HomeMy WebLinkAboutMoore Twining Associates, Inc - Consultant Agrmnt - 10-12-2022AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT (Agreement) is made and entered into, effective
�GrC,bc(' lZ o by and between the CITY OF FRESNO, a California
municipal corporation (City), and Moore Twining Associates, Inc, a California Corporation
(Consultant).
RECITALS
WHEREAS, the City desires to obtain professional Geotechnical Engineering
services for The Veterans Boulevard North Extension Project (Project); and
WHEREAS, the Consultant is engaged in the business of furnishing services as a
Geotechnical Engineer and hereby represents that it desires to and is professionally and
legally capable of performing the services called for by this Agreement; and
WHEREAS, the Consultant acknowledges that this Agreement is subject to the
requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19;
and
WHEREAS, this Agreement will be administered for the City by its Public Works
Director (the Director) or designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and promises hereinafter contained to be kept and performed by the
respective parties, it is mutually agreed as follows:
1. Scope of Services. The Consultant shall perform to the satisfaction of the
City the services described in Exhibit A, including all work incidental to, or necessary to
perform, such services even though not specifically described in Exhibit A.
2. Term of Agreement and Time for Performance. This Agreement shall be
effective from the date first set forth above and shall continue in full force and effect
through the earlier of complete rendition of the services hereunder or June 30, 2023,
subject to any earlier termination in accordance with this Agreement. The services of the
Consultant as described in Exhibit A are to commence upon the City's issuance of a
written "Notice to Proceed." Work shall be undertaken and completed in a sequence
assuring expeditious completion, but in any event, all such services shall be completed
within 30 consecutive calendar days from such authorization to proceed.
3. Compensation.
(a) The Consultant's sole compensation for satisfactory performance of
all services required or rendered pursuant to this Agreement shall be a total fee of
fourteen thousand four hundred ninety-three dollars ($14,493.00). 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 Maleure.
(a) This Agreement shall terminate without any liability of the City to the
Consultant upon the earlier of: (i) the Consultant's filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third
party against the Consultant; (ii) seven calendar days prior written notice with or without
cause by the City to the Consultant; (iii) the City's non -appropriation of funds sufficient to
meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient
funding for the Project; or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
the Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any
and all of its subcontractors to cease work; and (iii) return to the City any and all unearned
payments and all properties and materials in the possession of the Consultant that are
owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid
compensation for services satisfactorily performed prior to the effective date of
termination. The Consultant shall not be paid for any work or services performed or costs
incurred which reasonably could have been avoided.
(c) In the event of termination due to failure of the Consultant to
satisfactorily perform in accordance with the terms of this Agreement, the City may
withhold an amount that would otherwise be payable as an offset to, but not in excess of,
the City's damages caused by such failure. In no event shall any payment by the City
pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement
which may then exist on the part of the Consultant, nor shall such payment impair or
prejudice any remedy available to the City with respect to the breach.
(d) Upon any breach of this Agreement by the Consultant, the City may
(i) exercise any right, remedy (in contract, law or equity), or privilege which may be
available to it under applicable laws of the State of California or any other applicable law;
(ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii)
recover all direct, indirect, consequential, economic and incidental damages for the
breach of the Agreement. If it is determined that the City improperly terminated this
Agreement for default, such termination shall be deemed a termination for convenience.
(e) The Consultant shall provide the City with adequate written
assurances of future performance, upon Director's request, in the event the Consultant
fails to comply with any terms or conditions of this Agreement.
(f) The Consultant shall be liable for default unless nonperformance is
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
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contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually
severe weather, and delays of common carriers. The Consultant shall notify Director in
writing as soon as it is reasonably possible after the commencement of any excusable
delay, setting forth the full particulars in connection therewith, and shall remedy such
occurrence with all reasonable dispatch, and shall promptly give written notice to Director
of the cessation of such occurrence.
(g) Any notice of termination sent to Consultant shall include the
reason(s) for such termination or state that it is without cause.
5. Confidential Information Ownership of Documents and Copvjght License.
(a) Any reports, information, or other data prepared or assembled by the
Consultant pursuant to this Agreement shall not be made available to any individual or
organization by the Consultant without the prior written approval of the City. During the
term of this Agreement, and thereafter, the Consultant shall not, without the prior written
consent of the City, disclose to anyone any Confidential Information. The term
"Confidential Information" for the purposes of this Agreement shall include all proprietary
and confidential information of the City, including but not limited to business plans,
marketing plans, financial information, designs, drawings, specifications, materials,
compilations, documents, instruments, models, source or object codes and other
information disclosed or submitted, orally, in writing, or by any other medium or media.
All Confidential Information shall be and remain confidential and proprietary in the City.
i. Permission granted to the Consultant to disclose information on one
occasion shall not authorize the Consultant to further disclose such
information or any other information or disseminate the same on any
other occasion.
ii. The Consultant shall not comment publicly to the press or any other
media regarding the Agreement or the City's actions on the same,
except to the City's personnel or the Consultant's personnel involved
in the performance of this Agreement at public hearings or in
response to questions from a Legislative committee.
iii. The Consultant shall not issue any news releases or any public
relations item of any nature, whatsoever, regarding work performed
or to be performed under this Agreement without prior review of the
contents thereof by the City and receipt of the City's written
permission.
