AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSUL TANT SERVICES
THIS AGREEMENT is made and entered into effective the ! S
t' day of July, 2019, by
and between the CITY OF FRESNO, a California municipal corporation (hereinafter referred to as "CITY"), and CAROLLO ENGINEERS, INC., A Delaware Corporation (hereinafter referred to as "CONSULTANT").
RECITALS
WHEREAS, CITY desires to obtain professional consulting engineering services for North Avenue Sewer Trunk Main Realignment, hereinafter referred to as the "Project;" and WHEREAS, CONSULTANT is engaged in the business of furnishing services as a Professional Engineer and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, CONSUL TANT 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. CONSUL TANT 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 July 18, 2020, subject to any earlier termination in accordance with this Agreement. The services of CONSUL TANT 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 three hundred sixty-five (365) 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 of One Hundred Ninety Thousand Nine Hundred Twenty Dollars ($190,920), and a contingency amount not to exceed Twenty Thousand Dollars ($20,000) for any additional work rendered pursuant to Subsection (c) below and authorized in writing by the Director. Such fees include all expenses incurred by CONSUL TANT in performance of such services. (b) Detailed statements shall be rendered monthly and will be payable in the normal course of CITY business.
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(c) The parties may modify this Agreement 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 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. CONSUL TANT 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 CONSUL TANT 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 CONSUL TANT; (ii) 7 calendar days prior written notice with or without cause by CITY to CONSUL TANT; (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, CONSUL TANT 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, CONSUL TANT shall be paid compensation for services satisfactorily performed prior to the effective date of termination. CONSUL TANT 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 CONSUL TANT 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 CONSUL TANT, nor shall such payment impair or prejudice any remedy available to CITY with respect to the breach.
(d) Upon any breach of this Agreement by CONSUL TANT, 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) CONSUL TANT shall provide CITY with adequate written assurances of future performance, upon Director's request, in the event CONSUL TANT fails to comply with any terms or conditions of this Agreement.
(f) CONSUL TANT shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of CONSUL TANT 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 DPU-S 8.1 /03-24-14
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common carriers. CONSUL TANT shall notify 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 CONSUL TANT pursuant to this Agreement shall not be made available to any individual or organization by CONSUL TANT without the prior written approval of CITY. During the term of this Agreement, and thereafter, CONSUL TANT 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 CONSUL TANT pursuant to this Agreement are 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 CONSUL TANT. CONSUL TANT grants CITY a copyright license to use such drawings and writings. CONSUL TANT 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 CONSUL TANT will be at CITY'S sole risk and without liability or legal exposure to CONSUL TANT. CONSUL TANT may keep a copy of all drawings and specifications for its sole and exclusive use.
(c) If CONSUL TANT should subcontract all or any portion of the services to be performed under this Agreement, CONSUL TANT 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 CONSUL TANT represents to CITY that CONSUL TANT 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 CONSUL TANT and any subcontractors to do and perform such services in a skillful manner and CONSUL TANT agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by CITY shall not operate as a release of CONSUL TANT or any subcontractors from said professional standards.
7. Indemnification. To the furthest extent allowed by law, CONSUL TANT shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents DPU-S 8.1/03-24-14
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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 CONSUL TANT, its principals, officers, employees, agents or volunteers in the performance of this Agreement.
If CONSUL TANT should subcontract all or any portion of the services to be performed under this Agreement, CONSUL TANT 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, CONSUL TANT 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 amounts 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, CONSUL TANT 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 CONSUL TANT 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 CONSUL TANT 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 CONSUL TANT shall not be deemed to release or diminish the liability of CONSUL TANT, 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 CONSUL TANT.
Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONSUL TANT, its principals, officers, agents, employees, persons under the supervision of CONSUL TANT, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) If CONSUL TANT should subcontract all or any portion of the services to be performed under this Agreement, CONSUL TANT shall require each subcontractor/sub consultant to provide insurance protection, as an additional insured, to the CITY and each of its DPU-S 8.1 /03-24-14
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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 CONSUL TANT and CITY prior to the commencement of any services by the subcontractor.
CONSUL TANT 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) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85.
9. Conflict of Interest and Non-Solicitation.
(a) Prior to CITY'S execution of this Agreement, CONSUL TANT 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, CONSUL TANT shall have the obligation and duty to immediately notify CITY in writing of any change to the information provided by CONSUL TANT in such statement.
