HomeMy WebLinkAboutKimley-Horn and Associates - Agreement Consultant - 12-2-2021uuvuv1y11 c11vt=1uµt:: 1u . ,curuuuu-o.+::, IO"""'+.Jru-o::,;Jr-::,o..,~£.u::,r'-'/"'V"\~
AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT is made and entered into effective the 2nd day of December
2021, by and between the CITY OF FRESNO, a California municipal corporation
(hereinafter referred to as "CITY"), and Kimley-Horn and Associates, a North Carolina
Corporation, (hereinafter referred to as "CONSUL TANT").
RECITALS
WHEREAS, CITY desires to obtain professional engineering services for
Independent Forensic Analysis of the Upper Parking Garage Deck at Fresno Yosemite
International Airport (FAT), hereinafter referred to as the "Project;" and ,
WHEREAS, CONSUL TANT is engaged in the business of furnishing services as
a civil engineer and hereby represents that it desires to and is professionally and legally
capable of performing the services called for by this Agreement; and
WHEREAS, CONSUL TANT 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 CITY by its Director of Aviation
(hereinafter referred to as "Director") or his/her 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. CONSUL TANT shall perform to the satisfaction of 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 ("Effective Date") and shall continue in full
force and effect through December 2, 2022, subject to any earlier termination in
accordance with this Agreement. The services of CONSUL TANT as described in Exhibit
A are to commence upon the Effective Date and shall be completed in a sequence
assuring expeditious completion, but in any event, all such services shall be completed
prior to expiration of this agreement and in accordance with any performance schedule
set forth in Exhibit A.
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3. Compensat ion .
(a) CONSULTANT'S sole compensation for satisfactory performance of
all services required or rendered pursuant to this Agreement shall be a total fee of Eight
Thousand, Seven Hundred Dollars and Zero Cents ($8,700.00). Such fee includes all
expenses incurred by CONSUL TANT in performance of the services.
(b) Detailed statements shall be rendered monthly and will be payable
in the normal course of CITY business.
(c) The parties may modify this Agreement to increase or decrease the
scope of services or provide for the rendition of services not required by this Agreement,
which modification shall include an adjustment to 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. CONSUL TANT shall not be
entitled to any additional compensation if services are performed prior to a signed written
amendment.
4. Termination, Remed ies and Force Majeure.
(a) This Agreement shall terminate without any liability of CITY to
CONSUL TANT upon the earlier of: (i) CONSULTANT'S filing for protection under the
federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced
by a third party against CONSUL TANT; (ii) 7 calendar days prior written notice with or
without cause by CITY to CONSUL TANT; (iii) 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,
CONSUL TANT 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 CONSUL TANT that are
owned by CITY. Subject to the terms of this Agreement, CONSUL TANT shall be paid
compensation for services satisfactorily performed prior to the effective date of
termination. CONSUL TANT 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 CONSULTANT to
satisfactorily perform in accordance with the terms of this Agreement, CITY may withhold
an amount that would otherwise be payable as an offset to, but not in excess of, CITY'S
damages caused by such failure. In no event shall any payment by CITY pursuant to this
Agreement constitute a waiver by CITY of any breach of this Agreement which may then
exist on the part of CONSUL TANT, nor shall such payment impair or prejudice any
remedy available to CITY with respect to the breach.
(d) Upon any breach of this Agreement by CONSUL TANT, CITY may
(i) exercise any right, remedy (in contract, law or equity), or privilege which may be
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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 CITY improperly terminated this
Agreement for default, such termination shall be deemed a termination for convenience.
(e) CONSUL TANT shall provide CITY with adequate written assurances
of future performance, upon Director's request, in the event CONSUL TANT fails to
comply with any terms or conditions of this Agreement.
(f) CONSUL TANT shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of CONSUL TANT and without
its fault or negligence such as, acts of God or the public enemy, acts of CITY in its
contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually
severe weather, and delays of common carriers. CONSUL TANT 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 Informat io n, Ownership of Doc uments and Copy r ig ht License.
(a) Any reports, information, or other data prepared or assembled by
CONSUL TANT pursuant to this Agreement shall not be made available to any individual
or organization by CONSULT ANT without the prior written approval of CITY. During the
term of this Agreement, and thereafter, CONSUL TANT shall not, without the prior written
consent of 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 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 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 CONSULT ANT pursuant to this Agreement are the property of
CITY at the time of preparation and shall be turned over to CITY upon expiration or
termination of the Agreement or default by CONSUL TANT. CONSUL TANT grants CITY
a copyright license to use such drawings and writings. CONSUL TANT shall not permit
the reproduction or use thereof by any other person except as otherwise expressly
provided herein. CITY may modify the design including any drawings or writings. Any
use by 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 CONSUL TANT will be at CITY'S sole risk and without liability or legal exposure to
CONSUL TANT. CONSUL TANT may keep a copy of all drawings and specifications for
its sole and exclusive use.
