HomeMy WebLinkAboutPCubed Associates, Inc.-Consultant Agreement-11-17-2022UUL;U,D1y II CI IVCIUptC IL/. JVDUUU IUKr
AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
GREATER THAN $500,000
THIS AGREEMENT is made and entered into effective on November 17 2022.
by and between the CITY OF FRESNO, a California municipal corporation (the City), and
PCubed Associates, Inc. (the Consultant).
RECITALS
WHEREAS, the City desires to obtain professional engineering services for the
design of plans and general construction contract documents for replacement of HVAC
systems, controls, roofing, building enclosure improvements and facility improvements to
support hydrogen buses (the Project); and
WHEREAS, the Consultant is engaged in the business of furnishing technical
services as a consulting engineers and hereby represents that it desires to and is
professionally and legally capable of performing the services called for by this Agreement;
and
WHEREAS, this Agreement sets forth the terms and conditions under which the
Consultant shall provide professional services, to be paid with Fresno Area Express/
Transportation Department funds and reimbursed with pledged Federal Transportation
Administration (FTA) funds as they are made available; 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 the Fresno Area
Express/ Transportation Department Director (the 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
respective parties, it is mutually agreed as follows:
1. Scope of Services. The 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 the 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 the City's
issuance of a written "Notice to Proceed," the City contracts for the services in Part One.
The 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 the
City's issuance of a written "Notice to Proceed." It shall, however, remain the Consultant's
offer to perform all remaining parts described herein. In the event the Consultant performs
services without the City's prior written authorization, the Consultant will not be entitled to
compensation for such services.
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(a) Part One. Schematic Design Phase.
(1) The Consultant shall review the description of the Project set
forth in Exhibit A and consult with designated representatives of the City to
ascertain the requirements of the Project.
(2) The Consultant shall complete all design elements necessary
to achieve full construction documents in accordance with the detailed minimum
requirements set forth in Exhibit A. The full construction documents shall include
sufficient detail for the design of the Project, to incorporate all project specific bid
items and technical specifications into the construction bid template, and as
necessary to obtain the acceptance of the City. The Consultant shall provide the
City with an electronic file of the construction documents in the following format:
.pdf.
(3) The 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 the City department/division that is available
in the City's records and is required by the Consultant in connection with the
consulting services including, but not limited to, maps, surveys, reports,
information, restrictions and easements. The Consultant shall notify the City if a
topographic survey is required.
(4) The Consultant shall provide a preliminary evaluation of the
Project taking into consideration the City's estimate of the cost of construction
(Construction Budget) of $8,000,000, including alternative approaches to design
and construction of the Project.
(5) Based upon the mutually agreed upon Project requirements
and any adjustments authorized by the City in the Construction Budget, the
Consultant shall design and prepare schematic design drawings and other
documents for review, modification, if required, and acceptance by the City staff
sufficient to show the concept and scope of the proposed Project and the scale
and relationship of Project components.
(6) The Consultant shall submit a preliminary estimate of
construction cost for review and acceptance by the City. As used herein,
"construction cost" means the cost of construction under the general construction
contract and does not include the 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.
(7) The Consultant shall make as many submittals as may be
necessary or desirable to obtain the acceptance by the City and shall assist the
City in applying for and obtaining from applicable public agencies any approval
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permit, or waiver required by law, which assistance shall include, but not be limited
to, making Project information available to the City.
(8) CONSULTANT may not rely upon any as-builts provided by
the City, but shall investigate the existing conditions and ascertain the adequacy
of such as-builts for the Consultant's design. CONSULTANT shall bring to the
City's attention any discrepancies in the as-builts that are discovered by
CONSULTANT. The City makes no representations regarding any as-builts.
(9) Services shall be undertaken and completed in, a sequence
assuring expeditious completion. All services shall be rendered and deliverables
submitted within 40 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 the City, shall be submitted
to the City within 10-20 calendar days from receipt of the 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, the Consultant
shall prepare for review and acceptance by the City the design development
documents consisting of drawings and other documents to fix and describe the
size and character of the Project as necessary to show treatment of significant
details. In addition, the 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 the City.
