was identified in Part One as that which may be excluded from the general construction contract, the City shall have the option of accepting or rejecting the revised estimate and the Consultant shall, at no additional cost to the City, make su ch design changes as may be necessary to reduce the revised esti mate so that it shall not exceed the preliminary estimate of construction cost previously accepted by the City. The City shall not increase the scope of the Project except by modification of this Agreement which shall include an agreed upon increase in the Consultant’s compensation. (4) The Consultant shall make as many submittals as may be necessary or desirable to obtain the acc eptance by the City and shall assist the City in applying for and obtaining from applicable public agencies any approval, permit, or waiver required by law, which assistance shall include, but not be limited to, making Project information available to the City.
(5) Services shall be undertaken and completed in a sequence assuring expeditious completion. All services shall be rendered and deliverables submitted within forty calendar days from the issuance of a Notice to Proceed for this Part unless an extension of time is approved in writing by the Director. Re-
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submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within five calendar days from receipt of the City’s comments unless an extension of time is approved in writing by the Director. (c) Part Three. Construction Document Phase. After review and acceptance of the design development phase and issuance of a written Notice to Proceed with this Part Three:
(1) The Consultant shall pr epare from the accepted design development documents, detailed plans and specifications setting forth the complete work to be done, and the mate rials, workmanship, finishes and equipment, fixtures, and site work requir ed. The Consultant shall also prepare necessary bidding information, general and special conditions of the general construction contract, technical specifications of the general construction contract, and the bid proposal and general constructi on contract forms. Such documents shall be subject to the review and accept ance by the City. T he Consultant shall cooperate with, assist, and be responsive to the City’s Purchasing Manager in preparation of all documents including, without limitat ion, slip-sheeting final documents for printing when requested. The City’s Standard Specifications must be used by the Consultant where possible. Final drawings shall be drawn, printed, or reproduced by a process providing a permanent record in black on vellum, tracing cloth, polyester base film, or high quality bond copy. Bid, general conditions, contract and bond document forms or formats regul arly used by the City shall be used by the Consultant unless the Director determines they would be impractical for this Project. The Consult ant shall be responsible for assuring that the special conditions, technical specifications and any other documents prepared by the Consultant are consistent with any documents regularly used by the City that are used for this Project.
(2) Upon request of the City, t he Consultant shall provide the calculations used to determine the general construction contract quantities, and structural calculations for the purpose of obtaining any building permits. (3) The Consultant shall make as many submittals as may be necessary or desirable to obtain the acc eptance by the City and shall assist the City in applying for and obtaining from applicable public agencies any approval, permit, report, statement, or waiver required by law, which assistance shall include, but not be limited to, making Project information available to the City. (4) The Consultant shall prov ide the City with six sets of completed plans and six sets of complet ed specifications for review and final acceptance by the City. Should the plans and specifications as submitted by the Consultant not be accepted by the City, t he Consultant shall revise the plans and specifications as needed to obtain final a cceptance at no additional cost to the City.
(5) After acceptance of final corre ctions, if any, the Consultant shall provide the City with one set of accepted reproducible tracings and bid documents for the Project. In addition, the Consultant shall provide the City with
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one complete set of CAD/System disk files of drawings and complete disk files of specifications in the following format: PDF.
(6) The Consultant shall submit a final estimate of construction cost for review and acceptance by the City. Such estimate shall be calculated as of the date all general construction contract documents are delivered to the City in final form ready for reproduction and advertising. Such estimate shall include, but shall separately state, the cost of any add or deduct alternates, any work which may be let on a segregated basis, and any equipment, or fixtures which may be incorporated in or excluded from the general construction contract. (7) In the event that the final estimate of construction cost exceeds the revised estimate of construc tion cost previously accepted, excluding therefrom any add alternate, any work which may be let on a segregated bid basis and any furnishings, equipment or fixtures which was identified in the final revised estimate in Part Two as that which may be excluded from the general construction contract, the City shall have the option of accepting or rejecting the final estimate.