(b) CONSUL TANT 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, 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, CONSUL TANT shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, CONSUL TANT and the respective subcontractor(s) are in full compliance with all laws and regulations. CONSUL TANT 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, CONSUL TANT shall immediately notify CITY of these facts in writing.
(c) In performing the work or services to be provided hereunder, CONSUL TANT 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) CONSUL TANT 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 CONSUL TANT, 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.
CONSUL TANT 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.
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(f) If CONSUL TANT should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, CONSUL TANT 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 CONSUL TANT 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, CONSUL TANT at its sole cost and expense shall:
(i)
(ii)
(iii)
11. 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.
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.
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.
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 CONSUL TANT pertaining to the Project shall be available for the purpose of making audits, examinations, 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 CONSUL TANT should subcontract all or any portion of the services to be performed under this Agreement, CONSUL TANT 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 Agreement by CITY, CONSUL TANT shall have provided evidence to CITY that CONSULT ANT is licensed to perform the services called for by this Agreement (or that no license is required). If CONSUL TANT should subcontract all or any portion of the work or services to be performed under this Agreement, CONSUL TANT shall require each subcontractor to provide evidence to CITY that subcontractor is licensed to DPU-S 8.1/ 03-24-14
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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, CONSUL TANT 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, CONSUL TANT agrees as follows:
(a) CONSUL TANT 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) CONSUL TANT 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. CONSUL TANT 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, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to 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, including apprenticeship.
CONSUL TANT agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) CONSUL TANT will, in all solicitations or advertisements for employees placed by or on behalf of CONSUL TANT 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) CONSUL TANT 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.
(e) If CONSUL TANT should subcontract all or any portion of the services to be performed under this Agreement, CONSUL TANT shall cause each subcontractor to also comply with the requirements of this Section 12.
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13. Independent Contractor.
(a) In the furnishing of the services provided for herein, CONSUL TANT is acting solely as an independent contractor. Neither CONSUL TANT, 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 CONSUL TANT shall perform its work and functions. However, CITY shall retain the right to administer this Agreement so as to verify that CONSUL TANT is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between CONSUL TANT and CITY. CONSUL TANT shall have no authority to bind CITY absent CITY'S express written consent. Except to the extent otherwise provided in this Agreement, CONSUL TANT shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, CONSUL TANT and its officers, agents and employees shall have absolutely no right to employment rights and benefits available to CITY employees. CONSUL TANT 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 including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, CONSUL TANT 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 written 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 shall 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 CONSUL TANT and there shall be no assignment by CONSUL TANT 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 CONSUL TANT, 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 CONSUL TANT from CITY 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 CONSUL TANT directly to CONSUL TANT.
17. Compliance With Law. In providing the services required under this Agreement, CONSUL TANT 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. Severabi!i!Y. 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 intend ed 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 between 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 CONSUL TANT.
I II
II I
II I
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IN WITNE SS WHEREOF, the parties have executed this Agreement at Fresno, Californi a, the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
By: m:·��
Michael Carbajal,
Director
Department of Publi c Utilities
ATTEST:
YVONNE SPENCE, MMC CRM
City Clerk
By: YY)C1A6Q lfY] M l!::,
Deputy �/ ,rc..o \../1..;•j' "-<f
�, ,' '1
No signature of City Attorney required.
Standard Document #DPU-S 8. 1 has been
used without modification, as certified by
the unde
2:
·
By: ,�&A �,kk::_e.
,, Sarah Aguila,
Super vising Engineering Technician
Department of Public Utilities
REVIEWED BY: &iii
Dejan Pavic,
Public Utilities Manager
Department of Public Utilities
Addresses:
CITY:
City of Fresno
Attention: Sarah Aguila,
::2
Supervising Engine ering Technician
2101 G St., Bldg A
Fresno, CA 93706
Phone: (559) 621- 16 15
FAX: (559) 498-4 12 6
Attachments:
1. 2.
Exhibit A - Scope of Services
Exhibit B - Insur ance Requirements
By: -1-..::::::...--(...,L��====:....
Name: �(__ �S
Title: \J ,� �(4µ;,�
(if corporation or LLC, Board
hair, Pres. or Vice Pres.)