(2) The Consultant shall submit a revised estimate of construction
cost for review and acceptance by the 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
One as that which may be excluded from the general construction contract, the
City shall have the option of accepting or rejecting the revised estimate and the
Consultant shall, at no additional cost to the 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 the City. The City
shall not increase the scope of the Project except by modification of this Agreement
which shall include an agreed upon increase in the Consultant's compensation.
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(4) The Consultant shall make as many submittals as may be
necessary or desirable to obtain the acceptance by the City and shall assist the
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 the City.
(5) Services shall be undertaken and completed in a sequence
assuring expeditious completion. All services shall be rendered and deliverables
submitted within 10 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 the City, shall be submitted
to the City within 10 calendar days from receipt of the 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) The 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. The 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 the City. The Consultant shall
cooperate with, assist and be responsive to the City's Purchasing Manager in
preparation of all documents including, without limitation, slip -sheeting final
documents for printing when requested. The City's Standard Specifications must
be used by the Consultant where possible. Final drawings shall be drawn, printed
or reproduced by 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 the
City shall be used by the Consultant unless the Director determines they would be
impractical for this Project. The Consultant shall be responsible for assuring that
the special conditions, technical specifications and any other documents prepared
by the Consultant are consistent with any documents regularly used by the City
that are used for this Project.
(2) Upon request of the City, the 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) The Consultant shall make as many submittals as may be
necessary or desirable to obtain the acceptance by the City and shall assist the
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 the City.
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(4) The Consultant shall provide the City with one (1) sets of
completed plans and one (1) sets of completed specifications for review and final
acceptance by the City. Should the plans and specifications as submitted by the
Consultant not be accepted by the City, the Consultant shall revise the plans and
specifications as needed to obtain final acceptance at no additional cost to the
City.
(5) After acceptance of final corrections, if any, the Consultant
shall provide the City with one set of accepted reproducible tracings and bid
documents for the Project. In addition, the Consultant shall provide the City with
one complete set of CAD/System disk files of drawings and complete disk files of
specifications in the following format:.pdf.
(6) The Consultant shall submit a final estimate of construction
cost for review and acceptance by the City. Such estimate shall be calculated as
of the date all general construction contract documents are delivered to the 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, the City shall have the option of accepting or rejecting the final estimate.
If the City elects to reject the final estimate, the Consultant shall at no additional
cost to the 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 the City.
(8) Services shall be undertaken and completed in a sequence
assuring expeditious completion. All services shall be rendered and deliverables
submitted within 15 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 the City, shall be submitted
to the City within 15 calendar days from receipt of the 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, the City's decision to proceed shall constitute a written
Notice to Proceed with this Part Four:
(1) The Consultant shall assist the City in obtaining bids. The
Consultant shall not communicate with potential bidders regarding this Project
without the express prior written authorization of the City's Purchasing Manager.
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(2) The Consultant shall, within seven calendar days of any
request by the City, expeditiously draft and promptly provide addendum as
determined by the 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 the 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, the
Consultant shall, within 14 calendar days of any request by the 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 the City provided such bid is
received within 180 calendar days after completion of services in Section 1(c) of
this Agreement. The Consultant shall also submit such revised plans and
specifications, together with a new final estimate of construction cost, to the City
for review and acceptance. This procedure, using the latest accepted final
estimate of construction cost, shall, upon written notice to the 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 the
City's designated Construction Manager for the Project:
(1) The Consultant shall attend the pre -construction conference and, if called
upon by the City, act on the City's behalf in discussing the various aspects of the
construction phase.
(2) The Consultant shall review and recommend in writing to the 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 the 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 the City, The Consultant and the general construction
contractor.