If the City elects to reject the final estimate, the Consul tant shall at no additional cost to the City, make such design changes as may be necessary to reduce the final estimate so that it shall not exceed the revised estimate of construction cost previously accepted by the City.
(8) Services shall be undertaken and completed in a sequence assuring expeditious completion. All services shall be rendered and deliverables submitted within forty calendar days from the issuance of a Notice to Proceed for this Part unless an extension of time is approved in writing by the Director. Re- submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within five calendar days from receipt of the City’s comments unless an extension of time is approved in writing by the Director. (d) Part Four. Bidding Phase. A fter review and acceptance of the construction document phase, the City’s decisi on to proceed to bid shall constitute a written Notice to Proceed with this Part Four:
(1) The Consultant shall assist the City in obtaining bids. The Consultant shall not communicate with pot ential bidders regarding this Project without the express prior written authorization of the City’s Purchasing Manager. (2) The Consultant shall, withi n seven calendar days of any request by the City, expeditiously dr aft and promptly provide addendum as determined by the City to be reasonable or necessary for the bidding process. (3) If the lowest responsible bid received for the general construction contract exceeds by 10% or more the final estimate of construction cost previously accepted by the City, excludi ng therefrom any add alternate, any work which may be let on a segregated bid basis and any furnishings, equipment or fixtures which are excluded from the general construction contract, the Consultant shall, within fourteen calendar days of any request by the City, revise the plans and specifications as may be necessary to stay within 10% of such final estimate of construction cost, at no additional cost to the City provided such bid is
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received within 180 calendar days after completion of services in Section 1(c) of this Agreement. The Consultant shall also submit such revised plans and specifications, together with a new final estimate of co nstruction cost, to the City for review and acceptance. This procedure, using the latest accepted final estimate of construction cost, shall, upon written notice to the Consultant from the Director, be repeated until an acceptable bid is received that does not exceed the accepted final estimate of construction cost by more than 10%.
(e) Part Five. Construction Phase and General Construction Contract Administration. The construction phase wil l begin with the award of the general construction contract, which shall constitute a written Notice to Proceed with this Part Five, and will terminate when a Notice of Comp letion is filed. Upon award of a general construction contract for the Project and under the direction of the Director through the City’s designated Construction Manager for the Project:
(1) The Consultant shall attend t he pre-construction conference and, if called upon by the City, act on t he City’s behalf in discussing the various aspects of the construction phase.
(2) The Consultant shall review and recommend in writing to the City acceptance or non-acceptance of shop drawings, equipment and material submittals of the general construction contractor as requi red by the general construction contract and applicable laws and regulations in a timely manner. The period for the Consultant review shall be as specified in the general construction contract, except if such period is not so specified, the period shall be as determined in the pre-construction conference as mutually agreed upon by the City, the Consultant and the general construction contractor.
(3) The Consultant shall, at intervals appropriate to the state of construction, familiarize itself with the progress and quality of the work and determine in general if the work is proceeding in accor dance with the general construction contract documents, and keep the City informed of the progress of the work. In the event that the Consultant’s visit to the site results in the discovery of any defect or deficiencies in the work of the general construction contractor, the Consultant shall immediately advise t he City and document, in writing, the work the Consultant deems substandard, and make recommendations where appropriate to reject any work not conforming to the intended design or specifications. Based on the Consultant’s best knowledge, information, and belief, the Consultant shall provi de the City a general written assurance that the work covered by a payment application meets the standards in the general construction contract. As to technical aspects, the C onsultant shall provide a written judgment of the acceptability of the work for payment applications and final acceptance, subject to the City’s right to overrule the Consultant. (4) Upon written request by the Cit y, the Consultant shall render interpretations of the general constructi on contract documents necessary for the proper execution or progress of the work.
(5) Upon written request by the Cit y, the Consultant shall render written recommendations on change orders, cl aims, disputes, or other questions
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arising out of the general construction contract, in a timely manner.
