HomeMy WebLinkAboutProvost & Pritchard Engineering Group, Inc. -Agrmnt - Holmes Playground - 12-12-2022VUUU0I1y[1 CIIVCIUPt: IV. DGMUDI+VC-r�:JM-4J/:J-y C:1r-Ur VVrLI..L'JC/ I
AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT is made and entered into on December 12, 2022
by and between the CITY OF FRESNO, a California municipal corporation (the City), and
PROVOST & PRITCHARD ENGINEERING GROUP, INC., a California Coorporation (the
Consultant).
RECITALS
WHEREAS, the City desires to obtain professional Structural Engineering services
for Holmes Playground Roof Repair (the Project); and
WHEREAS, the Consultant is engaged in the business of furnishing services as a
Structural 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 (the Director) or the Director's designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and promises hereinafter contained to be kept and performed by the
respective parties, it is mutually agreed as follows:
1. Scope of Services. The Consultant shall perform 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 December 1, 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 Three Hundred Sixty Six (366) 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 Fifteen
Thousand Dollars ($15,000.00), and a contingency amount not to exceed Three
Thousand Dollars ($3,000.00) for any additional work rendered pursuant to Subsection
(c) below and authorized in writing by the Director. Such fees include all expenses
incurred by the Consultant in performance of such services.
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(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 Ma'eure.
(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
fails to comply with any terms or conditions of this Agreement.
(f) The Consultant shall be liable for default unless nonperformance is
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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 Co vriaht 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 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
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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, CONSULTANT shall indemnify, hold harmless and defend
CITY and each of its officers, officials, employees, agents and volunteers from any and
all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort
or strict liability, including but not limited to personal injury, death at any time and property
damage), and from any and all claims, demands and actions in law or equity (including
reasonable attorney's fees, litigation expenses and cost to enforce this agreement) that
arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of
CONSULTANT, its principals, officers, employees, agents or volunteers in the
performance of this Agreement.
If CONSULTANT should subcontract all or any portion of the services to
be performed under this Agreement, CONSULTANT shall require each subcontractor to
indemnify, hold harmless and defend CITY and each of its officers, officials, employees,
agents and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. Insurance.
(a) Throughout the life of this Agreement, 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
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.
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(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 CITY, its
officers, officials, employees, agents, and volunteers by using Insurance Service Office
(ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an
executed manuscript company endorsement providing additional insured status as broad
as that contained in ISO Form CG 20 10 11 85.
9
Conflict of Interest and Non -Solicitation.
(a) Prior to the City's execution of this Agreement, the Consultant shall
complete a City of Fresno conflict of interest disclosure statement in the form as set forth
in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation
and duty to immediately notify the City in writing of any change to the information provided
by the Consultant in such statement.
(b) The Consultant shall comply, and require its subcontractors to
comply, with all applicable (i) professional canons and requirements governing avoidance
of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws
and regulations including, without limitation, California Government Code Section 1090
et. seq., the California Political Reform Act (California Government Code Section 87100
et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure
and disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section
4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written
request of the City, the Consultant shall provide a written opinion of its legal counsel and
that of any subcontractor that, after a due diligent inquiry, the Consultant and the
respective subcontractor(s) are in full compliance with all laws and regulations. The
Consultant shall take, and require its subcontractors to take, reasonable steps to avoid
any appearance of a conflict of interest. Upon discovery of any facts giving rise to the
appearance of a conflict of interest, the Consultant shall immediately notify the City of
these facts in writing.
(c) In performing the work or services to be provided hereunder, the
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Consultant shall not employ or retain the services of any person while such person either
is employed by the City or is a member of any City council, commission, board,
committee, or similar City body. This requirement may be waived in writing by the City
Manager, if no actual or potential conflict is involved.
(d) The Consultant represents and warrants that it has not paid or
agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or
procure this Agreement or any rights/benefits hereunder.
(e) Neither the Consultant, nor any of the Consultant's subcontractors
performing any services on this Project, shall bid for, assist anyone in the preparation of
a bid for, or perform any services pursuant to, any other contract in connection with this
Project. The Consultant and any of its subcontractors shall have no interest, direct or
indirect, in any other contract with a third party in connection with this Project unless such
interest is in accordance with all applicable law and fully disclosed to and approved by
the City Manager, in advance and in writing.
