HomeMy WebLinkAboutUnison Consulting, Inc. - Consultant Agreement - 9-30-2022UUUUJIIy.II CI IVCIUpt1 IL/. L/LJI1+01P1/IJ'4-l+/DVU 14/JL/DU
AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
This Agreement is made and entered into, effective September 30, 2022
by and between the CITY OF FRESNO, a California municipal corporation
UNISON CONSULTING, INC., an Illinois Corporation (Consultant).
RECITALS
(City), and
WHEREAS, the City desires to obtain professional financial consulting services for
preparation of a financial feasibility report in support of a bond financing for the Fresno
Yosemite Internaional Airport Terminal Expansion (Project); and
WHEREAS, the Consultant is engaged in the business of furnishing services as a
financial consultant 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 Director of
Aviation (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 (Effective Date) and shall continue in full force
and effect through October 1, 2026, 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 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.
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 $200,000.00. Such fee includes all expenses incurred by the
Consultant in performance of the services.
(b) Detailed statements shall be rendered monthly and will be payable in the
normal course of City business.
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(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 Mame� ure.
(a) This Agreement shall terminate without any liability of the City to the
Consultant upon the earlier of: (i) the Consultant's filing for protection under
the federal bankruptcy laws, or any bankruptcy petition or petition for
receiver commenced by a third party against the Consultant; (ii) seven
calendar days prior written notice with or without cause by the City to the
Consultant; (iii) the City's non -appropriation of funds sufficient to meet its
obligations hereunder during any City fiscal year of this Agreement, or
insufficient funding for the Project; or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement, the
Consultant shall (i) immediately stop all work hereunder; (ii) immediately
cause any and all of its subcontractors to cease work; and (iii) return to the
City any and all unearned payments and all properties and materials in the
possession of the Consultant that are owned by the City. Subject to the
terms of this Agreement, the Consultant shall be paid compensation for
services satisfactorily performed prior to the effective date of termination.
The Consultant shall not be paid for any work or services performed or costs
incurred which reasonably could have been avoided.
(c) In the event of termination due to failure of the Consultant to satisfactorily
perform in accordance with the terms of this Agreement, the City may
withhold an amount that would otherwise be payable as an offset to, but not
in excess of, the City's damages caused by such failure. In no event shall
any payment by the City pursuant to this Agreement constitute a waiver by
the City of any breach of this Agreement which may then exist on the part
of the Consultant, nor shall such payment impair or prejudice any remedy
available to the City with respect to the breach.
(d) Upon any breach of this Agreement by the Consultant, the City may
(i) exercise any right, remedy (in contract, law or equity), or privilege which
may be available to it under applicable laws of the State of California or any
other applicable law; (ii) proceed by appropriate court action to enforce the
terms of the Agreement; and/or (iii) recover all direct, indirect,
consequential, economic and incidental damages for the breach of the
Agreement. If it is determined that the City improperly terminated this
Agreement for default, such termination shall be deemed a termination for
convenience.
(e) The Consultant shall provide the City with adequate written assurances of
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future performance, upon Director's request, in the event the Consultant
fails to comply with any terms or conditions of this Agreement.
(f) The Consultant shall be liable for default unless nonperformance is caused
by an occurrence beyond the reasonable control of the Consultant and
without its fault or negligence such as, acts of God or the public enemy, acts
of the City in its contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, unusually severe weather, and delays of common
carriers. The Consultant shall notify Director in writing as soon as it is
reasonably possible after the commencement of any excusable delay,
setting forth the full particulars in connection therewith, and shall remedy
such occurrence with all reasonable dispatch, and shall promptly give
written notice to Director of the cessation of such occurrence.
5. Confidential Information Ownership of Documents and Co ri ht License.
(a) Any reports, information, or other data prepared or assembled by the
Consultant pursuant to this Agreement shall not be made available to any
individual or organization by the Consultant without the prior written
approval of the City. During the term of this Agreement, and thereafter, the
Consultant shall not, without the prior written consent of the City, disclose
to anyone any Confidential Information. The term "Confidential Information"
for the purposes of this Agreement shall include all proprietary and
confidential information of the City, including but not limited to business
plans, marketing plans, financial information, designs, drawings,
specifications, materials, compilations, documents, instruments, models,
source or object codes and other information disclosed or submitted, orally,
in writing, or by any other medium or media. All Confidential Information
shall be and remain confidential and proprietary in the City.
