HomeMy WebLinkAboutPR Plumbing, Heating & AC Inc. - Service Agrmnt - 2-1-2023UUVUJIIJ.II CI IV CIUPU IU. U'+5U/.7VG-UG'#C-'FG I r-O I CJ- I rUy 1'F I D'+GF1U
SERVICE AGREEMENT
CITY OF FRESNO, CALIFORNIA
THIS AGREEMENT is made and entered into effective the 1st day of February
2023, by and between the CITY OF FRESNO, a California municipal corporation (City),
and PR Plumbing, Heating & A/C Inc. (Service Provider).
RECITALS
WHEREAS, City desires to obtain Refrigeration services for 49 BRT
Communication Cabinet HVAC units; and
WHEREAS, Service Provider is engaged in the business of furnishing such
services as a HVAC Contractor and hereby represents that it desires to and is
professionally and legally capable of performing the services called for by this Agreement;
and
WHEREAS, Service Provider acknowledges that this Agreement is subject to the
requirements of Fresno Municipal Code Section 4-107; and
WHEREAS, this Agreement will be administered for City by its (Administrator) or
designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and premises hereinafter contained to be kept and performed by the
respective parties, it is mutually agreed as follows:
1. Scope of Services. Service Provider shall perform to the satisfaction of City
the services described in Exhibit A, including all work incidental to, or necessary to
perform, such services even though not specifically described in Exhibit A.
2 Term of Agreement and Time for Performance. This Agreement shall be
effective from the date first set forth above (Effective Date) and shall continue in full force
and effect through January 31, 2026, subject to any earlier termination in accordance with
this Agreement. The services of Service Provider 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) Service Provider's sole compensation for satisfactory performance of
all services required or rendered pursuant to this Agreement shall be a total fee not to
exceed $26,019.00 paid on the basis of the rates set forth in the schedule of fees and
expenses contained in Exhibit A. Such fee includes all expenses incurred by Service
Provider in performance of the services.
(b) Detailed statements shall be rendered quarterly for services
performed in the preceding month and will be payable in the normal course of City
business. City shall not be obligated to reimburse any expense for which it has not
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received a detailed invoice with applicable copies of representative and identifiable
receipts or records substantiating such expense.
(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 Service Provider'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. Service Provider shall not be
entitled to any additional compensation if services are performed prior to a signed written
amendment.
4. Termination. Remedies, and Force Majeure.
(a) This Agreement shall terminate without any liability of City to Service
Provider upon the earlier of : (i) Service Provider's filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third
party against Service Provider; (ii) seven calendar days' prior written notice with or without
cause by City to Service Provider; (iii) City's non -appropriation of funds sufficient to meet
its obligations hereunder during any City fiscal year of this Agreement, or insufficient
funding for the Project; or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
Service Provider shall (i) immediately stop all work hereunder; (ii) immediately cause any
and all of its subcontractors to cease work; and (iii) return to City any and all unearned
payments and all properties and materials in the possession of Service Provider that are
owned by City. Subject to the terms of this Agreement, Service Provider shall be paid
compensation for services satisfactorily performed prior to the effective date of
termination. Service Provider 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 Service Provider to
satisfactorily perform in accordance with the terms of this Agreement, City may withhold
an amount that would otherwise be payable as an offset to, but not in excess of, City's
damages caused by such failure. In no event shall any payment by City pursuant to this
Agreement constitute a waiver by City of any breach of this Agreement which may then
exist on the part of Service Provider, nor shall such payment impair or prejudice any
remedy available to City with respect to the breach.
(d) Upon any breach of this Agreement by Service Provider, 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 City improperly terminated this
Agreement for default, such termination shall be deemed a termination forconvenience.
(e) Service Provider shall provide City with adequate written assurances
of future performance, upon Administrator's request, in the event Service Provider fails to
comply with any terms or conditions of this Agreement.
(f) Service Provider shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of Service Provider and
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without its fault or negligence such as, acts of God or the public enemy, acts of City in its
contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually
severe weather, and delays of common carriers. Service Provider shall notify
Administrator 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 Administrator of the cessation of such occurrence.
5. Confidential Information and Ownership of Documents.
(a) Any reports, information, or other data prepared or assembled by
Service Provider pursuant to this Agreement shall not be made available to any individual
or organization by Service Provider without the prior written approval of the Administrator.
During the term of this Agreement, and thereafter, Service Provider shall not, without the
prior written consent of City, disclose to anyone any Confidential Information. The term
Confidential Information for the purposes of this Agreement shall include all proprietary
and confidential information of City, including but not limited to business plans, marketing
plans, financial information, materials, compilations, documents, instruments, models,
source or object codes and other information disclosed or submitted, orally, in writing, or
by any other medium or media. All Confidential Information shall be and remain
confidential and proprietary in City.
(b) Any and all writings and documents prepared or provided by Service
Provider pursuant to this Agreement are the property of City at the time of preparation
and shall be turned over to City upon expiration or termination of the Agreement. Service
Provider shall not permit the reproduction or use thereof by any other person except as
otherwise expressly provided herein.
(c) If Service Provider should subcontract all or any portion of the
services to be performed under this Agreement, Service Provider 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. Level of Skill. It is further mutually understood and agreed by and between
the parties hereto that inasmuch as Service Provider represents to City that Service
Provider and its subcontractors, if any, are skilled in the profession and shall perform in
accordance with the standards of said industry necessary to perform the services agreed
to be done by it under this Agreement, City relies upon the skill of Service Provider and
its subcontractors, if any, to do and perform such services in a skillful manner and Service
Provider agrees to thus perform the services and require the same of any subcontractors.