(f) If the Consultant should subcontract all or any portion of the work to
be performed or services to be provided under this Agreement, the Consultant shall
include the provisions of this Section 9 in each subcontract and require its subcontractors
to comply therewith.
(g) This Section 9 shall survive expiration or termination of this
Agreement.
10. Recycling Program. In the event the Consultant maintains an office or
operates a facility(ies), or is required herein to maintain or operate same, within the
incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall:
(a) Immediately establish and maintain a viable and ongoing recycling
program, approved by the City's Solid Waste Management Division, for each office and
facility. Literature describing the City recycling programs is available from the City's Solid
Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-
1111.
(b) Immediately contact the City's Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their
conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of the City's Solid
Waste Management Division the establishment of the recycling program in
paragraph (a) above and the ongoing maintenance thereof.
11. General Terms.
(a) Except as otherwise provided by law, all notices expressly required
of the City within the body of this Agreement, and not otherwise specifically provided for,
shall be effective only if signed by the Director or designee.
(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
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any period required by law. In addition, all books, documents, papers, and records of the
Consultant pertaining to the Project shall be available for the purpose of making audits,
examinations, excerpts, and transcriptions for the same period of time. If any litigation,
claim, negotiations, audit or other action is commenced before the expiration of said time
period, all records shall be retained and made available to the City until such action is
resolved, or until the end of said time period whichever shall later occur. If the Consultant
should subcontract all or any portion of the services to be performed under this
Agreement, the Consultant shall cause each subcontractor to also comply with the
requirements of this paragraph. This Section 11(b) shall survive expiration or termination
of this Agreement.
(c) Prior to execution of this Agreement by the City, the Consultant shall
have provided evidence to the City that the Consultant is licensed to perform the services
called for by this Agreement (or that no license is required). If the Consultant should
subcontract all or any portion of the work or services to be performed under this
Agreement, the Consultant shall require each subcontractor to provide evidence to the
City that subcontractor is licensed to perform the services called for by this Agreement
(or that no license is required) before beginning work.
12. Nondiscrimination. To the extent required by controlling federal, state and
local law, the Consultant shall not employ discriminatory practices in the provision of
services, employment of personnel, or in any other respect on the basis of race, religious
creed, color, national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled
veteran or veteran of the Vietnam era. Subject to the foregoing and during the
performance of this Agreement, the Consultant agrees as follows:
(a) The Consultant will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity made possible by or resulting from this
Agreement.
(b) The Consultant will not discriminate against any employee or
applicant for employment because of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The
Consultant shall ensure that applicants are employed, and the employees are treated
during employment, without regard to their race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
Such requirement shall apply to the Consultant's employment practices including, but not
be limited to, the following: employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of compensation;
and selection for training, including apprenticeship. The Consultant's agrees to post in
conspicuous places, available to employees and applicants for employment, notices
setting forth the provision of this nondiscrimination clause.
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(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
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.
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14. Notices. Any notice required or intended to be given to either party under
the terms of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation of
receipt, or sent by United States registered or certified mail, with postage prepaid, return
receipt requested, addressed to the party to which notice is to be given at the party's
address set forth on the signature page of this Agreement or at such other address as the
parties may from time to time designate by written notice. Notices served by United States
mail in the manner above described shall be deemed sufficiently served or given at the
time of the mailing thereof.
15. Binding. Subject to Section 16, below, once this Agreement is signed by all
parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each
parties' respective heirs, successors, assigns, transferees, agents, servants, employees,
and representatives.
16. Assignment.
(a) This Agreement is personal to the Consultant and there shall be no
assignment by the Consultant of its rights or obligations under this Agreement without the
prior written approval of the City Manager or designee. Any attempted assignment by the
Consultant, its successors or assigns, shall be null and void unless approved in writing
by the City Manager or designee.