(b) Any and all original sketches, pencil tracings of working drawings, plans,
computations, specifications, computer disk files, writings and other
documents prepared or provided by the Consultant pursuant to this
Agreement are the property of the City at the time of preparation and shall
be turned over to the City upon expiration or termination of the Agreement
or default by the Consultant. The Consultant grants the City a copyright
license to use such drawings and writings. The Consultant shall not permit
the reproduction or use thereof by any other person except as otherwise
expressly provided herein. The City may modify the design including any
drawings or writings. Any use by the City of the aforesaid sketches,
tracings, plans, computations, specifications, computer disk files, writings
and other documents in completed form as to other projects or extensions
of this Project, or in uncompleted form, without specific written verification
by the Consultant will be at the City's sole risk and without liability or legal
exposure to the Consultant. The Consultant may keep a copy of all
drawings and specifications for its sole and exclusive use.
(c) If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall cause each
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subcontractor to also comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this Agreement.
& 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, 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 and litigation expenses) that arise out of, pertain to, or
relate to the negligence, recklessness or willful misconduct of the Consultant, its
principals, officers, employees, agents, or volunteers in the performance of this
Agreement.
If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall require each subcontractor
to indemnify, hold harmless and defend the City and each of its officers, officials,
employees, agents, and volunteers in accordance with the terms of the preceding
paragraph.
This section shall survive termination or expiration of this Agreement.
8. Insurance.
(a) Throughout the life of this Agreement, the Consultant shall pay for and
maintain in full force and effect all insurance as required in Exhibit B, which
is incorporated into and part of this Agreement, with an insurance
company(ies) either (i) admitted by the California Insurance Commissioner
to do business in the State of California and rated no less than "A-VII" in the
Best's Insurance Rating Guide, or (ii) as may be authorized in writing by the
City's Risk Manager or designee at any time and in its sole discretion. The
required policies of insurance as stated in Exhibit B shall maintain limits of
liability of not less than those amounts stated therein. However, the
insurance limits available to the City, its officers, officials, employees,
agents, and volunteers as additional insureds, shall be the greater of the
minimum limits specified therein or the full limit of any insurance proceeds
to the named insured.
(b) If at any time during the life of the Agreement or any extension, the
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Consultant or any of its subcontractors/sub-consultants fail to maintain any
required insurance in full force and effect, all services and work under this
Agreement shall be discontinued immediately, and all payments due or that
become due to the Consultant shall be withheld until notice is received by
the City that the required insurance has been restored to full force and effect
and that the premiums therefore have been paid for a period satisfactory to
the City. Any failure to maintain the required insurance shall be sufficient
cause for the City to terminate this Agreement. No action taken by the City
pursuant to this section shall in any way relieve the Consultant of its
responsibilities under this Agreement. The phrase "fail to maintain any
required insurance" shall include, without limitation, notification received by
the City that an insurer has commenced proceedings, or has had
proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by the Consultant shall not be deemed
to release or diminish the liability of the Consultant, including, without
limitation, liability under the indemnity provisions of this Agreement. The
duty to indemnify the City shall apply to all claims and liability regardless of
whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by the
Consultant. Approval or purchase of any insurance contracts or policies
shall in no way relieve from liability nor limit the liability of the Consultant,
its principals, officers, agents, employees, persons under the supervision of
the Consultant, vendors, suppliers, invitees, consultants, sub -consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
(d) If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall require each
subcontractor/sub-consultant to provide insurance protection, as an
additional insured, to the City and each of its officers, officials, employees,
agents, and volunteers in accordance with the terms of this section, except
that any required certificates and applicable endorsements shall be on file
with the Consultant and the City prior to the commencement of any services
by the subcontractor. The Consultant and any subcontractor/sub-
consultant shall establish additional insured status for the City, its officers,
officials, employees, agents, and volunteers by using Insurance Service
Office (ISO) Form CG 20 10 11 85 or both CG 20 10 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 1011 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.