(3) The 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 the City informed of the progress of the work. In the event that the Consultant's visit
to the site results in the discovery of any defect or deficiencies in the work of the general
construction contractor, the Consultant shall immediately advise the City and document,
in writing, the work the Consultant deems substandard, and make recommendations
where appropriate to reject any work not conforming to the intended design or
specifications. Based on the Consultant's best knowledge, information and belief, the
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Consultant shall provide the 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, the Consultant shall provide a written judgment of the acceptability of
the work for payment applications and final acceptance, subject to the City's right to
overrule the Consultant.
(4) Upon written request by the City, the 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 the City, the 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 the
Consultant in favor of a change order that is consequently accepted by the City shall
constitute approval by the Consultant who shall then approve the change order in writing.
The Consultant shall not unreasonably withhold written approval in the event the City
accepts a change order that the Consultant recommended to be rejected. In the event of
any technical disputes, the Consultant shall provide the City with the Consultant's written
interpretation of the contract documents. The period for the 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 the City, the Consultant and the general construction contractor. If the City, the
Consultant and the respective general construction contractor are unable to mutually
agree on such period for the Consultant review, then the City will make the determination
and that determination will be final.
(6) Upon written request by the City, the Consultant shall provide such design
and specification services as may be requested by the 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 the 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 the Consultant's compensation.
(8) Upon written request of the City, the Consultant shall assist the City in the
preparation of Progress Payment Estimates and other related construction reports.
(9) The Consultant shall provide the 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
Development and Resource Management Department
(10) The 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) the
Consultant provided Request for Information responses, and (iv) any the Consultant
bulletins, amendments or clarifications. The Consultant shall provide the City with one
set of vellum Record Drawings for the Project within 10 calendar days from receipt of red-
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lined field markups unless an extension of time is approved in writing by the Director. Re -
submittals, as necessary to obtain the acceptance by the City, shall be submitted to the
City within TBD calendar days from receipt of the City comments unless an extension of
time is approved in writing by the Director. In addition, the Consultant shall provide the
City with one complete set of CAD/System disk files of Record Drawings in the following
format:.dwg.
2. The City's responsibilities. The City will:
(a) Select the testing laboratory and pay the cost of borings, samplings,
and other work involved in soils testing during construction.
(b) 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 the 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 the City.
(c) Prepare all change orders during construction in cooperation with the
Consultant.
(d) Prepare all Progress Payment Estimates in cooperation with the
Consultant following its general assurance that the work covered by a payment
application meets the standards in the general construction contract documents based
upon the Consultant's best knowledge, information and belief.
(e) Pay, or cause to be paid, plan check fees, conditional use permit fees
and site plan review fees.
(f) Arrange for and pay, or cause to be paid, any fees associated with
Environmental Impact Reports or Statements.
(g) Give reasonably prompt consideration to all matters submitted by the
Consultant for acceptance to the end that there will be no substantial delays in the
Consultant's program of work. For an acceptance, approval, authorization, a request or
any direction to the Consultant to be binding upon the City under the terms of this
Agreement, such acceptance, approval, authorization, request or direction must be in
writing, duly authorized by the City and signed on behalf of the City by the Director.
3. Compensation and Cost Reimbursement.
(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 $533,600.00. Such fee includes all allowable expenses to be incurred by the
Consultant in performance of this agreement on a cost reimbursable basis, except for
those allowable costs eligible for reimbursement as set forth in subdivisions (e), (f) and
(g) of this Section 3.
(b) The Consultant shall render detailed invoices monthly, to be
reimbursed in the normal course of City business once approved. Such invoices shall
detail all allowable costs incurred and shall be for an amount no greater than that
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attributable to the Part upon which the Consultant is then engaged, as provided in Section
3(c) below.
(c) For purposes of determining the division of the total compensation to
the Consultant as provided in Section 3(a) above, or should performance of any
succeeding Part not be authorized by the City as provided in Section 1 of this Agreement,
it is agreed that the total compensation shall be allocated to the five parts of the
Consultant's performance as follows: Part One — 7%, Part Two — 11 % Part Three — 49%,
Part Four — 10% and Part Five — 23%. 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 the 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 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. 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).
