HomeMy WebLinkAboutBrooks Ransom Associates Agmnt Consult 1.17.2023AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT {Agreement) is made and entered into, effective
CJ I-\1--] a l..'.) , by and between the CITY OF FRESNO, a California
municipal corporation (City), and Brooks Ransom Associates, a California Corporation
(Consultant).
RECITALS
WHEREAS, the City desires to obtain professional Structural Engineering services
for The Veterans Boulevard Grade Separation (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 (Director) or designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and promises hereinafter contained to be kept and performed by the
respective parties, it is mutually agreed as follows:
1. Scope of Services.
The Consultant shall perform to the satisfaction of the City the services described in
Exhibit A, including all work incidental to, or necessary to perform, such services even
though not specifically described in Exhibit A.
2. Term of Agreement and Time for Performance .
This Agreement shall be effective from the date first set forth above and shall continue in
full force and effect through the earlier of complete rendition of the services hereunder or
June 30, 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 16 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 Five
Thousand Two Hundred dollars ($5,250.00), and a contingency amount not to exceed
One Thousand Five Hundred dollars ($1,500.00) for any additional work rendered
pursuant to Subsection (c) below and authorized in writing by the Director. Such fees
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include all expenses incurred by the Consultant in performance of such 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 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.
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(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.
(g) Any notice of termination sent to Consultant shall include the
reason(s) for such termination or state that it is without cause.
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.
i. Permission granted to the Consultant to disclose
information on one occasion shall not authorize the Consultant to
further disclose such information or any other information or
disseminate the same on any other occasion.
ii. The Consultant shall not comment publicly to the press
or any other media regarding the Agreement or the City's actions on
the same, except to the City's personnel or the Consultant's
personnel involved in the performance of this Agreement at public
hearings or in response to questions from a Legislative committee.
iii. The Consultant shall not issue any news releases or
any public relations item of any nature, whatsoever, regarding work
performed or to be performed under this Agreement without prior
review of the contents thereof by the City and receipt of the City's
written permission.
(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, in any form
whatsoever, 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
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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.
i. In the event of the copyright of any reports or other
products prepared under this Agreement by the Consultant or any
subcontractor, the Federal Highway Administration {FHWA) shall
have the royalty-free, nonexclusive, and irrevocable right to
reproduce, publish, or otherwise use, and to authorize others to use,
the work for government purposes.
(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 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
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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 ufail 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
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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, 23 U.S.C. § 112, FHWA regulations
applicable to design and engineering consulting contracts found at 23 C.F.R. 172.1 et
seq., California Government Code Section 1090 et. seq., the California Political Reform
Act (California Government Code Section 87100 et. seq.), the regulations of the Fair
Political Practices Commission concerning disclosure and disqualification (2 California
Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal
Code (Ineligibility to Compete). At any time, upon written request of the City, the
Consultant shall provide a written opinion of its legal counsel and that of any
subcontractor that, after a due diligent inquiry, the Consultant and the respective
subcontractor(s) are in full compliance with all laws and regulations. The Consultant shall
take, and require its subcontractors to take, reasonable steps to avoid any appearance
of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a
conflict of interest, the Consultant shall immediately notify the City of these facts in writing.
(c) In performing the work or services to be provided hereunder, the
Consultant shall not employ or retain the services of any person while such person either
is employed by the City or is a member of any City council, commission, board,
committee, or similar City body. This requirement may be waived in writing by the City
Manager, if no actual or potential conflict is involved.
(d) The Consultant represents and warrants that it has not paid or
agreed to pay any compensation, lawful or unlawful, contingent, or otherwise, direct, or
indirect, to any party to solicit or procure this Agreement or any rights/benefits hereunder.
The City shall have the right, in its discretion, to deduct from any payment to the
Consultant under this Agreement, or otherwise recover the full amount of, any rebate,
kickback or other consideration paid by the Consultant in violation of any representation
or warranty under this section.
(e) Neither the Consultant, nor any firm affiliated with 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 with the exception of any subcontractor
whose services are limited to providing surveying or materials testing information. The
Consultant and any of its subcontractors shall have no interest, direct or indirect, in any
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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. An affiliated firm is one which is subject to the control
of the same person(s) through joint-ownership or otherwise.
