HomeMy WebLinkAboutMark Thomas & Company, Inc - Consultant Agrmnt - 1-4-2023AGREEMENT
CITY OF FRESNO,
CALIFORNIA CONSULTANT SERVICES
THIS AGREEMENT (Agreement) is made and entered into, effective
I zf a3 , by and between the CITY OF FRESNO, a California
municipal or ration (City), and Mark Thomas, Mark Thomas & Company, Inc.
(Consultant).
RECITALS
WHEREAS, the City desires to obtain professional Grant Writing services for the
Blackstone McKinley Grade Separation Project (Project); and
WHEREAS, the Consultant is engaged in the business of furnishing services as a
Civil Engineer and hereby represents that it desires to and is professionally and legally
capable of performing the services called for by this Agreement; and
WHEREAS, the Consultant acknowledges that this Agreement is subject to the
requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19;
and
WHEREAS, this Agreement will be administered for the City by its Public Works
Director (Director) or designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and promises hereinafter contained to be kept and performed by the
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
April 28, 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 sixty eight days (68) 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 of
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forty thousand dollars ($40,000.00). That of which twenty seven thousand ($27,000) will
be for Task 1.1, and thirteen thousand ($13,000) will be for Task 1.2. Such fee includes
all expenses incurred by the Consultant in performance of the services.
(b) Detailed statements shall be rendered monthly and will be payable
in the normal course of City business.
(c) The parties may modify this Agreement to 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
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assurances of future performance, upon Director's request, in the event the Consultant
fails to comply with any terms or conditions of this Agreement.
(f) The Consultant shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of the Consultant and without its
fault or negligence such as, acts of 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.
Agreement.
(d) This Section 5 shall survive expiration or termination of this
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6. Professional Skill.
It is further mutually understood and agreed by and between the parties hereto that
inasmuch as the Consultant represents to the City that the Consultant and its
subcontractors, if any, are skilled in the profession and shall perform in accordance with
the standards of said profession necessary to perform the services agreed to be done by
it under this Agreement, the City relies upon the skill of the Consultant and any
subcontractors to do and perform such services in a skillful manner and the Consultant
agrees to thus perform the services and require the same of any subcontractors.
Therefore, any acceptance of such services by the City shall not operate as a release of
the Consultant or any subcontractors from said professional standards.
7. Indemnification.
To the furthest extent allowed by law, 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
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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 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
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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 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 Program.
In the event the Consultant maintains an office or operates a facility(ies), or is required
herein to maintain or operate same, within the incorporated limits of the City of Fresno,
the Consultant at its sole cost and expense shall:
(a) Immediately establish and maintain a viable and ongoing recycling
program, approved by the City's Solid Waste Management Division, for each office and
facility. Literature describing the City recycling programs is available from the City's Solid
Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-
1111.
(b) Immediately contact the City's Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit and cooperate with such Division in their
conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of the City's Solid
Waste Management Division the establishment of the recycling program in paragraph (a)
above and the ongoing maintenance thereof.
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11. General Terms.
(a) Except as otherwise provided by law, all notices expressly required
of the City within the body of this Agreement, and not otherwise specifically provided for,
shall be effective only if signed by the Director or designee.
(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
DPW-S Eng. CSA, Short Form Total Fee (11-2022)
Page 7of19
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The
Consultant shall ensure that applicants are employed, and the employees are treated
during employment, without regard to their race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
Such requirement shall apply to the Consultant's employment practices including, but not
be limited to, the following: employment, upgrading, demotion or transfer; recruitment or
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 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
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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 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.
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.
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, 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.
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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. Severabilit .
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. Attorne 's Fees.
If either party is required to commence any proceeding or legal action to enforce or
interpret any term, covenant or condition of this Agreement, the prevailing party in such
proceeding or action shall be entitled to recover from the other party its reasonable
attorney's fees and legal expenses.
24. Exhibits.
Each exhibit and attachment referenced in this Agreement is, by the reference,
incorporated into and made a part of this Agreement.
25. Precedence of Documents.
In the event of any conflict between the body of this Agreement and any exhibit or
attachment hereto, the terms and conditions of the body of this Agreement shall control
and take precedence over the terms and conditions expressed within the exhibit or
attachment. Furthermore, any terms or conditions contained within any exhibit or
attachment hereto which purport to modify the allocation of risk between the parties,
provided for within the body of this Agreement, shall be null and void.
