HomeMy WebLinkAboutProvost and Pritchard - Blackstone Ave. Overlay - 2021DPW-S 31.1/ 03-24-14
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AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT is made and entered into effective the day of June, 2021, by
and between the CITY OF FRESNO, a California municipal corporation (hereinafter referred to
as "CITY"), and Provost & Pritchard Engineering Group, Inc., a California Corporation (hereinafter
referred to as "CONSULTANT").
RECITALS
WHEREAS, CITY desires to obtain professional Engineering services for the design of
plans and general construction contract documents for Blackstone Avenue Overlay between Nees
Avenue and Minarets Avenue, hereinafter referred to as the “Project;” and
WHEREAS, CONSULTANT is engaged in the business of furnishing services as a
Professional Engineer and hereby represents that it desires to and is professionally and legally
capable of performing the services called for by this Agreement; and
WHEREAS, 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 Public Works Department
Director (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 the services described herein
and in Exhibit A to complete the Project more fully described in Exhibit A, and this shall include
all work incidental to, or necessary to perform, such services even though not specifically
described in Exhibit A. The services of CONSULTANT shall consist of five Parts as described
below. A separate Notice to Proceed will be issued for each of the aforementioned Parts. By
entry into this Agreement and upon CITY’S issuance of a written "Notice to Proceed," CITY
contracts for the services in Part One. CONSULTANT shall not perform any other Part of the
Agreement, and this Agreement shall not be a contract for any other Part, until further
performance is authorized by CITY’S issuance of a written “Notice to Proceed.” It shall, however,
remain CONSULTANT’S offer to perform all remaining parts described herein. In the event
CONSULTANT performs services without CITY’S prior written authorization, CONSULTANT will
not be entitled to compensation for such services.
(a)Part One. Schematic Design Phase.
(1)CONSULTANT shall review the description of the Project set forth
in Exhibit A and consult with designated representatives of CITY to ascertain the
requirements of the Project.
(2)CONSULTANT shall conduct studies and investigations as
necessary to confirm requirements of design including, but not limited to, (i) consulting
with the various utility agencies, and (ii) obtaining all information and data from the
respective responsible CITY department/division that is available in CITY’S records and
18th
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is required by CONSULTANT in connection with the consulting services including, but not
limited to, maps, surveys, reports, information, restrictions and easements.
CONSULTANT shall notify CITY if a topographic survey is required.
(3) CONSULTANT shall provide a preliminary evaluation of the Project
taking into consideration CITY’S estimate of the cost of construction (“Construction
Budget”) of Two Million Two Hundred Forty Thousand One Hundred One Dollars
($2,240,101) , including alternative approaches to design and construction of the Project.
(4) Based upon the mutually agreed upon Project requirements and
any adjustments authorized by CITY in the Construction Budget, CONSULTANT shall
design and prepare schematic design drawings and other documents for review,
modification, if required, and acceptance by CITY staff sufficient to show the concept and
scope of the proposed Project and the scale and relationship of Project components.
(5) CONSULTANT shall submit a preliminary estimate of construction
cost for review and acceptance by CITY. As used herein, "construction cost" means the
cost of construction under the general construction contract and does not include
CONSULTANT’S compensation as herein provided. Such estimate shall include, and
shall separately state, the cost of any add or deduct alternatives, the cost of any work
which may be let on a segregated bid basis and any equipment or fixtures which may be
incorporated in or excluded from the general construction contract as may be necessary
to stay within the Construction Budget.
(6) CONSULTANT shall make as many submittals as may be
necessary or desirable to obtain the acceptance by CITY and shall assist CITY in applying
for and obtaining from applicable public agencies any approval permit, or waiver required
by law, which assistance shall include, but not be limited to, making Project information
available to CITY.
(7) CONSULTANT may not rely upon any as-builts provided by CITY,
but shall investigate the existing conditions and ascertain the adequacy of such as-builts
for CONSULTANT'S design. CONSULTANT shall bring to CITY'S attention any
discrepancies in the as-builts that are discovered by CONSULTANT. CITY makes no
representations regarding any as-builts.
(8) Services shall be undertaken and completed in a sequence
assuring expeditious completion. All services shall be rendered and deliverables
submitted within twenty eight (28) calendar days from the issuance of a Notice to Proceed
for this Part unless an extension of time is approved in writing by the Director. Re-
submittals, as necessary to obtain the acceptance by CITY, shall be submitted to CITY
within seven (7) calendar days from receipt of CITY’S comments unless an extension of
time is approved in writing by the Director.
(b) Part Two. Design Development Phase. After review and acceptance of
the schematic design phase and issuance of a written Notice to Proceed with this Part Two:
(1) Based upon the accepted schematic design documents and the
Construction Budget, including authorized revisions thereto, CONSULTANT shall prepare
for review and acceptance by CITY the design development documents consisting of
drawings and other documents to fix and describe the size and character of the Project as
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necessary to show treatment of significant details. In addition, CONSULTANT shall
provide outline specifications of the work as to kinds of materials, systems, and other such
design elements as may be required. Such design development documents and
specifications shall be subject to review and acceptance by CITY.
(2) CONSULTANT shall submit a revised estimate of construction cost
for review and acceptance by CITY. The revised estimate shall include, but shall
separately state, the cost of any add or deduct alternates, any work which may be let on
a segregated bid basis, and any furnishings, equipment or fixtures which may be
incorporated in or excluded from the general construction contract as may be necessary
to stay within the Construction Budget, including authorized revisions thereto.
(3) In the event that the revised estimate of construction cost exceeds
the preliminary estimate of construction cost previously accepted, excluding therefrom any
add alternate, any work which may be let on a segregated bid basis and any furnishing,
equipment or fixtures which was identified in Part 1 as that which may be excluded from
the general construction contract, CITY shall have the option of accepting or rejecting the
revised estimate and CONSULTANT shall, at no additional cost to CITY, make such
design changes as may be necessary to reduce the revised estimate so that it shall not
exceed the preliminary estimate of construction cost previously accepted by CITY. CITY
shall not increase the scope of the Project except by modification of this Agreement which
shall include an agreed upon increase in CONSULTANT’S compensation.
(4) CONSULTANT shall make as many submittals as may be
necessary or desirable to obtain the acceptance by CITY and shall assist CITY in applying
for and obtaining from applicable public agencies any approval, permit, or waiver required
by law, which assistance shall include, but not be limited to, making Project information
available to CITY.
(5) Services shall be undertaken and completed in a sequence
assuring expeditious completion. All services shall be rendered and deliverables
submitted within forty two (42) calendar days from the issuance of a Notice to Proceed for
this Part unless an extension of time is approved in writing by the Director. Re-submittals,
as necessary to obtain the acceptance by CITY, shall be submitted to CITY within fourteen
(14) calendar days from receipt of CITY’S comments unless an extension of time is
approved in writing by the Director.
(c) Part Three. Construction Document Phase. After review and acceptance
of the design development phase and issuance of a written Notice to Proceed with this Part Three:
(1) CONSULTANT shall prepare from the accepted design
development documents, detailed plans and specifications setting forth the complete work
to be done, and the materials, workmanship, finishes and equipment, fixtures, and site
work required. CONSULTANT shall also prepare necessary bidding information, general
and special conditions of the general construction contract, technical specifications of the
general construction contract, and the bid proposal and general construction contract
forms. Such documents shall be subject to the review and acceptance by CITY.
CONSULTANT shall cooperate with, assist and be responsive to CITY’S Purchasing
Manager in preparation of all documents including, without limitation, slip-sheeting final
documents for printing when requested. CITY’S Standard Specifications must be used by
CONSULTANT where possible. Final drawings shall be drawn, printed or reproduced by
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a process providing a permanent record in black on vellum, tracing cloth, polyester base
film, or high quality bond copy. Bid, general conditions, contract and bond document forms
or formats regularly used by CITY shall be used by CONSULTANT unless the Director
determines they would be impractical for this Project. CONSULTANT shall be responsible
for assuring that the special conditions, technical specifications and any other documents
prepared by CONSULTANT are consistent with any documents regularly used by CITY
that are used for this Project.
