HomeMy WebLinkAboutProvost and Pritchard - Armstrong-Kings Canyon Water Main - 1st Amdt. - 20201
FIRST AMENDMENT TO
AGREEMENT
THIS FIRST AMENDMENT TO AGREEMENT (Amendment) made and entered into
as of this _____ day of _________ 2020, amends the Agreement theretofore entered
between the CITY OF FRESNO, a California municipal corporation (CITY), and Provost &
Pritchard Consulting Group, Inc., a California corporation, (CONSULTANT).
RECITALS
WHEREAS, the CITY and the CONSULTANT entered into an agreement on October
14, 2019, (Agreement) to obtain professional engineering services for the Armstrong –
Kings Canyon to Butler Water Main Replacement Project for a total fee of $63,500; and
WHEREAS, the CITY and the CONSULTANT desire to modify the Agreement to
revise the project schedule and extend the completion date; and
WHEREAS, with entry into this Amendment, the CONSULTANT agrees it has no
claim, demand, or dispute against the CITY.
AGREEMENT
NOW, THEREFORE, the CITY and the CONSULTANT agree that the aforesaid
Agreement be amended as follows:
1. Section 2 of the Agreement is amended in its entirety to read as follows:
“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
October 29, 2021, subject to any earlier termination in accordance with
this Agreement. The services of CONSULTANT as described in Exhibit A
are to commence upon CITY'S issuance of a written "Notice to Proceed."
Work shall be undertaken and completed in a sequence assuring expeditious
completion, but in any event, all such services shall be completed within 746
consecutive calendar days from such authorization to proceed.”
2. Except as otherwise provided herein, the Agreement entered into by CITY
and CONSULTANT, dated October 14, 2019, remain in full force and effect.
[Signatures follow on the next page.]
5th November
IN WITNESS WHEREOF, the CITY and the CONSULTANT have executed this
Amendment at Fresno, California, the day and year first above written.
CITY OF FRESNO,
A municipal corporation
By:
Michael Carbajal, Director
Department of Public Utilities
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
By:
Brandon M. Collet Date
Senior Deputy City Attorney
ATTEST:
YVONNE SPENCE, CRM MMC
City Clerk
By:
Deputy Date
Provost & Pritchard Consulting Group, Inc.
A California corporation
By:
Name:
Title:
(If corporation or LLC., Board
Chair, Pres. Or Vice Pres.)
By:
Name:
Title:
(If corporation or LLC., CFO,
Treasurer, Secretary or Assistant
Secretary)
Vice President
Heather Bashian
Michael Taylor
Corporate Secretary
11/9/2020
11/9/2020
Marco Martinez
AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSUL TANT SERVICES
THIS AGREEMENT is made and entered into effective the fffh day of S��
2019, by and between the CITY OF FRESNO, a California municipal corporation (hereinafter
referred to as "CITY"), and Provost & Pritchard Consulting Group, a California corporation
(hereinafter referred to as "CONSUL TANT").
RECITALS
WHEREAS, CITY desires to obtain professional engineering services for the Armstrong -
Kings Canyon to Butler Water Main Replacement Project, hereinafter referred to as the
"Project;" and
WHEREAS, CONSULTANT is engaged in the business of furnishing services as a Civil
Engineer and hereby represents that it desires to and is professionally and legally capable of
performing the services called for by this Agreement; and
WHEREAS, CONSULTANT acknowledges that this Agreement is subject to the
requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and
WHEREAS, this Agreement will be administered for CITY by its Director of Public
Utilities (hereinafter referred to as "Director") or his/her designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions,
and promises hereinafter contained to be kept and performed by the respective parties, it is
mutually agreed as follows:
1. Scope of Services. CONSULTANT shall perform to the satisfaction of CITY the
services described in Exhibit A, including all work incidental to, or necessary to perform, such
services even though not specifically described in Exhibit A.
2. Term of Agreement and Time for Performance. This Agreement shall be
effective from the date first set forth above and shall continue in full force and effect through the
earlier of complete rendition of the services hereunder or August 30, 2019, subject to any earlier
termination in accordance with this Agreement. The services of CONSULTANT as described in
Exhibit A are to commence upon CITY'S issuance of a written "Notice to Proceed." Work shall
be undertaken and completed in a sequence assuring expeditious completion, but in any event,
all such services shall be completed within two hundred twenty days (220)] 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 Fifty-Three
Thousand Five Hundred Dollars ($53,500.00)], and a contingency amount not to exceed Ten
Thousand Dollars ($10,000.00)] for any additional work rendered pursuant to Subsection (c)
below and authorized in writing by the Director. Such fees include all expenses incurred by
CONSULTANT in performance of such services.