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(b) The Consultant shall comply, and require its subcontractors to comply, with
all applicable (i) professional canons and requirements governing
avoidance of impermissible client conflicts; and (ii) federal, state and local
conflict of interest laws and regulations including, without limitation,
California Government Code Section 1090 et. seq., the California Political
Reform Act (California Government Code Section 87100 et. seq.), the
regulations of the Fair Political Practices Commission concerning disclosure
and disqualification (2 California Code of Regulations Section 18700 et.
seq.) and Section 4-112 of the Fresno Municipal Code (Ineligibility to
Compete). At any time, upon written request of the City, the Consultant
shall provide a written opinion of its legal counsel and that of any
subcontractor that, after a due diligent inquiry, the Consultant and the
respective subcontractor(s) are in full compliance with all laws and
regulations. The Consultant shall take, and require its subcontractors to
take, reasonable steps to avoid any appearance of a conflict of interest.
Upon discovery of any facts giving rise to the appearance of a conflict of
interest, the Consultant shall immediately notify the City of these facts in
writing.
(c) In performing the work or services to be provided hereunder, the Consultant
shall not employ or retain the services of any person while such person
either is employed by the City or is a member of any City council,
commission, board, committee, or similar City body. This requirement may
be waived in writing by the City Manager, if no actual or potential conflict is
involved.
(d) The Consultant represents and warrants that it has not paid or agreed to
pay any compensation, contingent or otherwise, direct or indirect, to solicit
or procure this Agreement or any rights/benefits hereunder.
(e) Neither the Consultant, nor any of the Consultant's subcontractors
performing any services on this Project, shall bid for, assist anyone in the
preparation of a bid for, or perform any services pursuant to, any other
contract in connection with this Project. The Consultant's and any of its
subcontractors shall have no interest, direct or indirect, in any other contract
with a third party in connection with this Project unless such interest is in
accordance with all applicable law and fully disclosed to and approved by
the City Manager, in advance and in writing.
(f) If the Consultant should subcontract all or any portion of the work to be
performed or services to be provided under this Agreement, the Consultant
shall include the provisions of this Section 9 in each subcontract and require
its subcontractors to comply therewith.
(g) This Section 9 shall survive expiration or termination of this Agreement.
10. Rec cling 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:
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(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 (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 the
City within the body of this Agreement, and not otherwise specifically
provided for, shall be effective only if signed by the Director or designee.
(b) Records of the Consultant's expenses pertaining to the Project shall be kept
on a generally recognized accounting basis and shall be available to the
City or its authorized representatives upon request during regular business
hours throughout the life of this Agreement and for a period of three years
after final payment or, if longer, for any period required by law. In addition,
all books, documents, papers, and records of the Consultant pertaining to
the Project shall be available for the purpose of making audits,
examinations, excerpts, and transcriptions for the same period of time. If
any litigation, claim, negotiations, audit or other action is commenced before
the expiration of said time period, all records shall be retained and made
available to the City until such action is resolved, or until the end of said
time period whichever shall later occur. If the Consultant should
subcontract all or any portion of the services to be performed under this
Agreement, the Consultant shall cause each subcontractor to also comply
with the requirements of this paragraph. This Section 11(b) shall survive
expiration or termination of this Agreement.
(c) Prior to execution of this Agreement by the City, the Consultant shall have
provided evidence to the City that the Consultant is licensed to perform the
services called for by this Agreement (or that no license is required). If the
Consultant should subcontract all or any portion of the work or services to
be performed under this Agreement, the Consultant shall require each
subcontractor to provide evidence to the City that subcontractor is licensed
to perform the services called for by this Agreement (or that no license is
required) before beginning work.
(d) 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 assurances in Exhibit D and
require that each subcontract include the same assurances by each of its
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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 Vietnam era be excluded from
participation in, be denied the benefits of, or be subject to discrimination
under any program or activity made possible by or resulting from this
Agreement.