(2) Upon request of CITY, CONSULTANT shall provide the
calculations used to determine the general construction contract quantities; and structural
calculations for the purpose of obtaining any building permits.
(3) CONSULTANT shall make as many submittals as may be
necessary or desirable to obtain the acceptance by CITY and shall assist CITY in applying
for and obtaining from applicable public agencies any approval, permit, report, statement,
or waiver required by law, which assistance shall include, but not be limited to, making
Project information available to CITY.
(4) CONSULTANT shall provide CITY with Seven (7) sets of completed
plans and Seven (7) sets of completed specifications for review and final acceptance by
CITY. Should the plans and specifications as submitted by CONSULTANT not be
accepted by CITY, CONSULTANT shall revise the plans and specifications as needed to
obtain final acceptance at no additional cost to CITY.
(5) After acceptance of final corrections, if any, CONSULTANT shall
provide CITY with one set of accepted reproducible tracings and bid documents for the
Project. In addition, CONSULTANT shall provide CITY with one complete set of
CAD/System disk files of drawings and complete disk files of specifications in the following
format: AutoCAD 2018 and Microsoft Word.
(6) CONSULTANT shall submit a final estimate of construction cost for
review and acceptance by CITY. Such estimate shall be calculated as of the date all
general construction contract documents are delivered to CITY in final form ready for
reproduction and advertising. Such estimate shall include, but shall separately state, the
cost of any add or deduct alternates, any work which may be let on a segregated basis,
and any equipment, or fixtures which may be incorporated in or excluded from the general
construction contract.
(7) In the event that the final estimate of construction cost exceeds the
revised estimate of construction cost previously accepted, excluding therefrom any add
alternate, any work which may be let on a segregated bid basis and any furnishings,
equipment or fixtures which was identified in the final revised estimate in Part 2 as that
which may be excluded from the general construction contract, CITY shall have the option
of accepting or rejecting the final estimate. If CITY elects to reject the final estimate,
CONSULTANT shall at no additional cost to CITY, make such design changes as may be
necessary to reduce the final estimate so that it shall not exceed the revised estimate of
construction cost previously accepted by CITY.
(8) Services shall be undertaken and completed in a sequence
assuring expeditious completion. All services shall be rendered and deliverables
submitted within thirty five (35) calendar days from the issuance of a Notice to Proceed
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for this Part unless an extension of time is approved in writing by the Director. Re-
submittals, as necessary to obtain the acceptance by CITY, shall be submitted to CITY
within fourteen (14) calendar days from receipt of CITY’S comments unless an extension
of time is approved in writing by the Director.
(d) Part Four. Bidding Phase. After review and acceptance of the construction
document phase and if CITY elects to proceed to bid, which shall constitute a written Notice to
Proceed with this Part Four:
(1) CONSULTANT shall assist CITY in obtaining bids. CONSULTANT
shall not communicate with potential bidders regarding this Project without the express
prior written authorization of CITY’S Purchasing Manager.
(2) CONSULTANT shall, within 7 calendar days of any request by
CITY, expeditiously draft and promptly provide addendum as determined by CITY to be
reasonable or necessary for the bidding process.
(3) If the lowest responsible bid received for the general construction
contract exceeds by 10% or more the final estimate of construction cost previously
accepted by CITY, excluding therefrom any add alternate, any work which may be let on
a segregated bid basis and any furnishings, equipment or fixtures which are excluded from
the general construction contract, CONSULTANT shall, within 14 calendar days of any
request by CITY, revise the plans and specifications as may be necessary to stay within
10% of such final estimate of construction cost, at no additional cost to CITY provided
such bid is received within 180 calendar days after completion of services in Section 1(c)
of this Agreement. CONSULTANT shall also submit such revised plans and
specifications, together with a new final estimate of construction cost, to CITY for review
and acceptance. This procedure, using the latest accepted final estimate of construction
cost, shall, upon written notice to CONSULTANT from the Director, be repeated until an
acceptable bid is received that does not exceed the accepted final estimate of construction
cost by more than 10%.
(e) Part Five. Construction Phase and General Construction Contract
Administration. The construction phase will begin with the award of the general construction
contract, which shall constitute a written Notice to Proceed with this Part Five, and will terminate
when a Notice of Completion is filed. Upon award of a general construction contract for the Project
and under the direction of the Director through CITY’S designated Construction Manager for the
Project:
(1) CONSULTANT shall attend the pre-construction conference and, if
called upon by CITY, act on CITY’S behalf in discussing the various aspects of the
construction phase.
(2) CONSULTANT shall review and recommend in writing to CITY
acceptance or non-acceptance of shop drawings, equipment and material submittals of
the general construction contractor as required by the general construction contract and
applicable laws and regulations in a timely manner. The period for CONSULTANT review
shall be as specified in the general construction contract, except if such period is not so
specified, the period shall be as determined in the pre-construction conference as mutually
agreed upon by CITY, CONSULTANT and the general construction contractor.
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(3) CONSULTANT shall, at intervals appropriate to the state of
construction, familiarize itself with the progress and quality of the work and determine in
general if the work is proceeding in accordance with the general construction contract
documents, and keep CITY informed of the progress of the work. In the event that
CONSULTANT’S visit to the site results in the discovery of any defect or deficiencies in
the work of the general construction contractor, CONSULTANT shall immediately advise
CITY and document, in writing, the work CONSULTANT deems substandard, and make
recommendations where appropriate to reject any work not conforming to the intended
design or specifications. Based on CONSULTANT’S best knowledge, information and
belief, CONSULTANT shall provide CITY a general written assurance that the work
covered by a payment application meets the standards in the general construction
contract. As to technical aspects, CONSULTANT shall provide a written judgment of the
acceptability of the work for payment applications and final acceptance, subject to CITY’S
right to overrule CONSULTANT.
(4) Upon written request by CITY, CONSULTANT shall render
interpretations of the general construction contract documents necessary for the proper
execution or progress of the work.
(5) Upon written request by CITY, CONSULTANT shall render written
recommendations on change orders, claims, disputes or other questions arising out of the
general construction contract, in a timely manner. Recommendations by CONSULTANT
in favor of a change order that is consequently accepted by CITY shall constitute approval
by CONSULTANT who shall then approve the change order in writing. CONSULTANT
shall not unreasonably withhold written approval in the event CITY accepts a change order
that CONSULTANT recommended to be rejected. In the event of any technical disputes,
CONSULTANT shall provide CITY with CONSULTANT’S written interpretation of the
contract documents. The period for CONSULTANT review shall be as specified in the
general construction contract, except if such period is not so specified, the period shall be
as determined in the pre-construction conference as mutually agreed upon by CITY,
CONSULTANT and the general construction contractor. If CITY, CONSULTANT and the
respective general construction contractor are unable to mutually agree on such period
for CONSULTANT review, then CITY will make the determination and that determination
will be final.
(6) Upon written request by CITY, CONSULTANT shall provide such
design and specification services as may be requested by CITY to implement change
orders necessary for clarification or interpretation of the general construction contract
documents or which may have resulted from errors or omissions by CONSULTANT.
(7) Where change orders arise as a result of an increase in the scope
of work or are due to unforeseeable conditions, the parties may modify this Agreement,
which modification shall include an agreed upon increase in CONSULTANT’S
compensation.
(8) Upon written request of CITY, CONSULTANT shall assist CITY in
the preparation of Progress Payment Estimates and other related construction reports.
(9) CONSULTANT shall provide CITY with two sets of original as-grade
plans wet-stamped and signed by the CONSULTANT’S Engineer of Record for the Project
submitted for final approval by the CITY’s Building and Safety Services Division of the
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Development and Resource Management Department on all projects located outside the
Right of Way.