Name: Michael W. Barnes
Title: Corporate Secretary
(if corporation or LLC, CFO,
Treasurer, Secretary or Assistant
Secretary)
Any Applicable Professional License:
Number: C "':\-3 '3'5 I Name: \f= ,.Iµ c... �� S
Date of Issuance: -=l- I 'fl\ I oq,
CONSUL TANT:
Carollo Engineers, Inc.
Attention: Reace Fisher,
Project Manager
71 0 W. Pinedale Ave.
Fresno, CA 9371 1
Phone: (559) 436-66 16
FAX: (559) 436-1 19 1
3. Exhibit C - Conflict of Interest Disclosure Form
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Backgr ound
Exhibit A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno ("City") and Carollo Engi neers, Inc. ("Consu ltan t")
North Avenue Sewer Trunk Main Rea lignment
PROJECT TITLE
The City of Fresno (City) recently exper ienced a sewer main failur e on a segment of the North Avenue Trunk near North Avenue and Golden State Bou levard (GSB). This failur e occurred on a very critical section of the tr unk line due to its proxim ity and crossing of the Uni on Pacific Railr oad (UPRR), Burli ngton Northern Santa Fe Railr oad (BNSF), Fresno Irrigation District (FID ), and the GS B/North A�enue bridge crossing. In spectio ns of this segment of pipe show appr oxi mately 3-inches or less pipe wall· remaining of the orig inal 8-inch thick concrete pipe.
Cu rrently there is no means of bypass pump ing for the 57-inch dia meter sewer trunk and therefore the repair of this pipeline is an emergency. The following scope details the necessary steps to design a new 66-inch diameter parallel and connec t to the existing North Avenue Trunk.
Task 1 - Project Management and Meetings
As part of Task 0, Carollo's project manager will direct and coord inate the efforts of the project team membe rs in order to compl ete the project within the contracted scope, sched ule, and budget.
Task 1. 1 - Project Management. This task includes manag ing the project team to track time and budget, work ele ments accomplished, work items plan ned for the next period , manpower, scope changes, time, and budget needed to comple te the project. We will create and maintain a working project schedule and review project status, including scope, budget, and schedule throughout the dur ation of the pr oject.
Task 1. 2 - Progress Meetings. This task consis ts of up to three progress meetings between the project team and City staff throughout the dur ation of the project. The progress meetings will be schedu led to discuss key mil estones for the project.
Task 2 - Schematic Design Phase
Task 2.1 - Identify Existing Utilities. The project team will coordi nate with the City to incorporate the existing util ity companies' information into the project docu ments using the City's View Fresno . Our project team will pay close attention to existing utilities within the project areas to minimi ze potential conflicts. The City will provide all record drawings within the vicin ity of the project ali gnments.
Task 2.2 - Topogr aphic Surv ey. Our su bconsultant, Yamabe and Horn Engi neering will provide all of the topographi c survey work necessary to comp lete the Project. Provide aerial topography supp lem ented by ground survey that will include estimated elevations for existing utilities, inverts for gravity facilities , additional util ity locations along the alignm ent, as well as edge of property locatio ns. Topog raphic survey will be provided at 1" = 20'.
DPU-S 8.1 /03-24-14
Task 2.3 - Geotechnical Investigation. The geotechnical investigation and report will be provided under this task by our subconsultant BSK and Associates. The report will summarize the findings of the field investigation and provide detailed information to be included in the final design documents. This information includes groundwater elevations below ground surface for the design of the cured-in-place pipe product, soil bearing pressures and other information for shoring design, and existing pavement structural sections should an open cut spot repair be required. This will include one (2) borings.
Task 2.4 - Permitting. This task includes the development of permitting documents and coordination with permitting agencies. The permits included are UPRR, BNSF, FID, and CalTrans. Permit applications will be paid for and submitted by the City. Carollo will provide the application documents, necessary support documents, and assist with coordination of each of the agencies.
Task 2.5 - Trenchless Confirmation. Our subconsultant, DCM Consulting, Inc., will review existing geotechnical information and the preliminary design to get an understanding of the site conditions. The subconsultant will work with the Geotechnical Consultant BSK with the field exploration to obtain the required information needed for the trenchless design. Based on the results of the borings, the subconsultant will provide recommendations, if needed for additional information. The subconsultant will prepare a Trenchless Design Summary Report (TDSR) for the proposed trenchless crossing. The report will include recommendations for the most cost effective trenchless technology, locations for boring pits, and casing sizes to allow for installation of the 66-inch diameter pipeline.