(b) The Consultant will not discriminate against any employee or applicant for
employment because of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital
status, sex, age, sexual orientation, ethnicity, status as a disabled veteran
or veteran of the Vietnam era. The Consultant shall ensure that applicants
are employed, and the employees are treated during employment, without
regard to their race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era. Such requirement shall apply to the Consultant's employment
practices including, but not be limited to, the following: employment,
upgrading, demotion or transfer; recruitment or recruitment advertising;
layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. The Consultant 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
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post copies of the notice in conspicuous places available to employees and
applicants for employment.
(e) If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall cause each
subcontractor to also comply with the requirements of this Section 12.
13. Independent Contractor.
(a) In the furnishing of the services provided for herein, the Consultant is acting
solely as an independent contractor. Neither the Consultant, nor any of its
officers, agents, or employees shall be deemed an officer, agent, employee,
joint venturer, partner, or associate of the City for any purpose. The City
shall have no right to control or supervise or direct the manner or method
by which the Consultant shall perform its work and functions. However, the
City shall retain the right to administer this Agreement so as to verify that
the Consultant is performing its obligations in accordance with the terms
and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between
the Consultant and the City. The Consultant shall have no authority to bind
the City absent the City's express written consent. Except to the extent
otherwise provided in this Agreement, The Consultant shall bear its own
costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, the Consultant and its
officers, agents, and employees shall have absolutely no right to
employment rights and benefits available to City employees. The
Consultant shall be solely liable and responsible for all payroll and tax
withholding and for providing to, or on behalf of, its employees all employee
benefits including, without limitation, health, welfare and retirement benefits.
In addition, together with its other obligations under this Agreement, the
Consultant shall be solely responsible, indemnify, defend and save the City
harmless from all matters relating to employment and tax withholding for
and payment of the Consultant's employees, including, without limitation, (i)
compliance with Social Security and unemployment insurance withholding,
payment of workers' compensation benefits, and all other laws and
regulations governing matters of employee withholding, taxes and
payment; and (ii) any claim of right or interest in 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
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given at the party's address set forth on the signature page of this Agreement or
at such other address as the parties may from time to time designate by written
notice. Notices served by United States mail in the manner above described shall
be deemed sufficiently served or given at the time of the mailing thereof.
15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties,
it shall be binding upon, and shall inure to the benefit of, all parties, and each
parties' respective heirs, successors, assigns, transferees, agents, servants,
employees, and representatives.
16. Assignment.
(a) This Agreement is personal to the Consultant and there shall be no
assignment by the Consultant of its rights or obligations under this
Agreement without the prior written approval of the City Manager or
designee. Any attempted assignment by the Consultant, its successors or
assigns, shall be null and void unless approved in writing by the City
Manager or designee.
(b) The Consultant hereby agrees not to assign the payment of any monies due
the Consultant from the City under the terms of this Agreement to any other
individual(s), corporation(s) or entity(ies). The City retains the right to pay
any and all monies due the Consultant directly to the Consultant.
17. Compliance With Law. In providing the services required under this Agreement,
the Consultant shall at all times comply with all applicable laws of the United
States, including, but not limited to, the Americans with Disabilities Act (42 U.S.C.
§§ 12101 et seq.), the State of California and the City, and with all applicable
regulations promulgated by federal, state, regional, or local administrative and
regulatory agencies, now in force and as they may be enacted, issued, or amended
during the term of this Agreement.
18. Waiver. The waiver by either party of a breach by the other of any provision of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions
of this Agreement may be waived unless in writing and signed by all parties to this
Agreement. Waiver of any one provision herein shall not be deemed to be a waiver
of any other provision herein.
19. Governing Law and Venue. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction.
Venue for purposes of the filing of any action regarding the enforcement or
interpretation of this Agreement and any rights and duties hereunder shall be
Fresno County, California.
20, Headings. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify or
add to 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
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provisions.
22. Interpretation. The parties acknowledge that this Agreement in its final form is the
result of the combined efforts of the parties and that, should any provision of this
Agreement be found to be ambiguous in any way, such ambiguity shall not be
resolved by construing this Agreement in favor of or against either party, but rather
by construing the terms in accordance with their generally accepted meaning.