(10) CONSULTANT shall prepare Record Drawings by updating the
accepted general construction documents in Part 3 to reflect all changes or deviations that
occurred during construction as reflected on or from each of the following: (i) the general
construction contractor provided red-lined plans, (ii) those furnished by the CITY, (iii)
CONSULTANT provided Request for Information responses, and (iv) any CONSULTANT
bulletins, amendments or clarifications. CONSULTANT shall provide CITY with one set
of vellum Record Drawings for the Project within twenty-one (21) calendar days from
receipt of red-lined field markups unless an extension of time is approved in writing by the
Director. Re-submittals, as necessary to obtain the acceptance by CITY, shall be
submitted to CITY within fourteen (14) calendar days from receipt of CITY comments
unless an extension of time is approved in writing by the Director. In addition,
CONSULTANT shall provide CITY with one complete set of CAD/System disk files of
Record Drawings in the following format: AutoCAD 2018.
2. CITY’S responsibilities. CITY will:
(a) Provide, upon request and cooperation of CONSULTANT, access to, and
make all provisions necessary to, enter upon public or private lands as required for
CONSULTANT to perform such services and inspections as are required in development of the
Project; provided, however, if CITY is unable to obtain access to enter upon public or private
lands, CONSULTANT shall not be relieved from performing its services as to those public and
private lands that are accessible. If CONSULTANT notifies CITY that a topographic survey is
required by CONSULTANT in connection with the consulting services, then CITY will be
responsible for conducting the topographic survey.
(b) Manage and be responsible for all negotiations with owners in connection
with land or easement acquisition and provide all required title reports and appraisals.
(c) With the exception of preparing correspondence required for design, hold
all required special meetings, serve all public and private notices, receive and act upon all
protests, and perform all services customarily performed by owners as are necessary for the
orderly progress of the work and the successful completion of the Project, and pay all costs
incidental thereto.
(d) Select the testing laboratory and pay the cost of borings, samplings, and
other work involved in soils testing during construction.
(e) Conduct onsite inspection during construction to check quality and quantity
of work as conditions warrant and be responsible for assuring that the general construction
contractor carries out all construction work in accordance with the plans and specifications.
However, this does not release CONSULTANT from its responsibility to make periodic site visits
under Section 1(e) for the purpose of observing the work to determine its general conformity with
the plans and specifications and reporting its findings to CITY.
(f) Prepare all change orders during construction in cooperation with
CONSULTANT.
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(g) Prepare all Progress Payment Estimates in cooperation with
CONSULTANT following its general assurance that the work covered by a payment application
meets the standards in the general construction contract documents based upon
CONSULTANT’S best knowledge, information and belief.
(h) Pay, or cause to be paid, plan check fees, conditional use permit fees and
site plan review fees.
(i) Arrange for and pay, or cause to be paid, any fees associated with
Environmental Impact Reports or Statements.
(j) Give reasonably prompt consideration to all matters submitted by
CONSULTANT for acceptance to the end that there will be no substantial delays in
CONSULTANT’S program of work. For an acceptance, approval, authorization, a request or any
direction to CONSULTANT to be binding upon CITY under the terms of this Agreement, such
acceptance, approval, authorization, request or direction must be in writing, duly authorized by
CITY and signed on behalf of CITY by the Director.
3. Compensation.
(a) CONSULTANT’S sole compensation for satisfactory performance of all
services required or rendered pursuant to this Agreement shall be a total fee of One Hundred
Nineteen Thousand Five Hundred Dollars ($119,500), and a contingency amount not to exceed
Ten Thousand Dollars ($10,000) for any additional work rendered pursuant to Subsection (d)
below and authorized in writing by the Director. Such fees include all expenses incurred by
CONSULTANT in performance of such services.
(b) Detailed statements shall be rendered monthly and will be payable in the
normal course of CITY business. Such statements shall be for an amount no greater than that
attributable to the Part upon which CONSULTANT is then engaged as provided in Section 3(c)
below.
(c) For purposes of determining the division of the total compensation to
CONSULTANT as provided in Section 3(a) above, or should performance of any succeeding Part
not be authorized by CITY as provided in Section 1 of this Agreement, it is agreed that the total
compensation shall be allocated to the five Parts of CONSULTANT’S performance as follows:
Part 1 – Fifty Three Percent (53%), Part 2 – Twenty Eight Percent (28%), Part 3 – Fifteen Percent
(15%), Part 4 – One Percent (1%) and Part 5 – Three Percent (3%). Prior to the award of a
general construction contract for the Project, or should such contract not be awarded, the
approved Parts as provided above shall be utilized for purposes of determining the fee due to
CONSULTANT.
(d) The parties may modify this Agreement to increase or decrease the scope
of services or provide for the rendition of services not required by this Agreement, which
modification shall include an adjustment to CONSULTANT’S compensation. Any change in the
scope of services must be made by written amendment to the Agreement signed by an authorized
representative for each party. CONSULTANT shall not be entitled to any additional compensation
if services are performed prior to a signed written amendment. Subsequent to the date of
completion of Part Three, changes due to Code revisions or enactments adopted after such date
shall constitute additional work subject to this Section 3(d).
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4. Termination, Remedies, Force Majeure, and Consolidation of Disputes.
(a) This Agreement shall terminate without any liability of CITY to
CONSULTANT upon the earlier of: (i) CONSULTANT’S filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party
against CONSULTANT; (ii) 7 calendar days prior written notice with or without cause by CITY to
CONSULTANT; (iii) CITY’S non-appropriation of funds sufficient to meet its obligations hereunder
during any CITY fiscal year of this Agreement, or insufficient funding for the Project; or (iv)
expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
CONSULTANT shall (i) immediately stop all work hereunder; (ii) immediately cause any and all
of its subcontractors to cease work; and (iii) return to CITY any and all unearned payments and
all properties and materials in the possession of CONSULTANT that are owned by CITY. Subject
to the terms of this Agreement, CONSULTANT shall be paid compensation for services
satisfactorily performed prior to the effective date of termination. CONSULTANT shall not be
paid for any work or services performed or costs incurred which reasonably could have been
avoided.
(c) In the event of termination due to failure of CONSULTANT to satisfactorily
perform in accordance with the terms of this Agreement, CITY may withhold an amount that would
otherwise be payable as an offset to, but not in excess of, CITY’S damages caused by such
failure. In no event shall any payment by CITY pursuant to this Agreement constitute a waiver by
CITY of any breach of this Agreement which may then exist on the part of CONSULTANT, nor
shall such payment impair 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) CONSULTANT shall provide CITY with adequate written assurances of
future performance, upon the request of the Director or his/her designee, in the event
CONSULTANT 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 CONSULTANT and without its fault or
negligence such as, acts of God or the public enemy, acts of CITY in its contractual capacity,
fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of
common carriers. CONSULTANT shall notify the Director or his/her designee 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 the Director or his/her designee of the cessation
of such occurrence.
(g) CONSULTANT agrees that, notwithstanding any contrary provision in this
Agreement, any dispute arising from or relating to this Agreement (including, without limitation,
disputes based on contract, tort, equity or statute) may, at CITY’S option, be joined and
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consolidated with any other dispute or disputes arising from or relating to the Project so that all
disputes arising from or relating to the Project may be resolved in a single proceeding.
CONSULTANT hereby specifically waives any objection it may otherwise have to such joinder
and consolidation and specifically consents to mediation, arbitration or any other dispute
resolution mechanism, forum or proceeding necessary to effectuate the joinder and consolidation
contemplated by this provision.
(h) Any notice of termination sent to Consultant shall include the reason(s) for
such termination or state that it is without cause.