(f) The Consultant shall disclose any financial, business, or other
relationship with the City that may have an impact upon the outcome of this Agreement
or any ensuing the City construction project. The Consultant shall also disclose any
current clients who may have a financial interest in the outcome of this Agreement or any
ensuing the City construction project, which will follow.
(g) The Consultant hereby certifies that it does not now have, nor shall
it acquire any financial or business interest that would conflict with the performance of
services under this Agreement.
(h) 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.
(i) 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. Federal and State Assurances and Requirements.
(a) Except as otherwise provided by law, all notices expressly required
of the City within the body of this Agreement, and not otherwise specifically provided for,
shall be effective only if signed by the Director or designee.
(b) Records of the Consultant's expenses pertaining to the Project shall
be kept on a generally recognized accounting basis. The Consultant and its
subcontractors shall maintain all books, documents, papers, accounting records, and
other evidence pertaining to the performance of the Agreement including, but not limited
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to, the costs of administering the Agreement. The Consultant and its subcontractors shall
make such materials available at their respective offices at all reasonable times during
the period of this Agreement and for 3 years, or longer if required by law, from the date
of final payment under the Agreement. The City, the State, the State Auditor, FHWA or
any duly authorized representative of the federal government shall have access to any
books, records, papers, accounting records and other documents of the Consultant and
its subcontractors that are pertinent to the Agreement for audit, examinations, excerpts,
and transcriptions. Copies thereof shall be furnished by the Consultant, if requested. If
any litigation, claim, negotiations, audit, or other action is commenced before the
expiration of the 3-year time period, all records shall be retained and made available 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 section and in the event a subcontract is entered into for an amount
in excess of $25,000 the subcontract shall include this paragraph in its entirety. 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.
(d) The Consultant's services pursuant to this Agreement shall be
provided under the supervision of Arturo Lopez, and he/she shall not assign another to
supervise the Consultant's performance of this Agreement without the prior written
approval of the Director.
(e) The City will carry out applicable federal requirements in the
administration of this Agreement. Notwithstanding Section 25 herein, the Consultant
agrees to comply with all applicable federal and state assurances and requirements
identified in Exhibit D along with its Appendix A and require that each subcontract
include the same assurances by each of its subcontractors.
12. Nondiscrimination.
To the extent required by controlling federal, state, and local law, the Consultant shall not
employ discriminatory practices in the provision of services, employment of personnel, or
in any other respect on the basis of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject
to the foregoing and during the performance of this Agreement, the Consultant agrees as
follows:
(a) The Consultant will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
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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, and 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. Independen t 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
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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.
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.
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17. Compl iance Wit h Law.
In providing the services required under this Agreement, the Consultant shall at all times
comply with all applicable laws of the United States, the State of California and the City,
and with all applicable regulations promulgated by federal, state, regional, or local
administrative and regulatory agencies, now in force and as they may be enacted, issued,
or amended during the term of this Agreement.
18. Waiver.
The waiver by either party of a breach by the other of any provision of this Agreement
shall not constitute a continuing waiver or a waiver of any subsequent breach of either
the same or a different provision of this Agreement. No provisions of this Agreement may
be waived unless in writing and signed by all parties to this Agreement. Waiver of any
one provision herein shall not be deemed to be a waiver of any other provision herein.
19. Governing Law and Venue.
This Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of California, excluding, however, any conflict of laws rule which
would apply the law of another jurisdiction . Venue for purposes of the filing of any action
regarding the enforcement or interpretation of this Agreement and any rights and duties
hereunder shall be Fresno County, California.
20. Headings.
The section headings in this Agreement are for convenience and reference only and shall
not be construed or held in any way to explain, modify, or add to the interpretation or
meaning of the provisions of this Agreement.
21. Severability .
The provisions of this Agreement are severable. The invalidity, or unenforceability of any
one provision in this Agreement shall not affect the other provisions.
22. In t erp r etat ion .
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. Atto rn ey '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.