Therefore, any acceptance of such services by City shall not operate as a release of
Service Provider or any subcontractors from said industry and professional standards.
7. Indemnification. To the furthest extent allowed by law, Service Provider
shall indemnify, hold harmless and defend City and each of its officers, officials,
employees, agents, and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in contract, tort or strict liability, including but not
limited to personal injury, death at any time and property damage), and from any and all
claims, demands and actions in law or equity (including reasonable attorney's
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Fees, litigation expenses, and costs to enforce this agreement) that arise out of, pertain
to, or relate to the negligence, recklessness or willful misconduct of Service Provider, its
principals, officers, employees, agents, or volunteers in the performance of this
Agreement.
If Service Provider should subcontract all or any portion of the services to be
performed under this Agreement, Service Provider shall require each subcontractor to
indemnify, hold harmless and defend City and each of its officers, officials, employees,
agents, and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. Insurance.
(a) Throughout the life of this Agreement, Service Provider shall pay for
and maintain in full force and effect all insurance as required in Exhibit B, which is
incorporated into and part of this Agreement, with an insurance company(ies) either
(i) admitted by the California Insurance Commissioner to do business in the State of
California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as
may be authorized in writing by City's Risk Manager or 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 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,
Service Provider or any of its subcontractors 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 Service Provider shall be
withheld until notice is received by City that the required insurance has been restored to
full force and effect and that the premiums therefore have been paid for a period
satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause
for City to terminate this Agreement. No action taken by City pursuant to this section shall
in any way relieve Service Provider of its responsibilities under this Agreement. The
phrase "fail to maintain any required insurance" shall include, without limitation,
notification received by City that an insurer has commenced proceedings, or has had
proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by Service Provider shall not be
deemed to release or diminish the liability of Service Provider, including, without limitation,
liability under the indemnity provisions of this Agreement. The duty to indemnify City shall
apply to all claims and liability regardless of whether any insurance policies are applicable.
The policy limits do not act as a limitation upon the amount of indemnification to be
provided by Service Provider. Approval or purchase of any insurance contracts or policies
shall in no way relieve from liability nor limit the liability of Service Provider, its principals,
officers, agents, employees, or persons under the supervision of Service Provider,
vendors, suppliers, invitees, consultants, sub- consultants, subcontractors, or anyone
employed directly or indirectly by any of them.
(d) Upon request of City, Service Provider 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
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correct copy of the original policy. This requirement shall survive expiration or
termination of this Agreement.
(e) If Service Provider should subcontract all or any portion of the
services to be performed under this Agreement, Service Provider 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 Service Provider and City prior to the
commencement of any services by the subcontractor. Service Provider and any
subcontractor/sub-consultant shall establish additional insured status for City, its officers,
officials, employees, agents, and volunteers by using Insurance Service Office (ISO)
Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed
manuscript company endorsement providing additional insured status as broad as that
contained in ISO Form CG 20 10 11 85.
9. Conflict of interest and Non -Solicitation.
(a) Prior to City's execution of this Agreement, Service Provider 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, Service Provider shall have the obligation
and duty to immediately notify City in writing of any change to the information provided by
Service Provider in such statement.
(b) Service Provider shall comply, and require its subcontractors to
comply, with all applicable (1) 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.) and the regulations of the Fair Political Practices Commission concerning
disclosure and disqualification (2 California Code of Regulations Section 18700 et. sec}.).
At any time, upon written request of City, Service Provider shall provide a written opinion
of its legal counsel and that of any subcontractor that, after a due diligent inquiry, Service
Provider and the respective subcontractors) are in full compliance with all laws and
regulations. Service Provider 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, Service Provider shall
immediately notify City of these facts in writing.
(c) In performing the work or services to be provided hereunder, Service
Provider shall not employ or retain the services of any person while such person either is
employed by City or is a member of any City council, commission, board, committee, or
similar City body. This requirement may be waived in writing by the City Manager, if no
actual or potential conflict is involved.
(d) Service Provider 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) Service Provider 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
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to and approved by the City Manager, in advance and in writing. Notwithstanding any
approval given by the City Manager under this provision, Service Provider shall remain
responsible for complying with Section 9(a), above.
(f) If Service Provider should subcontract all or any portion of the work
to be performed or services to be provided under this Agreement, Service Provider shall
include the provisions of this Section 9 in each subcontract and require its subcontractors
to comply therewith.
(g) This Section 9 shall survive expiration or termination of this
Agreement.
10. Recycling Proc
iram. In the event Service Provider 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, Service Provider at its sole cost and expense
shall:
(� Immediately establish and maintain a viable and ongoing recycling program,
approved by City's Solid Waste Management Division, for each office and
facility. Literature describing City recycling programs is available from City's
Solid Waste Management Division and by calling City of Fresno Recycling
Hotline at (559) 621-1111.
(o) Immediately contact City's Solid Waste Management Division at (559) 621-
1452 and schedule a free waste audit, and cooperate with such Division in
their conduct of the audit for each office and facility.
Ca) Cooperate with and demonstrate to the satisfaction of City's Solid Waste
Management Division the establishment of the recycling program in
paragraph (i) above and the ongoing maintenance thereof.
11. General Terms.
(a) Except as otherwise provided by law, all notices expressly required
of City within the body of this Agreement, and not otherwise specifically provided for, shall
be effective only if signed by the Administrator or designee.