(e) The Consultant's indirect rates (costs eligible for reimbursement) are only
allowable to the extent that they comply with the cost principles of the Federal Acquisition
Regulations as set forth in 48 CFR Part 31.2, and are subject to audit. City will accept
the indirect cost rates established by a cognizant Federal or State government agency in
accordance with the FAR for one-year applicable accounting periods, if those rates are
not currently under dispute.
(f) Until final annual indirect cost rates are established for any period,
City shall reimburse the Consultant at billing rates established in the Consultant's
proposal and audited by the Consultant's CPA Firm, subject to adjustment when the final
rates are established. Final rates may be established by an audit performed by the federal
government or other governmental agency, or if necessary, by an audit performed by the
City or its Agent. These billing rates:
Shall be the anticipated final rates; and
May be prospectively or retroactively revised by mutual
agreement, at either party's request, to prevent substantial
overpayment or underpayment.
(g) At any time or times before final payment, the City may have the
Consultant's invoices or vouchers and statements of cost audited. Any payment may be
reduced by amounts found by City not to constitute allowable costs and/or adjusted for
prior overpayments or underpayments. Upon the Consultant's compliance with all terms
of this Agreement, City shall promptly pay any balance of allowable costs and that part of
the fee (if any) not previously paid.
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4. Termination Remedies Force Ma'eure and Consolidation of Disputes.
(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) 7 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.
(e) The Consultant shall provide the City with adequate written
assurances of future performance, upon the request of the Director or designee, 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 God 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 the Director
or 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 designee of the cessation of such occurrence.
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(g) The 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 the City's
option, be joined and 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. The 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.
5. Confidential Information. Ownership 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, artwork and other
documents prepared or provided by the Consultant pursuant to this Agreement (Work),
and all data and copyrights related to such Work, shall be governed by the following
provision for the benefit of the Federal Transit Administration (FTA):
United States Code Title 49: Transportation
Part 18-UNIFORM ADMINISTRATIVE REQUIREMENTS FOR
GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND
LOCAL GOVERNMENTS
Subpart C-Post-Award Requirements
§ 18.34
The Federal awarding agency reserves a royalty -free, nonexclusive,
and irrevocable license to reproduce, publish or otherwise use, and to
authorize others to use, for Federal Government purposes:
a) The copyright in any work developed under a grant, subgrant,
or contract under a grant or subgrant; and
b) Any rights of copyright to which a grantee, subgrantee or a
contractor purchases ownership with grant support.
(c) The Consultant shall not reproduce (such as photographs and prints),
duplicate, distribute reproductions, or incorporate into any trademark or service mark, the
Work without the prior written consent of the City. Any rights of the Consultant in the Work
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terminate upon the death of such the Consultant and do not extend to such the Consultant's
heirs, successors or assigns.
(d) Title to the Work shall pass to the City upon final acceptance of the
artwork by the City. The City reserves the right to donate, transfer or sell the Work or any
portion thereof. City shall have the exclusive right to publicly display the Work and shall
have a license to reproduce (such as photographs and prints) or create three-dimensional
reproductions of the Work for any noncommercial purpose (including, but not limited to,
books, slides, postcards, film, Internet sites, reproductions for advertising, and other media).
Such reproductions shall contain a credit to the Consultant and a copyright notice.
Reproductions for commercial purposes are only to be made with the mutual written consent
of the Consultant and the City. All references and reproductions or adaptations of the Work
will credit the Work to the Consultant unless the Consultant requests to the contrary. The
City reserves the right to modify, remove and/or relocate the Work at any time, and after
consultation with the Consultant, shall have the right to determine when and if modifications,
repairs and/or restorations are needed. If City makes modifications, repairs or restoration
not approved by the Consultant, the Consultant shall have the right to sever its association
with the Work. The Consultant agrees to give the City written notice prior to asserting any
claim pertaining to the Work, and the City shall have not less than 90 days from the date of
receipt of claim to cure any such claim. The City may incorporate the Work into any
trademark or service mark to be utilized by City to register the same in accordance with
Federal, state or local law.