23. Attorne 's Fees. If either party is required to commence any proceeding or legal
action to enforce or interpret any term, covenant or condition of this Agreement,
the prevailing party in such proceeding or action shall be entitled to recover from
the other party its reasonable attorney's fees and legal expenses.
24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
25. Precedence of Documents. In the event of any conflict between the body of this
Agreement and any exhibit or attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and
conditions expressed within the exhibit or attachment. Furthermore, any terms or
conditions contained within any exhibit or attachment hereto which purport to
modify the allocation of risk between the parties, provided for within the body of
this Agreement, shall be null and void.
26. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined
within this Agreement are intended for the specific parties hereto as identified in
the preamble of this Agreement. Notwithstanding anything stated to the contrary
in this Agreement, it is not intended that any rights or interests in this Agreement
benefit or flow to the interest of any third parties.
28. Extent of Agreement. Each party acknowledges that they have read and fully
understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the parties with respect to the subject matter
hereof and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be modified only by written instrument
duly authorized and executed by both the City and the Consultant.
29. The City Manager, or designee, is hereby authorized and directed to execute and
implement this Agreement. The previous sentence is not intended to delegate any
authority to the City Manager to administer the Agreement, any delegation of
authority must be expressly included in the Agreement.
[Signatures follow on the next page.]
FYI-S Non -Fed CSA, Total Fee (05-2022)
-11-
LIUI:Uolyl I CI I VCIUptl IU. L/U /'+omm I 1 J'#-l., / DVU 1 Y / JUDU
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, on the day and year first above written.
CITY OF FRESNO,
A California municipal corporation
i
By:ompson, A.A.E., C.P,.E., IAP
Director of Aviation
Airports Department
No signature of City Attorney required.
Standard Document #FYI-S Non -Fed
CSA, Total Fee (05-2022) has been used
without modification, as certified by the
Lin si n
By. _ ~
Ma I Davis
Airports Planning Manager
ATTEST:
TODD SfT(<ERMER, CMC
City' '.,I�cLSignedby:
By: - IIn,A. h (�6W 10/4/2022
Deputy
Addresses:
CITY:
City of Fresno
Attention: Mark W. Davis,
Airports Planning Manager
Airports Department
4995 E. Clinton Way
Fresno, CA 93727
Phone: (559) 621-4532
E-mail: marl<.davis@fresno.gov
Unison Consulting, Inc.,
an Illinois
By:_.
Name:
'-title:
Corpo,iion
Anthony Q. Drake
Executive Vice President
(If corporation or LLC., Board Chair,
Pres. or Vi Pres.) T'
F �
By.
Name: 'Gregory V. Chappell
Chief Financial Officer
Title:
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
Any Applicable Professional License:
Number:
Name:
Date of Issuance:
CONSULTANT:
UNISON CONSULTING, INC.
Attention: [Name], Anthony O. Drake
[Title] Executive Vice President
[Street Address] 150 N, Michigan Avenue, #2930
[City, State Zip] Chicago, IL 60601
Phone: [area code and #] 312-988-3360
E-mail: [E-mail address] donaldartllur@unison-ucg.com
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
4. Exhibit D - Assurances
FYI-S Non -Fed CSA, Total Fee (05-2022)
-12-
UVuuol II CIIVt::1uPC ILJ. VV IJ•#-%. IDJV I•+/JLIDV
EXHIBIT A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno (City)
and Unison Consulting, Inc. (Consultant)
Preparation of a financial feasibility report in support of a bond financing for the Fresno
Yosemite International Airport Terminal Expansion
FRESNO YOSEMITE INTERNATIONAL AIRPORT
WORK SCOPE AND BUDGET
FINANCIAL FEASIBILITY REPORT
Unison Consulting, Inc. (Unison), in association with DWU Consulting (DWU), and together referred
to as "the Unison team," proposes to prepare a financial feasibility report in support of a bond
financing planned by Fresno Yosemite International Airport (FAT or the Airport). The Unison team
proposes performing the tasks described below.