(b) Any and all original sketches, pencil tracings of working drawings,
plans, computations, specifications, computer disk files, writings and other documents
prepared or provided by the Consultant pursuant to this Agreement, in any form
whatsoever, are the property of the City at the time of preparation and shall be turned
over to the City upon expiration or termination of the Agreement or default by the
Consultant. The Consultant grants the City a copyright license to use such drawings and
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,
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tracings, plans, computations, specifications, computer disk files, writings and other
documents in completed form as to other projects or extensions of this Project, or in
uncompleted form, without specific written verification by the Consultant will be at the
City's sole risk and without liability or legal exposure to the Consultant. The Consultant
may keep a copy of all drawings and specifications for its sole and exclusive use.
i. In the event of the copyright of any reports or other products
prepared under this Agreement by the Consultant or any
subcontractor, the Federal Highway Administration (FHWA) shall
have the royalty -free, nonexclusive and irrevocable right to
reproduce, publish, or otherwise use, and to authorize others to use,
the work for government purposes.
(c) If the Consultant should subcontract all or any portion of the services
to be performed under this Agreement, the Consultant shall cause each subcontractor to
also comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this
Agreement.
6. Professional Skill. It is further mutually understood and agreed by and
between the parties hereto that inasmuch as the Consultant represents to the City that
the Consultant and its subcontractors, if any, are skilled in the profession and shall
perform in accordance with the standards of said profession necessary to perform the
services agreed to be done by it under this Agreement, the City relies upon the skill of the
Consultant and any subcontractors to do and perform such services in a skillful manner
and the Consultant agrees to thus perform the services and require the same of any
subcontractors. Therefore, any acceptance of such services by the City shall not operate
as a release of the Consultant or any subcontractors from said professional standards.
7. Indemnification. To the furthest extent allowed by law, 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
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(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
his or 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 the City, its officers, officials, employees, agents, and
volunteers as additional insureds, shall be the greater of the minimum limits specified
therein or the full limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, the
Consultant or any of its subcontractors/sub-consultants fail to maintain any required
insurance in full force and effect, all services and work under this Agreement shall be
discontinued immediately, and all payments due or that become due to 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 10 11 85.
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9. Conflict of Interest and Non -Solicitation.
(a) Prior to the City's execution of this Agreement, the Consultant shall
complete a City of Fresno conflict of interest disclosure statement in the form as set forth
in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation
and duty to immediately notify the City in writing of any change to the information provided
by the Consultant in such statement.
(b) The Consultant shall comply, and require its subcontractors to
comply, with all applicable (i) professional canons and requirements governing avoidance
of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws
and regulations including, without limitation, 23 U.S.C. § 112, FHWA regulations
applicable to design and engineering consulting contracts found at 23 C.F.R. 172.1 et
seq., California Government Code Section 1090 et. seq., the California Political Reform
Act (California Government Code Section 87100 et. seq.), the regulations of the Fair
Political Practices Commission concerning disclosure and disqualification (2 California
Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal
Code (Ineligibility to Compete). At any time, upon written request of the City, the
Consultant shall provide a written opinion of its legal counsel and that of any subcontractor
that, after a due diligent inquiry, the Consultant and the respective subcontractor(s) are
in full compliance with all laws and regulations. The Consultant shall take, and require its
subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest.
Upon discovery of any facts giving rise to the appearance of a conflict of interest, the
Consultant shall immediately notify the City of these facts in writing.
(c) In performing the work or services to be provided hereunder, the
Consultant shall not employ or retain the services of any person while such person either
is employed by the City or is a member of any City council, commission, board,
committee, or similar City body. This requirement may be waived in writing by the City
Manager, if no actual or potential conflict is involved.
(d) The Consultant represents and warrants that it has not paid or
agreed to pay any compensation, lawful or unlawful, contingent or otherwise, direct or
indirect, to any party to solicit or procure this Agreement or any rights/benefits hereunder.
The City shall have the right, in its discretion, to deduct from any payment to the
Consultant under this Agreement, or otherwise recover the full amount of, any rebate,
kickback or other consideration paid by the Consultant in violation of any representation
or warranty under this section.
(e) Neither the Consultant, nor any firm affiliated with the Consultant, nor
any of the Consultant's subcontractors performing any services on this Project, shall bid
for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any
other contract in connection with this Project with the exception of any subcontractor
whose services are limited to providing surveying or materials testing information. The
Consultant and any of its subcontractors shall have no interest, direct or indirect, in any
other contract with a third party in connection with this Project unless such interest is in
accordance with all applicable law and fully disclosed to and approved by the City
Manager, in advance and in writing. An affiliated firm is one which is subject to the control
of the same person(s) through joint -ownership or otherwise.