Task 2.6 - Schematic (30 Percent) Design Package.
This task includes the development of the Schematic Design documents. The documents will be developed in standard City title block drawing sheet format to a 30 percent level of design and will be provided in hardcopy format. This task includes the development of the preliminary design plans. Five (5) half size plan sets will be provided to the City.
City Responsibilities for Task 2:
• Coordinate with consultant for existing utility locations. • Provide record drawings for all associated alignments.
Submit and pay for any permit fees.
• Submittal Review for 30 percent Schematic Design Submittals. • Review of 30 percent cost estimates.
• Provide review comments on 30 percent Schematic Design documents.
Deliverables for Task 2:
• Topographic Survey.
• Geotechnical Report (PDF).
• Permit applications.
• Trenchless Design Summary Report (PDF).
• 30 percent Schematic Design Submittal Package.
Task 3- Design Development Phase
This task includes the development of the Design Development documents. This is a 60 percent Plans, Specifications, and Estimate (PS&E) submittal package. The documents will be provided in hardcopy format.
DPU-S 8.1 /03-24-14
3.1 - Develop 60 percent Plans and Specifications Submittal for the project. This task includes the development of the plans and specifications to the 60 percent level for City review. In addition, a site walkthrough will be conducted to assure all assumptions from the 30 percent level are correct prior to completing the 60 percent document submittal package. All City review comments from the 30 percent Submittal Review will be incorporated into the project documents and a comment review log provided to the City with appropriate responses. Five (5) full size plan sets.
City Responsibilities for Task 3:
• Review of 60 percent submittal packages.
• Provide review comments on 60 percent Design Development documents.
Deliverables for Task 3:
• 60 percent Schematic Design Submittal Package (PS&E).
Task 4 - Contract Document Phase
Task 4.1 - Develop 90% Contract Documents
This task includes the development of the contract documents for the rehabilitation projects to provide the City with the necessary documentation and permits to bid and construct the project.
The documents will be developed in standard City title block drawing sheet format and will be provided in both hardcopy and digital format. This task includes the development of the plans and specifications to the 90 percent level for City review. All City review comments from the 60 percent Submittal Review will be incorporated into the project documents and a comment review log provided to the City with appropriate responses. Develop engineer's opinion of probable construction cost. Five (5) full size plan sets and one (1) copy of the specifications will be provided to the City.
4.2- Develop Final 100 percent Submittal Package. This task includes the development of the FINAL plans and specifications for bidding purposes. All City review comments from the 90 percent Submittal Review will be incorporated into the project documents and a comment review log provided to the City with appropriate responses. One (1) hard copy set of plans will be provided to the City. All digital files associated with the FINAL Plans, Specifications, and cost estimate Submittal will be provided in PDF format for bidding.
City Responsibilities for Task 4:
• Review of 90 percent submittal packages.
• Review of 90 percent cost estimates.
• Provide review comments on 90 percent Contract Documents • Route Final 100% Bid Documents for signatures (no changes allowed) Deliverables for Task 4:
• 90 percent submittal package PS&E.
• 100 percent Bid package PS&E.
Task 5 - Bid Phase Services
This task includes attending pre-bid meeting with the City and answering questions from the meeting and provide answers with an addendum. Addenda format will be provided by the City.
Bidding of projects of this size typically requires about one (1) month.
DPU-S 8.1 /03-24-14
5.1 - Answer Bid Questions/ Provide Addenda. The project team will provide assistance, as required, to the City during the bidding of the projects under this task. This task will include answering questions, preparing one (1) addenda to the Plans, Specifications, and Estimate (PS&E) during the advertisement period, and providing ongoing consultation and interpretation of the construction documents. All logged questions will be distributed to the City, and the project team members. This process can be refined before issuance of the bidding documents.
City Responsibilities for Task 5:
• Schedule and control Pre-Bid Conference.
• Provide Consultant with questions from contractors
• Provide Consultant with Addendum format
• Review and Issue Addenda
Deliverables for Task 5:
• Answer bid questions and provide a response in one (1) Addenda (as required).
Task 6 - Construction Support Services
Engineering services during construction will be provided under this task. These services are limited to the typical office services such as submittal review and answering contractor questions. The tasks associated with this section are described below. No meetings will be attended under this task.
