HomeMy WebLinkAboutBlair, Church & Flynn Consulting Agreement 11.14.2022 VUUUJIIy.I I CI IVCIUFIC ILi.U I I LJ I ZIUU-4�0I-4J4U-0U00-0I LCU/C14u%':)
AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT (Agreement) is made and entered into, effective
November 14, 2022 , by and between the CITY OF FRESNO, a California
municipal corporation(the City), and BLAIR, CHURCH & FLYNN CONSULTING
ENGINEERS, a California corporation (Consultant).
RECITALS
WHEREAS, the City desires to obtain professional engineering services for the
Granite Park Facilities Condition Assessment (Project); and
WHEREAS, the Consultant is engaged in the business of furnishing services as a
licensed 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, the 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 the City by its Public Works
Director (Director) or 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
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1. Scope of Services. The Consultant shall perform to the satisfaction of the
City the services described in Exhibit A, including alf work incidental to, or necessary to
perform, such services even though not specifically described in Exhibit A.
2. Term of Agreement and Time for Performance. This Agreement shall be
effective from the date first set forth above and shall continue in full farce and effect
through the earlier of complete rendition of the services hereunder or May 31, ,2023,
subject to any earlier termination in accordance with this Agreement. The services of the
Consultant as described in Exhibit A are to commence upon the City's issuance of a
written "Notice to Proceed_" Work shall be undertaken and completed in a sequence
assuring expeditious completion, but in any event, all such services shall be completed
within two hundred consecutive calendar days from such authorization to proceed.
3. Comgensation.
(a) The Consultant's sole compensation for satisfactory performance of
all services required or rendered pursuant to this Agreement shall be a total fee not to
exceed $45,000, paid on a time and materials basis in accordance with the schedule of
fees contained in Exhibit A, and a contingency amount not to exceed $4,000 for any
additional work rendered pursuant to Subsection (c) below and authorized in writing by
the Director.
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(b) Detailed statements shall be rendered monthly and will be payable
in the normal course of City business. The City shall not be obligated to reimburse any
expense for which it has not received a detailed invoice with applicable copies of
representative and identifiable receipts or records substantiating such expense.
(c) The parties may modify this Agreement to increase or decrease the
scope of services or provide for the rendition of services not required by this Agreement,
which modification shall include an adjustment to the Consultant's compensation. Any
change in the scope of services must be made by written amendment to the Agreement
signed by an authorized representative for each party. The Consultant shall not be
entitled to any additional compensation if services are performed prior to a signed written
amendment.
4. Termination, Remedies. and Force Maieure.
(a) This Agreement shall terminate without any liability of the City to the
Consultant upon the earlier of: (i) the Consultant's filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third
party against the Consultant; (ii) seven calendar days prior written notice with or without
cause by the City to the Consultant; (iii) the City's non-appropriation of funds sufficient to
meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient
funding for the Project; or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
the Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any
and all of its subcontractors to cease work; and (iii) return to the City any and all unearned
payments and all properties and materials in the possession of the Consultant that are
owned by the City. Subject to the terms of this Agreement, The Consultant shall be paid
compensation for services satisfactorily performed prior to the effective date of
termination. The Consultant shall not be paid for any work or services performed or costs
incurred which reasonably could have been avoided.
(c) In the event of termination due to failure of the Consultant to
satisfactorily perform in accordance with the terms of this Agreement, the City may
withhold an amount that would otherwise be payable as an offset to, but not in excess of,
the City's damages caused by such failure. In no event shall any payment by the City
pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement
which may then exist on the part of the Consultant, nor shall such payment impair or
prejudice any remedy available to the City with respect to the breach.
(d) Upon any breach of this Agreement by the Consultant, the City may
(i) exercise any right, remedy (in contract, law or equity), or privilege which may be
available to it under applicable laws of the State of California or any other applicable law;
(ii) proceed by appropriate court action to-enforce the terms of the Agreement; and/or (iii)
recover all direct, indirect, consequential, economic and incidental damages for the
breach of the Agreement. If it is determined that the City improperly terminated this
Agreement for default, such termination shall be deemed a termination for convenience.