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(b) Detailed statements shall be rendered monthly and will be payable in the
normal course of CITY business.
(c) The parties may modify this Agreement to inGrease 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 Ma jeure.
(a) This Agreement shall terminate without any liability of CITY to
CONSULTANT upon the earlier of: (i) CONSULTANT'S filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party
against 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,
CONSULTANT shall (i) immediately stop all work hereunder; (ii) immediately cause any and all
of its subcontractors to cease work; and (iii) return to CITY any and all unearned payments and
all properties and materials in the possession of CONSULTANT that are owned by CITY.
Subject to the terms of this Agreement, CONSULTANT shall be paid compensation for services
satisfactorily performed prior to the effective date of termination. 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
CONSULTANT, 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 CONSULTANT, CITY may
(i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to
it under applicable laws of the State of California or any other applicable law; (ii) proceed by
appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct,
indirect, consequential, economic and incidental damages for the breach of the Agreement. If it
is determined that CITY improperly terminated this Agreement for default, such termination shall
be deemed a termination for convenience.
(e) 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) CONSULTANT shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of CONSUL TANT and without its fault
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or negligence such as, acts of God or the public enemy, acts of CITY in its contractual capacity,
fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of
common carriers. CONSULTANT shall 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
CONSULTANT 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 CONSULTANT. CONSULTANT 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 CONSULTANT. CONSULTANT 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, CONSULTANT shall cause each subcontractor to also
comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this Agreement.
6. Professional Skill. It is further mutually understood and agreed by and between
the parties hereto that inasmuch as CONSUL TANT represents to CITY that CONSULTANT and
its subcontractors, if any, are skilled in the profession and shall perform in accordance with the
standards of said profession necessary to perform the services agreed to be done by it under
this Agreement, CITY relies upon the skill of CONSUL TANT and any subcontractors to do and
perform such services in a skillful manner and CONSULTANT agrees to thus perform the
services and require the same of any subcontractors. Therefore, any acceptance of such
services by CITY shall not operate as a release of CONSULT ANT or any subcontractors from
said professional standards.
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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
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,
CONSULT ANT 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 CONSULTANT of its responsibilities under this Agreement. The phrase "fail to maintain
any required insurance" shall include, without limitation, notification received by CITY that an
insurer has commenced proceedings, or has had proceedings commenced against it, indicating
that the insurer is insolvent.
(c) The fact that insurance is obtained by CONSULTANT shall not be
deemed to release or diminish the liability of 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 CONSULTANT.
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.
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(d) If CONSULTANT 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
officers, officials, employees, agents and volunteers in accordance with the terms of this
section, except that any required certificates and applicable endorsements shall be on file with
CONSULTANT and CITY prior to the commencement of any services by the subcontractor.
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 1 O 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 1 O 11 85.
9. Conflict of Interest and Non-Solicitation.
(a) Prior to CITY'S execution of this Agreement, CONSULTANT shall
complete a City of Fresno conflict of interest disclosure statement in the form as set forth in
Exhibit C. During the term of this Agreement, CONSULTANT shall have the obligation and
duty to immediately notify CITY in writing of any change to the information provided by
CONSUL TANT in such statement.
(b) 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, 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, CONSULTANT and the respective subcontractor(s) are in full
compliance with all laws and regulations. CONSULTANT shall take, and require its
subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon
discovery of any facts giving rise to the appearance of a conflict of interest, CONSULT ANT shall
immediately notify CITY of these facts in writing.
(c) In performing the work or services to be provided hereunder,
CONSULTANT shall not employ or retain the services of any person while such person either is
employed by CITY or is a member of any CITY council, commission, board, committee, or
similar CITY body. This requirement may be waived in writing by the City Manager, if no actual
or potential conflict is involved.
(d) CONSULTANT represents and warrants that it has not paid or agreed to
pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this
Agreement or any rights/benefits hereunder.
(e) Neither CONSULTANT, nor any of CONSULTANT'S subcontractors
performing any services on this Project, shall bid for, assist anyone in the preparation of a bid
for, or perform any services pursuant to, any other contract in connection with this Project.
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
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accordance with all applicable law and fully disclosed to and approved by the City Manager, in
advance and in writing.
