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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. DPU-S 8.1/03-24-14 -1- (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 DPU-S 8.1/03-24-14 -2- 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. DPU-S 8.1/03-24-14 -3- 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. DPU-S 8.1/03-24-14 -4- (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 DPU-S 8.1/03-24-14 -5- 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 DPU-S 8.1/03-24-14 -6- 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. DPU-S 8.1/03-24-14 -7- 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. DPU-S 8.1/03-24-14 -8- 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. DPU-S 8.1/03-24-14 -9- 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)