Task 6.1 - Construction Support Services
This task includes the necessary support services by the project team during the construction phase of the project. This includes attending the pre-construction meeting, review and comment on acceptability of contractor's submittals on behalf of the City. The review and comment will be coordinated with City staff as appropriate for the submittal being reviewed. All comments will be logged and returned to the submitter while maintaining continuity and open lines of communication. The project team will respond to Contractor generated requests for clarifications and/or information. The project team will also review any proposed change order requests and make recommendations.
City Responsibilities for Task 6:
• Schedule and control Pre-Construction Conferences.
• Pre- Construction Conference agenda and meeting minutes. • Log in and route submittals, RFl's and CCO's.
Deliverables for Task 6:
• Submittal Reviews, RFI Responses, CCO Reviews
Task 7 - Develop As-Built Drawings
Carollo will review the construction manager approved record drawings provided by the contractor, and assemble the final As-Built Drawings for submission to the City. Carollo will submit the Final record Drawings within 90 days of final payment to the contractor.
Deliverables Task 7:
• Utilizing the set of marked up drawings provided by the contractor and reviewed by the construction manager; Carollo will update the Conformed Project Documents.
Carollo will then submit one (1) Full-sized final set of As-Built Drawings in PDF format.
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DPU-S 8.1 /03-24-14
Exhibit B
INSUR ANCE REQUIREMEN TS
Consultant Service Agreement between City of Fresno ("CITY") and Carollo Engine ers, Inc. ("CONSUL TANT")
North Avenue Sewer Trunk Main Reali gnment
PROJECT TITLE
MINIMUM SCOPE OF INSUR ANC E
Coverage shall be at least as broad as:
1 . The most current version of In surance Services Office (IS O) Commer cial General Liabili ty Coverage Form CG 00 01 , providing liabili ty coverage arising out of your business oper ations. The Commercial General Liabili ty pol icy shall be written on an occurrence form and shall provide coverage for "bodily injury," "prope rty damage" and "personal and advertising injury" with coverage for premises and operations (including the use of owned and non-owned equip ment), products and comp leted operations, and contractual liabil ity (includ ing, without limi tation, indemni ty obligations under the Agreement ) with limi ts of liabili ty not less than those set forth under "Minimum Limits of In suranc e."
2. The most current version of IS O *Com mercial Auto Coverage Form CA 00 01 , providing liabili ty coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Polic y shall be written on an occurrence form and shall provide coverage for all owned , hi red, and non- owned automobiles or other licensed vehicles (Code 1- Any Auto). If personal automobile coverage is used , the CITY, its officers, officia ls, emplo yees, agents and volu nteers are to be listed as additional insur eds.
3. Workers' Compe nsation insur ance as required by the State of Cal ifornia an d Empl oyer's Lia bili ty Insur ance.
4. Professional Liabili ty (Er rors and Omissions) insur ance appropriate to CONSU LTANT'S profession. Architect's and engine er's coverage is to be endo rsed to include contractual liabili ty.
MINIMUM LIMI TS OF INSUR ANCE
CONSUL TANT, or any party the CONSUL TANT su bcontracts with, shall maintain li mits of liabili ty of not less than those set forth below. However, insur ance limi ts available to CITY, its officers, officials, emplo yees, agents and volu nteers as additional insur eds, shall be the greater of the minimum limi ts specified herein or the full limi t of any insur ance proceeds available to the named insur ed :
1. COMMERCIAL GENE RAL LIABI LITY:
DPU-S 8.1 /03-24-14
(i) $1 ,000,000 per occurrence for bodily injury and proper ty damage; (ii) $1 ,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggr egate for products and com pleted oper ations; and ,
2. COM ME RCIAL AUTOM OBIL E LIABI LITY:
$1 ,0 00,0 00 per acci den t for bod ily injur y and proper ty dama ge.
3. WORKER S' COMPE NSATION IN SUR ANCE as requir ed by the State of California with statutory li mits.
4. EMPL OYER'S LIABI LITY:
(i) $1 ,000 ,000 each acciden t for bod ily injur y;
(ii) $1 ,000 ,000 di sease each empl oyee ; and,
(iii) $1 ,000, 000 di sease polic y li mit.
5. PROFESSIO NAL LIABI LITY (Er rors and Omissions):
(i) $1 ,000 ,000 per clai m/occurrence; and,
(ii) $2 ,0 00 ,000 polic y aggr egate.