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(f) The Consultant shall disclose any financial, business, or other
relationship with the City that may have an impact upon the outcome of this Agreement
or any ensuing City construction project. The Consultant shall also disclose any current
clients who may have a financial interest in the outcome of this Agreement or any ensuing
City construction project, which will follow.
(g) The Consultant hereby certifies that it does not now have, nor shall
it acquire any financial or business interest that would conflict with the performance of
services under this Agreement.
(h) If the Consultant should subcontract all or any portion of the work to
be performed or services to be provided under this Agreement, the Consultant shall
include the provisions of this Section 9 in each subcontract and require its subcontractors
to comply therewith.
(i) This Section 9 shall survive expiration or termination of this
Agreement.
10. Recycling Program. In the event the Consultant maintains an office or
operates a facility(ies), or is required herein to maintain or operate same, within the
incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall:
(a) Immediately establish and maintain a viable and ongoing recycling
program, approved by the City's Solid Waste Management Division, for each office and
facility. Literature describing the City recycling programs is available from the City's Solid
Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-
1111.
(b) Immediately contact the City's Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their
conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of the City's Solid
Waste Management Division the establishment of the recycling program in
paragraph (a) above and the ongoing maintenance thereof.
11. General Terms Federal and State Assurances and Requirements.
(a) Except as otherwise provided by law, all notices expressly required
of the City within the body of this Agreement, and not otherwise specifically provided for,
shall be effective only if signed by the Director or designee.
(b) Records of the Consultant's expenses pertaining to the Project shall
be kept on a generally recognized accounting basis. The Consultant and its
subcontractors shall maintain all books, documents, papers, accounting records, and
other evidence pertaining to the performance of the Agreement including, but not limited
to, the costs of administering the Agreement. The Consultant and its subcontractors shall
make such materials available at their respective offices at all reasonable times during
the period of this Agreement and for three years, or longer if required by law, from the
date of final payment under the Agreement. The City, the State, the State Auditor, FHWA
or any duly authorized representative of the federal government shall have access to any
books, records, papers, accounting records and other documents of the Consultant and
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its subcontractors that are pertinent to the Agreement for audit, examinations, excerpts,
and transcriptions. Copies thereof shall be furnished by the Consultant, if requested. If
any litigation, claim, negotiations, audit or other action is commenced before the
expiration of the three-year time period, all records shall be retained and made available
until such action is resolved, or until the end of said time period whichever shall later
occur. If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall cause each subcontractor to also
comply with the requirements of this section and in the event a subcontract is entered into
for an amount in excess of $25,000 the subcontract shall include this paragraph in its
entirety. This Section 11(b) shall survive expiration or termination of this Agreement.
(c) Prior to execution of this Agreement by the City, the Consultant shall
have provided evidence to the City that the Consultant is licensed to perform the services
called for by this Agreement (or that no license is required). If the Consultant should
subcontract all or any portion of the work or services to be performed under this
Agreement, the Consultant shall require each subcontractor to provide evidence to the
City that subcontractor is licensed to perform the services called for by this Agreement
(or that no license is required) before beginning work.
(d) The Consultant's services pursuant to this Agreement shall be
provided under the supervision of Keith Mayes, and he/she shall not assign another to
supervise the Consultant's performance of this Agreement without the prior written
approval of the Director.
(e) The City will carry out applicable federal requirements in the
administration of this Agreement. Notwithstanding Section 25 herein, the Consultant
agrees to comply with all applicable federal and state assurances and requirements
identified in Exhibit D along with its Appendix A and require that each subcontract
include the same assurances by each of its subcontractors.
12. Nondiscrimination. To the extent required by controlling federal, state and
local law, the Consultant shall not employ discriminatory practices in the provision of
services, employment of personnel, or in any other respect on the basis of race, religious
creed, color, national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled
veteran or veteran of the Vietnam era. Subject to the foregoing and during the
performance of this Agreement, the Consultant agrees as follows:
(a) The Consultant will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
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
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Consultant shall ensure that applicants are employed, and the employees are treated
during employment, without regard to their race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
Such requirement shall apply to the Consultant's employment practices including, but not
be limited to, the following: employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of compensation;
and selection for training, including apprenticeship. The Consultant agrees to post in
conspicuous places, available to employees and applicants for employment, notices
setting forth the provision of this nondiscrimination clause.
(c) The Consultant will, in all solicitations or advertisements for
employees placed by or on behalf of the Consultant in pursuit hereof, state that all
qualified applicants will receive consideration for employment without regard to race,
religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a
disabled veteran or veteran of the Vietnam era.
(d) The Consultant will send to each labor union or representative of
workers with which it has a collective bargaining agreement or other contract or
understanding, a notice advising such labor union or workers' representatives of the
Consultant's commitment under this section and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
(e) If the Consultant should subcontract all or any portion of the services
to be performed under this Agreement, the Consultant shall cause each subcontractor to
also comply with the requirements of this Section 12.