(b) The Consultant hereby agrees not to assign the payment of any
monies due the Consultant from the City under the terms of this Agreement to any other
individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all
monies due the Consultant directly to the Consultant.
17. Compliance With Law. In providing the services required under this
Agreement, the Consultant shall at all times comply with all applicable laws of the United
States, including, but not limited to, the Americans with Disabilities Act (42 U.S.C. § 12101
et seq.), the State of California and the City, and with all applicable regulations
promulgated by federal, state, regional, or local administrative and regulatory agencies,
now in force and as they may be enacted, issued, or amended during the term of this
Agreement.
18. Waiver. The waiver by either party of a breach by the other of any provision
of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions of this
Agreement may be waived unless in writing and signed by all parties to this Agreement.
Waiver of any one provision herein shall not be deemed to be a waiver of any other
provision herein.
19. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction. Venue
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
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the interpretation or meaning of the provisions of this Agreement.
21. Severabil_ity. 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 ❑oCLinients. In the event of any conflict between the body of
this Agreement and any exhibit or attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and conditions
expressed within the exhibit or attachment. Furthermore, any terms or conditions
contained within any exhibit or attachment hereto which purport to modify the allocation
of risk between the parties, provided for within the body of this Agreement, shall be null
and void.
26. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
27. No Third Paily 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 NEXT PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO,
A California municipal corporation
By: lQoclI u��Signeed by:
ug 12/15/2022
Georgeanne A. White,
City Manager
APPROVED AS TO FORM-
RINA M. GONZALES
Interim City Attorney
By-/a4Zt 12102
An ela M. Karst Date
Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Cl�rkS ipwrl by:
By: I t" 12/15/2022
Date
Deputy
Addresses:
CITY:
City of Fresno
Attention: Craig Ricci
Capital Development Specialist
2101 G Street, Bldg C
Fresno, CA 93706-1682
Phone: (559) 960-2218
E-mail: craig.ricci@fresno.gov
PROVOST & PRITCHARD
ENGINEERING GROUP, INC.,
a California Corporation
Doc uSig nod by:
By:
as�5aazu��xe�se
Name: Kevin Johansen
Title' Board Chair
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
DocuSigned by:
By: _;kg ybwt
C3FOD267AOBW7
Name: Jeff Dorn
Title:
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
REVIEWED BY:
Robin OMaGGe�
Robin O'Malley, Public Works Manager
General Services Department
CONSULTANT:
Provost & Pritchard Engineering Group,
Inc.
Attention: Robert S. Parrish, SE 2831
Principle Structural Engineer
455 Fir Avenue
Clovis, CA 93611-0242
Phone: (559) 449-2700
E-mail: BParrish@ppeng.com
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
DPW-B Eng. CSA Short Form Total Fee - Contingency (06-2022)
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EXHIBIT A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno (the City)
and Provost & Pritchard Engineering Group, Inc. (the Consultant)
Holmes Playground Roof Re air
Scope of Services:
Overview: The building is an existing single -story building constructed of a concrete
slab -on -grade foundation, concrete block masonry and wood stud walls, and wood roof
framing.
There are locations around the perimeter of the building that are showing evidence of the
following conditions:
- A portion of the plaster soffit on the south side of the building appears to be separating
from the roof framing.
- The existing fascia framing on the south side of the building, in the same location as the
plaster separation, appears to have severe levels of fungal decay (dry -rot).
- Several locations on the south, west and north sides of the building indicate levels of
fungal decay in the wood outriggers at the roof.
Phase 1:
South Side Roof — Initial site visit for assessment of the structural conditions involved in
the separation of the plaster soffit from the roof framing. Preparation of shoring design
for the portion of the plaster soffit over the public entrance of the south side. Site
inspection of the shoring construction. Provide more detailed inspection of the plaster
detachment and evaluate the extent of repairs required, including effects from decay of
the wood framing in the roof structure. Prepare construction documents for the required
repairs. Respond to Plan Check comments. Provide construction phase assistance as
needed for general conformance to approved documents.
Phase 2:
Outriggers - Initial site visit for the general understanding of the extent of fungal damage
to the facias and outrigger beams on the west and north side of the building. Provide
more detailed inspection of the decay in the outrigger beams and evaluate the extent of
repairs and/or replacements required at the various outrigger framing conditions.