UM BRE LLA OR EXC ESS INS URAN CE
In the event CONSUL TANT purchases an Umb rell a or Excess insur ance polic y(ies) to meet the "M inimum Limi ts of In surance," this insur anc e pol icy( ies) sha ll "foll ow form" and afford no less coverage than the primar y insur an ce pol icy( ies). In addit ion, such Umbr ella or Excess in suranc e pol icy( ies) shall also apply on a primar y and non contri butory basis for the benefit of the CI TY, its officers, officials, employees, agents, and vo lun teers.
DEDUC TIBL ES AND SE LF-I NSUR ED RETE NTIONS
CON SUL TANT shall be resp onsi ble for payment of any deductib les conta in ed in any in suran ce pol icy( ies) requi red herein and CONSUL TANT shall als o be responsi ble for paymen t of any self-insur ed retentions. Any deductible s or self-in sur ed rete ntions mus t be decla red to on the Certificate of In sur ance, and appr oved by, the CITY's Risk Manager or de signee. At the option of the CIT Y's Risk Manager or designee, either:
(i) The insur er shall reduce or elimin ate such deductible s or self insur ed retentions as respects CIT Y, its officers, offici als, em ployees, agents, and volu nteers; or
(ii) CONSUL TANT shall provide a fi nancial guar antee , satisfactory to CIT Y's Risk Manager or designee, guar anteeing payment of losses and related investigatio ns, claim ad minis tration and defense expenses. At no time shall CITY be responsible for the payment of any dedu ctibl es or self-i nsur ed retentio ns.
OTH ER INSUR ANCE PROVI SIO NS/E ND ORSEME NTS
The General Liabilitv and Automobile Liability insurance policies are to conta in, or be endorsed to contain, the foll owi ng provisions:
1. CIT Y, its officers, offici als, em ployees, agents, and volu nteers are to be covered as addi tio nal insur eds. CONS UL TANT shall establish add itio nal insur ed status for the City and for all ongoin g and comple ted oper ations 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 manus cript ins urance company endor sement providing addi tional insur ed status as broad as that contai ned in ISO Form CG 20 10 11 85.
2/2/20 18
2. The coverage shall conta in no special limi tations on the scope of protection aff orded to CIT Y, its officers, officials , emplo yees, ag ents, and volu nteers. Any avail able ins urance proceed s in excess of the specified minimum limi ts and coverage shall be available to the Additional In sured .
3. For any claims relating to this Agreement, CONSUL TANT's insur ance coverage shall be prim ary ins urance with respec t to the CI TY, its officers, officials, empl oyees, agen ts, and volun teers . Any in surance or self ins urance ma intained by the CI TY, its officers, officials, employees, agen ts, and volu nteers shall be excess of CONS UL TANT's insur ance and shall not contribute with it. CONSUL TANT shall establish primar y and non-co ntributory status by using ISO Form CG 20 01 04 13 or by an executed manus cri pt insur ance company endor semen t that provides primar y and non-contri butory status as broad as that contai ned in ISO Form CG 20 01 04 13 .
The Workers' Compensation insurance policy is to contain, or be endor sed to conta in, the followi ng provision: CONS UL TANT and its insur er shall waive any right of su brogation agains t CITY, its officers, officials, employees, ag ents, and vo lunteers.
If the Professional Liability (Errors and Omissions) insurance policy is written on a clai ms-made form:
1. The retroactive date mu st be shown , and mus t be before the effective date of the Agreement or the commencemen t of work by CONS UL TANT.
2. In sur ance mus t be main tai ned and evide nce of insur ance must be provided for at leas t five (5) years after comp letion of the Agreement work or termin ation of the Agreement, whiche ver occurs first, or, in the alternative, the pol icy shall be endor sed to provide not less than a five (5) year di scovery period .
3. If coverage is cancele d or non-rene wed , and not replac ed with another clai ms-made pol icy form with a retroactive date prior to the effective date of the Agreemen t or the comme ncemen t of work by CONSUL TANT, CONSUL TANT mu st purchase "exte nded reporting" coverage for a minim um of five (5) years compl etion of the Agreement work or term in ation of the Agreement, whic hever occurs first.