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(e) The Consultant shall provide the City with adequate written
assurances of future performance, upon Director's request, in the event the Consultant
fails to comply with any terms or conditions of this Agreement.
(f) The Consultant shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of the Consultant and without its
fault or negligence such as, acts of Cod or the public enemy, acts of the City in its
contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually
severe weather, and delays of common carriers. The Consultant shall notify Director in
writing as soon as it is reasonably possible after the commencement of any excusable
delay, setting forth the full particulars in connection therewith, and shall remedy such
occurrence with all reasonable dispatch, and shall promptly give written notice to Director
of the cessation of such occurrence.
5. Confidential Information, Cwnershi of Documents and Copyright License.
(a) Any reports, information, or other data prepared or assembled by the
Consultant pursuant to this Agreement shall not be made available to any individual or
organization by the Consultant without the prior written approval of the City. During the
term of this Agreement, and thereafter, the Consultant shall not, without the prior written
consent of the City, disclose to anyone any Confidential Information. The term
Confidential Information for the purposes of this Agreement shall include all proprietary
and confidential information of the City, including but not limited to business plans,
marketing plans, financial information, 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 the City.
(b) Any and all original sketches, pencil tracings of working drawings,
plans, computations, specifications, computer disk files, writings and other documents
prepared or provided by the Consultant pursuant to this Agreement are the property of
the City at the time of preparation and shall be turned over to the City upon expiration or
termination of the Agreement or default by the Consultant. The Consultant grants the
City a copyright license to use such drawings and writings. The Consultant shall not
permit the reproduction or use thereof by any other person except as otherwise expressly
provided herein. The City may modify the design including any drawings or writings. Any
use by the City of the aforesaid sketches, tracings, plans, computations, specifications,
computer disk files, writings and other documents in completed form as to other projects
or extensions of this Project, or in uncompleted form, without specific written verification
by the Consultant will be at the City's sole risk and without liability or legal exposure to
the Consultant. The Consultant may keep a copy of all drawings and specifications for
its sole and exclusive use.
(c) If the Consultant should subcontract all or any portion of the services
to be performed under this Agreement, the Consultant shall cause each subcontractor to
also comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this
Agreement.
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6. Professional Skill. It is further mutually understood and agreed by and
between the parties hereto that inasmuch as the Consultant represents to the City that
the 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, the City relies upon the skill of the
Consultant and any subcontractors to do and perform such services in a skillful manner
and the Consultant agrees to thus perform the services and require the same of any
subcontractors. Therefore, any acceptance of such services by the City shall not operate
as a release of the Consultant or any subcontractors from said professional standards.
7. Indemnification. To the furthest extent allowed by law, the Consultant shall
indemnify, hold harmless and defend the 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, litigation
expenses and cost to enforce this agreement) that arise out of, pertain to, or relate to the
negligence, recklessness or willful misconduct of the Consultant, its principals, officers,
employees, agents or volunteers in the performance of this Agreement.
If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall require each subcontractor to
indemnify, hold harmless and defend the 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, the Consultant shall pay for
and maintain in full force and effect all insurance as required in Exhibit B, which is
incorporated into and part of this Agreement, with an 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 the City's Risk Manager or designee at any time and in
his or 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 the City, its officers, officials, employees, agents, and
volunteers as additional insureds, shall be the greater of the minimum limits specified
therein or the full limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, the
Consultant or any of its subcontractors/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 the Consultant
shall be withheld until notice is received by the 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 the City. Any failure to maintain the required insurance shall be
sufficient cause for the City to terminate this Agreement. No action taken by the City
pursuant to this section shall in any way relieve the Consultant of its responsibilities under
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this Agreement. The phrase "fail to maintain any required insurance" shall include,
without limitation, notification received by the City that an insurer has commenced
proceedings, or has had proceedings commenced against it, indicating that the-insurer is
insolvent.
(c) The fact that insurance is obtained by the Consultant shall not be
deemed to release or diminish the liability of the Consultant, including, without limitation,
liability under the indemnity provisions of this Agreement. The duty to indemnify the 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 the Consultant. Approval or purchase of any insurance contracts or
policies shall in no way relieve from liability nor limit the liability of the Consultant, its
principals, officers, agents, employees, persons under the supervision of the Consultant,
vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone
employed directly or indirectly by any of them.