Recommendations by the Consultant in favor of a change order that is consequently accepted by the City shall constitute approval by the Consultant who shall then approve the chang e order in writing. T he Consultant shall not unreasonably withhold written approval in the event the City accepts a change order that the Consultant recommended to be rejected. In the event of any technical disputes, the Consultant sha ll provide the City with the Consultant’s written interpretation of the contract documents. The period for the Consultant review shall be as specified in the general construction contract, except if such period is not so specified, the period shall be as determined in the pre-construction conference as mutually agreed upon by the City, the Consultant and the general construction contractor. If the City, t he Consultant, and the respective general construction contractor are unable to mu tually agree on such period for the Consultant review, then the City will make the determination and that determination will be final.
(6) Upon written request by the City, the Consultant shall provide such design and specification services as may be requested by the City to implement change orders necessary for clarification or interpretation of the general construction contract documents or whic h may have resulted from errors or omissions by the Consultant.
(7) Where change orders arise as a re sult of an increase in the scope of work or are due to unforeseeable conditions, the parties may modify this Agreement, which modification shall include an agreed upon increase in the Consultant’s compensation.
(8) Upon written request of the City, the Consultant shall assist the City in the preparati on of Progress Payment Estimates and other related construction reports.
(9) The Consultant shall provide t he City with two sets of original as-grade plans wet-stamped and signed by the Consultant’s Engineer of Record for the Project submitted for final appr oval by the City’s Building and Safety Services Division of the Development and Resource Management Department on all projects located outside the Right of Way.
(10) The Consultant shall prepar e Record Drawings by updating the accepted general construction documents in Part Three to reflect all changes or deviations that occurred during construction as reflected on or from each of the following: (i) the general construction c ontractor provided red-lined plans, (ii) those furnished by the City, (iii) the C onsultant provided Request for Information responses, and (iv) any the Consultant bul letins, amendments or clarifications.
The Consultant shall provide the City with one set of vellum Record Drawings for the Project within twenty calendar days fr om receipt of red-lined field markups unless an extension of time is approved in writing by the Director. Re-submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within five calendar days from receipt of the City comments unless an extension of time is approved in writing by the Dir ector. In addition, the Consultant shall
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provide the City with one complete set of CAD/System disk files of Record Drawings in the following format: PDF.
2. The City’s responsibilities. The City will:
(a) Provide, upon request and cooperati on of the Consultant, access to, and make all provisions necessa ry to, enter upon public or private lands as required for the Consultant to perform such services and inspections as are required in development of the Project; provided, howev er, if the City is unable to obtain access to enter upon public or private lands, the C onsultant shall not be relieved from performing its services as to those public and private lands that are accessible. If the Consultant notifies the City that a topographic survey is required by the Consultant in connection with the consulting services, then the City will be responsible for conducting the topographic survey. (b) Manage and be responsible for all negotiations with owners in connection with land or easement acquisition and provide all required title reports and appraisals.
(c) With the exception of prepari ng correspondence required for design, hold all required special meetings, serve all public and private notices, receive and act upon all protests, and perform all services cu stomarily performed by owners as are necessary for the orderly pr ogress of the work and the su ccessful completion of the Project, and pay all costs incidental thereto.
(d) Select the testing laboratory and pay the cost of borings, samplings, and other work involved in soils testing during construction. (e) Conduct onsite inspection during construction to check quality and quantity of work as conditions warrant and be responsible fo r assuring that the general construction contractor carries out all construction work in accordance with the plans and specifications. However, this does not releas e the Consultant from its responsibility to make periodic site visits under Section 1(e) for the purpose of observing the work to determine its general conformity with the pl ans and specificati ons and reporting its findings to the City.
(f) Prepare all change orders during construction in cooperation with the Consultant.