(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 5. 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 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 and litigation
expenses) 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.
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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
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
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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 Non -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
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.
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(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:
(i) 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.
(ii) 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.
(iii) Cooperate with and demonstrate to the satisfaction of the City's Solid Waste
Management Division the establishment of the recycling program in
paragraph (i) above and the ongoing maintenance thereof.
11. General Terms and Federal Requirements.
(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.
(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 10(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
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City that subcontractor is licensed to perform the services called for by this Agreement
(or that no license is required) before beginning work.
(d) The Consultant's services pursuant to this Agreement shall be
provided under the supervision of [Consultant's Supervisor Name], and he/she shall not
assign another to supervise the Consultant's performance of this Agreement without the
prior written approval of the Director.
(e) The City will carry out applicable federal requirements in the
administration of this Agreement. Notwithstanding Section 25 herein, the Consultant
agrees to comply with all applicable federal requirements identified in Exhibit D and
require that each subcontract include the same requirements by each of its
subcontractors.
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, gender identification, 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, gender identification, 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 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,
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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. Independent 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 the 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,
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, 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
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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 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 (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
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.
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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 and any Requests for Qualifications
and/or Requests for Proposals, together with any documents issued therewith
(collectively, RFQ/P) by the City that resulted in selection of the Consultant for entry into
this Agreement. This Agreement incorporates by reference such RFQ/P, which together
represent the entire and integrated agreement between the parties with respect to the
subject matter hereof and supersede 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.
[SIGNATURES FOLLOW ON NEXT PAGE.]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, effective the day and year first above written.
CITY OF FRESNO,
A California municipal corporation
� DocuSigned by:
f
Q t&ov lg4w 12/1/2022
Gregory N. Barfield
Interim Director
Fresno Area Express/ Transportation
Department
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
City Attorney
By: 10/20/22
Pauline Brickey Date
Deputy City Attorney
ATTEST:
TODD STERMER
City Q6Eil S" ' by:
By: fi� (�our12/5/2022
.
Deputy
R�VIWD BY:
Ficu IQned y
�� r'.is 12/1/2022
i RouNruvn
ristop her Grey, Project
Administrator
Fresno Area Express/ Transportation
Department
Addresses:
CITY:
City of Fresno
Attention: Shelle O'Brien,
Capital Development Specialist
2223 G Street
Fresno, CA 93706
Phone: (559) 621-1420
FAX: (559) 498-4957
PCubed Associates,
A California Corporation
By:
Name: Pawan R Gu
Title: President/Principal
(If corporation or LLC., Board Chair, Pres.
or Vine Pres.)
By: ,
Name: Prabha Gupta
Title: Secretary
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
Any Applicable Professional License:
Number: S6198
Name: Pawan R Gupta
Date of Issuance: 12/17/2014 Valid till 09/30/2022
CONSULTANT:
PCubed Associates Inc.
Attention: Pawan Gupta,
President/Principal
221 E Lexington Dr., #304
Glendale, CA 91206
Phone: (818) 920-8001
FAX:
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1\1CWLJUU0L IUI \..(UQ1111VCi4LV110 Vl I IUFUOC'
Proposal No. 10088R
(Submit with Proposal)
Proposer's Name Pcubed Associates Inc.
DISCLOSURE OF CONFLICT OF INTEREST
FRESNO AREA EXPRESS FACILITY HVAC AND BUILDING ENCLOSURE IMPROVEMENTS
YES*
NO
1
Are you currently in litigation with the City of Fresno or any
of itsa ents?
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 dobusiness 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
El
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
E
connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Additional page(s) attached.
4��
Signatur
Pawan R Gupta
(name)
Pcubed Associates Inc.
(company)
221 E Lexington Drive, #304
(address)
Glendale, CA 91206
(city state zip)
23