13. Independent Contractor.
(a) In the furnishing of the services provided for herein, the Consultant
is acting solely as an independent contractor. Neither the Consultant, nor any of its
officers, agents, or employees shall be deemed an officer, agent, employee, joint
venturer, partner, or associate of the City for any purpose. The City shall have no right
to control or supervise or direct the manner or method by which the Consultant shall
perform its work and functions. However, the City shall retain the right to administer this
Agreement so as to verify that the Consultant is performing its obligations in accordance
with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture
between the Consultant and the City. The Consultant shall have no authority to bind the
City absent the City's express written consent. Except to the extent otherwise provided
in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, the Consultant
and its officers, agents, and employees shall have absolutely no right to employment
rights and benefits available to the 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,
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the Consultant shall be solely responsible, indemnify, defend and save the City harmless
from all matters relating to employment and tax withholding for and payment of the
Consultant's employees, including, without limitation, (i) compliance with Social Security
and unemployment insurance withholding, payment of workers' compensation benefits,
and all other laws and regulations governing matters of employee withholding, taxes and
payment; and (ii) any claim of right or interest in the City employment benefits,
entitlements, programs and/or funds offered employees of the City whether arising by
reason of any common law, de facto, leased, or co -employee rights or other theory. It is
acknowledged that during the term of this Agreement, the Consultant may be providing
services to others unrelated to the City or to this Agreement.
14. Notices. Any notice required or intended to be given to either party under
the terms of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation of
receipt, or sent by United States registered or certified mail, with postage prepaid, return
receipt requested, addressed to the party to which notice is to be given at the party's
address set forth on the signature page of this Agreement or at such other address as the
parties may from time to time designate by written notice. Notices served by United
States mail in the manner above described shall be deemed sufficiently served or given
at the time of the mailing thereof.
15. Binding. Subject to Section 16, below, once this Agreement is signed by all
parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each
parties' respective heirs, successors, assigns, transferees, agents, servants, employees
and representatives.
16. Assignment.
(a) This Agreement is personal to the Consultant and there shall be no
assignment by the Consultant of its rights or obligations under this Agreement without the
prior written approval of the City Manager or designee. Any attempted assignment by the
Consultant, its successors or assigns, shall be null and void unless approved in writing
by the City Manager or designee.
(b) The Consultant hereby agrees not to assign the payment of any
monies due the Consultant from the City under the terms of this Agreement to any other
individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all
monies due the Consultant directly to the Consultant.
17. Compliance With The 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
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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. Governinq 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. Seyerability. The provisions of this Agreement are severable. The
invalidity, or unenforceability of any one provision in this Agreement shall not affect the
other provisions.
22. Interpretation. The parties acknowledge that this Agreement in its final form
is the result of the combined efforts of the parties and that, should any provision of this
Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved
by construing this Agreement in favor of or against either party, but rather by construing
the terms in accordance with their generally accepted meaning.
23. Attorne 's Fees. If either party is required to commence any proceeding or
legal action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing party in such proceeding or action shall be entitled to recover from the other
party its reasonable attorney's fees and legal expenses.
24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by
the reference, incorporated into and made a part of this Agreement.
25. Precedence of Documents. In the event of any conflict between the body
of this Agreement and any exhibit or attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and conditions
expressed within the exhibit or attachment. Furthermore, any terms or conditions
contained within any exhibit or attachment hereto which purport to modify the allocation
of risk between the parties provided for within the body of this Agreement, shall be null
and void.
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
DPW-S FHWA Eng. CSA, Short Form Total Fee (09-2022)
-11-
and integrated agreement between the parties with respect to the subject matter hereof
and supersedes all prior negotiations, representations or agreements, either written or
oral. This Agreement may be modified only by written instrument duly authorized and
executed by both the City and the Consultant.
29. RFQ Document. Any Request for Qualifications and documents issued
therewith (collectively referred to herein as RFQ) by the City that resulted in selection of
the Consultant for entry into this Agreement are hereby incorporated into and made a part
of this Agreement. In the event of a conflict between the RFQ and this Agreement
(including any exhibit hereto), this Agreement (including any exhibit hereto) shall take
precedence.
30. The City Manager, or designee, is hereby authorized and directed to
execute and implement this Agreement. The previous sentence is not intended to
delegate any authority to the City Manager to administer the Agreement, any delegation
of authority must be expressly included in the Agreement.
[SIGNATURES FOLLOW ON NEXT PAGE.]
DPW-S FHWA Eng. CSA, Short Form Total Fee (09-2022)
-12-
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO,
A California municipal corporation
By:
R ndall W Morrison, PE,
Assistant Director
Public Works Department
ATTEST:
TODD STERME , C C
City Cler
By. In-114017
Deputy
No signature of City Attorney required.
Standard Document #DPW-S FHWA
Eng. CSA, Short Form Total Fee (09-
2022) has been used without modification,
as certified by the undersigned.
By: 204
Magdaleno J' enez
Engineer II
Addresses:
CITY:
City of Fresno
Attention: Magdaleno Jimenez,
Engineer II
2600 Fresno Street
Fresno, CA 93721
Phone: (559) 621-8698
E-mail:
Magdaleno.Jimenez@fresno.gov
Moore Twining,
Moore Twining Associates, Inc.