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(c) If CONSUL TANT should subcontract all or any portion of the services
to be performed under this Agreement, CONSUL TANT 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 CONSUL TANT represents to CITY that
CONSUL TANT 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, CITY relies upon the skill of
CONSUL TANT and any subcontractors to do and perform such services in a skillful
manner and CONSUL TANT agrees to thus perform the services and require the same of
any subcontractors. Therefore, any acceptance of such services by CITY shall not
operate as a release of CONSULT ANT or any subcontractors from said professional
standards.
7. Indemnification. To the furthest extent allowed by law, CONSUL TANT 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 and litigation
expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful
misconduct of CONSUL TANT, its principals, officers, employees, agents or volunteers
in the performance of this Agreement.
If CONSUL TANT should subcontract all or any portion of the services to be performed
under this Agreement, CONSUL TANT 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, CONSUL TANT 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 CITY'S Risk Manager or his/her designee at any time and
in his/her sole discretion. The required policies of insurance as stated in Exhibit B shall
maintain limits of liability of not less than those amounts stated therein. However, the
insurance limits available to CITY, its officers, officials, employees, agents and volunteers
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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,
CONSUL TANT 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 CONSUL TANT
shall be withheld until notice is received by 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 CITY. Any failure to maintain the required insurance shall be
sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant
to this section shall in any way relieve CONSUL TANT of its responsibilities under this
Agreement. The phrase "fail to maintain any required insurance" shall include, without
limitation, notification received by 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 CONSUL TANT shall not be
deemed to release or diminish the liability of CONSUL TANT, including, without limitation,
liability under the indemnity provisions of this Agreement. The duty to indemnify 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 CONSUL TANT. Approval or purchase of any insurance contracts or
policies shall in no way relieve from liability nor limit the liability of CONSUL TANT, its
principals, officers, agents, employees, persons under the supervision of CONSUL TANT,
vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone
employed directly or indirectly by any of them.
(d) If CONSUL TANT should subcontract all or any portion of the services
to be performed under this Agreement, CONSUL TANT 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 CONSUL TANT and CITY prior to the
commencement of any services by the subcontractor. 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 CITY'S execution of this Agreement, CONSUL TANT 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, CONSUL TANT shall have the obligation
and duty to immediately notify CITY in writing of any change to the information provided
by CONSUL TANT in such statement.
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(b) CONSUL TANT 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 CITY, CONSULTANT shall provide a written opinion of its legal counsel and
that of any subcontractor that, after a due diligent inquiry, CONSUL TANT and the
respective subcontractor(s) are in full compliance with all laws and regulations.
CONSUL TANT 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, CONSUL TANT shall immediately notify CITY of
these facts in writing.
(c) In performing the work or services to be provided hereunder,
CONSUL TANT shall not employ or retain the services of any person while such person
either is employed by 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) CONSUL TANT 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 CONSUL TANT, nor any of 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. CONSUL TANT 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 CONSULT ANT should subcontract all or any portion of the work to
be performed or services to be provided under this Agreement, CONSUL TANT 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 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, CONSUL TANT at its sole cost and expense
shall:
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(a) Immediately establish and maintain a viable and ongoing recycling
program, approved by CITY'S Solid Waste Management Division, for each office and
facility. Literature describing CITY recycling programs is available from CITY'S Solid
Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-
1111.
(b) Immediately contact 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 CITY'S
Solid Waste Management Division the establishment of the recycling program in
paragraph (i) above and the ongoing maintenance thereof.
11. General Terms and Federal Assurances.
(a) Except as otherwise provided by law, all notices expressly required
of CITY within the body of this Agreement , and not otherwise specifically provided for,
shall be effective only if signed by the Director or his/her designee.
(b) Records of CONSULTANT'S expenses pertaining to the Project shall
be kept on a generally recognized accounting basis and shall be available to CITY or its
authorized representatives upon request during regular business hours throughout the
life of this Agreement and for a period of three years after final payment or, if longer, for
any period required by law. In addition, all books, documents, papers, and records of
CONSUL TANT 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 CITY until such action
is resolved, or until the end of said time period whichever shall later occur. If
CONSUL TANT should subcontract all or any portion of the services to be performed
under this Agreement, CONSUL TANT 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 CITY, CONSUL TANT shall
have provided evidence to CITY that CONSUL TANT is licensed to perform the services
called for by this Agreement (or that no license is required). If CONSUL TANT should
subcontract all or any portion of the work or services to be performed under this
Agreement, CONSUL TANT shall require each subcontractor to provide evidence to CITY
that subcontractor is licensed to perform the services called for by this Agreement (or that
no license is required) before beginning work.
(d) CITY will carry out applicable federal requirements in the
administration of this Agreement. Notwithstanding Section 25 herein, CONSUL TANT
agrees to comply with all applicable federal assurances in Exhibit D and require that each
subcontract include the same assurances by each of its subcontractors.
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12. Nondiscrimination. To the extent required by controlling federal, state and
local law, 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, CONSUL TANT agrees as follows:
(a) CONSUL TANT 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) CONSUL TANT 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.
CONSUL TANT 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 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. CONSUL TANT
agrees to post in conspicuous places, available to employees and applicants for
employment, notices setting forth the provision of this nondiscrimination clause.