(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 CONSULTANT maintains an office or operates
a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of
the City of Fresno, CONSULTANT at its sole cost and expense shall:
(i) Immediately establish and maintain a viable and ongoing recycling program,
approved by CITY'S Solid Waste Management Division, for each office and
facility. Literature describing CITY recycling programs is available from CITY'S
Solid Waste Management Division and by calling City of Fresno Recycling
Hotline at (559) 621-1111.
(ii) Immediately contact CITY'S Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such
Division in their conduct of the audit for each office and facility.
(iii) Cooperate with and demonstrate to the satisfaction of CITY'S Solid Waste
Management Division the establishment of the recycling program in paragraph (i)
above and the ongoing maintenance thereof.
11. General Terms.
(a) Except as otherwise provided by law, all notices expressly required of
CITY within the body of this Agreement, and not otherwise specifically provided for, shall be
effective only if signed by the Director or his/her designee.
(b) Records of CONSULTANT'S expenses pertaining to the Project shall be
kept on a generally recognized accounting basis and shall be available to CITY or its authorized
representatives upon request during regular business hours throughout the life of this
Agreement and for a period of three years after final payment or, if longer, for any period
required by law. In addition, all books, documents, papers, and records of CONSULTANT
pertaining to the Project shall be available for the purpose of making audits, 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, CONSULTANT shall have
provided evidence to CITY that CONSUL TANT 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
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portion of the work or services to be performed under this Agreement, CONSULT ANT shall
require each subcontractor to provide evidence to CITY that subcontractor is licensed to
perform the services called for by this Agreement (or that no license is required) before
beginning work.
12. Nondiscrimination. To the extent required by controlling federal, state and local
law, 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) CONSULTANT will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded
from participation in, be denied the benefits of, or be subject to discrimination under any
program or activity made possible by or resulting from this Agreement.
(b) CONSULTANT will not discriminate against any employee or applicant for
employment because of race, religious creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status
as a disabled veteran or veteran of the Vietnam era. 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) CONSULTANT will send to each labor union or representative of workers
with which it has a collective bargaining agreement or other contract or understanding, a notice
advising such labor union or workers' representatives of CONSULTANT'S commitment under
this section and shall post copies of the notice in conspicuous places available to employees
and applicants for employment.
(e) If CONSULTANT should subcontract all or any portion of the services to
be performed under this Agreement, CONSULTANT shall cause each subcontractor to also
comply with the requirements of this Section 12.
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13. Independent Contractor.
(a) In the furnishing of the services provided for herein, CONSULTANT is
acting solely as an independent contractor. Neither CONSULTANT, nor any of its officers,
agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or
associate of CITY for any purpose. CITY shall have no right to control or supervise or direct the
manner or method by which 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
CONSULTANT and CITY. CONSULTANT shall have no authority to bind CITY absent CITY'S
express written consent. Except to the extent otherwise provided in this Agreement,
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, CONSULTANT shall be solely
responsible, indemnify, defend and save CITY harmless from all matters relating to employment
and tax withholding for and payment of CONSULTANT'S employees, including, without
limitation, (i) compliance with Social Security and unemployment insurance withholding,
payment of workers' compensation benefits, and all other laws and regulations governing
matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in
CITY employment benefits, entitlements, programs and/or funds offered employees of CITY
whether arising by reason of any common law, de facto, leased, or co-employee rights or other
theory. It is acknowledged that during the term of this Agreement, CONSULTANT may be
providing services to others unrelated to CITY or to this Agreement.
14. Notices. Any notice required or intended to be given to either party under the
terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered
personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by
United States registered or certified mail, with postage prepaid, return receipt requested,
addressed to the party to which notice is to be given at the party's address set forth on the
signature page of this Agreement or at such other address as the parties may from time to time
designate by 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 CONSULTANT 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
CONSULTANT, its successors or assigns, shall be null and void unless approved in writing by
the City Manager or his/her designee.
(b) CONSULTANT hereby agrees not to assign the payment of any monies
due CONSULTANT from 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
CONSULTANT directly to CONSULTANT.
17. Compliance With Law. In providing the services required under this Agreement,
CONSULTANT shall at all times comply with all applicable laws of the United States, the State
of California and CITY, and with all applicable regulations promulgated by federal, state,
regional, or local administrative and regulatory agencies, now in force and as they may be
enacted, issued, or amended during the term of this Agreement.