DPW-S FHWA Eng . CSA. Short Form Total Fee -Contingency (11-2022)
Page 11 of 25
25. Precedence of Documents.
In the event of any conflict between the body of this Agreement and any exhibit or
attachment hereto, the terms and conditions of the body of this Agreement shall control
and take precedence over the terms and conditions expressed within the exhibit or
attachment. Furthermore, any terms or conditions contained within any exhibit or
attachment hereto which purport to modify the allocation of risk between the parties,
provided for within the body of this Agreement, shall be null and void.
26. Cumulative Remedies.
No remedy or election hereunder shall be deemed exclusive but shall, wherever possible,
be cumulative with all other remedies at law or in equity.
27. No Third-Party Beneficiaries.
The rights, interests, duties, and obligations defined within this Agreement are intended
for the specific parties hereto as identified in the preamble of this Agreement.
Notwithstanding anything stated to the contrary in this Agreement, it is not intended that
any rights or interests in this Agreement benefit or flow to the interest of any third parties.
28. Extent of Agreement.
Each party acknowledges that they have read and fully understand the contents of this
Agreement. This Agreement represents the entire and integrated agreement between
the parties with respect to the subject matter hereof and supersedes all prior negotiations,
representations, or agreements, either written or oral. This Agreement may be modified
only by written instrument duly authorized and executed by both the City and the
Consultant.
29. RFQ Document.
Any Request for Qualifications and documents issued therewith ( collectively referred to
herein as "RFQ") by the City that resulted in selection of the Consultant for entry into this
Agreement are hereby incorporated into and made a part of this Agreement. In the event
of a conflict between the RFQ and this Agreement (including any exhibit hereto), this
Agreement (including any exhibit hereto) shall take precedence.
30. 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 FHWA Eng. CSA, Short Form Total Fee -Contingency (11-2022)
Page 12 of 25
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, on the day and year first above written.
CITY OF FRESNO,
Georg
A California municipal cor. o ration
City Ma ager
Office Of The Mayor
ATTEST:
TODD STERMER, CMC
City Cle rk ------
By : I--17-
vI 'S (?"""\
No signature of City Attorney required.
Standard Document #DPW-S FHWA Eng.
CSA, Short Form Total Fee -
Contingency (11-2022) has been used
without modification, as certified by the
undersigned.
By: ./ ~ Gr
Magdaleno Jimenez
Engineer II
Melissa Blau, Proj ct Admi nistrator
Public Works Department
Addresses:
CITY:
City of Fresno
Attention:Magdaleno Jimenez, Engineer II
2600 Fresno Street
Fresno, CA 93721
Phone: (559) 621-8698
E-mail: Magdaleno.Jimenez@fresno.gov
Attachments:
1. Exhibit A -Scope of Services
2. Exhibit B -Insurance Requirements
Brooks Ransom,
Brooks Ransom
By: __.s:~.-:::::.~ :::=....~ ::::::::....==--
Name: A~\)M \,. 0 r\;3=
By:·~ ~ 4illla'iw:;~:Gi ~GiQ~H'
Name: ~ A'1L-O SL,G \1-. \1114 j ~ ~
Title: t'R-\ f\l C..\ f-A-\.._.
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
Any Applicable Professional License :
Number: ~'1.,'1.,f,\o
Name: tnAl\..On,,Q p..... '{w):cyJ() W\
Date of Issuance: JA"'1-,_,,,~ t> I
CONSUL TANT:
Brooks Ransom Associates, Inc
Attention: Arturo Lopez, Principal
7415 N. Palm Ave, Suite 100
Fresno, CA 93711
Phone: (559) 449-8444 x226
E-mail: Art@brooksransom.com
DPW-S FHWA Eng . CSA, Short Form Total Fee -Contingency (11-2022)
Page 13 of 25
3. Exhibit C -Conflict of Interest Disclosure Form
4. Exhibit D -Federal and State Assurances
5. Appendix A to Exhibit D
DPW-S FHWA Eng. CSA, Short Fonn Total Fee -Contingency (11-2022)
Page 14 of 25
EXHIBIT A
SCOPE OF SERVICES
Consultant Service Agreement between
City of Fresno (City) and Brooks Ransom Associates, Inc (Consultant}
Veterans Boulevard Grade Separation
Design Services:
-Prepare construction drawings in AutoCAD 2022 format. Drawings are expected to
include the following sheets:
-Concrete Masonary Wall Layout and General Notes
-Concrete Masonary Wall Details
-Perform Independent quality control design review in-house.