5. Confidential Information, Ownership of Documents and Copyright License.
(a) Any reports, information, or other data prepared or assembled by
CONSULTANT pursuant to this Agreement shall not be made available to any individual or
organization by CONSULTANT without the prior written approval of CITY. During the term of this
Agreement, and thereafter, CONSULTANT shall not, without the prior written consent of CITY,
disclose to anyone any Confidential Information. The term Confidential Information for the
purposes of this Agreement shall include all proprietary and confidential information of CITY,
including but not limited to business plans, marketing plans, financial information, designs,
drawings, specifications, materials, compilations, documents, instruments, models, source or
object codes and other information disclosed or submitted, orally, in writing, or by any other
medium or media. All Confidential Information shall be and remain confidential and proprietary in
CITY.
i. Permission granted to CONSULTANT to disclose information on one
occasion shall not authorize CONSULTANT to further disclose such
information or any other information or disseminate the same on any other
occasion.
ii. CONSULTANT shall not comment publicly to the press or any other media
regarding the Agreement or CITY’S actions on the same, except to CITY’S
personnel or CONSULTANT’S personnel involved in the performance of
this Agreement at public hearings or in response to questions from a
Legislative committee.
iii. CONSULTANT shall not issue any news releases or any public relations
item of any nature, whatsoever, regarding work performed or to be
performed under this Agreement without prior review of the contents
thereof by CITY and receipt of CITY’S written permission.
(b) Any and all original sketches, pencil tracings of working drawings, plans,
computations, specifications, computer disk files, writings and other documents prepared or
provided by CONSULTANT pursuant to this Agreement, in any form whatsoever, 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. CONSULTANT shall not permit the reproduction or use
thereof by any other person except as otherwise expressly provided herein. CITY may modify
the design including any drawings or writings. Any use by CITY of the aforesaid sketches,
tracings, plans, computations, specifications, computer disk files, writings and other documents
in completed form as to other projects or extensions of this Project, or in uncompleted form,
without specific written verification by CONSULTANT will be at CITY’S sole risk and without
liability or legal exposure to CONSULTANT. CONSULTANT may keep a copy of all drawings and
specifications for its sole and exclusive use.
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i. In the event of the copyright of any reports or other products prepared
under this Agreement by CONSULTANT or any subcontractor, the Federal
Highway Administration (“FHWA”) shall have the royalty-free, nonexclusive
and irrevocable right to reproduce, publish, or otherwise use, and to
authorize others to use, the work for government purposes.
(c) If CONSULTANT should subcontract all or any portion of the services to be
performed under this Agreement, CONSULTANT shall cause each subcontractor to also comply
with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this Agreement.
6. Professional Skill. It is further mutually understood and agreed by and between
the parties hereto that inasmuch as CONSULTANT represents to CITY that CONSULTANT and
its subcontractors, if any, are skilled in the profession and shall perform in accordance with the
standards of said profession necessary to perform the services agreed to be done by it under this
Agreement, CITY relies upon the skill of CONSULTANT and any subcontractors to do and
perform such services in a skillful manner and CONSULTANT agrees to thus perform the services
and require the same of any subcontractors. Therefore, any acceptance of such services by CITY
shall not operate as a release of CONSULTANT or any subcontractors from said professional
standards.
7. Indemnification. To the furthest extent allowed by law, CONSULTANT shall
indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents
and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages
(whether in contract, tort or strict liability, including but not limited to personal injury, death at any
time and property damage), and from any and all claims, demands and actions in law or equity
(including reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or relate
to the negligence, recklessness or willful misconduct of CONSULTANT, its principals, officers,
employees, agents or volunteers in the performance of this Agreement.
If CONSULTANT should subcontract all or any portion of the services to be performed
under this Agreement, CONSULTANT shall require each subcontractor to indemnify, hold
harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in
accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. Insurance.
(a) Throughout the life of this Agreement, CONSULTANT shall pay for and
maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into
and part of this Agreement, with an insurance company(ies) either (i) admitted by the California
Insurance Commissioner to do business in the State of California and rated no less than “A-VII”
in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk
Manager or his/her designee at any time and in his/her sole discretion. The required policies of
insurance as stated in Exhibit B shall maintain limits of liability of not less than those 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.
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(b) If at any time during the life of the Agreement or any extension,
CONSULTANT or any of its subcontractors/sub-consultants fail to maintain any required
insurance in full force and effect, all services and work under this Agreement shall be discontinued
immediately, and all payments due or that become due to CONSULTANT shall be withheld until
notice is received by CITY that the required insurance has been restored to full force and effect
and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to
maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement.
No action taken by CITY pursuant to this section shall in any way relieve CONSULTANT of its
responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall
include, without limitation, notification received by CITY that an insurer has commenced
proceedings, or has had proceedings commenced against it, indicating that the insurer is
insolvent.
(c) The fact that insurance is obtained by CONSULTANT shall not be deemed
to release or diminish the liability of CONSULTANT, including, without limitation, liability under the
indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and
liability regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by CONSULTANT. Approval or
purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the
liability of CONSULTANT, its principals, officers, agents, employees, persons under the
supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub-consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
(d) If CONSULTANT should subcontract all or any portion of the services to be
performed under this Agreement, CONSULTANT shall require each subcontractor/sub-consultant
to provide insurance protection, as an additional insured, to the CITY and each of its officers,
officials, employees, agents and volunteers in accordance with the terms of this section, except
that any required certificates and applicable endorsements shall be on file with CONSULTANT
and CITY prior to the commencement of any services by the subcontractor. CONSULTANT and
any subcontractor/sub-consultant shall establish additional insured status for CITY, its officers,
officials, employees, agents and volunteers by using Insurance Service Office (ISO) Form CG
20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company
endorsement providing additional insured status as broad as that contained in ISO Form CG
20 10 11 85.
9. Conflict of Interest and Non-Solicitation.
(a) Prior to CITY’S execution of this Agreement, CONSULTANT shall complete
a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C.
During the term of this Agreement, CONSULTANT shall have the obligation and duty to
immediately notify CITY in writing of any change to the information provided by CONSULTANT in
such statement.
(b) CONSULTANT shall comply, and require its subcontractors to comply, with
all 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, 23 U.S.C. § 112, FHWA regulations applicable to design and engineering
consulting contracts found at 23 C.F.R. 172.1 et seq., 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
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the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written request of CITY,
CONSULTANT shall provide a written opinion of its legal counsel and that of any subcontractor
that, after a due diligent inquiry, CONSULTANT and the respective subcontractor(s) are in full
compliance with all laws and regulations. CONSULTANT shall take, and require its
subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon
discovery of any facts giving rise to the appearance of a conflict of interest, CONSULTANT shall
immediately notify CITY of these facts in writing.
(c) In performing the work or services to be provided hereunder,
CONSULTANT shall not employ or retain the services of any person while such person either is
employed by CITY or is a member of any CITY council, commission, board, committee, or similar
CITY body. This requirement may be waived in writing by the City Manager, if no actual or
potential conflict is involved.
(d) CONSULTANT represents and warrants that it has not paid or agreed to
pay any compensation, lawful or unlawful, contingent or otherwise, direct or indirect, to any party
to solicit or procure this Agreement or any rights/benefits hereunder. CITY shall have the right,
in its discretion, to deduct from any payment to CONSULTANT under this Agreement, or
otherwise recover the full amount of, any rebate, kickback or other consideration paid by
CONSULTANT in violation of any representation or warranty under this section.
(e) Neither CONSULTANT, nor any firm affiliated with 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 with the exception of any subcontractor whose services are limited to
providing surveying or materials testing information. CONSULTANT and any of its subcontractors
shall have no interest, direct or indirect, in any other contract with a third party in connection with
this Project unless such interest is in accordance with all applicable law and fully disclosed to and
approved by the City Manager, in advance and in writing. An affiliated firm is one which is subject
to the control of the same person(s) through joint-ownership or otherwise.