(g) Prepare all Progress Payment Es timates in cooperation with the Consultant following its general assuranc e that the work covered by a payment application meets the standards in the general construction contract documents based upon the Consultant’s best knowledge, information, and belief. (h) Pay, or cause to be paid, plan c heck fees, conditional use permit fees and site plan review fees.
(i) Arrange for and pay, or cause to be paid, any fees associated with Environmental Impact Reports or Statements.
(j) Give reasonably prompt considerati on to all matters submitted by the Consultant for acceptance to the end that there will be no substantial delays in the Consultant’s program of work. For an acceptance, approval, authorization, a request or any direction to the Consultant to be bi nding upon the City under the terms of this
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Agreement, such acceptance, approval, authoriz ation, request or dire ction must be in writing, duly authorized by the City and signed on behalf of the City by the Director.
3. Compensation.
(a) The Consultant’s sole compensat ion for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee of $192,750.00, and a contingency amount not to exceed $5,000.00 for any additional work rendered pursuant to Subsection (d) below and authorized in writing by the Director. Such fees include all expenses incurred by the Consultant in performance of such services. (b) Detailed statements shall be rendered monthly and will be payable in the normal course of City business. Such statements shall be for an amount no greater than that attributable to the part upon which the Consultant is then engaged as provided in Section 3(c) below.
(c) For purposes of determining the division of the total compensation to the Consultant as provided in Section 3(a) above, or shoul d performance of any succeeding part not be authorized by the City as provided in Section 1 of this Agreement, it is agreed that the total compensation shall be allocat ed to the five parts of the Consultant’s performance as follows: Part One – 10%, Part Two – 20%, Part Three – 35%, Part Four – 2.5% and Part Five – 32.5%. Prior to the award of a general construction contract for the Project, or should such contract not be awarded, the approved Parts as provided above shall be utilized for purposes of determining the fee due to the Consultant. (d) The parties may modify this 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 representative for each party. The Consultant shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. Subsequent to the date of completi on of Part Three, changes due to Code revisions or enactments adopted after such date shall constitute additional work subject to this Section 3(d).
4. Termination, Remedies, Force Majeur e, and Consolidation of Disputes. (a) This Agreement shall terminate without any liability of the City to the Consultant upon the earlier of: (i ) the Consultant’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the Consultant; (ii) seven calendar 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
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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 City 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 the request of the Director or designee, in the event the Consultant fails to comply with any terms or conditions of this Agreement. (f) The Consultant shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Consultant shall notify the Director or designee in writing as soon as it is reasonably possible afte r the commencement of any excusable delay, setting forth the full pa rticulars in connection therewith, and shall remedy such occurrence with all reasonable di spatch, and shall promptly give written notice to the Director or designee of the cessation of such occurrence. (g) The Consultant agrees that, notwit hstanding any contrary provision in this Agreement, any dispute arising from or relating to this Agreement (including, without limitation, disputes bas ed on contract, tort, equity or statute) may, at the City’s option, be joined and c onsolidated with any other dispute or disputes arising from or relating to the Project so that all disputes ar ising from or relating to the Project may be resolved in a single proceeding. The Consultant hereby specifically waives any objection it may otherwise have to such joinder and consolidation and specifically consents to mediation, arbitration or any other dispute resolution mechanism, forum or proceeding necessary to effectuate the joinder and consolidation contemplated by this provision.
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 approv al 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
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“Confidential Information” for the purposes of this Agreement shall include all proprietary and confidential information of the City, including but not limited to business plans, marketing plans, financial information, desi gns, drawings, specifications, materials, compilations, documents, inst ruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media.
All Confidential Information shall be and remain confidential and proprietary in the City. (b) Any and all original sketches, penc il tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by the Cons ultant pursuant to this Ag reement are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement or default by the Consultant. The Consultant grants the City a copyright license to use such drawings an d 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 Consultant may keep a copy of all drawings 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 subcontractors. Therefore, any acceptance of such services by the City shall not operate as a release of the Consultant or any subcontractors from said professional standards.