18 . Waiver. The waiver by either party of a breach by the other of any provision of
this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of
either the same or a different provision of this Agreement. No provisions of this Agreement may
be waived unless in writing and signed by all parties to this Agreement. Waiver of any one
provision herein shall not be deemed to be a waiver of any other provision herein.
19. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for
purposes of the filing of . any action regarding the enforcement or interpretation of this
Agreement and any rights and duties hereunder shall be Fresno County, California.
20. Headings. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify or add to the
interpretation or meaning of the provisions of this Agreement.
21. Severability. The provisions of this Agreement are severable. The invalidity, or
unenforceability of any one provision in this Agreement shall not affect the other provisions.
22. Interpretation. The parties acknowledge that this Agreement in its final form is
the result of the combined efforts of the parties and that, should any provision of this Agreement
be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this
Agreement in favor of or against either party, but rather by construing the terms in accordance
with their generally accepted meaning.
23. Attorney's Fees. If either party is required to commence any proceeding or legal
action to enforce or interpret any term, covenant or condition of this Agreement , the prevailing
party in such proceeding or action shall be entitled to recover from the other party its reasonable
attorney's fees and legal expenses.
24. Exhibits. Each exhibit and att achment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
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25. Precedence of Documents. In the event of any conflict between the body of this
Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this
Agreement shall control and take precedence over the terms and conditions expressed within
the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or
Attachment hereto which purport to modify the allocation of risk between the parties, provided
for within the body of this Agreement, shall be null and void.
26. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined
within this Agreement are intended for the specific parties hereto as identified in the preamble of
this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not
intended that any rights or interests in this Agreement benefit or flow to the interest of any third
parties.
28. Extent of Agreement. Each party acknowledges that they have read and fully
understand the contents of this Agreement. This Agreement represents the entire and
integrated agreement 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 CONSULTANT.
I II
I II
I II
DPU-S 8.1/03-24-14
-10-
IN WITNESS WHER EOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
By:��z-? MiZ aelCarbaJal,
Director
Department of Public Utilities
ATTEST:
YVONNE SPENCE, MMC, CRM
City Clerk
By: vf1/)wl4-'b L//li vfA1o
Deputy i\l( rr e,., f,..itl"" hvµ..�
loft r/,e-. No signature of City Attorney required. '
Standard Document #DPU-S 8.1 has been
used without modification, as certified by
the u �� �
By:��
Robert A. Diaz
Supervising Engineering Technician
Department of Public Utilities
Jes s A. Gonzalez,
Supervising Professional Engineer
Department of Public Utilities
Addresses:
CITY:
City of Fresno
Attention: Robert A. Diaz,
Supervising Engineering Technician
2101 G Street, Building A
Fresno, CA 93706
Phone: (559) 621-1623
FAX: (559) 498-4126
Attachments:
1. 2. Exhibit A -Scope of Services
Exhibit B -Insurance Requirements
Provost & Pritchard Consulting Group, ::::�
Name: Heather Bash ian
Title: Vice President
(if corporation or LLC, Boar
Chair, Pres. or Yi e P s.).
Name: Michael T
Title : Corporate Secretary
(if corporation or LLC, CFO,
Treasurer, Secretary or Assistant
Secretary)
Any Applicable Professional License :
Number: C 73075
Name: Heather Elaine Bashian
Date of Issuance: July 31 , ·2008
CONSUL TANT:
Provost & Pritchard Consulting Group
Attention: Heather Bashian, PE
Principal
286 West Cromwell Avenue
Fresno, CA 93711
Phone: (559) 449-2700
FAX: (559) 449-2715
3. Exhibit C -Conflict of Interest Disclosure Form
DPU-S 8.1/03-24-14
-11-
Exhibit A
SCOPE OF SERVICES
Consultant Service Ag reement between City of Fresno ("City")
and Provost & Pritchard Co nsulting Group ("Consultant")
Armstrong -Kings Ca nyon to Butler Water Main Replacement Project
PROJECT TITLE
Project Understanding and Background
The City proposes to construct water system improvements in South Armstrong Avenue from
East Kings Canyon Road to East Butler Avenue. The Armstrong Avenue water main
replacement project will consist of installing approximately 2,700 feet of 16-inch water main in
the street right of way and transferring 8 existing residential water services. All water services
will be side by side transfers. Proposed improvements will include constructing new water
mains, replacing water services, and replacing existing fire hydrants within the project limits. It is
anticipated water service transfers will be installed by boring methods.