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26. Cumulative Remedies.
No remedy or election hereunder shall be deemed exclusive but shall, wherever possible,
be cumulative with all other remedies at law or in equity.
27. No Third -Party Beneficiaries.
The rights, interests, duties, and obligations defined within this Agreement are intended
for the specific parties hereto as identified in the preamble of this Agreement.
Notwithstanding anything stated to the contrary in this Agreement, it is not intended that
any rights or interests in this Agreement benefit or flow to the interest of any third parties.
28. Extent of Agreement.
Each party acknowledges that they have read and fully understand the contents of this
Agreement. This Agreement represents the entire and integrated agreement between
the parties with respect to the subject matter hereof and supersedes all prior negotiations,
representations, or agreements, either written or oral. This Agreement may be modified
only by written instrument duly authorized and executed by both 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 Total Fee (11-2022)
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 municip I corporation
By:L�LLt-4m�L
Ge geanne A. White,
City Manager
City of Fresno
ATTEST:
TODD STERMER, CMC
City ClerIS4
M,1!F1-FA ( 0', ZAWM 00 "'""A MW
No signature of City Attorney required.
Standard Document #DPW-S Eng. CSA,
Short Form Total Fee (11-2022) has been
used without modification, as certified by the
undersig e .
By:
Melissa Blau
Projects Administrator
REVIEWED BY:
Mar
Mar
Name: F-� NV A
(If corporation or LLC., Board Chair,
Pre . or V e Pres.}
By: 1&
Name: R. Matt Brogan
Title: Secretary
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
Any Applicable Professional License:
Number:
Name:'-� f�
Date of Issuance:
C---- Ae'- /2 Sn _Zz
Jesus Avitia, Deputy City Engineer
Public Works Department
Addresses:
CITY:
City of Fresno
Attention: Melissa Blau,
Administrator
2600 Fresno Street
CONSULTANT:
Mark Thomas & Company,
Projects Attention: Ryan Bissegger,
Fresno, CA 93721
Phone: (559) 621-8717
E-mail: Melissa. Blau@fresno.gov
Attachments:
1. Exhibit A - Scope of Services
Inc.
New Business
Director
7571 North Remington Avenue, Suite
103
Fresno, CA 93711
Phone: (916) 539-4680
E-mail: RBissegger@markthomas.com
DPW-S Eng. CSA, Short Form Total Fee (11-2022)
Page 12 of 19
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
DPW-S Eng. CSA, Short Form Total Fee (11-2022)
Page 13 of 19
EXHIBIT A
SCOPE OF SERVICES
Consultant Service Agreement between
City of Fresno (City) and Mark Thomas & Company, Inc. (Consultant)
Blackstone McKinley Grade Separation
Task 1 — 2023 Blackstone McKinley Grants
Task 1.1 — PFIP Grant Application
Consultant will prepare draft and final grant application following the California State
Transportation Agency (CaISTA) Port and Freight Infrastructure Program (PFIP) Guidelines and
PFIP Call For Projects both dated October 12, 2022. The grant application will include the
following sections:
Cover Letter: Letter approving application and signed by a City official or executive.
Project Narrative: Narrative discussion and supporting graphics and tables addressing the
following:
• Project Summary Data
• Project Scope
• Project Costs
• Project Schedule, Milestones, and Readiness
• Project Benefits
• Independent Utility Explanation
• Consistency with RTP/SCS
• Support for Port and Goods Movement Infrastructure
• Project Evaluation Criteria
Fact Sheet: One (1) to three (3) page document stating the benefits for the project.
Support Documentation: This section will include various supporting documents including:
• Certification of Cost Estimate
• Capital and Operating Financial Plan Details/Electronic Project Programming Request
form
• Letters of Support
In addition to preparing narrative responses, Consultant will prepare maps such as project
location, land use, bicycle and pedestrian network, transit network, and disadvantaged
communities. The Consultant will also develop a list of stakeholders for letters of support and a
template letter to be shared with stakeholders.
The following schedule has been developed to complete and submit the PFIP Grant Application
in advance of the due date.
• December 5: Consultant receives Notice to Proceed.
• December 23: Consultant submits draft PFIP application to City for review.
• January 3: City provides comments on draft PFIP application.
• January 9: Consultant addresses City comments and provides final draft for review.
• January 11: City provides review comments on final draft PFIP application.