7. Indemnification. To the furthest extent allowed by law, including California Civil Code section 2782, Consultant shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents, and volunteers fr om any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to persona l 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, liti gation expenses and cost to enforce this agreement) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant, its principals, officers, employ ees, agents, or volunteer s in the performance of this Agreement.
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If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall requi re each subcontractor to indemnify, hold harmless and defend City and each of its office rs, 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 Agreement, with an insuranc e company(ies) either (i) admitted by the California Insurance Comm issioner 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 am ounts stated therein. Ho wever, 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, all services and work under this Agreement shall be discontinued immediately, and all payments due, or that become due, to the Consult ant shall be withheld until insurance is in compliance with the requirem ents. Any failure to maintain the required insurance shall be sufficient cause for the Cit y to terminate this Agreement. No action taken by the City pursuant to this section sha ll in any way relieve t he Consultant of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification 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 obtained by the Consultant shall not be deemed to release or diminish the liability of the Cons ultant, including, without limitation, liability under the indemnity provisions of this Agre ement. The duty to i ndemnify the City shall apply to all claims and liability regardle ss 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.
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
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and duty to immediately notify the City in writing of any change to the information provided by the Consultant in such statement.
(b) The Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts ; and (ii) federal, stat e, and local conflict of interest laws and regulations including, wit hout limitation, California Government Code Section 1090 et. seq., the California Political Reform 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 subcontr actors to take, reas onable steps to avoid any appearance of a conflict of interest. Upon di scovery of any facts giving rise to the appearance of a conflict of interest, the Consul tant shall immediately notify the City of these facts in writing.
(c) Consultant’s duties and servic es under this Agreement shall not include preparing or assist ing the City with any portion of the City’s preparation of a request for proposals, request for qualifications , or any other solicitation regarding a subsequent or additional contract with the City. The City entering this Agreement shall at all times retain responsibility for public c ontracting, including with respect to any subsequent phase of this Project. Consultant’s participation in the planning, discussions, or drawing of project plans or specifications shall be limited to conceptual, preliminary, or initial plans or specifications . Consultant shall cooperate with the City to ensure that all bidders for a subsequent contract on any subsequent phase of this Project have access to the same information, including all conc eptual, preliminary, or initial plans or specifications prepared by Consultant pursuant to this Agreement. (d) 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 requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved.
(e) The Consultant represents and wa rrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit, 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.
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(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 t he event the Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall:
(a) Immediately establish and maintain a viable and ongoing recycling program, approved by the City’s Solid Waste Management Divis ion, for each office and facility. Literature describing the City recycling programs is available from the City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621- 1111.
(b) Immediately contact the City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to th e satisfaction of the City’s Solid Waste Management Division the establis hment of the recyc ling program in paragraph (a) above and the ongoing maintenance thereof.
11. General Terms.
(a) Except as otherwise provided by la w, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or designee. (b) Records of the Consultant’s expen ses pertaining to the Project shall be kept on a generally recognized accounting bas is and shall be available to the City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of the Consultant pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for t he same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made av ailable to the City until such action is resolved, or until the end of said time period whichever shall later occur. If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the 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 license is require d). If the Consultant should subcontract all or any portion of the work or services to be performed under this
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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. (d) The Consultant’s services pur suant to this Agreement shall be provided under the supervision of Michael Schoen, and he/she shall not assign another to supervise the Consultant’s performance of this Agreem ent without the prior written approval of the Director.
12. Nondiscrimination. To the extent required by c ontrolling 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 veteran 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 di sabled 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, in cluding apprenticeship. The C onsultant 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 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
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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 independent contract or. Neither the 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 the extent otherwise provided in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an i ndependent contractor, the Consultant and its officers, agents, and employees shall ha ve absolutely no right to employment rights and benefits available to City employees. The Consultant shall be solely liable and responsible for all payro ll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, the Consultant shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to em ployment and tax withholding for and payment of the Consultant's employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of work ers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in the City employment benefits, entitlements, programs and/or funds offered em ployees 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 int ended 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 parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deem ed sufficiently served or given at the time of the mailing thereof.