(c) CONSUL TANT will, in all solicitations or advertisements for
employees placed by or on behalf of CONSUL TANT 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) 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
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 CONSUL TANT should subcontract all or any portion of the services
to be performed under this Agreement, CONSUL TANT shall cause each subcontractor
to also comply with the requirements of this Section 12.
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13. Independent Contractor.
(a) In the furnishing of the services provided for herein, CONSUL TANT
is acting solely as an independent contractor. Neither CONSUL TANT, nor any of its
officers, agents or employees shall be deemed an officer, agent, employee, joint venturer,
partner or associate of CITY for any purpose. CITY shall have no right to control or
supervise or direct the manner or method by which CONSUL TANT shall perform its work
and functions. However, CITY shall retain the right to administer this Agreement so as to
verify that CONSUL TANT is performing its obligations in accordance with the terms and
conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture
between CONSULTANT and CITY. CONSUL TANT shall have no authority to bind CITY
absent CITY'S express written consent. Except to the extent otherwise provided in this
Agreement, CONSUL TANT shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, CONSUL TANT
and its officers, agents and employees shall have absolutely no right to employment rights
and benefits available to CITY employees. CONSUL TANT 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,
CONSUL TANT shall be solely responsible, indemnify, defend and save CITY harmless
from all matters relating to employment and tax withholding for and payment of
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 CITY employment benefits,
entitlements, programs and/or funds offered employees of CITY whether arising by
reason of any common law, de facto, leased, or co-employee rights or other theory. It is
acknowledged that during the term of this Agreement, CONSUL TANT may be providing
services to others unrelated to 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.
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16 . Assignment.
(a) This Agreement is personal to CONSUL TANT and there shall be no
assignment by CONSUL TANT of its rights or obligations under this Agreement without
the prior written approval of the City Manager or his/her designee. Any attempted
assignment by CONSUL TANT, its successors or assigns, shall be null and void unless
approved in writing by the City Manager or his/her designee.
(b) CONSUL TANT hereby agrees not to assign the payment of any
monies due CONSUL TANT from CITY under the terms of this Agreement to any other
individual(s), corporation(s) or entity(ies). CITY retains the right to pay any and all monies
due CONSUL TANT directly to CONSUL TANT.
17. Comp l iance With Law. In providing the services required under this
Agreement, CONSUL TANT shall at all times comply with all applicable laws of the United
States, the State of California and 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. Interpretat 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. 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
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prevailing party in such proceeding or action shall be entitled to recover from the other
party its reasonable attorney's fees and legal expenses.
24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by
the reference, incorporated into and made a part of this Agreement.
25. Precedence of Documents. In the event of any conflict between the body
of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and conditions
expressed within the Exhibit or Attachment. Furthermore, any terms or conditions
contained within any Exhibit or Attachment hereto which purport to modify the allocation
of risk between the parties, provided for within the body of this Agreement, shall be null
and void.
26. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
27. No Third Party Beneficiaries. The rights, interests, duties and obligations
defined within this Agreement are intended for the specific parties hereto as identified in
the preamble of this Agreement. Notwithstanding anything stated to the contrary in this
Agreement, it is not intended that any rights or interests in this Agreement benefit or flow
to the interest of any third parties.
28. Extent of Agreement. Each party acknowledges that they have read and
fully understand the contents of this Agreement. 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 CITY and CONSUL TANT.
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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
OocuS ign ed by:
By: fu~AS f;S ~ 12/22/2021
Or Designee
a, City Manager
ATTEST:
Todd Stermer, CMC
City CIArk .
12/22/2021By:r;=:z~Bepufy UE ,..
No signature of City Attorney required.
Standard Document #FYI-S 16.0 has
been used without modification, as
certifieg c~~"\g~= undersigned.0
By: [ ~ OtW-is 12;21;2021
MMAW ."'t:Savis,
Airports Planning Manager
Airports Department
REVll=Wl=D BY: @iii~~ 12/21/2021
Ric°t!I1 ~ttrr.°'Madrigal,
Airports Project Supervisor,
Airports Department
Addresses:
CITY: City of Fresno
Attention: Richard L. Madrigal
Airports Projects Supervisor
4995 E. Clinton Way
Fresno, CA 93727
Phone: (559) 621 4528
Attachments:
1. Exhibit A -Scope of Services
Kimley-Horn and Associates, Inc.,
a North0 ~u~,!?.UrJf:i Corporation
By: [ ¥-ory AJ.r·r,..{? 12/20/2021
CiiS5CZ5/F0304S.6...
Name: Kory Andryscik, P.E.
Title: Vice President
(if corporation or LLC, Board
~ 0~~J[n,_J;:[eS. or Vice Pres.)
By: [~ ,,!!:~r.,,J/-12/14/2021
Name:. Heath Hildebrandt, P.E.
Title: Assistant Secretary
(if corporation or LLC, CFO,
Treasurer, Secretary or Assistant
Secretary)
Any Applicable Professional License:
Number:
Name:----------Date of Issuance: ------
CONSUL TANT:
Kimley-Horn and Associates, Inc.