Pending alignment decisions, the project may be located within either City or County rights-of
way; therefore, plan check and permits may be required by the City and County of Fresno. It is
assumed that no property or easement acquisitions will be required for this project.
It is our understanding that the Fresno Irrigation District (FID) does not have facilities within the
project limits. Therefore, plan review and coordination with FID will not be required. Further, it is
understood the Fresno Metropolitan Flood Control District (FMFCD) has existing facilities
adjacent to the proposed improvements; therefore, plan review by FMFCD will be required for
coordination of constructing new water facilities adjacent to existing FMFCD facilities
It is unknown at this time as to whether or not the residences on the west side of Armstrong
Avenue are provided sewer service from the CITY sewer main in Armstrong Avenue. However,
the depth of the sewer main ranges between 15-and 20-feet and should not cause any conflicts
with the installation of the new water main if there are sewer laterals in the project alignment.
The water system improvements will be under a single construction bid contract. All work to be
considered will require a Class A or Class C-34 Contractor's License issued by the State of
California. The contractor will be required to obtain encroachment permits from either or both
the City and County of Fresno for work within street rights-of-way. All tie-ins between existing
and new water mains will also be made by the City for the entire project.
The CITY has determined that the projects are classified as Categorical Exemptions in
accordance with the California Environmental Quality Act (CEQA).
The CITY has scheduled the project to be ready for construction in Fiscal Year 2020/21.
Specific Information to be Provided by CITY:
The CITY will provide the followi ng information prior to commencement of engineering services:
1. List of addresses for all water service transfers (electronic Excel file)
2. AutoCAD file of topographic survey in Civil3D 2016 or later version
DPU-S 8.1/03-24-14
Page 1 of 4
Tasks to be Completed by CONSULTANT:
The CONSULTANT will perform engineering services outlined in the following task list:
PART 1 DESIGN DEVELOPMENT PHASE
A. PROJECT MANAGEMENT AND ADMINISTRATION
1. Attend kick-off meeting with City staff
2. Prepare and maintain project work plan, budget and schedule
3. Contact CITY Project Manager and provide regular updates on the progress of work
4. Implement quality assurance I control program
B. PROJECT UTILITY COORDINATION
1. Coordinate with stakeholder agencies:
i. Fresno Metropolitan Flood Control District (FMFCD) -no meetings included
ii. County of Fresno (County) -no meetings included
2. Conduct utility search to obtain relevant water and sewer record maps available on
CITY's eView website.
3. Review record information provided by the CITY.
4. Send notification letters to utility companies and agencies to obtain available record
information. Letters will be sent to the following: FMFCD, FID, PG&E, AT&T, Comcast,
Sebastian, MCI, Sprint, Time Warner Telecom and Kinder Morgan.
C. ENVIRONMENTAL CLEARANCE DOCUMENT
1. Prepare a Notice of Exemption pursuant to the California Environmental Quality Act
(CEQA) Guidelines and submit to the State Clearinghouse and County Recorder.
D. PRELIMINARY PLANS, SPECIFICATIONS, AND ESTIMATE
1. Prepare preliminary alignment exhibit for review by the City prior to proceeding with
preparation of Design Development plans. The preliminary alignment exhibit will be
ready for review approximately 21 days following receipt of the topographic survey
files. Agency review time of the preliminary alignment exhibit is not included in the
overall duration of this phase stated below.
2. Prepare Design Development (60%) plans, specification and estimate, including:
i. Preliminary construction drawings:
*Cover sheet, index & site maps (3 sheets)
* Plan and profile drawings (3 sheets on 24"x36" title block, scale: 1 "=40'
horizontal and 1 "=4' vertical)
* Construction detail drawings (2 sheets)
ii. Specification components, including: Bidder's proposal and explanation of bid
items
iii. Engineer's Opinion of Probable Construction Cost
3. Submit preliminary (60%) plans, specifications and estimate (PS&E)
i. Submit 7 full size sets within 56 calendar days of Notice to Proceed.
ii. Submit 2 sets each to FMFCD and County (if required) for review.
iii. Schedule and conduct workshop review meeting with CITY staff. It is
assumed that the utilities department will circulate plans to all CITY
departments and obtain consolidated comments for the workshop meeting.