-Respond to one round of City plan-check comments.
-One signed PDF set of structure plans and response to City plan check comments .
Plans will be signed and sealed by licensed Structural Engineer.
-Response to one round of City plan check comments, if required.
Construction Support Services:
-Review contractor submittals required by the Structural Construction Documents. The
following submittals are anticipated:
-Concrete Mix Design
-Grout Mix Design
-Rebar Submittal
-Answering questions or contractor-generated Request for Information (RFI)
Fee:
-Wall design and construction documents through plan check and construction
administration fee of $5,250.00.
-Contingency amount not to exceed of $1,500.00
DPW-S FHWA Eng. CSA, Short Form Total Fee -Contingency (11-2022)
Exhibit A
Page 15 of 25
EXHIBIT B
INSURANCE REQUIREMENTS
Consultant Service Agreement between
City of Fresno (City) and Brooks Ransom Associates, Inc (Consultant)
Veterans Boulevard Grade Separation
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 00 01, providing liability coverage
arising out of your business operations. The Commercial General Liability
policy shall be written on an occurrence form and shall provide coverage for
"bodily injury," "property damage" and "personal and advertising injury" with
coverage for premises and operations (including the use of owned and non
owned equipment), products and completed operations, and contractual
liability (including, without limitation, indemnity obligations under the
Agreement) with limits of liability not less than those set forth under
"Minimum Limits of Insurance."
2. The most current version of Commercial Auto Coverage Form CA 00 01,
providing liability coverage arising out of the ownership, maintenance, or
use of automobiles in the course of your business operations. The
Automobile Policy shall be written on an occurrence form and shall provide
coverage for all owned, hired, and non-owned automobiles or other licensed
vehicles (Code 1-Any Auto).
3. Workers' Compensation insurance as required by the State of California
and Employer's Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to the
Consultant's profession.
MINIMUM LIMITS OF INSURANCE
The Consultant, or any party the Consultant subcontracts with, shall maintain limits of
liability of not less than those set forth below. However, insurance limits available to the
City, its officers, officials, employees, agents, and volunteers as additional insureds, shall
be the greater of the minimum limits specified herein or the full limit of any insurance
proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property
DPW-S FHWA Eng . CSA, Short Form Total Fee -Contingency (11-2022)
Exhibit B
Page 16 of 25
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 LlABILITY (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 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:
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 10 04 13 and CG 20 37 04
13 or by an executed manuscript insurance company endorsement
providing additional insured status as broad as that contained in ISO Form
CG 20 10 11 85.
DPW-S FHWA Eng. CSA, Short Fam, Total Fee -Contingency (11-2022)
Exhibit B
Page 17 of 25
2. The coverage shall contain no special limitations on the scope of protection
afforded to the City, its officers, officials, employees, agents, and
volunteers. Any available insurance proceeds in excess of the specified
minimum limits and coverage shall be available to the Additional Insured.
3. For any claims relating to this Agreement, the Consultant's insurance
coverage shall be primary insurance with respect to the City, its officers,
officials, employees, agents, and volunteers. Any insurance or self
insurance maintained by the City, its officers, officials, employees, agents,
and volunteers shall be excess of the Consultant's insurance and shall not
contribute with it. The Consultant shall establish primary and non
contributory status by using ISO Form CG 20 01 04 13 or by an executed
manuscript insurance company endorsement that provides primary and
non-contributory status as broad as that contained in ISO Form CG 20 01
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 Pro.fessional Liability (Errors and Omissions) insurance policy is written on a claims
made form:
1. The retroactive date must be shown and must be before the effective date
of the Agreement or the commencement of work by the Consultant.
2. Insurance must be maintained, and evidence of insurance must be provided
for at least five years after completion of the Agreement work, or termination
of the Agreement, whichever occurs first, or, in the alternative, the policy
shall be endorsed to provide not less than a five-year discovery period.