(f) CONSULTANT shall disclose any financial, business, or other relationship
with CITY that may have an impact upon the outcome of this Agreement or any ensuing CITY
construction project. CONSULTANT shall also disclose any current clients who may have a
financial interest in the outcome of this Agreement or any ensuing CITY construction project,
which will follow.
(g) CONSULTANT hereby certifies that it does not now have, nor shall it
acquire any financial or business interest that would conflict with the performance of services
under this Agreement.
(h) If CONSULTANT should subcontract all or any portion of the work to be
performed or services to be provided under this Agreement, CONSULTANT shall include the
provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith.
(i) 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:
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(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, Federal and State Assurances and Requirements.
(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. CONSULTANT and its subcontractors shall
maintain all books, documents, papers, accounting records, and other evidence pertaining to the
performance of the Agreement including, but not limited to, the costs of administering the
Agreement. CONSULTANT and its subcontractors shall make such materials available at their
respective offices at all reasonable times during the period of this Agreement and for 3 years, or
longer if required by law, from the date of final payment under the Agreement. CITY, the State,
the State Auditor, FHWA or any duly authorized representative of the federal government shall
have access to any books, records, papers, accounting records and other documents of
CONSULTANT and its subcontractors that are pertinent to the Agreement for audit, examinations,
excerpts, and transcriptions. Copies thereof shall be furnished by CONSULTANT, if requested.
If any litigation, claim, negotiations, audit or other action is commenced before the expiration of
the 3-year time period, all records shall be retained and made available until such action is
resolved, or until the end of said time period whichever shall later occur. If CONSULTANT should
subcontract all or any portion of the services to be performed under this Agreement,
CONSULTANT shall cause each subcontractor to also comply with the requirements of this
section and in the event a subcontract is entered into for an amount in excess of $25,000 the
subcontract shall include this paragraph in its entirety. 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 CONSULTANT is licensed to perform the services called for by
this Agreement (or that no license is required). If CONSULTANT should subcontract all or any
portion of the work or services to be performed under this Agreement, CONSULTANT shall
require each subcontractor to provide evidence to CITY that subcontractor is licensed to perform
the services called for by this Agreement (or that no license is required) before beginning work.
(d) CONSULTANT’S services pursuant to this Agreement shall be provided
under the supervision of Jeffrey Dorn, PE, and he/she shall not assign another to supervise
CONSULTANT’S performance of this Agreement without the prior written approval of the Director.
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(e) CITY will carry out applicable federal requirements in the administration of
this Agreement. Notwithstanding Section 25 herein, CONSULTANT agrees to comply with all
applicable federal and state assurances and requirements identified in Exhibit D along with its
Appendix A and require that each subcontract include the same assurances by each of its
subcontractors.
12. Nondiscrimination. To the extent required by controlling federal, state and local
law, CONSULTANT shall not employ discriminatory practices in the provision of services,
employment of personnel, or in any other respect on the basis of race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
Subject to the foregoing and during the performance of this Agreement, CONSULTANT agrees
as follows:
(a) CONSULTANT will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from
participation in, be denied the benefits of, or be subject to discrimination under any program or
activity made possible by or resulting from this Agreement.
(b) CONSULTANT will not discriminate against any employee or applicant for
employment because of race, religious creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status
as a disabled veteran or veteran of the Vietnam era. CONSULTANT shall ensure that applicants
are employed, and the employees are treated during employment, without regard to their race,
religious creed, color, national origin, ancestry, physical disability, 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. CONSULTANT agrees to
post in conspicuous places, available to employees and applicants for employment, notices
setting forth the provision of this nondiscrimination clause.
(c) CONSULTANT will, in all solicitations or advertisements for employees
placed by or on behalf of CONSULTANT in pursuit hereof, state that all qualified applicants will
receive consideration for employment without regard to race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
(d) CONSULTANT will send to each labor union or representative of workers
with which it has a collective bargaining agreement or other contract or understanding, a notice
advising such labor union or workers' representatives of CONSULTANT’S commitment under this
section and shall post copies of the notice in conspicuous places available to employees and
applicants for employment.
(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 CONSULTANT shall perform its work and functions. However, CITY shall retain
the right to administer this Agreement so as to verify that CONSULTANT is performing its
obligations in accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between
CONSULTANT and CITY. CONSULTANT shall have no authority to bind CITY absent CITY’S
express written consent. Except to the extent otherwise provided in this Agreement,
CONSULTANT shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, CONSULTANT and its
officers, agents and employees shall have absolutely no right to employment rights and benefits
available to CITY employees. CONSULTANT shall be solely liable and responsible for all payroll
and tax withholding and for providing to, or on behalf of, its employees all employee benefits
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.
16. Assignment.
(a) This Agreement is personal to CONSULTANT and there shall be no
assignment by CONSULTANT of its rights or obligations under this Agreement without the prior
written approval of the City Manager or his/her designee. Any attempted assignment by
CONSULTANT, its successors or assigns, shall be null and void unless approved in writing by
the City Manager or his/her designee.
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(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 attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
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.
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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.
29. RFQ Document. Any Request for Qualifications and documents issued therewith
(collectively referred to herein as “RFQ”) by CITY that resulted in selection of CONSULTANT for
entry into this Agreement are hereby incorporated into and made a part of this Agreement. In the
event of a conflict between the RFQ and this Agreement (including any Exhibit hereto), this
Agreement (including any Exhibit hereto) shall take precedence.
/ / /
/ / /
/ / /
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California,
the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
By:
Randall W. Morrison, PE, MCE,
Assistant Director
Public Works Department
ATTEST:
YVONNE SPENCE, CMC
City Clerk
By:
Deputy
No signature of City Attorney required.
Standard Document #DPW-S 31.1 has
been used without modification, as certified
by the undersigned.
By:
Brandon Chacon
Capital Development Specialist
Public Works Department
REVIEWED BY:
Scott Tyler, PE, Public Works Manager
Public Works Department
Addresses:
CITY:
City of Fresno
Attention: Brandon Chacon,
Capital Development Specialist
2600 Fresno Street
Fresno, CA 93721
Phone: (559) 621-8713
FAX: (559) N/A
Provost & Pritchard Engineering 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.]
Any Applicable Professional License:
Number:
Name:
Date of Issuance:
CONSULTANT:
Provost & Pritchard Engineering Group, Inc.
Attention: Jeffrey Dorn, PE,
Project Manager
286 W. Cromwell Avenue
Fresno, CA 93711
Phone: (559) 449-2700
FAX: (559) 449-2715
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
4. Exhibit D - Federal and State Assurances
5. Appendix A to Exhibit D
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Ronald Samuelian
President/CEO
RCE 66088
Vice President
Matthew W. Kemp
January 30, 2004
Matthew W. Kemp
DPW-S 31.1/ 03-24-14
Page 1 of 3
Exhibit A
Exhibit A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno (“City”)
and Provost & Pritchard Engineering Group, Inc. (“Consultant”)
Blackstone Avenue Overlay between Nees Avenue and Minarets Avenue
PROJECT TITLE
Consultant Project Design Elements:
The project includes the rehabilitation of existing pavement along Blackstone Avenue from
Minarets Avenue to Nees Avenue with a 0.24’ to 0.4’ grind and overlay and fully reconstruct
portions of roadway as needed. The project will also support complete streets goals by
reconstructing curb ramps, replacing existing asphalt pathway with concrete sidewalk, installing
a 7’ class II bike land with striped buffers, and green or white high visibility striping through conflict
zones. This project will also replace existing median island shrubs with low maintenance, drought
tolerant shrubs. Traffic signal loops will be replaced and median noses will be adjusted to provide
at least 6’ of clearance in the crosswalk. Median island noses will be adjusted to be completely
outside the crosswalk where no conflicts with pull boxes or signal poles exist. Existing pedestrian
push buttons will be replaced with audible Accessible Pedestrian Signal (APS) push buttons,
where required. Pedestrian push buttons will be removed from the median islands. The City will
review the traffic signal timing to ensure adequate crossing time. No FMFCD facilities will be
relocated except for the adjustment of manholes to finished grade.