(b) Records of Service Provider's expenses pertaining to the Project
shall be kept on a generally recognized accounting basis and shall be available to City or
its authorized representatives upon request during regular business hours throughout the
life of this Agreement and for a period of three years after final payment or, if longer, for
any period required by law. In addition, all books, documents, papers, and records of
Service Provider pertaining to the Project shall be available for the purpose of making
audits, examinations, excerpts, and transcriptions for the same period of time. If any
litigation, claim, negotiations, audit or other action is commenced before the expiration of
said time period, all records shall be retained and made available to City until such action
is resolved, or until the end of said time period whichever shall later occur. If Service
Provider should subcontract all or any portion of the services to be performed under this
Agreement, Service Provider shall cause each subcontractor to also comply with the
requirements of this paragraph. This Section 11(b) shall survive expiration or termination
of this Agreement.
(c) Prior to execution of this Agreement by City, Service Provider shall
have provided evidence to City that Service Provider is licensed to perform the services
on
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called for by this Agreement (or that no license is required). If Service Provider should
subcontract all or any portion of the work or services to be performed under this
Agreement, Service Provider shall require each subcontractor to provide evidence to City
that subcontractor is licensed to perform the services called for by this Agreement (or that
no license is required) before beginning work.
12 Nondiscrimination. To the extent required by controlling federal, state and
local law, Service Provider 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, Service Provider agrees as follows:
(a) Service Provider 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) Service Provider 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. Service
Provider 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 Service Provider'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. Service Provider agrees to post in
conspicuous places, available to employees and applicants for employment, notices
setting forth the provision of this nondiscrimination clause.
(c) Service Provider will, in all solicitations or advertisements for
employees placed by or on behalf of Service Provider 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) Service Provider 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 Service
Provider's commitment under this section and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
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(e) If Service Provider should subcontract all or any portion of the
services to be performed under this Agreement, Service Provider shall cause each
subcontractor to also comply with the requirements of this Section 12.
la independent Contractor.
(a) In the furnishing of the services provided for herein, Service Provider
is acting solely as an independent contractor. Neither Service Provider, nor any of its
officers, agents, or employees shall be deemed an officer, agent, employee, joint
venturer, partner, or associate of City for any purpose. City shall have no right to control
or supervise or direct the manner or method by which Service Provider shall perform its
work and functions. However, City shall retain the right to administer this Agreement so
as to verify that Service Provider is performing its obligations in accordance with the terms
and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture
between Service Provider and City. Service Provider shall have no authority to bind City
absent City's express written consent. Except to the extent otherwise provided in this
Agreement, Service Provider shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, Service Provider
and its officers, agents, and employees shall have absolutely no right to employment
rights and benefits available to City employees. Service Provider 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,
Service Provider shall be solely responsible, indemnify, defend and save City harmless
from all matters relating to employment and tax withholding for and payment of Service
Provider's employees, including, without limitation, (i) compliance with Social Security and
unemployment insurance withholding, payment of workers compensation benefits, and
all other laws and regulations governing matters of employee withholding, taxes and
payment; and (ii) any claim of right or interest in City employment benefits, entitlements,
programs and/or funds offered employees of City whether arising by reason of any
common law, de facto, leased, or co- employee rights or other theory. It is acknowledged
that during the term of this Agreement, Service Provider may be providing services to
others unrelated to City or to this Agreement.
14. Notices. Any notice required or intended to be given to either party under
the terms of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation of
receipt, or sent by United States registered or certified mail, with postage prepaid, return
receipt requested, addressed to the party to which notice is to be given at the party's
address set forth on the signature page of this Agreement or at such other address as the
parties may from time to time designate by written notice. Notices served by United States
mail in the manner above described shall be deemed sufficiently served or given at the
time of the mailing thereof.
15. Binding. Subject to Section 16, below, once this Agreement is signed by all
parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each
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parties' respective heirs, successors, assigns, transferees, agents, servants, employees
and representatives.
16. Assignment.
(a) This Agreement is personal to Service Provider and there shall be
no assignment by Service Provider of its rights or obligations under this Agreement
without the prior written approval of the City Manager or designee. Any attempted
assignment by Service Provider, its successors or assigns, shall be null and void unless
approved in writing by the City Manager or designee.
(b) Service Provider hereby agrees not to assign the payment of any
monies due Service Provider from City under the terms of this Agreement to any other
individual(s), corporation(s) or entity(ies). City retains the right to pay any and all monies
due Service Provider directly to Service Provider.
17. Compliance With Law. In providing the services required under this
Agreement, Service Provider shall at all times comply with all applicable laws of the United
States, the State of California and City, and with all applicable regulations promulgated
by federal, state, regional, or local administrative and regulatory agencies, now in force
and as they may be enacted, issued, or amended during the term of this Agreement.
18. Waiver. The waiver by either party of a breach by the other of any provision
of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions of this
Agreement may be waived unless in writing and signed by all parties to this Agreement.
Waiver 'of any one provision herein shall not be deemed to be a waiver of any other
provision herein.
19. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction. Venue
for purposes of the filing of any action regarding the enforcement or interpretation of this
Agreement and any rights and duties hereunder shall be Fresno County, California.
2D. Headin s. 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. Severabilit . 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. Attorncy'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,
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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.
25. 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 Part\/ Beneficiaries. The rights, interests, duties, and obligations
defined within this Agreement are intended for the specific parties hereto as identified in
the preamble of this Agreement. Notwithstanding anything stated to the contrary in this
Agreement, it is not intended that any rights or interests in this Agreement benefit or flow
to the interest of any third parties.
28. Extent of Agreement. Each party acknowledges that they have read and
fully understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the parties with respect to the subject matter hereof
and supersedes all prior negotiations, representations or agreements, either written or
oral. This Agreement may be modified only by written instrument duly authorized and
executed by both City and Service Provider.
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.