DPU-S 8.1/03-24-14
Page 2 of 4
PART 2 CONSTRUCTION DOCUMENT PHASE
A. FINAL PLANS, SPECIFICATIONS AND ESTIMATE
1. Address Design Development Phase review comments and revise construction
documents.
2. Prepare draft final (90%) plans, specifications and estimate, including: drawings,
bidder's proposal, explanation of bid items, and Engineer's Opinion of Probable
Construction Cost.
3. Coordinate with CITY staff for incorporation of "Boilerplate" documents by CITY
4. Submit draft final (90%) plans, specifications and estimate (PS&E)
i. Submit 7 full size sets within 42 calendar days of Notice to Proceed.
ii. Submit 2 sets, each, to FMFCD and County (if required) for approval.
iii. Schedule and conduct workshop review meeting with CITY staff, if needed.
It is assumed that the utilities department will circulate plans to all CITY
departments and obtain consolidated comments for the workshop meeting.
5. Revise and re-submit (if necessary) to obtain CITY approval within 14 calendar days
of receiving CITY comments.
6. Submit one original set of final plans (on Mylar), specifications and estimate for
approval signatures.
PART 3 BIDDING PHASE
1. Assist in preparation of addenda and clarifications
PART 4 CONSTRUCTION PHASE SERVICES
1. Attend pre-construction conference
2. Review contractor submittals (up to 20 submittals anticipated)
3. Respond to Requests for Information (up to 4 RFls anticipated)
4. Make periodic site visits (1 site visit included)
5. Prepare and submit record drawings
SPECIFIC EXCLUSIONS
The following engineering services are specifically excluded from the scope of services:
A. Those items listed under CITY's responsibilities in agreement
B. Construction staking
C. Negotiations with property owners regarding replacement of existing improvements
disturbed for the water service transfer work.
D. Payment of agency plan check and permit fees
ADDITIONAL SERVICES
The following engineering services are specifically excluded from the scope of services, but can
be provided by contract change order for an additional fee:
A. Geotechnical engineering and testing services
B. Prepare traffic control plans
C. R-value testing of soils for pavement replacement design
D. Potholing of existing underground utilities to verify locations
E. Preparation of a Stormwater Pollution Prevention Plan
F. Construction inspection
DPU-S 8.1/03-24-14
Page 3 of 4
ENG INEERING FEE SUMMARY
Phase
Part 1 Design Deve lopment
Part 2 Construction Documents
Part 3 Bidding Phase
Part 4 Construction Phase Services
Total
DPU-S 8.1/03-24-14
Estimated Fee
$23,700
$22,200
$1,600
$6,000
$53,500
Page 4 of 4
Percent
44.1%
,41.3%
3.0%
11.2%
100%
Schedule
56 calendar days
56 cale ndar days
TBD
TBD
Exh ibit B
INSURAN CE REQU IREMENTS
Consu ltant Service Agreement between City of Fresno ("CITY")
and Provost & Pritchard Consulting Group ("CONSULTANT")
Armstrong -Kings Canyon to Butler Water Main Replacement Project
PROJECT TITLE
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most cu rrent version of Insurance Services Offi ce (ISO) Com mercial
General Liability Coverage Form CG 00 01 , provi ding liability coverage
arising out of yo ur business operations. The Commercial General Liability
pol icy shall be written on an occurrence form and shall provide coverage
for "bod ily injury," "property damage" and "perso nal and adverti sing injury"
with coverage for premises and operations (including the use of owned
and non-owned equipment), products and co mpleted operations, and
contractu al liability (including, without limita tion , indemnity obl igations
under the Agreement) with limits of liability not less than those set forth
under "Minimum Limits of Insurance."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00
01 , providing liability coverage arising out of the ownership, maintenance
or use of automobiles in the course of your business operations. The
Automobile Policy shall be written on an occu rrence form and shall
provide coverage for all owned, hire d, and non-owned automobiles or
other licensed ve hicles (Code 1-Any Auto). If personal automobile
cove rage is used, the CITY, its officers, officials , employees, agents, and
vo lunteers are to be listed as additional insureds.
3. Workers' Compensation insurance as re quired by the State of Cal ifornia
and Employer's Liabil ity Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to
CONS UL TANT's profe ssion.