Attention: Kory Andryscik, PE,
6671 Las Vegas Blvd. South, Suite 320,
Las Vegas, NV 89119
Phone: 702 862-3611
2. Exhibit B -Insurance Requirements
3. Exhibit C -Conflict of Interest Disclosure Form
4. Exhibit D -Assurances
-12-
Exhibit A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno
("CITY") and Kimley-Horn and Associates, Inc.
("CONSULTANT")
Independent Forensic Analysis of the Upper Parking Garage Deck at Fresno Yosemite
International Airport (FAT)
PROJECT TITLE
Project Understanding
The construction of a four (4) level parking garage was completed this summer (2021 ). The
Owner has communicated to Kimley-Horn that cracks at multiple locations of the top level of
the parking garage have developed. The Contractor has recommended a repair approach to
repair the existing cracks. The Owner would like Kimley-Horn to visit the site, assess the
condition of the top level of the parking garage, review the Contractor's repair
recommendations, and provide a report with our opinions.
Scope of Services
For all tasks that are listed below, Kimley-Horn shall perform activities necessary to plan, direct,
and coordinate the work of our staff, attend meetings, conference calls, and prepare invoices.
Kimley-Horn will provide the services specifically set forth below.
Task 1 -Site Visit, Condition Assessment and Report
Kimley-Horn will perform a condition assessment of the top level of the existing four (4) level
parking garageto assess the existing concrete cracks and recommend necessary repairs. In
addition, Kimley-Horn will review the Contractor's repair recommendations and provide an
opinion on the suitability of the repairs. As part of this task, Kimley-Horn will complete the
following:
• Review any available construction drawings and previous reports including Contractor's
repair recommendation report, provided by the Client, as baseline information prior to
performing the sitevisit. This does not include verifying as-built conditions, such as
column grids, dimensions, etc.
• Coordinate with the Client on current maintenance activities, warranties, and
schedules.
• Conduct a limited, visual, non-destructive, walk-through site visit at the top level parking
deck to observe readily accessible existing parking structure conditions. These
conditions will be documented with representative photographs and field notes utilizing
record construction documents as base files. The intent of the site visit is to document
the condition of the concrete deck and to note specific items in need of repair. It is
anticipated that the site visit will be completed in one (1) day. Kimley-Horn will perform
the following as part of this walk-through:
o Meet with representatives of the Client familiar with the parking structure to
solicit input during the first part of the walk-through on known maintenance
issues or concerns.
o Observe and note the condition of the concrete deck.
o Document readily observable conditions which might represent potential safety
issues.
o Observe and note locations of exposed reinforcing steel corrosion or significant
section loss.
o Observe and note the condition of expansion joints.
• Based on our site observations, Kimley-Horn will prepare a Condition Assessment
Report . The Condition Assessment Reports will be developed describing the current
parking deck's conditions, field observations, recommendations, and opinion of the
Contractor's repair recommendation as it relates to the service life of the repairs. A 90%
DRAFT Report will be electronically submitted in PDF format for Client review and
comment. The final PDF reports will be submitted after Client comments have been
addressed.
• Conduct one (1) closeout conference call with the Client. It is anticipated that findings,
recommendations, and follow-up actions will be discussed at this meeting.
Additional Services
Any other services, including but not limited to the following, are not included in this Agreement:
• Any item not specifically mentioned in the Scope of Services.
• Assessment of the bottom three levels of the parking garage.
• Any services not specifically provided for in the above scope, as well as any changes in
the scope the Owner requests, will be considered additional services and will be
performed at Consultant's then current hourly rates.
Information Provided By Owner
Kimley-Horn will be entitled to rely on the completeness and accuracy of all information provided
by the OWNER or the OWNER's representatives. The OWNER will provide all information
requested by Kimley-Horn during the project, including but not limited to the following:
• Provide as-built drawings of project area
• Provide Contractor's report with repair recommendations
Responsibilities of Owner
In addition to other responsibilities set out in this Agreement, the OWNER will :
• Provide information/review comments in a timely manner
• Provide access to the project areas when requested
L/Ul,;U~IYI I Cl IY~IUl,)t: IU. £.c.uruuuu-..~ I O-t.Jf u-c~..>r-~o.JC.£.U~r\,,,l""\J""\~
Schedule
Kimley-Horn will provide the services within a reasonable length of time, as expeditiously as
practicable tomeet the mutually agreed upon schedule.
Fee and Expenses
Consultant will perform the services in Task 1 for the total lump sum shown below. Individual
task amountsare informational only. All permitting, application, and similar project fees will be
paid directly by the OWNER; should the OWNER request the Consultant to advance any such
project fees on the OWNER's behalf, a separate invoice for such fees, with a ten percent (10%)
markup, will be immediately issued to and paid by the OWNER.