DPW-B Eng. CSA Short Form Total Fee - Contingency (06-2022)
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EXHIBIT A
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Drawing Schedule:
Phase 1
- 30% Progress Set - 15 working days (cost estimate included)
- 90% Progress Set - 25 working days (cost estimate and associated specifications)
- Plan Check Submittal, Back Check Corrections
- Construction Administration
Phase 2
- 30% Progress Set - 15 working days (cost estimate included)
- 90% Progress Set - 25 working days (cost estimate and associated specifications)
- Plan Check Submittal, Back Check Corrections
- Construction Administration
DPW-B Eng. CSA Short Form Total Fee - Contingency (06-2022)
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EXHIBIT A
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EXHIBIT B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (the City)
and Provost & Pritchard Engineering Group, Inc. (the Consultant)
Holmes Playground Roof Repair
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.
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EXHIBIT B
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2. COMMERCIAL AUTOMOBILE LIABILITY.
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. PROFESSIONAL LIABILITY (Errors and Omissions):
$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 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
(i i) 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 PROVISIONWENDORSEMENTS
The General Liability and Automobile Liability insurance 0olicies are to contain, or be
endorsed to contain, the following provisions:
1. The City, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. The Consultant shall establish additional
insured status for the City and for all ongoing and completed operations by
use of ISO Form CG 20 10 11 85 or both CG 20 04 13 and CG 20 37 04 or
by an executed manuscript insurance company endorsement providing
additional insured status as broad as that contained in ISO Form
DPW-B Eng. CSA Short Form Total Fee - Contingency (06-2022)
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EXHIBIT B
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CG 20 10 11 85.
2. The coverage shall contain no special limitations on the scope of protection
afforded to the City, its officers, officials, employees, agents, and
volunteers. Any available insurance proceeds in excess of the specified
minimum limits and coverage shall be available to the Additional Insured.
3. For any claims related to this Agreement, the Consultant's insurance
coverage shall be primary insurance with respect to the City, its officers,
officials, employees, agents, and volunteers. Any insurance or self-
insurance maintained by the City, its officers, officials, employees, agents,
and volunteers shall be excess of the Consultant's insurance and shall not
contribute with it. The Consultant shall establish primary and non-
contributory status by using ISO Form CG 20 01 04 13 or by an executed
manuscript insurance company endorsement that provides primary and
non-contributory status as broad as that contained in ISO Form CG
2001 04 13.
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 policy is written on a claims -
made form:
1. The retroactive date must be shown, and must be before the effective date
of the Agreement or the commencement of work by the Consultant.
2. Insurance must be maintained, and evidence of insurance must be provided
for at least five (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 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 CITY. CONSULTANT is also responsible for providing written notice to the CITY
under the same terms and conditions. Upon issuance by the insurer, broker, or agent of
DPW-13 Eng. CSA Short Form Total Fee - Contingency (06-2022)
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EXHIBIT B
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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
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 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.
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EXHIBIT B
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EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Holmes Playground Roof Reair
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
❑
0
with the City of Fresno?
3
Do you currently represent or perform work for any clients who do'
®
❑
business with the City of Fresno?
4
Are you or any of your principals, managers, or professionals,
owners or investors in a business which does business with the City
❑
of Fresno, or in a business which is in litigation with the City of
Fresno?
5
Are you or any of your principals, managers, or professionals,
related by blood or marriage to any City of Fresno employee who
El
has any significant role in the subject matter of this service?
6
Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with
n
0
this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Provost & Pritchard provides
engineering and consulting services for
ublic and private clients that do business
with the city.
Additional page(s) attached.
aocuSigned by:
���I�r�Flae•„ /
12/5/2022
Date
Jeff Dorn
(Name)
Provost & Pritchard Engineering Group Inc
(Company)
455 W Fir Ave
(Address)
Clovis A 93611-0242
(City, State Zip)
DPW-B Eng. CSA Short Form Total Fee - Contingency (06-2022)
EXHIBIT C