HomeMy WebLinkAboutQK -Consultant Agreement - 12-6-2022AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT (Agreement) is made and entered into, effective on
/Z 'L nr�, by and between the CITY OF FRESNO, a
California municipal corporation (City), and QK, A California Corporation (Consultant).
RECITALS
WHEREAS, the City desires to obtain professional civil engineering consulting
services for the San Joaquin River Parkway Project Assessment (Project); and
WHEREAS, the Consultant is engaged in the business of furnishing services as
an Engineering Consulting Firm 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.
At'PFFMFNT
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:
Scope of Services.
The Consultant shall perform to the satisfaction of the City the services described
in Exhibit A, including all work incidental to, or necessary to perform, such services
even though not specifically described in Exhibit A.
2. Term of Agreement and Time for Performance.
This Agreement shall be effective from the date first set forth above and shall continue
in full force and effect through the earlier of complete rendition of the services
hereunder or June 30th, 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 one hundred twelve (112)
consecutive calendar days from such authorization to proceed.
3. Compensation.
(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 Forty -Nine Thousand Dollars ($49,000.00), paid on a time and materials
basis in accordance with the schedule of fees contained in Exhibit A.
DPW-S Eng. CSA, Short Form T&M (11-2022)
Exhibit A
Page 1 of 19
(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 Majeure.
(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.
(e) The Consultant shall provide the City with adequate written
assurances of future performance, upon Director's request, in the event the Consultant
DPW-S Eng. CSA, Short Form T&M (11-2022)
Exhibit A
Page 2 of 19
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 Director in
writing as soon as it is reasonably possible after the commencement of any excusable
delay, setting forth the full particulars in connection therewith, and shall remedy such
occurrence with all reasonable dispatch, and shall promptly give written notice to Director
of the cessation of such occurrence.
5. Confidential Information Ownership of Documents and Copyright License.
(a) Any reports, information, or other data prepared or assembled by 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.
6. Professional Skill
It is further mutually understood and agreed by and between the parties hereto that
DPW-S Eng. CSA, Short Forth T&M (11-2022)
Exhibit A
Page 3 of 19
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, including California Civil Code section 2782.8, 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
its 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
DPW-S Eng. CSA, Short Form T&M (11-2022)
Exhibit A
Page 4 of 19
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 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 04 13 and CG 20 37 04 13 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
DPW-S Eng CSA, Short Form T&M (11-2022)
Exhibit A
Page 5 of 19
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 the 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 Pro ram.
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 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
DPW-S Eng. CSA, Short Form T&M (11-2022)
Exhibit A
Page 6 of 19
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 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,
DPW-S Eng CSA, Short Forth T&M (11-2022)
Exhibit A
Page 7 of 19
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
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. 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
DPW-S Eng. CSA, Short Form T&M (11-2022)
Exhibit A
Page 8 of 19
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 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. Corm fiance 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, 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
DPW-S Eng. CSA, Short Forth T&M (11-2022)
Exhibit A
Page 9 of 19
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. Seyerability.
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.
DPW-S Eng. CSA, Short Form T&M (11-2022)
Exhibit A
Page 10 of 19
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
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 THE NEXT PAGE.]
DPW-S Eng. CSA, Short Form T&M (11-2022)
Exhibit A
Page 11 of 19
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, on the day and year first above written.
CITY OF FRESNO,
A California municipal carp ation
By:
George8ko A. White,
City Manager
ATTEST:
TODD STERMER, CMC
City Cler w
By:
S fV1 s/L
No signature of City Attorney required.
Standard Document #DPW-S Eng. CSA,
Short Form T&M (11-2022) has been used
without modification, as certified by the
undersigned.
By:
Mark Rivas
Senior Management Analyst
REVIEWED BY:
Scott L. Mozier, P.E., Diredgr
Public Works Department
Addresses:
CITY:
City of Fresno
Attention:Brian Russell, Assistant Director
2101 G Street, Bldg E-1
Fresno, CA 93706
Phone: (559) 621-1309
E-mail: Bdan.Russell@Fresno.gov
Q K,
A Californa Corporation
By: 7Z',. -a L-":)
Name: Ron Wathen, PE
Title: President / CEO
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
By:
Name: Amber Aguayo
Title: CFO/COO
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
Any Applicable Professional License:
Number: PE #58690
Name: Ron Wathen. PE
Date of Issuance: 07/31/1998
CONSULTANT:
QK
Attention: Amber Aguayo, Chief Financial
Officer
901 East Main Street
Visalia, CA 93292
Phone: (559) 733-0440
E-mail: Amber.Aguayo@gkinc.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 TAM (11-2022)
Exhibit A
Page 12 of 19
EXHIBIT A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno
(City) and QK (Consultant)
[San Joaquin River Parkway Pro'lect
Assessment]
TASK 1.0 SAN JOAQUIN RIVER PARKWAY PROJECTS EVALUATION
QK will meet with representatives from the San Joaquin River Conservancy and the San Joaquin River
Parkway Trust to obtain their opinions of the important maintenance and improvement needs. Opinions
and information received will be documented in memo format. QK will meet on site with City of
Fresno maintenance representatives to gather information of needed improvements and to tour the
potential project sites. If made available, QK can extract relevant findings regarding the public's
desire for improvements from the City's online Measure P Resident Survey.