MINIMUM LIMITS OF INSURANCE
CONS UL TANT, or any party the CON SUL TANT subcontracts with, shall maintain limits
of liability of not less than those set forth below. However, insurance limits available to
CITY, its officers, officials, employees, agents , and vo lunteers as additional insureds,
shall be the greater of the minimum limits specified herein or the fu ll limit of any
insurance proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABI LITY:
Page 1 of 4
2/2/20 18
(i) $1 ,000 ,000 per occurrence for bod ily injury and property damage;
(ii) $1 ,000 ,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for prod ucts and co mpleted operations; and,
(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABI LITY:
$1 ,000,000 per accident for bodily injury and property damage.
3. WORKERS' COMPENSATI ON INSURAN CE as req uired by the State of
California with statutory limits.
4. EMP LOYER'S LIABI LITY:
(i) $1 ,000 ,000 each accident for bod ily injury;
(ii) $1 ,000 ,000 disease each employee; and ,
(iii) $1 ,000,000 disease policy limit.
5. PROFESSIONAL LIABI LITY (Errors and Omissions):
(i) $1 ,000,000 per clai m/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRE LLA OR EXC ESS INSURAN CE
In the event CONSULTANT purchases an Umbrella or Excess insurance pol icy(ies) to
meet the "Minimum Lim its of Insurance," this insurance pol icy(ies) shall "follow form"
and afford no less cove rage than the primary insurance pol icy(ies). In add ition, such
Umbrella or Excess insurance pol icy(ies) shall also apply on a primary and non
contrib utory basis for the benefit of the CITY, its offi cers, officials, em ployees , agents ,
and volunteers.
DEDUCTIB LES AN D SELF-INSURED RETENTIONS
CONSUL TANT shall be res ponsible for payment of any ded uctibles contained in any
insurance policy(ies) re quired herein and CONSUL TANT shall also be re sponsible fo r
payment of any self-insured rete ntions. Any deducti bles or self-insured rete ntions must
be declared to on the Certificate of Insurance, and approved by, the CITY's Risk
Ma nager or designee. At the option of the CITY's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such ded uctibles or self
insured retentions as respects CITY, its offi cers, offici als,
employees, agents , and vo lunteers; or
(ii) CONSUL TANT shall provide a fi nancial guarantee, satisfa ctory to
CITY's Risk Manager or designee, guaranteeing payment of losses
and related investigations, cla im administration and defense
expenses. At no time shall CITY be re sponsible for the payment of
any deductibles or self-i nsured rete nti ons·.
OTH ER INSURAN CE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liab ility insurance policie s are to contain, or be
endorsed to contain , the following provisions:
1. CITY, its offi cers, off icials, em ployees, agents, and volu nteers are to be
covered as additional insureds. CONSUL TANT shall establish additional
insured status fo r the City and for all ongoing and completed operations by
use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and
CG 20 37 10 01 or by an executed manuscript insurance co mpany
endorsement provid ing add itional insured status as broad as that
contained in ISO Form CG 20 10 11 85.
Page 2 of 4
2/2/20 18
2. The coverage shall contain no special limitations on the scope of
protection afforded to CITY, its officers, officials, employees, agents, and
vo lunteers . Any available insurance proceeds in excess of the specified
minimum limits and coverage shall be ava ilable to the Ad ditional Insured .
3. For any claims relating to this Agreement, CO NSUL TANT's insurance
coverage shall be primary insurance with respect to the CITY, its officers,
officials, employees, agents , and vo lunteers. Any insurance or self
insurance mai ntained by the CITY, its officers, officials, employee s,
agents , and vo lunteers shall be excess of CONSU LTANT's insurance and
shall not contri bute with it. CONSUL TANT shall establish primary and
non-contri butory status by using ISO Form CG 20 01 04 13 or by an
executed manuscript insurance company endorsement that provi des
primary and non-contributory status as broad as that contained in ISO
Form CG 20 01 04 13.
The Worke rs ' Compensation insurance policy is to contain, or be endorsed to contain,
the following provisio n: CONSULTANT and its insurer shall waive any right of
subrogation aga inst CITY, its officers, officials, em ployees, agents, and volu nteers.
If the Professional Liability (Errors and Omissions) in surance policy is written on a
cla ims-made form :
1. The retro active date must be shown , and must be before the effective date
of the Agreement or the com mencement of work by CON SULTANT.
2. Insurance must be mainta ined and evidence of insurance must be
provided for at least five (5) years after completion of the Agreement work
or termination of the Agreement, whichever occurs first, or, in the
alternative , the policy shall be endorsed to provide not less than a five (5)
year discovery period .