Table 1 -Fee
Breakdown
Task Unit Amount
Task 1 -Site Visit, Condition Assessment and Report LS $8,700
Total LS $8 ,700
uu1..,;uu1y11 c.11v~1UfJ~ 1u . L.c.uruuuu-~::, 10-t;Jtu-c::,;.,r-::,ouc:Lu::,r"-'/""\l"\"t
Exhibit B
INSURANCE REQUIREMENTS
Consultant Service Agreement Between City of Fresno ("CITY")
and Kimley-Horn and Associates, ("CONSUL TANT")
Project Title
Independent Forensic Analysis of the Upper Parking Garage Deck at Fresno
Yosemite International Airport (FAT)
MINIMUM SCOP E 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 ISO *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
CONSUL TANT's profession.
MINIMUM LIMITS OF INSURANCE
CONSUL TANT, or any party the CONSULTANT subcontracts with, shall maintain limits of
liability of not less than those set forth below. However, insurance limits available to CITY,
its officers, officials, employees, agents, and volunteers as additional insureds, shall be
the greater of the minimum limits specified herein or the full limit of any insurance proceeds
available to the named insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage .
10/16
Page 1 of 4
uuliu..:,1y11 c11vt::1uµt:: 11..1 . c.curuuui..,-.::, 1O"""+.J r o-□ ~'-'r-::,o'"'c,u::,r\..,l"V"'\"+
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event CONSUL TANT 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
CONSUL TANT shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and CONSUL TANT shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured retentions must
be declared to on the Certificate of Insurance, and approved by, the CITY's Risk Manager
or designee. At the option of the CITY's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects CITY, its officers, officials, employees, agents,
and volunteers; or
(ii) CONSUL TANT shall provide a financial guarantee, satisfactory to
CITY's Risk Manager or designee, guaranteeing payment of losses
and related investigations, claim administration and defense
expenses. At no time shall CITY be responsible for the payment of
any deductibles or self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be
endorsed to contain, the following provisions:
1. CITY, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. CONSUL TANT shall establish additional
insured status for the City and for all ongoing and completed operations
under the Commercial General Liability policy by use of ISO Forms or an
executed manuscript insurance company endorsement providing additional
insured status. The Commercial General endorsements must be as broad
as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20
37.
2. The coverage shall contain no special limitations on the scope of protection
afforded to CITY, its officers, officials, employees, agents, and volunteers.
Any available insurance proceeds in excess of the specified minimum limits
and coverage shall be available to the Additional Insured.
10/16
Page 2 of 4
3. For any claims relating to this Agreement, CONSUL TANT'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 CONSUL TANT's insurance and shall not
contribute with it. CONSUL TANT 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: CONSUL TANT and its insurer shall waive any right of subrogation
against CITY, its officers, officials, employees, agents, and volunteers.
If the Professional Liability (Errors and Omissions) insurance 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 CONSUL TANT.
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,
CONSUL TANT must purchase "extended reporting" coverage for a
minimum of five (5) years completion of the Agreement work or termination
of the Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to CITY for
review.
5. These requirements shall survive expiration or termination of the
Agreement.
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty
(30) calendar days written notice by certified mail, return receipt requested, has been
given to CITY. CONSUL TANT 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, CONSUL TANT
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,
CONSUL TANT 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.
Page 3 of 4
10/16
The fact that insurance is obtained by CONSUL TANT shall not be deemed to release or
diminish the liability of CONSUL TANT, 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 CONSUL TANT. Approval or purchase of
any insurance contracts or policies shall in no way relieve from liability nor limit the liability
of CONSUL TANT, its principals, officers, agents, employees, persons under the
supervision of CONSUL TANT, vendors, suppliers, invitees, consultants, sub-consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
SUBCONTRACTORS -If CONSUL TANT subcontracts any or all of the services to be
performed under this Agreement, CONSUL TANT 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, CONSUL TANT will be solely responsible for ensuring
that it's subcontractors maintain insurance coverage at levels no less than those required
by applicable law and is customary in the relevant industry.
VERIFICATION OF COVERAGE
CONSUL TANT shall furnish CITY with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements
are to be received and approved by the CITY'S Risk Manager or his/her designee prior
to CITY'S execution of the Agreement and before work commences. All non-ISO
endorsements amending policy coverage shall be executed by a licensed and authorized
agent or broker. Upon request of CITY, CONSUL TANT 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.
To the furthest extent allowed by law including California Civil Code section
2782.8, CONSUL TANT 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 and litigation expenses) that arise out of, pertain to, or relate to the
negligence, recklessness or willful misconduct of CONSUL TANT, its principals, officers,
employees, agents or volunteers in the performance of this Agreement.
If CONSUL TANT should subcontract all or any portion of the services to be
performed under this Agreement, CONSUL TANT 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.
Page4of4
10/16
Exhibit C
DISCLOSURE OF CONFLICT OF INTEREST
Consultant Service Agreement Between City of Fresno
{"CITY") and Kimley-Horn and Associates,{"CONSULTANT")
Project Title
Independent Forensic Analysis of the Upper Parking Garage Deck at Fresno
Yosemite International Airport (FAT)
YES* NO
1 Are you currently in litigation with the City of Fresno or any of its agents? □ 00
2 Do you represent any firm, organization or person who is in litigation with the
City of Fresno? □ 00
3 Do you currently represent or perform work for any clients who do business
with the City of Fresno? □ 00
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? □ 00
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? □ 00
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? □ 00
* If the answer to any question is yes, please explain in full below.