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO,
graip municipal corporation
2/9/2023
By:_ Gregory A. Barfield
Director of Transportation
APPROVED AS TO FORM:
Cit[Pa
�,f
By:gybs Office
Zvj- br" 2/8/2023
Deputy City Attorney
ATTEST:
TODD STERMER
City Clerk, CRM MMC
By Docu5igned by;
L-rl u01�tY 2/9/2023
Addresses:
CITY:
City of Fresno Attention:
Shelle O'Brien
2223 "G" Street
Fresno, CA 93706
Phone: (559) 621-1420
CONTRACTOR.,
a California Corporation
Dame:
Title:
f corpor - r LLC., Boa _d
P �.,ar is f?rss
],
By:
7r , ! f
Name: n r� � 1
Title:_ (If corporation or LLC., CFO,
Treasurer, Secretary or Assistant
Secretary)
SERVICE PROVIDER:
PR Plumbing, Heating & A/C Inc.
Attention: Dan Mockbee
1504 N Maple
Fresno, CA 93703
Phone: (559) 244-0440
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
4. Exhibit D — Federal Requirements
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EXHIBIT A
SCOPE OF SERVICES
Service Agreement between City of Fresno
and CONTRACTOR
Scope of Work
Service 49 Communication cabinet AC units at Bus Rapid Transit Shelters
1. Check Freon levels of each unit
2. Check electrical operation of each unit
3. Blow out condenser coils with nitrogen during each service
4. Wash condenser coils with cleaner two times a year
5. AC units shall be serviced months February, May and September
Page 1 of 1
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lwulpam-
INSURANCE REQUIREMENTS
(a) Throughout the life of this Agreement, CONTRACTOR shall pay for and
maintain in full force and effect all insurance as required herein with an insurance
company(ies) either (i) admitted by the California Insurance Commissioner to do business
in the State of California and rated no less than "A-VII" in the Best's Insurance Rating
Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her designee
at any time and in his/her sole discretion. The required policies of insurance as stated
herein shall maintain limits of liability of not less than those amounts stated therein.
However, the insurance limits available to CITY, its officers, officials, employees, agents
and volunteers 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,
CONTRACTOR or any of its subcontractors 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 CONTRACTOR shall be
withheld until notice is received by CITY that the required insurance has been restored to
full force and effect and that the premiums therefore have been paid for a period
satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient
cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this
section shall in any way relieve CONTRACTOR of its responsibilities under this
Agreement. The phrase "fail to maintain any required insurance" shall include, without
limitation, notification received by CITY that an insurer has commenced proceedings, or
has had proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by CONTRACTOR shall not be deemed
to release or diminish the liability of CONTRACTOR, including, without limitation, liability
under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply
to all claims and liability regardless of whether any insurance policies are applicable. The
policy limits do not act as a limitation upon the amount of indemnification to be provided
by CONTRACTOR. Approval or purchase of any insurance contracts or policies shall in
no way relieve from liability nor limit the liability of CONTRACTOR, vendors, suppliers,
invitees, contractors, sub -contractors, subcontractors, or anyone employed directly or
indirectly by any of them.
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
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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.
MINIMUM LIMITS OF INSURANCE
CONTRACTOR shall procure and maintain for the duration of the contract, and for 5 years
thereafter, insurance with limits of liability 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 propertydamage;
(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 U the State of California
with statutory limits and EMPLOYER'S LIABILITY with limits of liability
not less than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
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(iii) $1,000,000 disease policy limit.
UMBRELLA OR EXCESS INSURANCE
In the event CONTRACTOR 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
CONTRACTOR shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and CONTRACTOR shall also be responsible for
payment of any self -insured retentions. Any self -insured retentions must be declared 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:
() The insurer shall reduce or eliminate such self -insured retentions as
respects CITY, its officers, officials, employees, agents and volunteers; or
(ii) CONTRACTOR 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
Q All policies of insurance required herein shall be endorsed to provide that
the coverage shall not be cancelled, non -renewed, reduced in coverage or
in limits except after thirty (30) calendar days written notice has been given
to CITY, except ten (10) days for nonpayment of premium. CONTRACTOR
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,
CONTRACTOR 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, CONTRACTOR 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.
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0 The Commercial General and Automobile Liability insurance policies shall
be written on an occurrence form.
0 The Commercial General and Automobile Liability insurance policies shall
be endorsed to name City, its officers, officials, agents, employees and
volunteers as an additional insured. CONTRACTOR shall establish
additional insured status for the City and for all ongoing and completed
operations under the Commercial General Liability policy by use of ISO
Forms or an executed manuscript insurance company endorsement
providing additional insured status. The Commercial General endorsements
must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both
CG 20 10 & CG 20 37.
(N) The Commercial General and Automobile Liability insurance shall contain,
or be endorsed to contain, that the CONTRACTORS' insurance shall be
primary to and require no contribution from the City. The Commercial
General insurance policy is required to include primary and non contributory
coverage in favor of the City for both the ongoing and completed operations
coverage. These coverages shall contain no special limitations on the scope
of protection afforded to City, its officers, officials, employees, agents and
volunteers. If CONTRACTOR maintains higher limits of liability than the
minimums shown above, City requires and shall be entitled to coverage for
the higher limits of liability maintained by CONTRACTOR.
(v) Should any of these policies provide that the defense costs are paid within
the Limits of Liability, thereby reducing the available limits by defense costs,
then the requirement for the Limits of Liability of these polices will be twice
the above stated limits.
(m) For any claims related to this Agreement, CONTRACTOR'S insurance
coverage shall be primary insurance with respect to the CITY, its officers,
officials, agents, employees and volunteers. Any insurance or self-
insurance maintained by the CITY, its officers, officials, agents, employees
and volunteers shall be excess of the CONTRACTOR'S insurance and shall
not contribute with it.