1. Project Kick -Off Meeting
The Unison team will meet with key executives of the Airport to discuss the goals and objectives of
the Airport, and how those goals relate to capital financing needs and the planned bond financing.
We will also discuss any areas or concerns that management would like emphasized in our review
and analysis.
2. Collect, Organize, and Analyze Available Information
After our initial discussions with Airport management, we will identify the documents the Unison
team will need to begin the analysis. Due to prior tasks our team has performed for the Airport, we
have already received key information. We will review all available documents, and we will prepare
an information request list to itemize additional information we will need to perform the work. This
list will include updated historical operating and financial information. At the start of the
engagement, we will ask Airport management what their preference is for communicating
information requests. Throughout the engagement, we will follow the protocol outlined by Airport
management for information requests and follow-up contact with staff.
Although we anticipate that we will need to ask follow-up questions and, in some cases, request
supplemental information from Airport staff, we will make every effort to minimize the disruptions
to the normal work loads of Airport staff.
3. Identify Funding Sources for the Capital Program
Based on the capital program information received from the Airport, the Unison team will summarize
the estimated capital costs by project and fiscal year. For each proposed capital project, we will identify
potential funding sources, based on the nature, eligibility criteria, and estimated timing of each project.
The potential funding sources will include Airport Improvement Program (AIP) grants and other
Federal funding; Measure C funding; long-term debt; PFCs; Airport funds; and other potential funding
sources for specific projects.
4. Evaluate the Air Service Area and its Economic Base
We will collect information from various sources to evaluate the local economy and determine how the
economic condition of the local area, affects the demand for air service at the Airport. The Unison team
L/UL;U,DlyII CI Iv C I Up,:. IL/. L)U1-+0/4M/1 D= 14f JL/DU
will conduct an analysis of the economic base for air transportation in the air service area. The strength
of the Airports' air service area is an important factor in evaluating future air traffic activity at the
Airport. We will collect information from various sources and evaluate the local economy, and how the
economic condition of the local area affects the demand for air service at the Airport
S. Prepare Air Traffic Forecasts
We will obtain updated historical air traffic data from the Airport and data on relevant explanatory
variables from reliable sources, such as the FAA and reputable economic data services. We propose to
develop forecasts using a hybrid modeling framework that integrates air service capacity and market
demand considerations and applies econometric modeling techniques for establishing long-term
relationships between the demand for air travel and relevant market factors.
We will develop and apply this hybrid modeling framework to respond to changes in the aviation
industry. In the current environment, air service supply considerations have become important in
determining air traffic activity particularly in the short run. In the long run, we believe that market
demand factors remain important drivers of long-term growth in aviation activity. It therefore is
important to use a forecast methodology that integrates supply and demand considerations in a
unified and systematic framework.
Our approach is scientific —it reduces subjective inputs and, by design, minimizes forecast errors.
Because the resulting forecasts are linked systematically to relevant explanatory variables, we can
explain the specific assumptions and trends that drive the results. We can also systematically
perform sensitivity analyses of the forecasts to consider different scenarios and assumptions with
respect to the future trends of explanatory variables. We will prepare air traffic forecast scenarios
to consider the uncertainties in the current environment, particularly related to the COVID
pandemic and the resulting effects. Our forecast methodology will incorporate potential airline
scheduling adjustments and other variables related to the current industry challenges.
6. Develop Financial Model and Perform Financial Analysis
The Unison team will develop a financial model to simulate the Airport's financial operations,
including the provisions of the existing airline rates and charges methodology. We will build the
model with several modules, including:
■ 0&M expenses
r Airline revenues, including airline rates and charges
■ Non -airline revenues
■ Debt service
■ Capital improvement program, reflecting estimated costs and timing of planned projects
The financial model will be used to establish the annual capital and financial requirements, and to
project annual revenues and expenses. We will also use the model to perform sensitivity analyses, to
assess the impact of changes in enplanement activity on projected Airport revenues, and the resulting
effect on key financial factors such as debt service coverage and the Airport's cash flow.