3. If coverage is canceled or non-renewed, and not replaced with another
claims-made policy form with a retroactive date prior to the effective date
of the Agreement or the commencement of work by the Consultant, the
Consultant must purchase "extended reporting" coverage for a minimum of
five years 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
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
DPW-S FHWA Eng. CSA, Short Form Total Fee -Contingency (11-2022)
Exhibit B
Page 18 of 25
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 FHWA Eng. CSA, Short Form Total Fee -Contingency (11-2022)
Exhibit B
Page 19 of 25
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Veterans Boulevard Grade Separation
YES* NO
Are you currently in litigation with the City of Fresno or any1 □ ~ 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 business with the City of Fresno?
4 Are you or any of your principals, managers or professionals,
owners or investors in a business which does business with □ ~ the City of Fresno, or in a business which is in litigation with
the City of Fresno?
5 Are you or any of your principals, managers, or professionals,
related by blood or marriage to any City of Fresno employee □who has any significant role in the subject matter of this ~
service?
6 Do you or any of your subcontractors have, or expect to have,
any interest, direct or indirect, in any other contract in □ ~ connection with this Project?
* If the answer to any question is yes, please explain in fu~ ;>
(~•Explanation: \.
Signature
j~ \O 'L1)t.~
Date l
~'\..,TIJ~ Ll P1c--=r
Address
~tJul cA
City, State, Zip
□ Additional page(s) attached.
DPW-S FHWA Eng. CSA, Short Form Total Fee -Contingency (11-2022)
Exhibit C
Page 20 of 25
EXHIBIT D
FEDERAL AND STATE ASSURANCES
Consultant Service Agreement between City of Fresno
(City) and Brooks Ransom Associates, Inc
(Consultant)
Veterans Boulevard Grade Separation
1. The Consultant shall comply with and require its Subcontractors to comply with
the following:
a. 23 USC §112 regarding Highways and the letting of contracts to Architects
and Engineers;
b. The provisions of the Fair Employment and Housing Act (Government Code
Section 1290-0 et seq.), and the applicable regulations promulgated
thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.).
The applicable regulations of the Fair Employment and Housing Commission
implementing Government Code Section 12900(a-f), set forth in Chapter of
Division 4 of Title 2 of the California Code of Regulations are incorporated
into this Agreement by reference and made a part hereof as if set forth in full.
Give a written notice of their obligations under this clause to any labor
organizations with which they have a collective bargaining or any other
agreements as appropriate. INCLUDE THIS ENTIRE CLAUSE IN ANY AND
ALL SUBCONTRACTS.
c. Appendix A attached hereto and incorporated herein.
2 . Cost Principles
a. The Consultant agrees that the Contract Cost Principles and Procedures, 48
CFR, Federal Acquisition Regulations System, Chapter 1 Part 31.000 et seq.,
shall be used to determine the allowability of cost for individual items.
b. The Consultant also agrees to comply with federal procedures in accordance
with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments .
c. Any costs for which payment has been made to the Consultant that are
determined by S\,Jbsequent audit to be unallowable under 48 CFR, Federal
Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject
to repayment by the Consultant to the City.
3 . Subcontracting
a. The Consultant shall perform the work contemplated with resources available
within its own organization; and no portion of the work pertinent to this
Agreement shall be subcontracted without written authorization by the City's
Contract Manager, except that, which is expressly identified in the approved
Cost Proposal.
b. Any subcontract in excess of $25,000 shall contain ALL the provisions
DPW-S FHWA Eng . CSA, Short Form Total Fee -Contingency (11-2022)
Exhibit D
Page 21 of 25
stipulated in this Agreement to be applicable to subcontractors .
c. Any substitution of subconsultants/subcontractors must be approved in
writing by the City's Contract Manager.
4 . Equipment Purchase
a. Prior authorization in writing, by the City's Contract Manager shall be required
before the Consultant enters into any unbudgeted purchase order, or
subcontract exceeding $5,000 for supplies, equipment, or the Consultant
services. The Consultant shall provide a written request which includes an
evaluation of the necessity or desirability of incurring such costs, three
competitive quotations obtained in the manner prescribed in the City's
Municipal Code Section 4-101 ( d) or 4-102 as applicable or a sole source
justification as provided in the City's Administrative Order No. 3-3.