(d) If the Consultant should subcontract all or any portion of the services
to be performed under this Agreement, the 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 the Consultant and the City prior to the
commencement of any services by the subcontractor. The Consultant and any
subcontractor/sub-consultant shall establish additional insured status for the 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 Nate-Solicitation.
(a) Prior to the City's execution of this Agreement, the Consultant shall
complete a City of Fresno conflict of interest disclosure statement in the form as set forth
in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation
and duty to immediately notify the City in writing of any change to the information provided
by the Consultant in such statement.
(b) The Consultant shall comply, and require its subcontractors to
comply, with all applicable (i) professional canons and requirements governing avoidance
of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws
and regulations including, without limitation, California Government Code Section 1090
et. seq., the California Political Reform Act (California Government Code Section 87100
et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure
and disqualification (2 California Code of Regulations Section 18700 et seq.) and Section
4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written
request of the City, the Consultant shall provide a written opinion of its legal counsel and
that of any subcontractor that, after a due diligent inquiry, the Consultant and the
respective subcontractor(s) are in full compliance with all laws and regulations. The
Consultant shall take, and require its subcontractors to take, reasonable steps to avoid
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any appearance of a conflict of interest. Upon discovery of any facts giving rise to the
appearance of a conflict of interest, the Consultant shall immediately notify the City of
these facts in writing.
(c) In performing the work or services to be provided hereunder, the
Consultant shall not employ or retain the services of any person while such person either
is employed by the City or is a member of any City council, commission, board,
committee, or similar City body. This requirement may be waived in writing by the City
Manager, if no actual or potential conflict is involved.
(d) The Consultant represents and warrants that it has not paid or
agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or
procure this Agreement or any rights/benefits hereunder.
(e) Neither the Consultant, nor any of the Consultant's subcontractors
performing any services on this Project, shall bid for, assist anyone in the preparation of
a bid for, or perform any services pursuant to, any other contract in connection with this
Project. The Consultant and any of its 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.
(f) If the Consultant should subcontract all or any portion of the work to
be performed or services to be provided under this Agreement, the Consultant shall
include the provisions of this Section 9 in each subcontract and require its subcontractors
to comply therewith.
(g) This Section 9 shall survive expiration or termination of this
Agreement.
10. Recycling Program. In the event the Consultant maintains an office or
operates a facility(ies), or is required herein to maintain or operate same, within the
incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall:
(a) Immediately establish and maintain a viable and ongoing recycling
program, approved by the City's Solid Waste Management Division, for each office and
facility. Literature describing the City recycling programs is available from the City's Solid
Waste Management Division and by calling City of Fresno Recycling Hotline at(559) 621-
1111.
(b) Immediately contact the City's Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their
conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of the City's Solid
Waste Management Division the establishment of the recycling program in paragraph (a)
above and the ongoing maintenance thereof.
11. General Terms.
(a) Except as otherwise provided by law, all notices expressly required
of the City within the body of this Agreement, and not otherwise specifically provided for,
shall be effective only if signed by the Director or designee.
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(b) Records of the Consultant's expenses pertaining to the Project shall
be kept on a generally recognized accounting basis and shall be available to the City or
its authorized representatives upon request during regular business hours throughout the
life of this Agreement and for a period of three years after final payment or, if longer, for
any period required by law. In addition, all books, documents, papers, and records of the
Consultant pertaining to the Project shall be available for the purpose of making audits,
examinations, excerpts, and transcriptions for the same period of time. If any litigation,
claim, negotiations, audit or other action is commenced before the expiration of said time
period, all records shall be retained and made available to the City until such action is
resolved, or until the end of said time period whichever shall later occur. If the Consultant
should subcontract all or any portion of the services to be performed under this
Agreement, the Consultant shall cause each subcontractor to also comply with the
requirements of this paragraph. This Section 11(b) shall survive expiration or termination
of this Agreement.