(w) The Workers' Compensation insurance policy shall contain, or be endorsed
to contain, a waiver of subrogation as to CITY, its officers, officials, agents,
employees and volunteers.
The Commercial General and Automobile Liability insurance policies shall
contain, or be endorsed to contain, a waiver of subrogation as to CITY, its
officers, officials, agents, employees and volunteers.
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PROVIDING OF DOCUMENTS - CONTRACTOR shall furnish CITY with all
certificate(s) and applicable endorsements effecting coverage required herein 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, CONTRACTOR 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. All subcontractors working under the direction of
CONTRACTOR shall also be required to provide all documents noted herein.
CLAIMS -MADE POLICIES - If any coverage required is written on a claims -
made coverage form:
(i) The retroactive date must be shown, and must be before the effective date
of the Agreement or the commencement of work by CONTRACTOR.
(ii) Insurance must be maintained and evidence of insurance must be provided
for at least five (5) years after completion of the work or termination of the
Agreement, whichever first occurs.
(iii) 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 work commencement date, CONTRACTOR must
purchase "extended reporting" period coverage for a minimum of five (5)
years after completion of the work or termination of the Agreement,
whichever first occurs.
(iv) A copy of the claims reporting requirements must be submitted to CITY for
review.
(v) These requirements shall survive expiration or termination of the
Agreement.
SUBCONTRACTORS - If CONTRACTOR subcontracts any or all of the services
to be performed under this Agreement, CONTRACTOR 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, CONTRACTOR
will be solely responsible for ensuring that it's subcontractors maintain insurance
LJUUU,D1 I I CI IVCIUpC ILJ. V4ZIU/PVC-VLV C-4G/ r-of CJ- 1 rLJu IH 1 O'4GMV
coverage at levels no less than those required by applicable law and is
customary in the relevant industry.
Bidders who plan to participate repeatedly in City bids are
encouraged to submit annual insurance certificates at time of bid
which will remain on file in the Purchasing Division.
6. INDEMNIFICATION: To the furthest extend allow by law, Contractor 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) incurred by the City, the Contractor or any other
person, and from any and all claims, demands and actions in law or equity
(including attorney's fees and litigation expenses), arising or alleged to
have arisen directly or indirectly out of performance of this Contract. The
Contractor's obligations under the preceding sentence shall apply
regardless of whether the City or any of its officers, officials, employees,
agents or volunteers are actively or passively negligent, but shall not apply
to any loss, liability, fines, penalties, forfeitures, costs or damages caused
by the gross negligence or by the willful misconduct of the City or any of its
officers, officials, employees, agents orvolunteers.
If the Contractor should subcontract all or any portion of the work to be
performed under this Contract, the Contractor 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 Contract.
Uuuu,DiIJ.II CIIVtl1UliC IU. j,+uui yVC-U44C-'#4I r-ot GJ- I ruv 1'F 1 D-+LF1V
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
CHIP Lighted Bollards
YES*
NO
1
Are you currently in litigation with the City of Fresno or any of
❑
its agents?
1
2
Do you represent any firm, organization, or person who is in
❑
litigation with the City of Fresno?
3
Do you currently represent or perform work for any clients
❑
who do business with the City of Fresno?
4
Are you or any of your principals, managers, or professionals,
owners or investors in a business which does business with
❑
the City of Fresno, or in a business which is in litigation with
the City of Fresno?
5
Are you or any of your principals, managers, or professionals,
related by blood or marriage to any City of Fresno employee
❑
who has any significant role in the subject matter of this
service?
6
Do you or any of your subcontractors have, or expect to have,
any interest, direct or indirect, in any other contract in
❑
connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Name
Company /
Address
Additional page(s) attached.
State, Zip
V U V UJ I Iy. l l CI t v t Iiu JC mi. U'+uu / r-ot CJ- I r Liu I'+ I D4LMU
EXHIBIT D:
FEDERAL CONDITIONS
This contract/purchase agreement is subject to a financial assistance contract between
the City of Fresno and the Federal Transit Administration, which requires that this
contract/agreement contain the following clauses:
NO GOVERNMENT OBLIGATION TO THIRD PARTIES
(1) The City and contractor/vendor acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the
Federal Government is not a party to this contract and shall not be subject to any
obligations or liabilities to the purchaser, contractor, or any other party (whether or not a
party to that contract) pertaining to any matter resulting from the underlying contract.
(2) The contractor agrees to include the above clause in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that the
clause shall not be modified, except to identify the subcontractor who will be subject to its
provisions.
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED
ACTS
(1) The contractor acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C. 3801 et seq. and U.S. DOT regulations, "Program
Fraud Civil Remedies, "49 CFR Part 31, apply to its actions pertaining to this Project.
Upon execution of the underlying contract, the contractor certifies or affirms the
truthfulness and accuracy of any statement it has made, it makes, it may make, or causes
to be made, pertaining to the underlying contract or the FTA assisted project for which
this contract work is being performed. In addition to other penalties that may be
applicable, the contractor further acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal
Government reserves the right to impose the penalties of the Program Fraud Civil
Remedies Act of 1986 on the contractor to the extent the Federal Government deems
appropriate.
(2) The contractor also acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in part
with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. 5307,
the Government reserves the right to impose the penalties of 18 U.S.C. 1001 and 49
U.S.C. § 5323(I) on the contractor, to the extent the Federal Government deems
appropriate.
(3) The contractor agrees to include the above two clauses in each subcontract financed
in whole or in part with Federal assistance provided by FTA. It is further agreed that the
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clauses shall not be modified, except to identify the subcontractor who will be subject to
the provisions.