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15. Binding. Subject to Section 16 below, once this Agreement is signed by all parties, it shall be binding u pon, and shall inure to the benef it of, all parties, and each party’s respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives.
16. Assignment.
(a) This Agreement is personal to the Consultant and there shall be no assignment by the Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by the Consultant, its successors or assigns, sha ll be null and void unless approved in writing by the City Manager or designee.
(b) The Consultant hereby agrees not to assign the payment of any monies due the Consultant from the City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). The City retains the ri ght to pay any and all monies due the Consultant directly to the Consultant.
17. Compliance With Law. In providin g the services required under this Agreement, the Consultant shall at all times comply with all applicable laws of the United States, including, but not limited to, the Americans with Disabilities Act (42 U.S.C. §§ 12101 et seq.), the State of California and t he City, and with all applicable regulations promulgated by federal, state, regional, or local administr ative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement.
18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement.
Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.
19. Governing Law and Venue. This Ag reement 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 th is 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
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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 ev ent 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 attachm ent. 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 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 ri ghts, 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 instrument 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 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
By:
Brian Barr, Director
General Services Department
No signature of City Attorney required.
Standard Document #GSD-S
Engineering CSA, Long Form Total Fee
– Contingency (05-2024) has been used
without modification, as certified by the
undersigned.
By:
Robin O'Malley
Facilities Manager
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Date
Deputy
PBK ARCHITECTS,
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)
REVIEWED BY:
Addresses:
CITY:
City of Fresno
Attention: Johanes Castellanos
Project Manager
2101 G. St, Building C
Fresno, CA 93706-1620
Phone: (559) 621-1215
E-mail:
[email protected]
CONSULTANT:
PBK Architects
Attention: Michael Schoen
Principal
7790 N. Palm Ave.
Fresno, CA 93711
Phone: (562) 537-4379
E-mail: [email protected]
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
Michael Schoen
Principal
Jason Sette
CFO
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GSD-B Eng. CSA, Long Form TF - Contingency (05-2024)
EXHIBIT A
EXHIBIT A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno (City) and PBK Architects (Consultant)
Municipal Service Center Security
I. SCOPE OF BASIC WORK:
As we understand, the city inte nds to upgrade the exterior security at the City of Fresno MSC. The Scope of Work is per the attached dated October 16, 2023.
II. SCOPE OF SERVICES:
The Services to be performed by PBK will be executed as follows:
A. Provide Basic Services for Architectu ral / Engineering serv ices for the above- mentioned scope of work items. These basic services include: Architectural, Electrical, and Civil.
III. ASSUMPTIONS & EXCLUSIONS:
A. The city shall provide as-builts or dr awings of original construction and any previous improvements.
B. The city shall provide an overall t opographical survey, ground topographic survey, and underground utility survey of the areas in CAD files, including adequate information to delineate a path of travel from the site items noted above to the area within the scope of work.
IV. COMPENSATION:
A. Fee Calculation: Compensation for Ba sic Services to facilitate programming through closeout of this project as noted above shall be based on a fixed fee basis.
B. Drawings and Specifications for agency review and approval.
C. Processing of Submit tals during Construction.
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EXHIBIT A
V. SCHEDULE / TIMELINE:
Proposed Schedule is as follows:
• Schematic Design - 3 Weeks
• Design Development - 2 Months
• Construction Documents - 2 Months
• Agency Review and Approval - TBD
• Bidding / Award - TBD
• Construction Admin - 4 Months (anticipated)
• Closeout - 1 Month
VI. ADDITIONAL SERVICES:
If additional work is required beyond what is noted above, PBK will provide services for these scope of work items under a separate proposal. No additional services will be performed without receiving written permission from the district.