By: j
Name: _ Ptq gtz—'
Title: PYlesjl z��✓
(If corporation or LLC, Board Chair, Pres.
or VieeTres.)
M
Name:
Title: %C . I / fS_ I
(If corporat' n or LLC, CFO, Treasurer,
Secretary or Assistant Secretary)
Any Applicable Professional License:
Number: 1 Cr �'-- � 3
Name: �A-�—
Date of Issuance: 5
CONSULTANT:
Moore Twining Associates, Inc.
Attention: Keith Mayes PG,
Project Manager
2527 Fresno Street
Fresno, California 93721
Phone: (559) 268-7021
(559) E-mail: (559) KeithM@mooretwining.com
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
4. Exhibit D - Federal and State Assurances
DPW-S FHWA Eng. CSA, Short Form Total Fee (09-2022)
-13-
Appendix A to Exhibit D
Page 14 of 26
EXHIBIT A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno (City)
and Moore Twining Associates, Inc. (Consultant)
Veterans Boulevard North Extension
TASKS:
-Collect 12 4-part composite soil samples from the stockpiles for environmental
contaminats of concern.
-Submit 12 soil samples to be analyzed for the following contaminants of concern to a
California NELAP-certified laboratory (Moore Twining Associates) for the following
testing:
Volatile Organic Compounds (EPA Method 8021 or 826013, as appropriate and combined
with collection by EPA Method 5035/5035A
Total Petroleum Hydrocarbon as gas
Organochlorine Pesticides (EPA Method 8081A)
Semi -Volatile Organic Compounds (EPA Method 8270C)
Abestos (EPA Method 600/R-93-116)
PCBs (EPA Method 8081 /8082)
CAM 17 Metals (EPA Method 601013, 7471 A)
Total Petroleum Hydrocarbons, Diesel and Motor Oil (EPA Method 8015M/LUFT)
-Report shall be provided within thirty (30) calendar days of receiving authorization.
Report shall summarize the investigation methodology and will present the results of the
chemical analysis of the soil samples. If contaminants are encountered, the report will
identify the contaminants and will include a comparision of the contaminant levels to the
appropriate soil screening levels. In addition the report will include a conclusion and
recommendations, based on the results of the laboratory analysis, that deem prudent for
further assessment activities if warranted. The laboratory analytical reports for the sample
analysis will be appended to the report. Final copies of the report will include an electronic
copy (PDF) sent to the City and up to two (2) bound copies, upon requests.
DPW-S FHWA Eng. CSA, Short Form Total Fee (09-2022)
Page 1 of 1
EXHIBIT A
Exhibit B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno ("CITY")
and Moore Twining Associates, Inc. ("CONSULTANT")
Veterans Boulevard North Extension
PROJECT TITLE
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
The most current version of Insurance Services Office (ISO) Commercial General
Liability Coverage Form CG 00 01, providing liability coverage arising out of your
business operations. The Commercial General Liability policy shall be written on
an occurrence form and shall provide coverage for "bodily injury," "property
damage" and "personal and advertising injury" with coverage for premises and
operations (including the use of owned and non -owned equipment), products and
completed operations, and contractual liability (including, without limitation,
indemnity obligations under the Agreement) with limits of liability not less than
those set forth under "Minimum Limits of Insurance."
2. The most current version of Commercial Auto Coverage Form CA 00 01, providing
liability coverage arising out of the ownership, maintenance or use of automobiles
in the course of your business operations. The Automobile Policy shall be written
on an occurrence form and shall provide coverage for all owned, hired, and non -
owned automobiles or other licensed vehicles (Code 1- Any Auto).
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to
CONSULTANT'S profession.
MINIMUM LIMITS OF INSURANCE
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 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.
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 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
CONSULTANT shall be responsible for payment of any deductibles contained in any insurance
policy(ies) required herein and 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 his/her designee. At the
option of the CITY'S Risk Manager or his/her 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) CONSULTANT shall provide a financial guarantee, satisfactory to CITY'S
Risk Manager or his/her 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 PROVISIONSIENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be endorsed
to contain, the following provisions:
CITY, its officers, officials, employees, agents and volunteers are to be covered as
additional insureds. CONSULTANT shall establish additional insured status for the
City and for all ongoing and completed operations by use of ISO Form
CG 20 10 11 85 or both CG 20 (14 13 and CG 20 37 04 013 or by an executed
manuscript insurance company endorsement providing additional insured status
as broad as that contained in ISO Form CG 20 10 11 85.
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.
3. For any claims relating to this Agreement, 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 CONSULTANT'S insurance and shall not contribute with it.
CONSULTANT shall establish primary and non-contributory status by using ISO
Form CG 20 01 04 13 or by an executed manuscript insurance company
endorsement that provides primary and non-contributory status as broad as that
contained in ISO Form CG 20 01 04 13.
The Workers' Compensation insurance polic is to contain, or be endorsed to contain, the
following provision: CONSULTANT 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 jRoHc1V is written on a claims -made
form:
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 (5) years after completion of the Agreement work or termination of the
Agreement, whichever occurs first, or, in the alternative, the policy shall be
endorsed to provide not less than a five (5) year discovery period.