3. If coverage is canceled or non-renewed, and not re placed with another
claims-made policy form with a retroactive date prior to the effective date
of the Agreement or the commencement of work by CONSUL TAN T,
CONSUL TANT must purchase "exte nded re porti ng" coverage for a
minimum of five (5) years completion of the Agree ment work or
term ination of the Agreement, whichever occurs first.
4. A copy of the claims reporti ng re quirements must be submitted to CITY for
rev iew.
5. These re quirements shall survive expiration or term ination of the
Agreement.
All policies of in surance re quired herein shall be endorsed to provide that the coverage
shall not be ca ncelled , non-renewed , reduced in coverage or in limits except after thi rty
(30) ca lendar days written notice by certifi ed mail, return rece ipt req uested, has been
given to CITY. CONSUL TANT is also res ponsible for provi ding 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 re duction in coverage or in limits,
CONSUL TANT shall fu rn ish CITY with a new certifi cate and applicable endorsements
for such policy(ies). In the event any pol icy is due to expire during the work to be
performed for CITY, CONSUL TANT shall provide a new certificate , and applica ble
Page 3 of 4
2/2/20 18
endorse ments, evidencing renewal of such policy not less th an fifte en (1 5) ca lendar
days prior to the expiration date of the exp iring policy.
Should any of the re quired policies prov ide that the defense costs are paid with in the
Lim its of Liabil ity, thereby re ducing the available limits by any defense costs, then the
re quirement for the Li mits of Liabil ity of these pol ices will be twice the above stated
limits.
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 policy limits do not act as a limitation upon
the amount of indemnification to be provided by CONSULTANT. Ap proval or purchase
of any insurance contracts or pol icies sha ll in no way relieve fro m liability nor limit the
liability of CONSUL TANT, its principals, officers, age nts , employees, persons under the
supervi sion of CONSUL TANT, vendors, suppliers, invitees, co nsultants, sub
co nsu ltants, subcontracto rs, or anyone employed directly or indirectly by any of them .
SUBCONTRACTO RS -If CONSUL TANT subcontracts any or all of the services to be
performed under this Agreement, CONSUL TANT shall require, at the discretion of the
CITY Risk Manager or designee, su bcontracto r(s) to enter into a separate Side
Agreement with the City to provide re quired indemnification and insurance protection .
Any re quired Side Agreement(s) and associated insurance documents for the
subcontractor must be reviewed and prea pproved by CITY Risk Manager or designee.
If no Side Agreement is re quired , CONSULTANT will be solely re sponsible for ensuring
that it's su bcontractors mainta in insurance coverage at levels no less than those
re quired by applicable law and is cu stomary in the relevant industry.
VERIFICATION OF COVERAGE
CONSUL TANT shall fu rnish CITY with all certifi cate (s) and appl icable endorsements
effecti ng coverage req uired hereunder. All certificates and applicable endorseme nts
are to be rece ived and approved by th e CITY'S Risk Manager or his/her desig nee prior
to CITY'S execution of the Agreement and before work co mmences. All non-ISO
endorsements amending policy coverage shall be executed by a licensed and
authorized agent or broker. Upon request of CITY, CONSUL TANT shall immediately
fu rn ish City with a complete copy of any insurance policy re quired under this
Agreement, including all endorsements, with said copy certifi ed by the underwriter to be
a true and correct copy of the original pol icy. This req uirement shall survive expiration or
termination of th is Agreement.
Page 4 of 4
2/2/20 18
Ex hibit C
DISC LOSURE OF CONFLICT OF INTEREST
Armstrong -Kings Canyon to Butler Water Main Replacement Project
PROJECT TITLE
1
2
3
4
5
Are you currently in litigation with the City of Fresno or any of its
agents?
Do you represent any firm, organization or person who is in
litigation with the City of Fresno?
Do you currently represent or perform work for any clients who do
business with the City of Fresno?
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?
Are you or any of your principals , managers or professionals,
related by blood or marriage to any City of Fresno employee who
has any significant role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with
this Project?
* If the answer to any question is yes, please explain in full below.
I I /)
YES*
D
D
D
D
D
Explanation: Provost & Pritchard
provides engineering and con sulting
r l� /!�4 -·
services for pu blic and private clients
that do busi ness with the City of Fresno.
Signature
September 6, 2019
Date
Heather Bashian
(name)
NO
D
Provost & Pritchard Consu lting Group
(company)
o Additional page(s) attached .
286 W. Cromwell Aven ue
{address)
Fresno, CA 93711
(city state zip)