ACCESS TO RECORDS AND REPORTS
(1) Record Retention. The Contractor will retain, and will require its subcontractors of all
tiers to retain, complete and readily accessible records related in whole or in part to the
contract, including, but not limited to, data, documents, reports, statistics, sub -
agreements, leases, subcontracts, arrangements, other third party agreements of any
type, and supporting materials related to those records.
(2) Retention Period. The Contractor agrees to comply with the record retention
requirements in accordance with 2 C.F.R. § 200.333. The Contractor shall maintain all
books, records, accounts and reports required under this Contract for a period of at not
less than three (3) years after the date of termination or expiration of this Contract, except
in the event of litigation or settlement of claims arising from the performance of this
Contract, in which case records shall be maintained until the disposition of all such
litigation, appeals, claims or exceptions related thereto.
(3) Access to Records. The Contractor agrees to provide sufficient access to FTA and its
contractors to inspect and audit records and information related to performance of this
contract as reasonably may be required.
(4) Access to the Sites of Performance. The Contractor agrees to permit FTA and its
contractors access to the sites of performance under this contract as reasonably may be
required.
FEDERAL CHANGES
(1) Contractor shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by reference
in the Master Agreement between Purchaser and FTA, as they may be amended or
promulgated from time to time during the term of this contract. Contractor's failure to so
comply shall constitute a material breach of this contract.
TERMINATION
(1) Termination for Convenience: The City of Fresno may terminate this contract, in whole
or in part, at any time by written notice to the contractor. The contractor shall be paid its
costs, including contract close out costs, and profit on work performed up to the time of
termination. The contractor shall promptly submit its termination claim to be paid by
contractor. If the contractor has any property in its possession belonging to the City of
Fresno, the contractor will account for the same, and dispose of it in the manner the City
of Fresno directs.
(2) Termination for Default: If the contractor does not deliver supplies in accordance with
L/UI;UJIIy.II CI IVCIUFIC IU. U'45:.// / r-OI CJ- IrUZ7141 UYLMU
the contract delivery schedule, or, if the contract is for services, the contractor fails to
perform in the manner called for in the contract or if the contractor fails to comply with any
other provisions of the contract, the City of Fresno may terminate this contract for default.
Termination shall be effected by serving a notice of termination on the contractor setting
forth the manner in which the contractor is in default. The contractor will only be paid the
contract price for supplies delivered and accepted, or services performed in accordance
with the manner of performance set forth in the contract.
(3) If it is later determined by the City of Fresno that the contractor had an excusable
reason for not performing, such as a strike, fire, or flood, events which are not the fault
of, or are beyond the control of the contractor, the City of Fresno, after setting up a new
delivery or performance schedule, may allow the contractor to continue work, or treat the
termination as a termination for convenience.
CIVIL RIGHTS
The City is an Equal Opportunity Employer. As such, the City agrees to comply with all
applicable Federal civil rights laws and implementing regulations. Apart from inconsistent
requirements imposed by Federal laws or regulations, the City agrees to comply with the
requirements of 49 U.S.C. § 5323(h) (3) by not using any Federal assistance awarded by
FTA to support procurements using exclusionary or discriminatory specifications.
Under this Agreement, the Contractor shall at all times comply with the following
requirements and shall include these requirements in each subcontract entered into as part
thereof.
(1) Nondiscrimination — In accordance with Federal transit law at 49 U.S.C. § 5332, the
Contractor agrees that it will not discriminate against any employee or applicant for
employment because of race, color, religion, national origin, sex, disability, or age. In
addition, the Contractor agrees to comply with applicable Federal implementing
regulations and other implementing requirements FTA may issue.
(2) Equal Employment Opportunity — The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the
Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and Federal transit laws at
49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal
employment opportunity requirements of U.S. Department of Labor (U.S. DOL)
regulations, "Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor," 41 C.F.R. chapter 60, and Executive Order No.
11246, "Equal Employment Opportunity in Federal Employment," September 24,
1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends
or supersedes it, referenced in 42 U.S.C. § 2000e note. The Contractor agrees to
take affirmative action to ensure that applicants are employed, and that employees
are treated during employment, without regard to their race, color, religion, national
origin, or sex (including sexual orientation and gender identity). Such action shall
include, but not be limited to, the following: employment, promotion, demotion or
UUUU,Dj I I CI IVCIUF tC ILJ. J'4UU! Z7UC-UL'iC-'44! F-Of MCI- IF L/V I'+ I D'44MU
transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or
other forms of compensation; and selection for training, including apprenticeship. In
addition, the Contractor agrees to comply with any implementing requirements FTA
may issue.
(b) Age - In accordance with the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621-634, U.S. Equal Employment Opportunity Commission (U.S. EEOC)
regulations, "Age Discrimination in Employment Act," 29 C.F.R. part 1625, the Age
Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and
Human Services regulations, "Nondiscrimination on the Basis of Age in Programs or
Activities Receiving Federal Financial Assistance," 45 C.F.R. part 90, and Federal
transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination
against present and prospective employees for reason of age. In addition, the
Contractor agrees to comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended,
42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42
U.S.C. §4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor
agrees that it will not discriminate against individuals on the basis of disability. In
addition, the Contractor agrees to comply with any implementing requirements FTA
may issue.
(3) The contractor also agrees to include these requirements in each subcontract financed
whole or in part with Federal assistance provided by FTA, modified only if necessary to
identify the affected parties.
DISADVANTAGED BUSINESS ENTERPRISE (DBE
The contractor, subrecipient or subcontractor shall not discriminate on the basis of race,
color, national origin, or sex in the performance of this contract. The contractor shall carry
out applicable requirements of 49 C.F.R. part 26 in the award and administration of DOT -
assisted contracts. Failure by the contractor to carry out these requirements is a material
breach of this contract, which may result in the termination of this contract or such other
remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non -responsible. 49 C.F.R. §
26.13(b).