• January 12: Consultant addresses final comments and submit final PFIP application
package to City for submission to CaISTA.
• January 13: PFIP due date.
Task 1.2 — TIRCP Grant Application
Consultant will prepare draft and final grant application following the CaISTA Transit and
Intercity Rail Capital Program (TIRCP) Guidelines and TIRCP Call For Projects both dated
November 15, 2022. The grant application will include the following sections:
Proiect Title: Name of the project
Overview: Brief non -technical project description
Maps: Project location map
Proiect Scope: Detailed technical description of the project scope
Proiect Costs: Project costs escalated to the year of delivery including documentation on the
basis of the cost estimate
Project Schedule: Current status of the project's schedule
Proiect Benefits: Description of project benefits, evaluation criteria, and workforce development
and training.
Independent Utility_: Project requesting construction funding has independent utility per CEQA
Consistency with Planning Documents: Description of consistency with the State Rail Plan,
RTP/SCS, California Freight Mobility Plan
Letters of Support: Support from various stakeholders including BNSF
Statement and Documentation of Project Readiness: Status of environmental clearance and
other information
It is assumed that greenhouse gas reduction calculations will not be required based upon
TIRCP Guidelines Addendum 3: Information Specific to the FY 22-23 High -Priority Grade
Crossing Improvement and Separation Project Funding.
If Task 1.2 is initiated, the schedule to complete the TIRCP is shown below.
• January 5: Last date to initiate the Add Alternate task.
• January 20: Consultant submits draft TIRCP application to City of review.
• January 27: City provides comments on draft TIRCP application.
• February 3: Consultant addresses comments and provides final draft TRICP application
to City for review.
• February 7: City provide comments on final draft TIRCP application.
• February 9: Consultant addresses final comments and submit final TIRCP application
package to City for submission to CaISTA.
• February 10: TIRCP due date.
EXHIBIT B
INSURANCE REQUIREMENTS
Consultant Service Agreement between
City of Fresno (City) and Mark Thomas (Consultant)
Blackstone McKinley Grade Separation Project
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 the
Consultant's profession.
MINIMUM LIMITS OF INSURANCE
The Consultant, or any party the Consultant subcontracts with, shall maintain limits of
liability of not less than those set forth below. However, insurance limits available to the
City, its officers, officials, employees, agents, and volunteers as additional insureds, shall
be the greater of the minimum limits specified herein or the full limit of any insurance
proceeds available to the named insured:
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.
DPW-S Eng. CSA, Short Form Total Fee (11-2022)
Exhibit B
Page 15 of 19
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. PROFESSIONAL LIABILITY Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event the Consultant purchases an Umbrella or Excess insurance policy(ies) to
meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and
afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella
or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis
for the benefit of the City, its officers, officials, employees, agents, and volunteers.
DEDUCTIBLES AND SELF -INSURED RETENTIONS
The Consultant shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and the Consultant shall also be responsible for
payment of any self- insured retentions. Any deductibles or self -insured retentions must
be declared to on the Certificate of Insurance, and approved by, the City's Risk Manager
or designee. At the option of the City's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self -insured
retentions as respects the City, its officers, officials, employees,
agents, and volunteers; or
(ii) The Consultant shall provide a financial guarantee, satisfactory to
the City's Risk Manager or designee, guaranteeing payment of
losses and related investigations, claim administration and defense
expenses. At no time shall the City be responsible for the payment
of any deductibles or self- insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be
endorsed to contain, the following provisions:
The City, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. the Consultant shall establish additional
insured status for the City and for all ongoing and completed operations by
use of ISO Form CG 20 10 1185 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
DPW-S Eng. CSA, Short Form Total Fee (11-2022)
Exhibit B
Page 16 of 19
CG 20 10 11 85.
1. The coverage shall contain no special limitations on the scope of protection
afforded to the City, its officers, officials, employees, agents, and
volunteers. Any available insurance proceeds in excess of the specified
minimum limits and coverage shall be available to the Additional Insured.
2. For any claims relating to this Agreement, the Consultant's insurance
coverage shall be primary insurance with respect to the City, its officers,
officials, employees, agents, and volunteers. Any insurance or self-
insurance maintained by the City, its officers, officials, employees, agents,
and volunteers shall be excess of the Consultant's insurance and shall not
contribute with it. the Consultant shall establish primary and non-
contributory status by using ISO Form CG 20 01 04 13 or by an executed
manuscript insurance company endorsement that provides primary and
non-contributory status as broad as that contained in ISO Form CG 20 01
0413.