The model will also be used to evaluate possible changes in airline activity levels (passengers and
aircraft operations), discretionary cash flow, airline cost per enplanement, and the Airport's
ability to finance its Airport capital program. Our analysis will assess the Airport's ability to
generate sufficient revenues to meet existing and future financial obligations.
L/UVUolylI CI IVCIUFIC ILI. UUI-tOMM! I DUU I'F! JVUV
The financial analysis will include estimates of the following key financial metrics:
• Airport revenues
• 0&M expenses
• Annual debt service requirements for outstanding and proposed bond issues
• Reserve fund requirements
• Airline costs per enplanement
■ Cash flow
■ Debt service coverage
The financial forecasts will reflect the anticipated effect of the planned capital improvement
projects and future bond issues.
7. Prepare Draft Report(s) and Final Report
The Unison team will prepare three draft reports for review by the Airport and other members of
the financing team. We will revise the report as necessary, based on comments received from the
financing team. The drafting process will culminate with the preparation of a final report to be
included in the POS and the final Official Statement for the bond financing.
8. Participate in Team Meetings, Document Preparation, and Presentations
The Unison team will participate in team meetings and in the preparation of the bond documents. We
will be available to review and comment on drafts of the POS and the final Official Statement; any
supplemental trust indentures required for the bond financings; and any other documents related to
the bond financings. We will also, as requested, provide data graphics and materials, and participate
in presentations to rating agencies and other interested parties.
9.Other Tasks as Assigned
The Unison team will also be available to perform other related tasks, as assigned by the Airport.
PROPOSED PROJECT BUDGET
Task
Officers/
Principals
$290/hr
Directors
$245/hr)
Senior
Consultants
($225/hr)
Support
$100/hr)
DWU
Consulting
($240/hr)
Total
Hours
Total
Budget
1. Project kick-off meeting
4
4
8
$2,120
2. Collect, organize, and analyze available information
5
4
6
15
$3,870
3. Identify funding sources for the Capital Program
8
4
16
28
$7,140
4. Evaluate the air service area and economic base
36
40
76
$19,440
5. Prepare air traffic forecasts
40
80
120
$29,600
6. Develop financial model and perform financial analysis
36
40
80
156
$39,440
7. Prepare draft report(s) and final report
80
40
18
48
186
$45,520
8. Team meetings, document preparations, presentations
24
12
36
$9,840
9 Other tasks as assigned
48
42
1 42
1 17
24
173
r $41,120
Total labor
281 90 202 35 190 798 $198,090
Travel and miscellaneous expenses (1)
$1,910
"Not -to -exceed" Budget
$200,000
(1) Travel and miscellaneous expenses to be billed at cost. Miscellaneous costs include Federal Express charges, data purchases, photocopying
charges, and other minor expenses.
UUUU01y, CIIVCIUptJ IU. IJUf'#JF1/1!-C7lil.-Y`FUD-y IJ1i-t_1 DVV 14/JUDU
EXHIBIT B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (City)
and Unison Consulting, Inc. (Consultant)
Preparation of a financial feasibility report in support of a bond financing for the
Fresno Yosemite Internaional Airport Terminal Expansion
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 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
Consultant's profession.
MINIMUM LIMITS OF INSURANCE
The Consultant, or any party the Consultant subcontracts with, shall maintain limits of
liability of not less than those set forth below. However, insurance limits available to the
City, its officers, officials, employees, agents, and volunteers as additional insureds, shall
be the greater of the minimum limits specified herein or the full limit of any insurance
proceeds available to the named insured:
COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
FYI-S Non -Fed CSA, Total Fee (05-2022)
Page 1 of 4
EXHIBIT B
UVUUJ I y I I CI IVCIUpt! IU. UU 11+0MM I-C:7LA_, -+Z7D-� 1:J4-1..I DZ)V IN/ JUDU
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event the Consultant purchases an Umbrella or Excess insurance policy(ies) to
meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and
afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella
or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis
for the benefit of the City, its officers, officials, employees, agents, and volunteers.