QK will meet with City of Fresno to discuss information gathered and potential projects. Once
projects are identified by QK and selected by City, QK will prepare draft exhibits depicting
identified potential projects.
TASK 2.0 SAN JOAQUIN RIVER PARKWAY DRAFT AND FINAL REPORTS
From the list of potential projects described in Task 1.0, the City will choose which projects to
include the in draft and final report. Selected projects will be described in a draft report
describing the projects and typical opinion of probable improvement costs. The draft report will be
shared with the City representatives as well as point of contact representatives from the San
Joaquin River Conservancy and the San Joaquin River Parkway Trust for their review and comment.
Based on comments received, a final report will be prepared that can be shared publicly and used to
allocate funds.
The reports will include the following for each potential project:
• Project goal (i.e., aesthetic upgrade, safety improvement, reduction of on -going maintenance
costs)
• Description of maintenance issue
• Desired outcome
• Description and map of project location
• Exhibits (graphics and photos) illustrating the project
• Description of project, project materials, and tasks to complete
• Opinion of cost to complete
Deliverables:
• Draft Report describing improvement and maintenance projects, with exhibits and opinion of
probable costs
• Final Report describing improvement and maintenance projects, with exhibits and opinion of
probable costs
DPW-S Eng. CSA, Short Forth T&M (11-2022)
Exhibit A
Page 13 of 19
SCHEDULE OF FEES
QK4V
2022 CHARGE RATE SCHEDULE
SERVICES
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EXPENSES
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DPW-S Eng. CSA, Short Form T&M (11-2022)
Exhibit A
Page 14 of 19
Exhibit B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno ("CITY")
and QK ("CONSULTANT")
San Joaquin River Parkway Protect Assessment
PROJECT TITLE
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
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
CONSULTANT'S profession.
MINIMUM LIMITS OF INSURANCE
CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits of liability
of not less than those set forth below. However, insurance limits available to CITY, its officers,
officials, employees, agents and volunteers as additional insureds, shall be the greater of the
minimum limits specified herein or the full limit of any insurance proceeds available to the named
insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work performed
under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
DPW-S Eng. CSA, Short Forth T&M (11-2022)
Exhibit B
Page 15 of 19
$1,000,000 per accident for bodily injury and property damage.
WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event CONSULTANT purchases an Umbrella or Excess insurance policy(ies) to meet the
"Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no less
coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance
policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its
officers, officials, employees, agents and volunteers.
DEDUCTIBLES AND SELF -INSURED RETENTIONS
CONSULTANT shall be responsible for payment of any deductibles contained in any insurance
policy(ies) required herein and CONSULTANT shall also be responsible for payment of any self -
insured retentions. Any deductibles or self -insured retentions must be declared to on the
Certificate of Insurance, and approved by, the CITY'S Risk Manager or 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 CITY, its officers, officials, employees, agents and
volunteers; or
(ii) CONSULTANT shall provide a financial guarantee, satisfactory to CITY'S
Risk Manager or his/her designee, guaranteeing payment of losses and
related investigations, claim administration and defense expenses. At no
time shall CITY be responsible for the payment of any deductibles or self -
insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be endorsed
to contain, the following provisions:
DPW-S Eng. CSA, Short Form T&M (11-2022)
Exhibit B
Page 16 of 19
CITY, its officers, officials, employees, agents and volunteers are to be covered as
additional insureds. CONSULTANT shall establish additional insured status for the
City and for all ongoing and completed operations by use of ISO Form
CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed
manuscript insurance company endorsement 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 CITY, its officers, officials, employees, agents and volunteers. Any
available insurance proceeds in excess of the specified minimum limits and
coverage shall be available to the Additional Insured.
3. For any claims relating to this Agreement, CONSULTANT'S insurance coverage
shall be primary insurance with respect to the CITY, its officers, officials,
employees, agents and volunteers. Any insurance or self-insurance maintained
by the CITY, its officers, officials, employees, agents and volunteers shall be
excess of CONSULTANT'S insurance and shall not contribute with it.
CONSULTANT shall establish primary and non-contributory status by using ISO
Form CG 20 01 04 13 or by an executed manuscript insurance company
endorsement that provides primary and non-contributory status as broad as that
contained in ISO Form CG 20 01 04 13.