Scope of Services:
The proposed scope of work for this project is segregated into several phases, following the
outline of the standard City agreement, and described below.
Part One: Schematic Design
•Conduct utility research and identify potential conflicts with record utilities
•Conduct site investigation for the purposes of preparing construction documents
•Prepare curb ramp assessment memo identifying ADA compliance issues with existing curb
ramps
•Prepare base map from City’s topo, boundary, and control survey AutoCAD drawing.
•Subconsultant, Blackburn Consulting, will provide eight (8) pavement coring’s and four (4) R-
values. City will provide no-fee encroachment permits and boring permits will not be required due
to the shallow depth (less than 4 feet). Blackburn will engage a subcontractor to provide traffic
control for a rolling lane closure during drilling operations. Rolling lane closure will be limited to
between the hours of 10pm and 5am.
•Prepare schematic layout of improvements on 1” = 40’ scale, double plan view (no profile) 24”
by 36” sheets, including limits of work, locations of pavement rehabilitation, locations of new curb
ramps, and striping layout. No changes to curb alignments are included in this project. Schematic
plans will include the following sheets:
a. Cover, notes, legend sheet
b. Street plan sheets
c. Striping sheets
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Page 2 of 3
Exhibit A
•Prepare right-of-way exhibits and legal descriptions for 6 right-of-way takes (across 5 parcels)
and 6 pedestrian easements (across 4 parcels).
•Prepare preliminary Engineer’s Opinion of Probable Construction Cost (EOPCC)
•Submit four (4) sets of schematic plans and preliminary EOPCC to the City. Design submittals
will be made to the City’s designated project manager who will distribute submittals and
coordinate review with City Departments.
•Virtual meeting with City staff to discuss comments to the plans
•Schedule: 28 calendar days from receipt of the Notice to Proceed
Part Two: Design Development
•Communicate with utility providers to resolve potential utility conflicts and prepare and submit
necessary documents for utility relocations, if any.
•Prepare the following plans on 24” by 36” sheets:
a. Cover, notes, legend sheet
b. Street plan sheets (1”=40’ double plan view, no profile)
c. Typical cross section and detail sheet
d. Striping sheets (1”=40’ double plan view, no profile)
e. Traffic signal modification sheet (1”=20’ scale)
f. Curb ramp & median nose adjustment detail sheets (each ramp at 1”=5’ scale)
g. Median island planting plan (1”=40’ double plan view, no profile). Existing irrigation will
be protected in place.
•City will provide current template Word document files for bid proposal pages, technical
explanation of bid items, and special conditions. Our project team will create bid item descriptions,
insert calculated quantities and submit to City for inclusion in specifications package prepared by
City
•Refine Preliminary Engineer’s Opinion of Probable Construction Cost (EOPCC)
•Submit four (4) sets of 60% plans and Preliminary EOPCC to the City
•Virtual meeting with City staff to discuss comments to the plans
•Schedule: 42 calendar days from receipt of the Notice to Proceed for Part 2.
Part Three: Construction Documents
•Incorporate City comments and feedback consistent with approved schematic plans, 60% plans
and prepare final plan including the following sheets:
a. Cover, notes, legend sheet
b. Street plan sheets (1”=40’ double plan view, no profile)
c. Typical cross section and detail sheet
d. Striping sheets (1”=40’ double plan view, no profile)
e. Traffic signal modification sheet (1”=20’ scale)
f. Curb ramp & median nose adjustment detail sheets (each ramp at 1”=5’ scale)
g. Median island planting plan (1”=40’ double plan view, no profile). Existing irrigation will
be protected in place.
•Refine and provide City additional detail for bid item descriptions, and calculated quantities.
•Prepare final Engineer’s Opinion of Probable Construction Cost (EOPCC)
•Submit PDF and six (6) hard copy sets of final plans, specifications and EOPCC to the City
•Address City comments and submit PDFs of plans for final approval
•Submit final signed and sealed plans on mylar for City signature
•Schedule: 35 calendar days from receipt of the Notice to Proceed for Part Three.
DocuSign Envelope ID: 72887F37-FA33-446F-9EF0-78CB8181ABFD
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Exhibit A
Part Four: Bidding Phase
•Assist City in responding to requests for information and preparing addenda, if necessary.
Part Five: Construction Phase
•Attend pre-construction conference
•Review shop drawings and submittals
•Provide interpretation and/or clarification of construction documents during construction in
response to requests for information from the contractor
•Review and provide technical information for construction contract change order requests if
necessary
•Conduct site visits at intervals appropriate to the state of construction
•Prepare record drawings based on contractor’s as-built drawings.
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2/2/2018
Exhibit B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (“CITY”)
and Provost & Pritchard Engineering Group, Inc. (“CONSULTANT”)
Blackstone Avenue Overlay between Nees Avenue and Minarets Avenue
PROJECT TITLE
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 00 01, providing liability coverage
arising out of your business operations. The Commercial General Liability
policy shall be written on an occurrence form and shall provide coverage for
“bodily injury,” “property damage” and “personal and advertising injury” with
coverage for premises and operations (including the use of owned and non-
owned equipment), products and completed operations, and contractual
liability (including, without limitation, indemnity obligations under the
Agreement) with limits of liability not less than those set forth under
“Minimum Limits of Insurance.”
2. The most current version of ISO *Commercial Auto Coverage Form CA 00
01, providing liability coverage arising out of the ownership, maintenance or
use of automobiles in the course of your business operations. The
Automobile Policy shall be written on an occurrence form and shall provide
coverage for all owned, hired, and non-owned automobiles or other licensed
vehicles (Code 1- Any Auto).
3. Workers’ Compensation insurance as required by the State of California
and Employer’s Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to
CONSULTANT’s profession.
MINIMUM LIMITS OF INSURANCE
CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits of
liability of not less than those set forth below. However, insurance limits available to CITY,
its officers, officials, employees, agents, and volunteers as additional insureds, shall be
the greater of the minimum limits specified herein or the full limit of any insurance proceeds
available to the named insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
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2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS’ COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER’S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event CONSULTANT purchases an Umbrella or Excess insurance policy(ies) to
meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and
afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella
or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis
for the benefit of the CITY, its officers, officials, employees, agents, and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
CONSULTANT shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and CONSULTANT shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured retentions must
be declared to on the Certificate of Insurance, and approved by, the CITY’s Risk Manager
or designee. At the option of the CITY’s Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects CITY, its officers, officials, employees, agents,
and volunteers; or
(ii) CONSULTANT shall provide a financial guarantee, satisfactory to
CITY’s Risk Manager or designee, guaranteeing payment of losses
and related investigations, claim administration and defense
expenses. At no time shall CITY be responsible for the payment of
any deductibles or self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be
endorsed to contain, the following provisions:
1. CITY, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. CONSULTANT shall establish additional
insured status for the City and for all ongoing and completed operations
under the Commercial General Liability policy by use of ISO Forms or an
executed manuscript insurance company endorsement providing additional
insured status. The Commercial General endorsements must be as broad
as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20
37.
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2. The coverage shall contain no special limitations on the scope of protection
afforded to CITY, its officers, officials, employees, agents, and volunteers.
Any available insurance proceeds in excess of the specified minimum limits
and coverage shall be available to the Additional Insured.