The Workers' Compensation insurance policy is to contain, or be endorsed to contain, the
following provision: the Consultant and its insurer shall waive any right of subrogation
against the City, its officers, officials, employees, agents, and volunteers.
If the Professional Liability Errors and Omissions insurance Dolic is written on a claims -
made form:
1. The retroactive date must be shown and must be before the effective date
of the Agreement or the commencement of work by the Consultant.
2. Insurance must be maintained, and evidence of insurance must be provided
for at least five years after completion of the Agreement work or termination
of the Agreement, whichever occurs first, or, in the alternative, the policy
shall be endorsed to provide not less than a five-year discovery period.
3. If coverage is canceled or non -renewed, and not replaced with another
claims- made policy form with a retroactive date prior to the effective date
of the Agreement or the commencement of work by the Consultant, the
Consultant must purchase "extended reporting" coverage for a minimum of
five years after completion of the Agreement work or termination of the
Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to the City
for review.
5. These requirements shall survive expiration or termination of the
Agreement.
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non -renewed, reduced in coverage or in limits except after thirty
(30) calendar days written notice by certified mail, return receipt requested, has been
given to the City. The Consultant is also responsible for providing written notice to the
City under the same terms and conditions. Upon issuance by the insurer, broker, or
agent of a notice of cancellation, non -renewal, or reduction in coverage or in limits, the
DPW-S Eng. CSA, Short Form Total Fee (11-2022)
Exhibit B
Page 17of19
Consultant shall furnish the City with a new certificate and applicable endorsements for
such policy(ies). In the event any policy is due to expire during the work to be performed
for the City, the Consultant shall provide a new certificate, and applicable endorsements,
evidencing renewal of such policy not less than fifteen (15) calendar days prior to the
expiration date of the expiring policy.
Should any of the required policies provide that the defense costs are paid within the
Limits of Liability, thereby reducing the available limits by any defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated limits.
The fact that insurance is obtained by the Consultant shall not be deemed to release or
diminish the liability of the Consultant, including, without limitation, liability under the
indemnity provisions of this Agreement. The policy limits do not act as a limitation upon
the amount of indemnification to be provided by the Consultant. Approval or purchase of
any insurance contracts or policies shall in no way relieve from liability nor limit the liability
of the Consultant, its principals, officers, agents, employees, persons under the
supervision of the Consultant, vendors, suppliers, invitees, consultants, sub -consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
VERIFICATION OF COVERAGE
The Consultant shall furnish the City with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements
are to be received and approved by the City's Risk Manager or designee prior to the City's
execution of the Agreement and before work commences. All non -ISO endorsements
amending policy coverage shall be executed by a licensed and authorized agent or
broker. Upon request of the City, the Consultant shall immediately furnish City with a
complete copy of any insurance policy required under this Agreement, including all
endorsements, with said copy certified by the underwriter to be a true and correct copy of
the original policy. This requirement shall survive expiration or termination of this
Agreement.
SUBCONTRACTORS - If the Consultant subcontracts any or all of the services to be
performed under this Agreement, the Consultant shall require, at the discretion of the City
Risk Manager or designee, subcontractor(s) to enter into a separate side agreement with
the City to provide required indemnification and insurance protection. Any required side
agreement(s) and associated insurance documents for the subcontractor must be
reviewed and preapproved by the City Risk Manager or designee. If no side agreement
is required, the Consultant shall require and verify that subcontractors maintain insurance
meeting all the requirements stated herein and the Consultant shall ensure that the City,
its officers, officials, employees, agents, and volunteers are additional insureds. The
subcontractors' certificates and endorsements shall be on file with the Consultant, and
the City, prior to commencement of any work by the subcontractor.
DPW-S Eng. CSA, Short Form Total Fee (11-2022)
Exhibit B
Page 18 of 19
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Blackstone McKinley Grade Separation Project
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
0
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
❑
rV
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 belo .
r
Explanation:
❑ Additional page(s) attached.
W7
MA
Signa re
Date
Name
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Company
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Address
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City, State, Zip
DPW-S Eng. CSA, Short Form Total Fee (11-2022)
Exhibit C
Page 19 of 19