(c) Prior to execution of this Agreement by the City, the Consultant shall
have provided evidence to the City that the Consultant is licensed to perform the services
called for by this Agreement (or that no license is required). If the Consultant should
subcontract all or any portion of the work or services to be performed under this
Agreement, the Consultant shall require each subcontractor to provide evidence to the
City that subcontractor is licensed to perform the services called for by this Agreement
(or that no license is required) before beginning work.
12. Nondiscrimination. To the extent required by controlling federal, state and
local law, the Consultant shall not employ discriminatory practices in the provision of
services, employment of personnel, or in any other respect on the basis of race, religious
creed, color, national origin, ancestry, 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, the Consultant agrees as follows:
(a) The 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) The 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. The
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 the Consultant's employment practices including, but not
be limited to, the following: employment, upgrading, demotion or transfer; recruitment or
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recruitment advertising; layoff or termination; rates of pay or other forms of compensation;
and selection for training, including apprenticeship. The Consultant agrees to post in
conspicuous places, available to employees and applicants for employment, notices
setting forth the provision of this nondiscrimination clause.
(c) The Consultant will, in all solicitations or advertisements for
employees placed by or on behalf of the 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) The 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 the
Consultant's commitment under this section and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
(e) If the Consultant should subcontract all or any portion of the services
to be performed under this Agreement, the Consultant shall cause each subcontractor to
also comply with the requirements of this Section 12.
13. i ndependent Contractor.
(a) In the furnishing of the services provided for herein, the Consultant
is acting solely as an independent contractor. Neither the Consultant, nor any of its
officers, agents, or employees shall be deemed an officer, agent, employee, joint
venturer, partner, or associate of the City for any purpose. The City shall have no right
to control or supervise or direct the manner or method by which the Consultant shall
perform its work and functions. However, the City shall retain the right to administer this
Agreement so as to verify that the Consultant is performing its obligations in accordance
with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture
between the Consultant and the City. The Consultant shall have no authority to bind the
City absent the City's express written consent. Except to the extent otherwise provided
in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, the Consultant
and its officers, agents, and employees shall have absolutely no right to employment
rights and benefits available to City employees. The 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,
the Consultant shall be solely responsible, indemnify, defend and save the City harmless
from all matters relating to employment and tax withholding for and payment of the
Consultant's employees, including, without limitation, (i) compliance with Social Security
and unemployment insurance withholding, payment of 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 the City employment benefits,
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entitlements, programs and/or funds offered employees of the City whether arising by
reason of any common law, de facto, leased, or co-employee rights or other theory. It is
acknowledged that during the term of this Agreement, the Consultant may be providing
services to others unrelated to the City or to this Agreement.
14. Notices. Any notice required or 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 the Consultant and there shall be no
assignment by the Consultant of its rights or obligations under this Agreement without the
prior written approval of the City Manager or designee. Any attempted assignment by the
Consultant, its successors or assigns, shall be null and void unless approved in writing
by the City Manager or designee.
(b) The Consultant hereby agrees not to assign the payment of any
monies due the Consultant from the City under the terms of this Agreement to any other
individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all
monies due the Consultant directly to the Consultant.
17. Compliance With The Law. In providing the services required under this
Agreement, the Consultant shall at all times comply with all applicable laws of the United
States, including, but not limited to, the Americans with Disabilities Act (42 U.S.C. §§
12101 et seq.), the State of California and the 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
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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.
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 the City and the Consultant.
29. The City Manager, or designee, is hereby authorized and directed to
execute and implement this Agreement. The previous sentence is not intended to
DPW-S Eng.CSA,Short Form T&M—Contingency(06-2022)
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delegate any authority to the City Manager to administer the Agreement, any delegation
of authority must be expressly included in the Agreement.
[SIGNATURES FOLLOW ON NEXT PAGE.]
DPW-S Eng.CSA,Short Form T&M—Contingency(06-2022)
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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, BLAIR, CHURCH & FLYNN
A California municipal corporation CONSULTING ENGINEERS,
By:F DccuSignad by: 11/14/2022
a California corporation
—
A. White By_ [�)/� -/,/L, ---- -
City Manager
Name: :Jeffrey D_ Brians
ATTEST: Title: Vice President
TODD STERMER, CIVIC (If corporation or LLC, Board Chair, Pres.