The Workers' Compensation insurance olic is to contain, or be endorsed to contain, the
following provision: CONSULTANT and its insurer shall waive any right of subrogation against
CITY, its officers, officials, employees, agents and volunteers.
If the Professional Liability Errors and Omissions insurance ookLis written on a claims -made
form:
The retroactive date must be shown, and must be before the effective date of the
Agreement or the commencement of work by CONSULTANT.
2. Insurance must be maintained and evidence of insurance must be provided for at
least five (5) years after completion of the Agreement work or termination of the
Agreement, whichever occurs first, or, in the alternative, the policy shall be
endorsed to provide not less than a five (5) year discovery period.
3. If coverage is canceled or non -renewed, and not replaced with another claims -
made policy form with a retroactive date prior to the effective date of the Agreement
or the commencement of work by CONSULTANT, CONSULTANT must purchase
"extended reporting" coverage for a minimum of five (5) years completion of the
Agreement work or termination of the Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to CITY for review.
5. These requirements shall survive expiration or termination of the Agreement.
All policies of insurance required herein shall be endorsed to provide that the coverage shall not
be cancelled, non -renewed, reduced in coverage or in limits except after thirty (30) calendar days
written notice by certified mail, return receipt requested, has been given to CITY. CONSULTANT
DPW-S Eng. CSA, Short Forth T&M (11-2022)
Exhibit B
Page 17 of 19
is also responsible for providing written notice to the CITY under the same terms and conditions.
Upon issuance by the insurer, broker, or agent of a notice of cancellation, non -renewal, or
reduction in coverage or in limits, CONSULTANT shall furnish CITY with a new certificate and
applicable endorsements for such policy(ies). In the event any policy is due to expire during the
work to be performed for CITY, CONSULTANT shall provide a new certificate, and applicable
endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to
the expiration date of the expiring policy.
Should any of the required policies provide that the defense costs are paid within the Limits of
Liability, thereby reducing the available limits by any defense costs, then the requirement for the
Limits of Liability of these polices will be twice the above stated limits.
The fact that insurance is obtained by CONSULTANT shall not be deemed to release or diminish
the liability of CONSULTANT, including, without limitation, liability under the indemnity provisions
of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification
to be provided by CONSULTANT. Approval or purchase of any insurance contracts or policies
shall in no way relieve from liability nor limit the liability of CONSULTANT, its principals, officers,
agents, employees, persons under the supervision of CONSULTANT, vendors, suppliers,
invitees, consultants, sub -consultants, subcontractors, or anyone employed directly or indirectly
by any of them.
VERIFICATION OF COVERAGE
CONSULTANT shall furnish CITY with all certificate(s) and applicable endorsements effecting
coverage required hereunder. All certificates and applicable endorsements are to be received
and approved by the CITY'S Risk Manager or his/her designee prior to CITY'S execution of the
Agreement and before work commences. All non -ISO endorsements amending policy coverage
shall be executed by a licensed and authorized agent or broker. Upon request of CITY,
CONSULTANT shall immediately furnish City with a complete copy of any insurance policy
required under this Agreement, including all endorsements, with said copy certified by the
underwriter to be a true and correct copy of the original policy. This requirement shall survive
expiration or termination of this Agreement.
SUBCONTRACTORS - If CONSULTANT subcontracts any or all of the services to be performed
under this Agreement, CONSULTANT shall require, at the discretion of the CITY Risk Manager
or designee, subcontractor(s) to enter into a separate side agreement with the City to provide
required indemnification and insurance protection. Any required side agreement(s) and
associated insurance documents for the subcontractor must be reviewed and preapproved by
CITY Risk Manager or designee. If no side agreement is required, CONSULTANT shall require
and verify that subcontractors maintain insurance meeting all the requirements stated herein and
CONSULTANT shall ensure that CITY, its officers, officials, employees, agents, and volunteers
are additional insureds. The subcontractors' certificates and endorsements shall be on file with
CONSULTANT, and CITY, prior to commencement of any work by the subcontractor.
DPW-S Eng. CSA, Short Forth T&M (11-2022)
Exhibit B
Page 18 of 19
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
f Proiect Titlel
YES*
NO
1
Are you currently in litigation with the City of Fresno or any of its
—,
agents?
2
Do you represent any firm, organization, or person who is in
litigation with the City of Fresno?
3
Do you currently represent or perform work for any clients who do
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
has any significant role in the subject matter of this service?
6
Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with
-
this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
QK performs work directly for the
Cily and in the City with other clients,
This projert do-asnot create a conflict,
❑ Additional page(s) attached.
ft-t " ti a 1LCC J
Signature
11 /30/2022
Date
Amber Aguayo
Name
QK
Company
901 East Main Street
Address
Visalia. CA 93292
City, State, Zip
DPW-S Eng. CSA, Short Forth T&M (11-2022)
Exhibit C
Page 19 of 19