3. If coverage is canceled or non -renewed, and not replaced with another claims -
made policy form with a retroactive date prior to the effective date of the Agreement
or the commencement of work by CONSULTANT, CONSULTANT must purchase
"extended reporting" coverage for a minimum of five (5) years completion of the
Agreement work or termination of the Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to CITY for review.
5. These requirements shall survive expiration or termination of the Agreement.
Alhoolicies of insurance required herein shall be endorsed to provide that the coverage shall not
be cancelled, non -renewed, reduced in coverage or in limits except after thirty (30) calendar days
written notice by certified mail, return receipt requested, has been given to CITY. CONSULTANT
is also responsible for providing written notice to the CITY under the same terms and conditions.
Upon issuance by the insurer, broker, or agent of a notice of cancellation, non -renewal, or
reduction in coverage or in limits, CONSULTANT shall furnish CITY with a new certificate and
applicable endorsements for such policy(ies). In the event any policy is due to expire during the
work to be performed for CITY, CONSULTANT shall provide a new certificate, and applicable
endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to
the expiration date of the expiring policy.
Should any of the required policies provide that the defense costs are paid within the Limits of
Liability, thereby reducing the available limits by any defense costs, then the requirement for the
Limits of Liability of these polices will be twice the above stated limits.
The fact that insurance is obtained by CONSULTANT shall not be deemed to release or diminish
the liability of CONSULTANT, including, without limitation, liability under the indemnity provisions
of this Agreement. The policy limits d❑ not act as a limitation upon the amount of indemnification
to be provided by CONSULTANT. Approval or purchase of any insurance contracts or policies
shall in no way relieve from liability nor limit the liability of CONSULTANT, its principals, officers,
agents, employees, persons under the supervision of CONSULTANT, vendors, suppliers,
invitees, consultants, sub -consultants, subcontractors, or anyone employed directly or indirectly
by any of them.
VERIFICATION OF COVERAGE
CONSULTANT 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,
CONSULTANT shall immediately furnish City with a complete copy of any insurance policy
required under this Agreement, including all endorsements, with said copy certified by the
underwriter to be a true and correct copy of the original policy. This requirement shall survive
expiration or termination of this Agreement.
SUBCONTRACTORS - If CONSULTANT subcontracts any or all of the services to be
performed under this Agreement, CONSULTANT shall require, at the discretion of the
CITY Risk Manager or designee, subcontractor(s) to enter into a separate side agreement
with the City to provide required indemnification and insurance protection. Any required
side agreement(s) and associated insurance documents for the subcontractor must be
reviewed and preapproved by CITY Risk Manager or designee. If no side agreement is
required, CONSULTANT shall require and verify that subcontractors maintain insurance
meeting all the requirements stated herein and CONSULTANT shall ensure that CITY, its
officers, officials, employees, agents, and volunteers are additional insureds. The
subcontractors' certificates and endorsements shall be on file with CONSULTANT, and
CITY, prior to commencement of any work by the subcontractor.
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Veterans Boulevard North Extension
YES* NO
1
Are you currently in litigation with the City of Fresno or any of
❑
its agents?
2
Do you represent any firm, organization, or person who is in
❑
litigation with the City of Fresno?
3
Do you currently represent or perform work for any clients who
❑
do 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
❑ 21
the City of Fresno, or in a business which is in litigation with
the City of Fresno?
5
Are you or any of your principals, managers, or professionals,
related by blood or marriage to any City of Fresno employee
❑
who has any significant role in the subject matter of this
service?
6
Do you or any of your subcontractors have, or expect to have,
any interest, direct or indirect, in any other contract in
❑
connection with this Project?
*
If the answer to any question is yes, please explain in full below.
Explanation:
❑ Additional page(s) attached.
EXHIBIT C
Signature
A) 1,--)02
Datee'
Ze
(Name)
(Company) l
(Address)
F1P4�35 6tiv �'�2
(City State Zip)
EXHIBIT D
FEDERAL AND STATE ASSURANCES
Consultant Service Agreement between City of Fresno (City)
and Moore Twining Associates, Inc. (Consultant)
Veterans Boulevard North Extension
1. The Consultant shall comply with and require its Subcontractors to comply with the
following:
a. 23 USC §112 regarding Highways and the letting of contracts to Architects
and Engineers;
b. The provisions of the Fair Employment and Housing Act (Government Code
Section 1290-0 et seq.), and the applicable regulations promulgated
thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.).
The applicable regulations of the Fair Employment and Housing
Commission implementing Government Code Section 12900(a-f), set forth
in Chapter of Division 4 of Title 2 of the California Code of Regulations are
incorporated into this Agreement by reference and made a part hereof as if
set forth in full. Give a written notice of their obligations under this clause to
any labor organizations with which they have a collective bargaining or any
other agreements as appropriate. INCLUDE THIS ENTIRE CLAUSE IN
ANY AND ALL SUBCONTRACTS.
c. Appendix A attached hereto and incorporated herein.