City Clerk or "res.)
DocuSigned by:
By .kw& q6w 11/14/2022 By.
II S�� AQ988IGOE4D.
Deputy Name: Adam K. Holt
No signature of City Attorney required. Title: CFO
Standard Document #DPW-S Eng. CSA, (If corporation or LLC, CFO, Treasurer,
Short Form T&M - Contingency (06-2022) Secretary or Assistant Secretary)
has been used without modification, as
certified by the undersigned. Any Applicable Professional License:
Number: C36182
By. Debbie Bernard Name: Jeffrey D. Brians
Debbie Bernard Date of Issuance: July 22, 1983
Project Manager
Addresses:
CITY: CONSULTANT: -
City of Fresno Blair, Church & Flynn Consulting
Attention: Debbie Bernard, Engineers
Project Manager Attention: Jeffrey D. Brians, P.E.,
2101 'G' Street, Bldg. C Principal
Fresno, CA 93706-1620 451 Clovis Avenue, Suite 200
Phone: (559) 621-1201 Clove, CA 93612
E-mail: debra.bernard@fresno.gov Phone: (559) 326-1400
E-mail: jbrians@bcf-engr.com
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
DPW-S Eng.CSA, Short Form T&M—Contingency(06-2022)
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EXHIBIT A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno (City)
and Blair, Church & Flynn Consulting Engineers (Consultant)
Granite Park Facilities Condition Assessment
The City of Fresno (City) owns and operates the Granite Park sports facility located at
3978 N. Cedar Avenue. The park was originally constructed approximately 18 years ago
and the City is interested in refurbishing some of the aging improvements. To identify key
improvements that need to be made, together with their estimated costs, the City wants
to complete a facilities condition assessment. This assessment will review items that the
City has noted as priorities for improvement, will provide conceptual solutions to
undesirable or unacceptable conditions, and will provide estimated costs for the proposed
modifications. Some of the important components of the condition assessment are
described as follows:
Softball/Baseball Fields:
Control of fly balls over the left field homerun fence at Field No. 1
Control of foul balls from Field No. 1 toward the press box building
Install high netting to connect the homerun walls between Fields No. 1 and 2 to close
the open gap and keep balls from going onto the neighbors' property
Chain link fence fabric replacement at various locations where the fabric is damaged
and disfigured
Replace plywood boards on homerun walls
Address pads on Backstop No. 1 behind home plate
Repair or replace damaged and worn-out synthetic turf
Regrade dirt along outside edges of 1st and 3rd baselines to eliminate significant grade
difference between grass and dirt
Provide longer team benches in dugouts for additional seating
Address the homerun wall structure footing protrusions into the playing area at various
locations
Address hazardous homerun wall corners at various locations where changes in level
and direction occur
Replace broken scoreboards at Fields 1 and 2
Address electrical system concerns
Replace the temporary power cords to Field No. 3 that run from the security building to
the backstop and along the top of fencing that forms the 1st base and 3rd base wings
Verify all spectator seating is ADA and Code compliant. Modify or replace non-
compliant units
DPW-S Eng.CSA,Short Form T&M—Contingency(06-2022)
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Verify all improvements meet the accessibility requirements of ADA and the California
Building Code
Concession/Restroom/Press Box Building
Interior of kitchen is not ADA-compliant. Modify to meet ADA and Code requirements
Kitchen needs HVAC system to make it Health Department and Code-compliant
Address electrical issues, including panel sizes and plug-ins of exterior extension cords
instead of permanent conduits and receptacles/switches
Provide permanent underground electrical and water to the concession tent area to
eliminate hoses and electrical cords laying on the ground
Abandoned Batting Cages
Either repurpose existing concrete slab area or remove it
Storage Building/Old Concession Building
The building located southwest of the abandoned batting cages is being used as a
storage building. There are multiple extension cords that are connected to the building
and running to various locations, both outside and inside the building. Replace these
electrical cords with permanent underground electrical facilities.
Storage Building/Gym
The metal building beyond the centerfield homerun fence of Field No. 1 is being used
for storage and for gym equipment. The doors need to be repaired or replaced due to
damage from attempted thefts.