Explanation:
-
~ AJ.rr~.. f?
........................
Signature
12/20/2021
Date
Kory Andryscik, P.E.
(name)
Kimley-Horn and Associates, Inc.
(company)
6671 S Las Vegas Blvd. #320
(address)
Las Vegas, NV 89119* Additional page(s) attached.
FYI-S 16.0 /04-03-17
Page 1 of 2
(city state zip)
FYI-S 16 .0 /04-03-17
Page 2 of 2
Exhibit D
ASSURANCES
Consultant Service Agreement Between City of Fresno ("CITY")
and Kimley-Horn and Associates, ("CONSUL TANT")
Project Title
Independent Forensic Analysis of the Upper Parking Garage Deck at Fresno
Yosemite International Airport (FAT)
During the performance of this Agreement (hereinafter referred to as "contract" or
"contract documents"), CONSUL TANT, for itself, its assignees and successors in interest
(hereinafter referred to collectively as "the contractor" or "CONTRACTOR") agrees as
follows (hereinafter, "CITY" is referred to as "Sponsor"):
PROVISIONS APPLICABLE TO ALL CONTRACTS
A. GENERAL CIVIL RIGHTS PROVISIONS
The contractor agrees that it will comply with pertinent statutes, Executive Orders and
such rules as are promulgated to ensure that no person shall, on the grounds of race,
creed, color, national origin, sex, age, or handicap be excluded from participating in any
activity conducted with or benefiting from Federal assistance.
This provision binds the contractor from the bid solicitation period through the completion
of the contract. This provision is in addition to that required of Title VI of the Civil Rights
Act of 1964.
B. CIVIL RIGHTS ACT OF 1964, TITLE VI
During the performance of this contract, the contractor, for itself, its assignees, and
successors in interest (hereinafter referred to as the "contractor'') agrees as follows:
1. Compliance with Regulations: The contractor (hereinafter includes
consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts
And Authorities, as they may be amended from time to time, which are herein
incorporated by reference and made a part of this contract.
2. Non-discrimination: The contractor, with regard to the work performed by
it during the contract, will not discriminate on the grounds of race, color, or national
origin in the selection and retention of subcontractors, including procurements of
materials and leases of equipment. The contractor will not participate directly or
indirectly in the discrimination prohibited by the Nondiscrimination Acts and
Authorities, including employment practices when the contract covers any activity,
project, or program set forth in Appendix B of 49 CFR part 21.
3. Solicitations for Subcontracts, Including Procurements of Materials
and Equipment: In all solicitations, either by competitive bidding, or negotiation
made by the contractor for work to be performed under a subcontract, including
procurements of materials, or leases of equipment, each potential subcontractor
FYI Federal Assurances ALL Contracts (07-01-16)
Page 1 of 7
or supplier will be notified by the contractor of the contractor's obligations under
this contract and the Nondiscrimination Acts And Authorities on the grounds of
race, color, or national origin.
4. Information and Reports: The contractor will provide all information and
reports required by the Acts, the Regulations, and directives issued pursuant
thereto and will permit access to its books, records, accounts, other sources of
information, and its facilities as may be determined by the sponsor or the Federal
Aviation Administration to be pertinent to ascertain compliance with such
Nondiscrimination Acts And Authorities and instructions. Where any information
required of a contractor is in the exclusive possession of another who fails or
refuses to furnish the information, the contractor will so certify to the sponsor or
the Federal Aviation Administration, as appropriate, and will set forth what efforts
it has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a contractor's
noncompliance with the Non-discrimination provisions of this contract, the sponsor
will impose such contract sanctions as it or the Federal Aviation Administration
may determine to be appropriate, including, but not limited to:
A. Withholding payments to the contractor under the contract until the
contractor complies; and/or
B. Cancelling, terminating, or suspending a contract, in whole or in part.
6. Incorporating Provisions: The contractor will include the provisions of
paragraphs one through six in every subcontract, including procurements of
materials and leases of equipment, unless exempt by the Acts, the Regulations
and directives issued pursuant thereto. The contractor will take action with respect
to any subcontract or procurement as the sponsor or the Federal Aviation
Administration may direct as a means of enforcing such provisions including
sanctions for noncompliance. Provided, that if the contractor becomes involved in,
or is threatened with litigation by a subcontractor, or supplier because of such
direction, the contractor may request the sponsor to enter into any litigation to
protect the interests of the sponsor. In addition, the contractor may request the
United States to enter into the litigation to protect the interests of the United States.