2. Cost Principles
a. The Consultant agrees that the Contract Cost Principles and Procedures,
48 CFR, Federal Acquisition Regulations System, Chapter 1 Part 31.000 et
seq., shall be used to determine the allowability of cost for individual items.
b. The Consultant also agrees to comply with federal procedures in
accordance with 49 CFR, Part 18, Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments.
c. Any costs for which payment has been made to the Consultant that are
determined by subsequent audit to be unallowable under 48 CFR, Federal
Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject
to repayment by the Consultant to the City.
3. Subcontracting
a. The Consultant shall perform the work contemplated with resources
available within its own organization; and no portion of the work pertinent to
this Agreement shall be subcontracted without written authorization by the
City's Contract Manager, except that, which is expressly identified in the
approved Cost Proposal.
b. Any subcontract in excess of $25,000 shall contain ALL the provisions
stipulated in this Agreement to be applicable to subcontractors.
c. Any substitution of subconsultants/subcontractors must be approved in
writing by the City's Contract Manager.
DPW-S FHWA Eng. CSA, Short Form Total Fee (09-2022)
Page 1 of 4
EXHIBIT D
4. Equipment Purchase
a. Prior authorization in writing, by the City's Contract Manager shall be
required before the Consultant enters into any unbudgeted purchase order,
or subcontract exceeding $5,000 for supplies, equipment, or the Consultant
services. The Consultant shall provide a written request which includes an
evaluation of the necessity or desirability of incurring such costs, three
competitive quotations obtained in the manner prescribed in the City's
Municipal Code Section 4-101(d) or 4-102 as applicable or a sole source
justification as provided in the City's Administrative Order No. 3-3.
b. Any equipment purchased as a result of this Agreement is subject to the
following: the Consultant shall maintain an inventory of all nonexpendable
property. Nonexpendable property is defined as having a useful life of at
least two years and an acquisition cost of $5,000 or more. If the purchased
equipment needs replacement and is sold or traded in, the City shall receive
a proper refund or credit at the conclusion of the Agreement, or if the
Agreement is terminated, the Consultant may either keep the equipment
and credit the City in an amount equal to its fair market value, or sell such
equipment at the best price obtainable at a public or private sale, in
accordance with established the City procedures; and credit the City in an
amount equal to the sales price. If the Consultant elects to keep the
equipment, fair market value shall be determined at the Consultant's
expense, on the basis of a competent independent appraisal of such
equipment. Appraisals shall be obtained from an appraiser mutually
agreeable to the City and the Consultant, if it is determined to sell the
equipment, the terms and conditions of such sale must be approved in
advance by the City. 49 CFR, Part 18 requires a credit to Federal funds
when participating equipment with a fair market value greater than
$5,000.00 is credited to the project.
c. The above provisions shall be included in all subcontracts in excess of
$25,000.
5. PROHIBITION OF EXPENDING CITY STATE OR FEDERAL FUNDS FOR
LOBBYING
This section only applies to contracts where federal funding will exceed $100,000.
A. The Consultant certifies to the best of his or her knowledge and belief that:
1. No state, federal or the City appropriated funds have been paid, or will
be paid by -or -on behalf of the Consultant to any person for influencing or
attempting to influence an officer or employee of any state or federal agency; a
Member of the State Legislature or United States Congress; an officer or employee
of the Legislature or Congress; or any employee of a Member of the Legislature or
Congress, in connection with the awarding of any state or federal contract; the
making of any state or federal grant; the making of any state or federal loan; the
entering into of any cooperative agreement, and the extension, continuation,
DPW-S FHWA Eng. CSA, Short Form Total Fee (09-2022)
Page 2 of 4
EXHIBIT D
renewal, amendment, or modification of any state or federal contract, grant, loan,
or cooperative agreement.
2. If any funds other than federal appropriated funds have been paid, or will
be paid to any person for influencing or attempting to influence an officer or
employee of any federal agency; a Member of Congress; an officer or employee
of Congress, or an employee of a Member of Congress; in connection with this
federal contract, grant, loan, or cooperative agreement; the Consultant shall
complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying,"
in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction imposed
by Section 1352, Title 31, U.S. Code. Any person who fails to file the required
certification shall be subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure.
C. The Consultant also agrees by signing this document that he or she shall require
that the language of this certification be included in all lower -tier subcontracts,
which exceed $100,000, and that all such sub recipients shall certify and disclose
accordingly.
6. NON-DISCRIMINATION CLAUSE
During the performance of this Agreement, the Consultant and its subcontractors
shall not unlawfully discriminate, harass, or allow harassment against any
employee or applicant for employment because of sex, race, color, ancestry,
religious creed, national origin, physical disability (including HIV and AIDS), mental
disability, medical condition (e.g., cancer), age (over 40), marital status, and denial
of family care leave. The Consultant and subcontractors shall insure that the
evaluation and treatment of their employees and applicants for employment are
free from such discrimination and harassment. The Consultant and subcontractors
shall comply with the provisions of the Fair Employment and Housing Act (Gov.