b. Any equipment purchased as a result of this Agreement is subject to the
following: the Consultant shall maintain an inventory of all nonexpendable
property . Nonexpendable property is defined as having a useful life of at least
two years and an acquisition cost of $5,000 or more. If the purchased
equipment needs replacement and is sold or traded in, the City shall receive
a proper refund or credit at the conclusion of the Agreement, or if the
Agreement is terminated, the Consultant may either keep the equipment and
credit the City in an amount equal to its fair market value, or sell such
equipment at the best price obtainable at a public or private sale, in
accordance with established the City procedures; and credit the City in an
amount equal to the sales price. If the Consultant elects to keep the
equipment, fair market value shall be determined at the Consultant's
expense, on the basis of a competent independent appraisal of such
equipment. Appraisals shall be obtained from an appraiser mutually
agreeable to the City and the Consultant, if it is determined to sell the
equipment, the terms and conditions of such sale must be approved in
advance by the City. 49 CFR, Part 18 requires a credit to Federal funds when
participating equipment with a fair market value greater than $5,000.00 is
credited to the project.
c. The above provisions shall be included in all subcontracts in excess of
$25,000 .
5 . PROHIBITION OF EXPENDING CITY STATE OR FEDERAL FUNDS FOR
LOBBYING
This section only applies to contracts where federal funding will exceed $100,000.
A. The Consultant certifies to the best of his or her knowledge and belief that:
1. No state, federal or the City appropriated funds have been paid, or will
be paid by-or-on behalf of the Consultant to any person for influencing or
attempting to influence an officer or employee of any state or federal agency; a
Member of the State Legislature or United States Congress; an officer or
employee of the Legislature or Congress; or any employee of a Member of the
Legislature or Congress, in connection with the awarding of any state or federal
DPW-S FHWA Eng. CSA, Short Fom, Total Fee -Contingency (11-2022)
Exhibit D
Page 22 of 25
contract; the making of any state or federal grant; the making of any state or
federal loan; the entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any state or federal
contract, grant, loan, or cooperative agreement.
2. If any funds other than federal appropriated funds have been paid, or
will be paid to any person for influencing or attempting to influence an officer or
employee of any federal agency; a Member of Congress; an officer or employee
of Congress, or an employee of a Member of Congress; in connection with this
federal contract, grant, loan, or cooperative agreement; the Consultant shall
complete and submit Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction imposed
by Section 1352, Title 31, U.S. Code. Any person who fails to file the required
certification shall be subject to a civil penalty of not less than $10,000 and not
more than $100,000 for each such failure.
C. The Consultant also agrees by signing this document that he or she shall
require that the language of this certification be included in all lower-tier
subcontracts, which exceed $100,000, and that all such sub recipients shall
certify and disclose accordingly.
6 . NON-DISCRIMINATION CLAUSE
During the performance of this Agreement, the Consultant and its subcontractors
shall not unlawfully discriminate, harass, or allow harassment against any
employee or applicant for employment because of sex, race, color, ancestry,
religious creed, national origin, physical disability (including HIV and AIDS), mental
disability, medical condition (e.g., cancer), age (over 40), marital status, and denial
of family care leave. The Consultant and subcontractors shall insure that the
evaluation and treatment of their employees and applicants for employment are
free from such discrimination and harassment. The Consultant and subcontractors
shall comply with the provisions of the Fair Employment and Housing Act (Gov.
Code §12990 (a-f) et seq.) and the applicable regulations promulgated thereunder
(California Code of Regulations, Title 2, Section 7285 et seq.). The applicable
regulations of the Fair Employment and Housing Commission implementing
Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title
2 of the California Code of Regulations, are incorporated into this Agreement by
reference and made a part hereof as if set forth in full. The Consultant and its
subcontractors shall give written notice of their obligations under this clause to
labor organizations with which they have a collective bargaining or other
Agreement.
The Consultant shall include the nondiscrimination and compliance provisions of
this clause in all subcontracts to perform work under the Agreement.
DPW-S FHWA Eng. CSA, Short Form Total Fee -Contingency (11-2022)
Exhibit D
Page 23 of 25
APPENDIX A TO EXHIBIT D
Consultant Service Agreement between City of Fresno (City)
and Brooks Ransom Associates, Inc (Consultant)
Vete rans Bou levard Grade Separat ion
(1) The Consultant shall comply with the regulations relative to nondiscrimination in
federally assisted programs of the Department of Transportation, Title 49, Code of
Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter
referred to as the REGULATIONS), which are herein incorporated by reference and
made a part of this Agreement.