VII. REIMBURSABLE EXPENSES:
All reimbursable invoices will include associ ated back-up receipts. There will be a 10% mark-up on reimbursable expenses. The re imbursable expenses are not expected to exceed five thousand dollars ($5,000).
Reimbursable expenses will be limited to the following:
A. All necessary Drawings and Specificat ions for Progress Review Sets for the District during the Design Phase(s).
GSD-B Eng. CSA, Long Form TF - Contingency (05-2024)
EXHIBIT B
EXHIBIT B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (City) and PBK Architects (Consultant)
Municipal Service Center Security
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 operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage fo r “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equi pment), products and comp leted operations, and contractual liability (includi ng, without limitation, indemnity obligations under the Agreement) with limits of liability not less t han those set forth under “Minimum Limits of Insurance.”
2. The most current version of Commercial Auto Coverage Form CA 00 01, providing liability coverage ar ising 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, sha ll 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 specifi ed 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.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
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EXHIBIT B
3. WORKERS’ COMPENSATION INSURANC E 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) requir ed herein and the Consultant s hall also be responsible for payment of any 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 Consultant shall establish additional insured status for the City and for all ongoi ng and completed operations by use of endorsements providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85 or CG 20 10 04 13.
2. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, offici als, employees, agents, and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured.
3. The Consultant’s insurance cove rage shall be primary insurance with respect to the City, its officers, offici als, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents, and volunteers shall be excess of t he Consultant’s insurance and shall not contribute with it. The Consultant shall es tablish primary and non-c ontributory status on the General Liability policy by use of IS O Form CG 20 01 04 13, or by an executed endorsement that provides primary and non-contributory st atus as broad as that contained in ISO Form CG 20 01 04 13.
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EXHIBIT B
4. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: the Consultant and its insurer shall waive any right of subrogation against the City, its officers, officials, employees, agents, and volunteers.
5. 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 da ys written notice by certified ma il, return receipt 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 coverage or in limits, the Consultant shall furnish t he City with a new ce rtificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for the City, the Consultant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy.
6. Should any of the requi red policies provide that the defense costs are paid within the Limits of Liability, thereby reduci ng the available limits by any defense costs, then the requirement for the Limits of Liabilit y of these polices will be twice the above stated limits.
7. The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish the liability of the Cons ultant, including, without limitation, 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, o fficers, agents, employees, persons under the supervision of the Consultant, vendor s, suppliers, invitees, consultants, sub- consultants, subcontractors, or anyone employed directly or indirectly by any of them.
CLAIMS-MADE POLICIES
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 (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 5-year discovery period.
3. If coverage is canceled or non -renewed, and not replaced with another claims-made policy form with a retroactive dat e prior to the effective date of the Agreement or the commencement of work by the Consultant, the 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 requi rements must be submitted to the City for review.
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EXHIBIT B
5. These requirements shall surviv e expiration or termination of the Agreement.
VERIFICATION OF COVERAGE
The Consultant shall furnish the City with all cert ificate(s) and applicable endorsements effecting coverage required hereunder. All cert ificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee 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 shall immediately furnish 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 co rrect copy of the original policy. This requirement shall survive expiration or termination of this Agreement.
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 Risk Manager or designee, subcontractor(s) to enter into a separate side agreem ent with the City to provide required indemnification and insu rance protection. Any required side agreement(s) and associated insurance docum ents for the subcontractor must be reviewed and preapproved by the City’s Risk Manager or designee. If no side agreement is required, the Consultant shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and the Consultant shall ensure that the City, its officers, officials, employees, agents, an d volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with the Consultant, and the City, prior to commencement of any work by the subcontractor.
GSD-B Eng. CSA, Long Form TF - Contingency (05-2024)
EXHIBIT C
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Municipal Service Center Security
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, organi zation, 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 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)
June 12, 2024
Michael Schoen
PBK Architects
7790 N Palm ave.
Fresno, CA 93711