7. Clauses For Deeds Transferring United States Property:
Please note: The following clauses shall be included in deeds effecting or
recording the transfer of real property, structures, or improvements thereon, or
granting interest therein from the United States, pursuant to the provisions of the
Airport Improvement Program grant assurances:
FYI Federal Assurances ALL Contracts (07-01-16)
Page 2 of 7
NOW, THEREFORE, the Federal Aviation Administration as authorized by law
and upon the condition that the CITY will accept title to the lands and maintain
the project constructed thereon in accordance with (Name of Appropriate
Legislative Authority), for the (Airport Improvement Program or other
program for which land is transferred), and the policies and procedures
prescribed by the Federal Aviation Administration of the U.S. Department of
Transportation in accordance and in compliance with all requirements imposed
by Title 49, Code of Federal Regulations, U.S. Department of Transportation,
Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally
assisted programs of the U.S. Department of Transportation pertaining to and
effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252;
42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and
convey unto the CITY all the right, title and interest of the U.S. Department of
Transportation/Federal Aviation Administration in and to said lands described in
(Exhibit A attached hereto or other exhibit describing the transferred
property) and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto CITY and its
successors forever, subject, however, to the covenants, conditions, restrictions
and reservations herein contained as follows, which will remain in effect for the
period during which the real property or structures are used for a purpose for
which Federal financial assistance is extended or for another purpose involving
the provision of similar services or benefits and will be binding on the (Title of
Sponsor), its successors and assigns.
The CITY, in consideration of the conveyance of said lands and interests in lands,
does hereby covenant and agree as a covenant running with the land for itself,
its successors and assigns, that (1) no person will on the grounds of race, color,
or national origin, be excluded from participation in, be denied the benefits of, or
be otherwise subjected to discrimination with regard to any facility located wholly
or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the
CITY will use the lands and interests in lands and interests in lands so conveyed,
in compliance with all requirements imposed by or pursuant to Title 49, Code of
Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the
Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S.
Department of Transportation, Effectuation of Title VI of the Civil Rights Act of
1964, and as said Regulations and Acts may be amended[, and (3) that in the
event of breach of any of the above-mentioned non-discrimination conditions, the
Department will have a right to enter or re-enter said lands and facilities on said
land, and that above described land and facilities will thereon revert to and vest
FYI Federal Assurances ALL Contracts (07-01-16)
Page 3 of 7
uu1.,;uv1y11 c:.11vt::1UJ.Jt::: 1u . Lc:.uruuuu-'"t::, 1o-+;.,, u-o::,;.,r-::,o'-'c:.Lu::,rv/""V"'\"+
in and become the absolute property of the Federal Aviation Administration and
its assigns as such interest existed prior to this instruction].*
(*Reverter clause and related language to be used only when it is determined
that such a clause is necessary in order to make clear the purpose of Title VI.)
8. Clauses For Transfer Of Real Property Acquired Or
Improved Under The Activity, Facility, Or Program:
Please note: The following clauses shall be included in deeds, licenses, leases,
permits, or similar instruments entered into by the Airports department of the
CITY, pursuant to the provisions of the Airport Improvement Program grant
assurances.
A. The (grantee, lessee, permittee, etc. as appropriate) for
himself/herself, his/her heirs, personal representatives, successors in
interest, and assigns, as a part of the consideration hereof, does hereby
covenant and agree [in the case of deeds and leases, add "as a covenant
running with the land"] that:
1. In the event facilities are constructed, maintained, or
otherwise operated on the property described in this (deed, license,
lease, permit, etc.) for a purpose for which a Federal Aviation
Administration activity, facility, or program is extended or for another
purpose involving the provision of similar services or benefits , the
(grantee, licensee, lessee, permittee, etc.) will maintain and operate
such facilities and services in compliance with all requirements
imposed by the Nondiscrimination Acts and Regulations listed in the
Pertinent List of Nondiscrimination Authorities (as may be amended)
such that no person on the grounds of race, color, or national origin,
will be excluded from participation in, denied the benefits of, or be
otherwise subjected to discrimination in the use of said facilities .
B. With respect to licenses, leases, permits, etc., in the event of breach
of any of the above Nondiscrimination covenants, the CITY will have the
right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and
repossess said lands and facilities thereon, and hold the same as if the
(lease, license, permit, etc.) had never been made or issued.*
C. With respect to a deed, in the event of breach of any of the above
Nondiscrimination covenants, the CITY will have the right to enter or re
enter the lands and facilities thereon, and the above described lands and
facilities will there upon revert to and vest in and become the absolute
property of the CITY and its assigns.*
FYI Federal Assurances ALL Contracts (07-01-16)
Page 4 of 7
UULiUv1y1 I c::r IVt:IUJ,Jt: IU. Lc::uruuuu-~:::, I 0-+'-11 u-c:1"1r-::10..JC::LU:1rV/""V"'\&f-
(*Reverter clause and related language to be used only when it is
determined that such a clause is necessary to make clear the purpose of
Title VI.)
9. Title VI Clauses for Construction/Use/Access to Real
Property Acquired Under the Activity, Facility or
Program:
Please note: The following clauses shall be included in deeds, licenses, permits,
or similar instruments/agreements entered into by the CITY pursuant to the
provisions of the Airport Improvement Program grant assurances.