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INCORPORATION OF FTA 4220.1 F TERMS
(1) The preceding provisions include, in part, certain Standard Terms and Conditions
required by DOT, whether or not expressly set forth in the preceding contract provisions.
All contractual provisions required by DOT, as set forth in FTA Circular 4220.1 F, dated
November 1, 2008, are hereby incorporated by reference. Anything to the contrary herein
notwithstanding, all FTA-mandated terms shall be deemed to control in the event of a
conflict with other provisions contained in this Agreement. The contractor shall not
perform any act, fail to perform any act, or refuse to comply with any City of Fresno
request, which would cause the City of Fresno to be in violation of the FTA terms and
conditions.
(2) Flow Down — The incorporation of FTA terms has unlimited flow down.
SUSPENSION AND DEBARMENT
The Contractor shall comply and facilitate compliance with U.S. DOT regulations,
"Nonprocurement Suspension and Debarment," 2 C.F.R. part 1200, which adopts and
supplements the U.S. Office of Management and Budget (U.S. OMB) "Guidelines to
Agencies on Government Wide Debarment and Suspension (Nonprocurement)," 2 C.F.R.
part 180. These provisions apply to each contract at any tier of $25,000 or more, and to
each contract at any tier for a federally required audit (irrespective of the contract amount),
and to each contract at any tier that must be approved by an FTA official irrespective of
the contract amount. As such, the Contractor shall verify that its principals, affiliates, and
subcontractors are eligible to participate in this federally funded contract and are not
presently declared by any Federal department or agency to be:
a) Debarred from participation in any federally assisted Award;
b) Suspended from participation in any federally assisted Award;
c) Proposed for debarment from participation in any federally assisted Award;
d) Declared ineligible to participate in any federally assisted Award;
e) Voluntarily excluded from participation in any federally assisted Award; or
f) Disqualified from participation in ay federally assisted Award.
By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:
The certification in this clause is a material representation of fact relied upon by the City.
If it is later determined by the City that the bidder or proposer knowingly rendered an
erroneous certification, in addition to remedies available to the City, the Federal
Government may pursue available remedies, including but not limited to suspension
and/or debarment. The bidder or proposer agrees to comply with the requirements of 2
C.F.R. part 180, subpart C, as supplemented by 2 C.F.R. part 1200, while this offer is
valid and throughout the period of any contract that may arise from this offer. The bidder
or proposer further agrees to include a provision requiring such compliance in its lower
tier covered transactions.
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CARGO PREFERENCE REQUIREMENTS
Use of United States -Flag Vessels. The contractor agrees:
(1) To use privately owned United States -Flag commercial vessels to ship at least 50
percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners,
and tankers) involved, whenever shipping any equipment, material, or commodities
pursuant to the underlying contract to the extent such vessels are available at fair and
reasonable rates for United States -Flag commercial vessels.
(2) To furnish within 20 working days following the date of loading for shipments
originating within the United States or within 30 days following the date of loading for
shipments originating outside the United States, a legible copy of a rated, "on -board"
commercial ocean bill -of -lading in English for each shipment of cargo described in the
preceding paragraph to the Division of National Cargo, Office of Market Development,
Maritime Administration, Washington D.C. 20590 and the FTA recipient (through the
contractor in the case of a subcontractor's bill -of lading).
(3) To include these requirements in all subcontracts issued pursuant to the contract when
the subcontract may involve the transport of equipment, materials, or commodities by
ocean vessel.
FLY AMERICA
Fly America Requirements:
(1) Definitions. As used in this clause- "International air transportation" means
transportation by air between a place in the United States and a place outside the United
States or between two places both of which are outside the United States. "United States"
means the 50 States, the District of Columbia, and outlying areas. "U.S.-flag air carrier"
means an air carrier holding a certificate under 49 U.S.C. Chapter 411.
(2) When Federal funds are used to fund travel, Section 5 of the International Air
Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118) (Fly America
Act) requires contractors, recipients, and others use U.S.-flag air carriers for U.S.
Government -financed international air transportation of personnel (and their personal
effects) or property, to the extent that service by those carriers is available. It requires the
Comptroller General of the United States, in the absence of satisfactory proof of the
necessity for foreign -flag air transportation, to disallow expenditures from funds,
appropriated or otherwise established for the account of the United States, for
international air transportation secured aboard a foreign -flag air carrier if a U.S.-flag air
carrier is available to provide such services.
(3) If available, the contractor, in performing work under this contract, shall use U.S.-flag
carriers for international air transportation of personnel (and their personal effects) or
property.
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(4) In the event that the contractor selects a carrier other than a U.S.-flag air carrier for
international air transportation, the contractor shall include a statement on vouchers
involving such transportation essentially as follows:
Statement of Unavailability of U.S.-Flag Air Carriers
International air transportation of persons (and their personal effects) or property by
U.S.-flag air carrier was not available or it was necessary to use foreign -flag air carrier
service for the following reasons. See FAR § 47.403.
Stated
Reason(s):
(5) The contractor shall include the substance of this clause, including this paragraph, in
each subcontract or purchase under this contract that may involve international air
transportation.
ENERGY CONSERVATION
(1) The contractor agrees to comply with mandatory standards and policies relating to
energy efficiency which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act.