(2) The Consultant, with regard to the work performed by it during the Agreement, shall
not discriminate on the grounds of race, color, sex, national origin, religion, age, or
disability in the selection and retention of sub-applicants, including procurements of
materials and leases of equipment. The Consultant shall not participate either directly
or indirectly in the discrimination prohibited by Section 21.5 of the REGULATIONS,
including employment practices when the Agreement covers a program set forth in
Appendix B of the REGULATIONS .
(3) In all solicitations either by competitive bidding or negotiation made by the
Consultant for work to be performed under a Sub-agreement, including procurements
of materials or leases of equipment, each potential sub-applicant or supplier shall be
notified by the Consultant of the the Consultant's obligations under this Agreement and
the REGULATIONS relative to nondiscrimination on the grounds of race , color, or
national origin.
(4) The Consultant shall provide all information and reports required by the
REGULATIONS, or directives issued pursuant thereto, and shall permit access to the
Consultant's books, records, accounts , other sources of information, and its facilities as
may be determined by STATE or Federal Highway Administration (FHWA) to be
pertinent to ascertain compliance with such REGULATIONS or directives. Where any
information required of the Consultant is in the exclusive possession of another who
fails or refuses to furnish this information, the Consultant shall so certify to the State of
California {STATE) or the FHWA as appropriate and shall set forth what efforts the
Consultant has made to obtain the information.
(5} In the event of the Consultant's noncompliance with the nondiscrimination provisions
of this Agreement, STATE shall impose such agreement sanctions as it or the FHWA
may determine to be appropriate, including , but not limited to:
(a) withholding of payments to the City under the Agreement within a reasonable
period of time, not to exceed 90 days; and/or
(b) cancellation, termination, or suspension of the Agreement , in whole or in part.
(6) The Consultant shall include the provisions of paragraphs (1} through (6) in every
sub-agreement, including procurements of materials and leases of equipment, unless
exempt by the REGULATIONS, or directives issued pursuant thereto. The Consultant
shall take such action with respect to any sub-agreement or procurement as ST A TE or
DPW-S FHWA Eng. CSA, Short Fann Total Fee -Contingency (11-2022)
Appendix A to Exhibit D
Page 24 of 25
FHWA may direct as a means of enforcing such provisions including sanctions for
noncompliance, provided, however, that, in the event the Consultant becomes involved
in, or is threatened with, litigation with a sub-applicant or supplier as a result of such
direction, the Consultant may request STATE enter into such litigation to protect the
interests of STATE, and, in addition, the Consultant may request the United States to
enter into such litigation to protect the interests of the United States.
(7) The Consultant shall execute the following CERTIFICATION OF CONSUL TANT,
COMMISSIONS & FEES
I HEREBY CERTIFY that I am A,'\..~~ \....() Y~ ,and duly
authorized representative of the firm of ~"-4\l't...l ~)Q'W\f\ ft~\b l . whose
address is 7 '!:\S N · ?lr\,"fV\ .»a\ 0 a ,and that, except as
hereby expressly stated, neither I nor the above firm that I represent have:
(a) employed or retained for a commission, percentage, brokerage, contingent fee, or
other consideration, any firm or person (other than a bona fide employee working solely
for me or the above the Consultant) to solicit or secure this Agreement; nor
(b) agreed, as an express or implied condition for obtaining this Agreement, to employ
or retain the services of any firm or person in connection with carrying out the
Agreement; nor
(c) paid, or agreed to pay, to any firm, organization, or person (other than a bona fide
employee working solely for me or the above the Consultant) any fee, contribution,
donation, or consideration of any kind, for or in connection with, procuring or carrying
out this Agreement.
I acknowledge that this Certificate is to be made available to the California Department
of Transportation (Caltrans) in connection with this Agreement involving participation
of Federal-aid Highway funds, and is subject to applicable "''""'-=~..-t0 ral laws, both
criminal and civil.
DPW-S FHWA Eng. CSA, Short Form Total Fee -Contingency (11-2022)
Appendix A to Exhibit D
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