Provide additional security measures
Provide better ventilation/HVAC
Provide better interior lighting
Consultant shall prepare a matrix of the work to be done and the associated costs. Where
multiple options are considered for a particular issue, these options and their individual
costs will be presented with a description of the pro's and con's of each option. Based on
the Consultant's experience and engineering judgement, the options will be in order of
preference.
With the understanding that available funding may not be adequate to make all identified
improvements at once, the Consultant shall generate a list of priorities that considers
safety as the highest priority and usability as the second.
The Consultant shall present their findings in an Assessment Report that will; Identify the
improvements needed and their individual costs; Provide a description of the
improvements to be made, including in some cases, exhibits to illustrate the nature of the
proposed improvements; List the improvement projects in order of priority, with public
safety items being the highest priorities, and as directed by the City. Using budgetary
information provided by the City, such as available annual budget amounts to be allocated
for the repairs, organize the projects on a year by year basis until all projects are
completed.
DPW-S Eng.CSA,Short Form T&M—Contingency(06-2022)
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SCHEDULE OF FEES
Principal .................. ...._....... ........................................................... $170/Hr.
Program Manager ...... ................................................... $165/Hr.
Professional Engineer 3 ...................... . ........................................ $160/Hr.
Professional Engineer 2 ...................................................................... $155/Hr,
Professional Engineer 1 ...................................................................... $145/Hr.
Assistant Engineer 3 .......................................................................... $125/Hr.
Assistant Engineer 2 .......................................................................... $110/Hr.
Assistant Engineer 1 ..........................................................................
105/Hr.
Professional Land Surveyor 2 .............................................................. $155/Hr.
Professional Land Surveyor 1 ........... .................................................. $140/Hr.
AssistantSurveyor ......................................................................... ... $110/Hr.
Land Services Technician ................................................................... $95/Hr.
Professional Landscape Architect ......................................................... $127/Hr.
LandscapeDesigner .......................................................................... $105/Hr.
DesignTechnician ............................................................................. $110/Hr.
CADTechnician 3 . ............................................................................ $98/Hr.
CADTechnician 2 .............................................................................. $88/Hr.
CADTechnician 1 .............................................................................. $78/Hr.
Environmental Consultant ....................................................................
120/Hr.
Construction Manager ......................................................... ............. $120/Hr.
Construction Inspector" ...................................................................... $100/Hr.
Construction Administrator ................................................................... $85/Hr.
Analyst .............................................................................................. $90/Hr.
Coordinator ....................................................................................... $80/Hr.
Administrative Assistant ....................................................................... $65/Hr.
Aide ............................................................................................... $58/Hr.
Survey Party Mobilization ..................................................................... $80/Hr.
1-Man Survey Party" .......................................................................... $190/Hr.
2-Man Survey Party" ........................................................................... $360/Hr.
LiDARScanner ................................................................................... $200/Hr.
Equipment Rental and Associated Expense ..........................................Cost x 1.10
Materials, Subconsultant Procurement ........................................ ........Cost x 1.10
DPW-S Eng.CSA,Short Form T&M—Contingency(06-2022)
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** May be subject to change based upon revisions to the State of California Prevailing
Wage Determinations
DPW-S Eng. CSA, Short Form T&M—Contingency(06-2022)
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EXHIBIT B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (City)
and Blair, Church & Flynn Consulting Engineers (Consultant)
Granite Park Facilities Condition Assessment
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 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 the
Consultant's profession.