3. For any claims relating to this Agreement, CONSULTANT’s insurance
coverage shall be primary insurance with respect to the CITY, its officers,
officials, employees, agents, and volunteers. Any insurance or self-
insurance maintained by the CITY, its officers, officials, employees, agents,
and volunteers shall be excess of CONSULTANT’s insurance and shall not
contribute with it. CONSULTANT shall establish primary and non-
contributory status by using ISO Form CG 20 01 04 13 or by an executed
manuscript insurance company endorsement that provides primary and
non-contributory status as broad as that contained in ISO Form CG
20 01 04 13.
The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the
following provision: CONSULTANT and its insurer shall waive any right of subrogation
against CITY, its officers, officials, employees, agents, and volunteers.
If the Professional Liability (Errors and Omissions) insurance policy is written on a claims-
made form:
1. The retroactive date must be shown, and must be before the effective date
of the Agreement or the commencement of work by CONSULTANT.
2. Insurance must be maintained and evidence of insurance must be provided
for at least five (5) years after completion of the Agreement work or
termination of the Agreement, whichever occurs first, or, in the alternative,
the policy shall be endorsed to provide not less than a five (5) year discovery
period.
3. If coverage is canceled or non-renewed, and not replaced with another
claims-made policy form with a retroactive date prior to the effective date of
the Agreement or the commencement of work by CONSULTANT,
CONSULTANT must purchase “extended reporting” coverage for a
minimum of five (5) years completion of the Agreement work or termination
of the Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to CITY for
review.
5. These requirements shall survive expiration or termination of the
Agreement.
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty
(30) calendar days written notice by certified mail, return receipt requested, has been
given to CITY. CONSULTANT is also responsible for providing written notice to the CITY
under the same terms and conditions. Upon issuance by the insurer, broker, or agent of
a notice of cancellation, non-renewal, or reduction in coverage or in limits, CONSULTANT
shall furnish CITY with a new certificate and applicable endorsements for such policy(ies).
In the event any policy is due to expire during the work to be performed for CITY,
CONSULTANT shall provide a new certificate, and applicable endorsements, evidencing
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renewal of such policy not less than fifteen (15) calendar days prior to the expiration date
of the expiring policy.
Should any of the required policies provide that the defense costs are paid within the
Limits of Liability, thereby reducing the available limits by any defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated limits.
The fact that insurance is obtained by CONSULTANT shall not be deemed to release or
diminish the liability of CONSULTANT, including, without limitation, liability under the
indemnity provisions of this Agreement. The policy limits do not act as a limitation upon
the amount of indemnification to be provided by CONSULTANT. Approval or purchase
of any insurance contracts or policies shall in no way relieve from liability nor limit the
liability of CONSULTANT, its principals, officers, agents, employees, persons under the
supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub-consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
SUBCONTRACTORS - If CONSULTANT subcontracts any or all of the services to be
performed under this Agreement, CONSULTANT shall require, at the discretion of the
CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side
Agreement with the City to provide required indemnification and insurance protection.
Any required Side Agreement(s) and associated insurance documents for the
subcontractor must be reviewed and preapproved by CITY Risk Manager or designee.
If no Side Agreement is required, CONSULTANT will be solely responsible for ensuring
that it’s subcontractors maintain insurance coverage at levels no less than those
required by applicable law and is customary in the relevant industry.
VERIFICATION OF COVERAGE
CONSULTANT shall furnish CITY with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements
are to be received and approved by the CITY’S Risk Manager or his/her designee prior
to CITY’S execution of the Agreement and before work commences. All non-ISO
endorsements amending policy coverage shall be executed by a licensed and authorized
agent or broker. Upon request of CITY, CONSULTANT shall immediately furnish City with
a complete copy of any insurance policy required under this Agreement, including all
endorsements, with said copy certified by the underwriter to be a true and correct copy of
the original policy. This requirement shall survive expiration or termination of this
Agreement.
DocuSign Envelope ID: 72887F37-FA33-446F-9EF0-78CB8181ABFD
Exhibit C
DISCLOSURE OF CONFLICT OF INTEREST
Blackstone Avenue Overlay between Nees Avenue and Minarets Avenue
PROJECT TITLE
YES* NO
1 Are you currently in litigation with the City of Fresno or any of its
agents?
2 Do you represent any firm, organization or person who is in litigation
with the City of Fresno?
3 Do you currently represent or perform work for any clients who do
business with the City of Fresno?
4 Are you or any of your principals, managers or professionals, owners
or investors in a business which does business with the City of
Fresno, or in a business which is in litigation with the City of Fresno?
5 Are you or any of your principals, managers or professionals, related
by blood or marriage to any City of Fresno employee who has any
significant role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with
this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Signature
Date
(name)
(company)
(address)
Additional page(s) attached.
(city state zip)
DocuSign Envelope ID: 72887F37-FA33-446F-9EF0-78CB8181ABFD
6/15/2021
X
X
Matthew W. Kemp
Provost & Pritchard provides engineering
and consulting services for public and
private clients that do business with
the City.
X
Provost & Pritchard Consulting Group
Clovis CA 93611
455 W. Fir Avenue
X
X
X
DPW-S 31.1/ 03-24-14
Page 1 of 3
Exhibit D
Exhibit D
FEDERAL AND STATE ASSURANCES
Consultant Service Agreement between City of Fresno (“CITY”)
and Provost & Pritchard Engineering Group, Inc. (“CONSULTANT”)
Blackstone Avenue Overlay between Nees Avenue and Minarets Avenue
1. CONSULTANT shall comply with and require its Subcontractors to comply with the
following:
a. 23 USC §112 regarding Highways and the letting of contracts to Architects and
Engineers;
b. The provisions of the Fair Employment and Housing Act (Government Code
Section 1290-0 et seq.), and the applicable regulations promulgated thereunder
(California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable
regulations of the Fair Employment and Housing Commission implementing
Government Code Section 12900(a-f), set forth in Chapter of Division 4 of Title 2
of the California Code of Regulations are incorporated into this Agreement by
reference and made a part hereof as if set forth in full. Give a written notice of their
obligations under this clause to any labor organizations with which they have a
collective bargaining or any other agreements as appropriate. INCLUDE THIS
ENTIRE CLAUSE IN ANY AND ALL SUBCONTRACTS.
c. Appendix A attached hereto and incorporated herein.
2. Cost Principles
a. CONSULTANT agrees that the Contract Cost Principles and Procedures, 48 CFR,
Federal Acquisition Regulations System, Chapter 1 Part 31.000 et seq., shall be
used to determine the allowability of cost for individual items.
b. CONSULTANT also agrees to comply with federal procedures in accordance with
49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments.
c. Any costs for which payment has been made to CONSULTANT that are
determined by subsequent audit to be unallowable under 48 CFR, Federal
Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to
repayment by CONSULTANT to CITY.
3. Subcontracting
a. CONSULTANT shall perform the work contemplated with resources available
within its own organization; and no portion of the work pertinent to this Agreement
shall be subcontracted without written authorization by the CITY’S Contract
Manager, except that, which is expressly identified in the approved Cost Proposal.
b. Any subcontract in excess of $25,000 shall contain ALL the provisions stipulated
in this Agreement to be applicable to subcontractors.
c. Any substitution of subconsultants/subcontractors must be approved in writing by
the CITY’s Contract Manager.
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Exhibit D
4. Equipment Purchase
a. Prior authorization in writing, by the CITY’S Contract Manager shall be required
before CONSULTANT enters into any unbudgeted purchase order, or subcontract
exceeding $5,000 for supplies, equipment, or CONSULTANT services.