Code §12990 (a-f) et seq.) and the applicable regulations promulgated thereunder
(California Code of Regulations, Title 2, Section 7285 et seq.). The applicable
regulations of the Fair Employment and Housing Commission implementing
Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title
2 of the California Code of Regulations, are incorporated into this Agreement by
reference and made a part hereof as if set forth in full. The Consultant and its
subcontractors shall give written notice of their obligations under this clause to
labor organizations with which they have a collective bargaining or other
Agreement.
The Consultant shall include the nondiscrimination and compliance provisions of
this clause in all subcontracts to perform work under the Agreement.
DPW-S FHWA Eng. CSA, Short Form Total Fee (09-2022)
Page 3 of 4
EXHIBIT D
DPW-S FHWA Eng. CSA, Short Form Total Fee (09-2022)
Page 4 of 4
EXHIBIT D
APPENDIX A TO EXHIBIT D
Consultant Service Agreement between City of Fresno (City)
and Moore Twining Associates, Inc. (Consultant)
Veterans Boulevard North Extension
(1) The Consultant shall comply with the regulations relative to nondiscrimination in
federally assisted programs of the Department of Transportation, Title 49, Code of
Federal Regulations, Part 21, as they may be amended from time to time, (the
Regulations), which are herein incorporated by reference and made a part of this
Agreement.
(2) The Consultant, with regard to the work performed by it during the Agreement,
shall not discriminate on the grounds of race, color, sex, national origin, religion,
age, or disability in the selection and retention of sub -applicants, including
procurements of materials and leases of equipment. The Consultant shall not
participate either directly or indirectly in the discrimination prohibited by Section
21.5 of the Regulations, including employment practices when the Agreement
covers a program set forth in Appendix B of the Regulations.
(3) In all solicitations either by competitive bidding or negotiation made by the
Consultant for work to be performed under a Sub -agreement, including
procurements of materials or leases of equipment, each potential sub -applicant or
supplier shall be notified by the Consultant of the Consultant's obligations under
this Agreement and the Regulations relative to nondiscrimination on the grounds
of race, color, or national origin.
(4) The Consultant shall provide all information and reports required by the
Regulations, or directives issued pursuant thereto, and shall permit access to the
Consultant's books, records, accounts, other sources of information and its
facilities as may be determined by State or Federal Highway Administration
(FHWA) to be pertinent to ascertain compliance with such Regulations or
directives. Where any information required of the Consultant is in the exclusive
possession of another who fails or refuses to furnish this information, the
Consultant shall so certify to the State of California (State) or the FHWA as
appropriate, and shall set forth what efforts The Consultant has made to obtain the
information.
(5) In the event of the Consultant's noncompliance with the nondiscrimination
provisions of this Agreement, State shall impose such agreement sanctions as it
or the FHWA may determine to be appropriate, including, but not limited to:
(a) withholding of payments to the City under the Agreement within a reasonable
period of time, not to exceed ninety days; and/or
(b) cancellation, termination, or suspension of the Agreement, in whole or in part.
DPW-S FHWA Eng. CSA, Short Form Total Fee (09-2022)
Page 1 of 2
Appendix A to Exhibit D
(6) The Consultant shall include the provisions of paragraphs (1) through (6) in every
sub -agreement, including procurements of materials and leases of equipment,
unless exempt by the Regulations, or directives issued pursuant thereto. The
Consultant shall take such action with respect to any sub -agreement or
procurement as State or FHWA may direct as a means of enforcing such
provisions including sanctions for noncompliance, provided, however, that, in the
event the Consultant becomes involved in, or is threatened with, litigation with a
sub -applicant or supplier as a result of such direction, the Consultant may request
State enter into such litigation to protect the interests of State, and, in addition, the
Consultant may request the United States to enter into such litigation to protect the
interests of the United States.
(7) The Consultant shall execute the following CERTIFICATION OF THE
CONSULTANT, COMMISSIONS & FEES
I HEREBY CERTIFY that I am J41z1= 0,P e _ and duly
authorized representative Of the firm of
whose address is
"2 ..�-� S Sh C/A V 9 2 and that,
except as hereby expressly stated, neither I nor the above firm that I represent have:
(a) employed or retained for a commission, percentage, brokerage, contingent
fee, or other consideration, any firm or person (other than a bona fide employee working
solely for me or the above Consultant) to solicit or secure this Agreement; nor
(b) agreed, as an express or implied condition for obtaining this Agreement, to
employ or retain the services of any firm or person in connection with carrying out the
Agreement; nor
(c) paid, or agreed to pay, to any firm, organization or person (other than a
bona fide employee working solely for me or the above Consultant) any fee, contribution,
donation, or consideration of any kind, for or in connection with, procuring or carrying out
this Agreement.
I acknowledge that this Certificate is to be made available to the California Department of
Transportation (Caltrans) in connection with this Agreement involving participation of
Federal -aid Highway funds, and is subject to applicable state and federal laws, both
criminal and civil. /
J 01311,
3, 2 Z
(Date) gnature)
DPW-S FHWA Eng. CSA, Short Form Total Fee (09-2022)
Page 2 of 2
Appendix A to Exhibit D