MINIMUM LIMITS OF INSURANCE
The 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 the
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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UUI:UJIIYII CI IVCIVFIC IU.V IIU/UU_-ZU0I-•1U-+U-OUJJ'OILCUI C/GVI.0
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 the 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
The Consultant shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and the 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 his/her designee. At the option of the City's Risk Manager or his/her designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the City, its officers, officials, employees,
agents and volunteers; or
(ii) The Consultant shall provide a financial guarantee, satisfactory to
the City's Risk Manager or his/her designee, guaranteeing payment
of losses and related investigations, claim administration and
defense expenses. At no time shall the City be responsible for the
payment of any deductibles or self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile LiabiNfy insurance policies are to contain, or be
endorsed to contain, the following provisions:
1. The City, its officers, officials, employees, agents and volunteers are to be
covered as additional insureds. The Consultant shall establish additional
insured status for the City and for all ongoing and completed operations by
use of ISO Form CG 20 10 11 85 or both CG 20 04 13 and CG 20 37 04
013 or by an executed manuscript insurance company endorsement
Page 2 of 4
UUUU01 I I CI I VCIUP"I U.U I I U I.U�-e uo I-+J4U-OUJJ-O I LCU I C I zu'Ju
providing additional insured status as broad as that contained in ISO Form
CG 20 10 11 85.
2. The coverage shall contain no special limitations on the scope of protection
afforded to the 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, the 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 the Consultant's insurance and shall not
contribute with it. The 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
2001 0413.
The Workers'Compensation insurance polic is to contain, or be endorsed to contain, the
following provision: the Consultant and its insurer shall waive any right of subrogation
against the City, its officers, officials, employees, agents and volunteers.
If the Professional Liability Errors and Omissions) insurance policy_is written on a claims-
made form:
1. The retroactive date must be shown, and must be before the effective date
of the Agreement or the commencement of work by the Consultant.
2. Insurance must be maintained and evidence of insurance must be provided
for at least five 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-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 the Consultant, the
Consultant must purchase "extended reporting" coverage for a minimum of
five 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 the 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 the City. The Consultant is also responsible for providing written notice to the
City under the same terms and conditions. Upon issuance by the insurer, broker, or agent
Page 3 of 4
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of a notice of cancellation, non-renewal, or reduction in coverage or in limits, the
Consultant shall furnish the 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 the City, the Consultant shall provide a new certificate, and applicable endorsements,
evidencing renewal of such policy not less than fifteen (15) calendar days prior to the
expiration date of the expiring policy.
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 the Consultant shall not be deemed to release or
diminish the liability of the 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 the Consultant. Approval or purchase of
any insurance contracts or policies shall in no way relieve from liability nor limit the liability
of the Consultant, its principals, officers, agents, employees, persons under the
supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
VERIFICATION OF COVERAGE
The Consultant shall furnish the 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
the City's execution of the Agreement and before work commences. All non-ISO
endorsements amending policy coverage shall be executed by a licensed and authorized
agent or broker. Upon request of the City, the Consultant shall immediately furnish 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.
SUBCONTRACTORS - If the Consultant subcontracts any or all of the services to be
performed under this Agreement, the Consultant shall require, at the discretion of the City
Risk Manager or designee, subcontractor(s) to enter into a separate side 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 the City Risk Manager or designee. If no side agreement
is required, the Consultant shall require and verify that subcontractors maintain insurance
meeting all the requirements stated herein and the Consultant shall ensure that the City,
its officers, officials, employees, agents, and volunteers are additional insureds. The
subcontractors' certificates and endorsements shall be on file with the Consultant, and
the City, prior to commencement of any work by the subcontractor.
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EXHIBIT C
(DISCLOSURE OF CONFLICT OF INTEREST
Granite Park Facilities Condition Assessment
YES* NO
1 Are you currently in litigation with the City of Fresno or any of its ❑ XD
agents?
2 Do you represent any firm, organization, or person who is in litigation ❑ XI
with the City of Fresno? _
3 Do you currently represent or perform work for any clients who do X
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 L10
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 n ❑X
this Project?
* If the answer to any question is yes, please explain in full below.
Explanation: —
Item 3: BW performs work from time to time Sig t r
for the followina entities who may do business November 11, 2022
with the City of Fresno:
Fresno Unified School District Date
Clovis Unified School District
Central Unified School District Jeffrey D. Brians
Fresno County Office of Education (Name)
City of Clovis
Fresno Irri ation District Blair, Church & Flynn
Fresno Metropolitan Flood Control District_ - (Company)
County of Fresno
First Carbon Solutions
Carollo 451 Clovis Avenue, Suite 200
Parsons (Address)
[=i Additional page(s) attached. Clovis, CA 93612
(City, State Zip)
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