A. The (grantee, licensee, permittee, etc., as appropriate) for
himself/herself, his/her heirs, personal representatives, successors in
interest, and assigns, as a part of the consideration hereof, does hereby
covenant and agree (in the case of deeds and leases add, "as a covenant
running with the land") that (1) no person on the ground of race, color, or
national origin, will be excluded from participation in, denied the benefits of,
or be otherwise subjected to discrimination in the use of said facilities, (2)
that in the construction of any improvements on, over, or under such land,
and the furnishing of services thereon, no person on the ground of race,
color, or national origin, will be excluded from participation in, denied the
benefits of, or otherwise be subjected to discrimination, (3) that the (grantee,
licensee, lessee, permittee, etc.) will use the premises in compliance with
all other requirements imposed by or pursuant to the List of discrimination
Acts And Authorities.
B. With respect to (licenses, leases, permits, etc.), in the event of
breach of any of the above nondiscrimination covenants, the CITY will have
the right to terminate the (license, permit, etc., as appropriate) and to enter
or re-enter and repossess said land and the facilities thereon, and hold the
same as if said (license, permit, etc., as appropriate) had never been made
or issued.*
C. With respect to deeds, in the event of breach of any of the above
nondiscrimination covenants, the CITY will there upon revert to and vest in
and become the absolute property of the CITY and its assigns.*
(*Reverter clause and related language to be used only when it is
determined that such a clause is necessary to make clear the purpose of
Title VI.)
10. Title VI List of Pertinent Nondiscrimination Acts and Authorities
During the performance of this contract, the contractor, for itself, its
assignees, and successors in interest (hereinafter referred to as the
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"contractor") agrees to comply with the following non-discrimination
statutes and authorities; including but not limited to:
A. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.,
78 stat. 252), (prohibits discrimination on the basis of race, color, national
origin);
8. 49 CFR part 21 (Non-discrimination In Federally-Assisted
Programs of The Department of Transportation-Effectuation of Title
VI of The Civil Rights Act of 1964 );
C. The Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, (42 U.S.C. § 4601 ), (prohibits unfair
treatment of persons displaced or whose property has been acquired
because of Federal or Federal-aid programs and projects);
D. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. §
794 et seq.), as amended, (prohibits discrimination on the basis of
disability); and 49 CFR part 27;
E. The Age Discrimination Act of 1975, as amended, (42 U.S.C.
§ 6101 et seq.), (prohibits discrimination on the basis of age);
F. Airport and Airway Improvement Act of 1982, (49 USC§ 471,
Section 47123), as amended, (prohibits discrimination based on
race, creed, color, national origin, or sex);
G. The Civil Rights Restoration Act of 1987, (PL 100-209),
(Broadened the scope, coverage and applicability of Title VI of the
Civil Rights Act of 1964, The Age Discrimination Act of 1975 and
Section 504 of the Rehabilitation Act of 1973, by expanding the
definition of the terms "programs or activities" to include all of the
programs or activities of the Federal-aid recipients, sub-recipients
and contractors, whether such programs or activities are Federally
funded or not);
H. Titles II and Ill of the Americans with Disabilities Act of 1990,
which prohibit discrimination on the basis of disability in the operation
of public entities, public and private transportation systems, places
of public accommodation, and certain testing entities (42 U.S.C. §§
12131 -12189) as implemented by Department of Transportation
regulations at 49 CFR parts 37 and 38;
I. The Federal Aviation Administration's Non-discrimination
statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of
race, color, national origin, and sex);
J. Executive Order 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations, which ensures non-discrimination against minority
populations by discouraging programs, policies, and activities with
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disproportionately high and adverse human health or environmental
effects on minority and low-income populations;
K. Executive Order 13166, Improving Access to Services for
Persons with Limited English Proficiency, and resulting agency
guidance, national origin discrimination includes discrimination
because of limited English proficiency (LEP). To ensure compliance
with Title VI, you must take reasonable steps to ensure that LEP
persons have meaningful access to your programs (70 Fed. Reg. at
74087 to 74100);
L. Title IX of the Education Amendments of 1972, as amended,
which prohibits you from discriminating because of sex in education
programs or activities (20 U.S.C. 1681 et seq).
C. FEDERAL FAIR LABOR STANDARDS ACT (MINIMUM WAGE)
All contracts and subcontracts resulting from this solicitation incorporate by reference
the provisions of 29 CFR part 201, the Federal Fair Labor Standards Act (FLSA), with
the same force and effect as if given in full text. The FLSA sets minimum wage, overtime
pay, recordkeeping, and child labor standards for full and part time workers.
The contractor has full responsibility to monitor compliance to the referenced statute or
regulation. The contractor must address any claims or disputes that arise from this
requirement directly with the U.S. Department of Labor-Wage and Hour Division.
D. OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
All contracts and subcontracts that result from this agreement incorporate by reference
the requirements of 29 CFR Part 1910 with the same force and effect as if given in full
text. Contractor must provide a work environment that is free from recognized hazards
that may cause death or serious physical harm to the employee. The Contractor retains
full responsibility to monitor its compliance and their subcontractor's compliance with the
applicable requirements of the Occupational Safety and Health Act of 1970 (20 CFR Part
1910). Contractor must address any claims or disputes that pertain to a referenced
requirement directly with the U.S. Department of Labor-Occupational Safety and Health
Administration.
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