CONSULTANT shall provide a written request which includes an evaluation of the
necessity or desirability of incurring such costs, three competitive quotations
obtained in the manner prescribed in the CITY’s Municipal Code Section 4-101(d)
or 4-102 as applicable or a sole source justification as provided in the CITY’S
Administrative Order No. 3-3.
b. Any equipment purchased as a result of this Agreement is subject to the following:
CONSULTANT shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and
an acquisition cost of $5,000 or more. If the purchased equipment needs
replacement and is sold or traded in, CITY shall receive a proper refund or credit
at the conclusion of the Agreement, or if the Agreement is terminated,
CONSULTANT may either keep the equipment and credit CITY in an amount equal
to its fair market value, or sell such equipment at the best price obtainable at a
public or private sale, in accordance with established CITY procedures; and credit
CITY in an amount equal to the sales price. If CONSULTANT elects to keep the
equipment, fair market value shall be determined at CONSULTANT’S expense, on
the basis of a competent independent appraisal of such equipment. Appraisals
shall be obtained from an appraiser mutually agreeable to CITY and
CONSULTANT, if it is determined to sell the equipment, the terms and conditions
of such sale must be approved in advance by CITY. 49 CFR, Part 18 requires a
credit to Federal funds when participating equipment with a fair market value
greater than $5,000.00 is credited to the project.
c. The above provisions shall be included in all subcontracts in excess of $25,000.
5. PROHIBITION OF EXPENDING CITY STATE OR FEDERAL FUNDS FOR LOBBYING
This section only applies to contracts where federal funding will exceed $100,000.
A. CONSULTANT certifies to the best of his or her knowledge and belief that:
1. No state, federal or CITY appropriated funds have been paid, or will be paid by-
or-on behalf of CONSULTANT to any person for influencing or attempting to influence an
officer or employee of any state or federal agency; a Member of the State Legislature or
United States Congress; an officer or employee of the Legislature or Congress; or any
employee of a Member of the Legislature or Congress, in connection with the awarding of
any state or federal contract; the making of any state or federal grant; the making of any
state or federal loan; the entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any state or federal contract, grant,
loan, or cooperative agreement.
2. If any funds other than federal appropriated funds have been paid, or will be
paid to any person for influencing or attempting to influence an officer or employee of any
federal agency; a Member of Congress; an officer or employee of Congress, or an
employee of a Member of Congress; in connection with this federal contract, grant, loan,
or cooperative agreement; CONSULTANT shall complete and submit Standard Form-LLL,
"Disclosure Form to Report Lobbying," in accordance with its instructions.
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Exhibit D
B. This certification is a material representation of fact upon which reliance was placed
when this transaction was made or entered into. Submission of this certification is a
prerequisite for making or entering into this transaction imposed by Section 1352, Title 31,
U.S.Code. Any person who fails to file the required certification shall be subject to a civil
penalty of not less than $10,000 and not more than $100,000 for each such failure.
C. CONSULTANT also agrees by signing this document that he or she shall require that
the language of this certification be included in all lower-tier subcontracts, which exceed
$100,000, and that all such sub recipients shall certify and disclose accordingly.
6. NON-DISCRIMINATION CLAUSE
During the performance of this Agreement, CONSULTANT and its subcontractors shall
not unlawfully discriminate, harass, or allow harassment against any employee or
applicant for employment because of sex, race, color, ancestry, religious creed, national
origin, physical disability (including HIV and AIDS), mental disability, medical condition
(e.g., cancer), age (over 40), marital status, and denial of family care leave.
CONSULTANT and subcontractors shall insure that the evaluation and treatment of their
employees and applicants for employment are free from such discrimination and
harassment. CONSULTANT and subcontractors shall comply with the provisions of the
Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable
regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285
et seq.). The applicable regulations of the Fair Employment and Housing Commission
implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4
of Title 2 of the California Code of Regulations, are incorporated into this Agreement by
reference and made a part hereof as if set forth in full. CONSULTANT and its
subcontractors shall give written notice of their obligations under this clause to labor
organizations with which they have a collective bargaining or other Agreement.
CONSULTANT shall include the nondiscrimination and compliance provisions of this
clause in all subcontracts to perform work under the Agreement.
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Appendix A to Exhibit D
APPENDIX A TO EXHIBIT D
Consultant Service Agreement between City of Fresno (“CITY”)
and Provost & Pritchard Engineering Group, Inc. (“CONSULTANT”)
Blackstone Avenue Overlay between Nees Avenue and Minarets Avenue
(1) CONSULTANT shall comply with the regulations relative to nondiscrimination in federally
assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations,
Part 21, as they may be amended from time to time, (hereinafter referred to as the
REGULATIONS), which are herein incorporated by reference and made a part of this Agreement.
(2) CONSULTANT, with regard to the work performed by it during the Agreement, shall not
discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the
selection and retention of sub-applicants, including procurements of materials and leases of
equipment. CONSULTANT shall not participate either directly or indirectly in the discrimination
prohibited by Section 21.5 of the REGULATIONS, including employment practices when the
Agreement covers a program set forth in Appendix B of the REGULATIONS.
(3) In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work
to be performed under a Sub-agreement, including procurements of materials or leases of
equipment, each potential sub-applicant or supplier shall be notified by CONSULTANT of the
CONSULTANT'S obligations under this Agreement and the REGULATIONS relative to
nondiscrimination on the grounds of race, color, or national origin.
(4) CONSULTANT shall provide all information and reports required by the REGULATIONS, or
directives issued pursuant thereto, and shall permit access to CONSULTANT'S books, records,
accounts, other sources of information, and its facilities as may be determined by STATE or
Federal Highway Administration (“FHWA”) to be pertinent to ascertain compliance with such
REGULATIONS or directives. Where any information required of CONSULTANT is in the
exclusive possession of another who fails or refuses to furnish this information, CONSULTANT
shall so certify to the State of California (“STATE”) or the FHWA as appropriate, and shall set
forth what efforts CONSULTANT has made to obtain the information.
(5) In the event of CONSULTANT'S noncompliance with the nondiscrimination provisions of this
Agreement, STATE shall impose such agreement sanctions as it or the FHWA may determine to
be appropriate, including, but not limited to:
(a) withholding of payments to CITY under the Agreement within a reasonable period of
time, not to exceed 90 days; and/or
(b) cancellation, termination or suspension of the Agreement, in whole or in part.
(6) CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub-
agreement, including procurements of materials and leases of equipment, unless exempt by the
REGULATIONS, or directives issued pursuant thereto. CONSULTANT shall take such action
with respect to any sub-agreement or procurement as STATE or FHWA may direct as a means
of enforcing such provisions including sanctions for noncompliance, provided, however, that, in
the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant
or supplier as a result of such direction, CONSULTANT may request STATE enter into
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Page 2 of 2
Appendix A to Exhibit D
such litigation to protect the interests of STATE, and, in addition, CONSULTANT may request the
United States to enter into such litigation to protect the interests of the United States.
(7) CONSULTANT shall execute the following CERTIFICATION OF CONSULTANT,
COMMISSIONS & FEES
I HEREBY CERTIFY that I am , and duly authorized representative
of the firm of __________________________ whose address
is_______________________________________________________________, and that,
except as hereby expressly stated, neither I nor the above firm that I represent have:
(a) employed or retained for a commission, percentage, brokerage, contingent fee, or other
consideration, any firm or person (other than a bona fide employee working solely for me or the
above CONSULTANT) to solicit or secure this Agreement; nor
(b) agreed, as an express or implied condition for obtaining this Agreement, to employ or retain
the services of any firm or person in connection with carrying out the Agreement; nor
(c) paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee
working solely for me or the above CONSULTANT) any fee, contribution, donation, or
consideration of any kind, for or in connection with, procuring or carrying out this Agreement.
I acknowledge that this Certificate is to be made available to the California Department of
Transportation (Caltrans) in connection with this Agreement involving participation of Federal-aid
Highway funds, and is subject to applicable state and federal laws, both criminal and civil.
(Date)_______________________ (Signature) _______________________________
DocuSign Envelope ID: 72887F37-FA33-446F-9EF0-78CB8181ABFD
Vice President
6/15/2021
Matthew W. Kemp
Provost & Pritchard Consulting Group
455 W. Fir Ave, Clovis CA 93611