DEDUCTIBLES AND SELF -INSURED RETENTIONS
The Consultant shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and the Consultant shall also be responsible for
payment of any self -insured retentions. Any deductibles or self -insured retentions must
be declared to on the Certificate of Insurance, and approved by, the City's Risk Manager
or designee. At the option of the City's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self -insured
retentions as respects the City, its officers, officials, employees,
agents, and volunteers; or
(ii) The Consultant shall provide a financial guarantee, satisfactory to
the City's Risk Manager or designee, guaranteeing payment of
losses and related investigations, claim administration and defense
expenses. At no time shall the City be responsible for the payment
of any deductibles or self -insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General LiabifitV and Automobile Liability insurance policies are to contain, or be
endorsed to contain, the following provisions:
The City, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. The Consultant shall establish additional
insured status for the City and for all ongoing and completed operations
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
FYI-S Non -Fed CSA, Total Fee (05-2022)
Page 2 of 4
EXHIBIT B
LjUL;U01y II CI IVCIUpt/ IL/.VU/4JHr1/I:1'#-lJ/D�U 1-+/JL)OV
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 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
2001 0413.
The Workers' Compensation insurance olic is to contain, or be endorsed to contain, the
following provision: the Consultant and its insurer shall waive any right of subrogation
against the City, its officers, officials, employees, agents, and volunteers.
If the Professional LiabifitV 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 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 (5) years completion of the Agreement work or termination of the
Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to the city
for review.
5. These requirements shall survive expiration or termination of the
Agreement.
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non -renewed, reduced in coverage or in limits except after thirty
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
FYI-S Non -Fed CSA, Total Fee (05-2022)
Page 3 of 4
EXHIBIT B
LIUUUJIIJ. II CI IVCIUpt1 ILI. VUI'fJMM!1I D�U I'#/JL)DU
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 for the City, the
Consultant shall provide a new certificate, and applicable endorsements, evidencing
renewal of such policy not less than fifteen 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.
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 will be solely responsible for ensuring that its subcontractors
maintain insurance coverage at levels no less than those required by applicable law and
is customary in the relevant industry.
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.
FYI-S Non -Fed CSA, Total Fee (05-2022)
Page 4 of 4
EXHIBIT B
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EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Consultant Service Agreement between City of Fresno (City)
and Unison Consulting, Inc. (Consultant)
Preparation of a financial feasibility report in support of a bond financing for the
Cr^cnn Yr%cnn-d+n In+nrnninriAl Airnrtr+ Tprmirlai FYnanSinn
YES*
NO
1
Are you currently in litigation with the City of Fresno or any of its
El
Ni
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
❑
M
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
❑
IN
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
1 11
this Project?
* If the answer to any question is yes, please explain in full belo .
Explanation:
I Additional page(s) attached.
Signature
September 16, 2022
Date
Anthony Q. Drake
(Name)
Unison Consulting, Inc.
(Company)
150 N. Michigan Avenue, Suite 2930
(Address)
Chicago, IL 60601
(City, State Zip)
FYI-S Non -Fed CSA, Total Fee (05-2022)
EXHIBIT C
Page 1 of 1
LIUUUolylI CIIvtz;1u " ILI. L/V101+-%-1 D. U 141 JLIDU
EXHIBIT D
ASSURANCES
Consultant Service Agreement between City of Fresno (City)
and Unison Consulting, Inc. (Consultant)
Preparation of a financial feasibility report in support of a bond financing for the
Fresno Yosemite Internaional Airport Terminal Expansion
During the performance of this Agreement (contract or contract documents), the
Consultant, for itself, its assignees and successors in interest (contractor or Contractor)
agrees as follows (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
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.
FYI Federal Assurances ALL Contracts (05-2022)
Page 1 of 6
EXHIBIT D
Lluuu JII`f.lI CI IVCIUFIC IU. I J'F-k, I DVU 1'4/JUDU
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:
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
FYI Federal Assurances ALL Contracts (05-2022)
Page 2of6
EXHIBIT D
UuuuJll�f.I I CI I VCIuyt1 I U. VV I -+omm IDUU 1'#1 JLJDV
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 the 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
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 Propert 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, 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:
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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.*
(*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, 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.
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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 "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);
B. 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);
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H. Titles II and III 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 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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