RECYCLED PRODUCTS
The contractors must comply with section 6002 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act. The requirements of
Section 6002 include procuring only items designated in guidelines of the Environmental
Protection Agency (EPA) at 40 CFR Part 247 that contain the highest percentage of
recovered materials practicable, consistent with maintaining a satisfactory level of
competition, where the purchase price of the item exceeds $10,000 or the value of the
quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid
waste management services in a manner that maximizes energy and resource
recovery; and establishing an affirmative procurement program for procurement of
recovered materials identified in the EPA guidelines.
CONFORMANCE WITH ITS NATIONAL ARCHITECTURE {If Required}
(1) Contractor shall conform, to the extent applicable, to the National Intelligent
Transportation Standards architecture as required by SAFETEA-LU Section 5307(c), 23
U.S.C. Section 512 and as amended by MAP-21 23 U.S.C. § 517(d), note and follow
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the provisions of FTA Notice, "FTA National Architecture Policy on Transit Projects," 66
Fed. Reg.1455 et seq., January 8, 2001, and any other implementing directives FTA
may issue at a later date, except to the extent FTA determines otherwise in writing.
ADA ACCES
(1) In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101
et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq.,
and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not
discriminate against individuals on the basis of disability. In addition, the Contractor
agrees to comply with any implementing requirements FTA may issue.
SAFE OPERATION OF MOTOR VEHICLES
(1) Seat Belt Use - The Contractor is encouraged to adopt and promote on-the-job seat
belt use policies and programs for its employees and other personnel that operate
company -owned vehicles, company -rented vehicles, or personally operated vehicles.
The terms "company -owned" and "company -leased" refer to vehicles owned or leased
either by the Contractor or City.
(2) Distracted Driver - The Contractor agrees to adopt and enforce workplace safety
policies to decrease crashes caused by distracted drivers, including policies to ban text
messaging while using an electronic device supplied by an employer, and driving a
vehicle the driver owns or rents, a vehicle Contactor owns, leases, or rents, or a privately -
owned vehicle when on official business in connection with the work performed under this
agreement.
PROMPT PAYMENT
(1) The Prime Contractor shall pay any Subcontractor for work that has been satisfactorily
performed no later than thirty (30) days from the date of the Prime Contractor's receipt of
each payment made by the City of Fresno. Additionally, within thirty (30) days of
satisfactory completion of all work required of the Subcontractor, the Prime Contractor
shall release any retainage payments withheld to the Subcontractor.
NOTICE OF LEGAL MATTERS AFFECTING THE FEDERAL GOVERNMENT
(1) The Contractor agrees that if a current or prospective legal matter that may affect
the Federal Government emerges, the Contractor shall promptly notify the City of the
legal matter in accordance with 2 C.F.R. §§ 180.220 and 1200.220.
(2) The types of legal matters that require notification include, but are not limited to, a
major dispute, breach, default, litigation, or naming the Federal Government as a party
to litigation or a legal disagreement in any forum for any reason.
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(3) Matters that may affect the Federal Government include, but are not limited to, the
Federal Government's interests in the Award, the accompanying Underlying Agreement,
and any Amendments thereto, or the Federal Government's administration or
enforcement of federal laws, regulations, and requirements.
(4) Additional Notice to U.S. DOT Inspector General. The contractor must promptly
notify the City and U.S. DOT Inspector General in addition to the FTA Chief Counsel or
Regional Counsel for the Region in which the City is located, if the contractor has
knowledge of potential fraud, waste, or abuse occurring on a Project receiving
assistance from FTA. The notification provision applies if a person has or may have
submitted a false claim under the False Claims Act, 31 U.S.C. § 3729, et seq., or has or
may have committed a criminal or civil violation of law pertaining to such matters as
fraud, conflict of interest, bid rigging, misappropriation or embezzlement, bribery,
gratuity, or similar misconduct involving federal assistance. This responsibility occurs
whether the Project is subject to this Agreement or another agreement between the City
and FTA, or an agreement involving a principal, officer, employee, agent, or Third -Party
Participant of the City. It also applies to subcontractors at any tier. Knowledge, as used
in this paragraph, includes, but is not limited to, knowledge of a criminal or civil
investigation by a Federal, state, or local law enforcement or other investigative agency,
a criminal indictment or civil complaint, or probable cause that could support a criminal
indictment, or any other credible information in the possession of the contractor. In this
paragraph, "promptly" means to refer information without delay and without change.
This notification provision applies to all divisions of the Recipient, including divisions
tasked with law enforcement or investigatory functions.
(5) The Contractor further agrees to include the above clause in each subcontract, at
every tier, financed in whole or in part with Federal assistance provided by the FTA.
PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO
SURVEILLANCE SERVICES OR EQUIPMENT
The Contractor agrees to comply with 2 CFR 200.216 and Public Law 115-232, Section
889, and may not 1) procure or obtain; 2) extend or renew a contract to procure; or 3)
enter into a contract (or extend or renew a contract) to procure or obtain equipment,
services, or systems that uses covered telecommunications equipment or services as a
substantial or essential component of any system, or as critical technology as part of
any system for this federally funded agreement. As described in Public Law 115-232,
section 889, covered telecommunications equipment is telecommunications equipment
produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or
affiliate of such entities).
a) For the purpose of public safety, security of government facilities, physical
security surveillance of critical infrastructure, and other national security
purposes, video surveillance and telecommunications equipment produced by
Hytera Communications Corporation, Hangzhou Hikvision Digital Technology
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Company, or Dahua Technology Company (or any subsidiary or affiliate of such
entities).
b) Telecommunications or video surveillance services provided by such entities or
using such equipment.
c) Telecommunications or video surveillance equipment or services produced or
provided by an entity that the Secretary of Defense, in consultation with the
Director of the National Intelligence or the Director of the Federal Bureau of
Investigation, reasonably believes to be an entity owned or controlled by, or
otherwise connected to, the government of a covered foreign country.