4. A copy of the claims reporting requir emen ts mu st be subm itted to CI TY for review.
5. These requir emen ts shall survive expir ation or termin ation of the Agreement.
All policies of insurance requir ed herein shall be endor sed to provide that the coverage shall not be canc ell ed , non-r enewed , reduced in coverage or in limi ts except after thir ty (30) calendar days written notice by certified mail, return receipt requested , has been gi ven to CI TY. CONSUL TANT is als o respo nsible for provid ing written notice to the CITY under the sam e terms and cond itio ns. Upon issuan ce by the ins urer, broker, or agen t of a notice of canc el latio n, non-r enewal, or reduction in coverage or in limi ts, CONS ULT ANT shall furnish CIT Y with a new certificate and applicable endor semen ts for such polic y(ies). In the event any pol icy is due to expir e duri ng the work to be performed for CIT Y, CONS UL TANT shall provi de a new certificate , and applic able
2/2/20 18
endor sem ents , evidencing renewal of such pol icy not less than fifteen (15 ) calendar day s prior to the expir ation date of the expiring polic y.
Sh ould any of the requir ed polic ies provide that the defense costs are paid with in the Limi ts of Liabili ty, ther eby reduci ng the avai lable li mits by any defense costs, then the requir emen t for the Limi ts of Liabi lity of these pol ices will be twice the above stated limi ts.
The fact that insur anc e is obta in ed by CONSUL TANT sha ll not be dee med to releas e or dim in ish the li abili ty of CON SUL TANT, in clud ing , without limi tatio n, liabil ity under the indemni ty provi sions of this Agreement. The polic y limi ts do not act as a limitation upon the amoun t of indemni fication to be provided by CONS ULT ANT. Approval or purchase of any insur ance contracts or pol icies shall in no way reli eve from liabi lity nor limi t the liabili ty of CONSUL TANT, its princi pals, officers, agents, emplo yees, persons under the su pervision of CONS UL TANT, vendor s, suppli ers, invitees, consu ltants, su b consu lta nts, sub contractors , or an yone emp loyed dir ectly or indir ectly by any of them.
SU BCONT RACTORS - If CONS UL TANT su bcontr acts any or all of the services to be performed under this Agreement, CONSUL TANT shall requir e, at the di scretion of the CIT Y Risk Manager or designee, subcontr actor(s) to enter into a separ ate Side Agreem ent with the City to provide required indem nification and insur ance protection.
Any requir ed Side Agreemen t( s) and associa ted ins uran ce documen ts for the sub contractor must be reviewed and prea pproved by CIT Y Risk Man ager or designee.
If no Side Agreement is requ ired , CONSUL TANT will be solely responsible for ensur ing that it's su bcontractors main tain insur ance coverage at levels no less than those requir ed by applic able law and is customary in the relevant ind ustry.
VERIF ICATI ON OF COVERAGE
CONS ULTANT shall furnish CI TY with all certificate( s) and appl icable end orsemen ts effecti ng coverage requir ed hereunder . All certificates and applic able endorsements are to be received and appr oved by the CIT Y'S Risk Manager or his /her design ee prior to CITY' S execution of the Agreement and before work comme nces . All non-ISO end orsem ents amend ing polic y coverage sha ll be executed by a licensed and author ized agen t or broker. Upon request of CI TY, CONS UL TANT sha ll im med iately furnish City with a comple te copy of any ins urance pol icy requir ed under this Agreement, in clu ding all endor sem ents, with said copy certified by the underw riter to be a true an d correct copy of the original policy. This requir emen t sha ll survive expir ation or term in ation of this Agreement.
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1 2
3 4
5 6
Exhibit C
DISCLOSU RE OF CON FLIC T OF INT ERES T
North Avenue Sewer Trunk Main Realignment
PROJECT TITLE
Are you currently in litigation with the City of Fresno or any of its agents?
Do you represent any firm, organiz ation or person who is in litigation with the City of Fresno?
Do you currently represent or perform work for any clie nts who do busi ness with the City of Fresno?
Are you or any of your prin cipals, manager s or professionals, owner s or investors in a bu sine ss which does busin ess with the City of Fres no, or in a bu sine ss which is in litigation with the City of Fresno?
Are you or any of your principals, managers or professionals, related by bloo d or marriage to any City of Fresno empl oyee who has any sign ificant role in the sub ject matter of this service? Do you or any of your sub contractors have, or expect to have, any int erest, dir ect or indir ect, in any other contract in conn ec/lith this Project?
YES* NO
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* If the ans wer to any qu estion is yes , please explai ��r- )
Expla natio n:
D Additional page(s) attached.
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