HomeMy WebLinkAboutPCUBED Associates Inc First Amendment To Agreement 7/25/20231
FIRST AMENDMENT TO AGREEMENT
THIS FIRST AMENDMENT TO AGREEMENT (Amendment) made and entered
into as of this 25th day of July 2023, (Effective Date) amends the Agreement entered into
between the CITY OF FRESNO, a California municipal corporation (City), and PCUBED
ASSOCIATES INCORPORATED, a California Corporation (Consultant).
RECITALS
WHEREAS, City and Consultant entered into an agreement, dated June 21, 2021
(Agreement) to provide professional engineering services for Forensic Investigation of
Structural Components at Fresno-Clovis Regional Wastewater Reclamation Facility for a
total fee not to exceed $117,300, and a contingency amount not to exceed $11,730; and
WHEREAS, the City and the Consultant desire to extend the Agreement to
December 31, 2024, to retain the Consultant’s services through project completion; and
WHEREAS, with entry into this Amendment, Consultant agrees that Consultant
has no claim, demands, or disputes against City.
AGREEMENT
NOW, THEREFORE, the City and the Consultant agree that the aforesaid
Agreement be amended as follows:
1. Section 2 of the Agreement is amended in its entirety to read as follows:
“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 December 31, 2024, subject to any earlier termination in
accordance with this Agreement. The services of Consultant as described
in Exhibit A are to commence upon 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 1290 consecutive calendar days from such authorization
to proceed.”
2. This Amendment shall have an Effective Date of July 25, 2023.
3. Except as otherwise provided herein, the Agreement entered into by the
City and the Consultant on June 21, 2021, remain in full force and effect.
[SIGNATURES FOLLOW ON THE NEXT PAGE.]
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IN WITNESS WHEREOF, the CITY and the Consultant have executed this
Amendment at Fresno, California, the day and year first above written.
CITY OF FRESNO,
A municipal corporation
By:
Brock D. Buche, PE, PLS, Director
Department of Public Utilities
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By:
Brandon M. Collet Date
Supervising Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Date
Deputy
PCUBED ASSOCIATES, INC.,
A California corporation
By:
Name:
Title:
(If corporation or LLC., Board Chair,
Pres. Or Vice Pres.)
By:
Name:
Title:
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
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Pawan R Gupta
7/21/2023
Principal
7/21/2023
Prabha Gupta
Secretary
7/24/2023
8/22/2023
8/22/2023
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AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT is made and entered into effective _____________________,
by and between the CITY OF FRESNO, a California municipal corporation (City), and
PCUBED ASSOCIATES INCORPORATED, a California corporation (Consultant).
RECITALS
WHEREAS, the City desires to obtain professional engineering services for
Forensic Investigation of Structural Components at Fresno-Clovis Regional Wastewater
Reclamation Facility (Project); and
WHEREAS, the Consultant is engaged in the business of furnishing
services as a Professional 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 Director
of Public Utilities (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 July 25, 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 seven hundred sixty nine (769) 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 not to
exceed One Hundred Seventeen Thousand Three Hundred Dollars ($117,300), paid on
a time and materials basis in accordance with the schedule of fees contained in Exhibit
A, and a contingency amount not to exceed Eleven Thousand Seven Hundred Thirty
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($11,730) for any additional work rendered pursuant to Subsection (c) below and
authorized in writing by the Director.
(b) Detailed statements shall be rendered monthly and will be payable
in the normal course of City business. The City shall not be obligated to reimburse any
expense for which it has not 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 the Consultant’s compensation. Any
change in the scope of services must be made by written amendment to the Agreement
signed by an authorized representative for each party. The Consultant shall not be
entitled to any additional compensation if services are performed prior to a signed written
amendment.
4. Termination, Remedies and Force Majeure.
(a) This Agreement shall terminate without any liability of the City to the
Consultant upon the earlier of: (i) the Consultant’s filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third
party against the Consultant; (ii) seven calendar days prior written notice with or without
cause by the City to the Consultant; (iii) the City’s non-appropriation of funds sufficient to
meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient
funding for the Project; or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
the Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any
and all of its subcontractors to cease work; and (iii) return to 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.
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(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
contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually
severe weather, and delays of common carriers. The Consultant shall notify Director in
writing as soon as it is reasonably possible after the commencement of any excusable
delay, setting forth the full particulars in connection therewith, and shall remedy such
occurrence with all reasonable dispatch, and shall promptly give written notice to Director
of the cessation of such occurrence.
5. Confidential Information, Ownership of Documents and Copyright License.
(a) Any reports, information, or other data prepared or assembled by the
Consultant pursuant to this Agreement shall not be made available to any individual or
organization by the Consultant without the prior written approval of the City. During the
term of this Agreement, and thereafter, the Consultant shall not, without the prior written
consent of the City, disclose to anyone any Confidential Information. The term
Confidential Information for the purposes of this Agreement shall include all proprietary
and confidential information of the City, including but not limited to business plans,
marketing plans, financial information, designs, drawings, specifications, materials,
compilations, documents, instruments, models, source or object codes and other
information disclosed or submitted, orally, in writing, or by any other medium or media.
All Confidential Information shall be and remain confidential and proprietary in the City.
(b) Any and all original sketches, pencil tracings of working drawings,
plans, computations, specifications, computer disk files, writings and other documents
prepared or provided by the Consultant pursuant to this Agreement are the property of
the City at the time of preparation and shall be turned over to the City upon expiration or
termination of the Agreement or default by the Consultant. The Consultant grants the
City a copyright license to use such drawings and writings. The Consultant shall not
permit the reproduction or use thereof by any other person except as otherwise expressly
provided herein. The City may modify the design including any drawings or writings. Any
use by the City of the aforesaid sketches, tracings, plans, computations, specifications,
computer disk files, writings and other documents in completed form as to other projects
or extensions of this Project, or in uncompleted form, without specific written verification
by the Consultant will be at the City’s sole risk and without liability or legal exposure to
the Consultant. The Consultant may keep a copy of all drawings and specifications for
its sole and exclusive use.
(c) If the Consultant should subcontract all or any portion of the services
to be performed under this Agreement, the Consultant shall cause each subcontractor to
also comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this
Agreement.
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6. Professional Skill. It is further mutually understood and agreed by and
between the parties hereto that inasmuch as the Consultant represents to the City that
the Consultant and its subcontractors, if any, are skilled in the profession and shall
perform in accordance with the standards of said profession necessary to perform the
services agreed to be done by it under this Agreement, the City relies upon the skill of the
Consultant and any subcontractors to do and perform such services in a skillful manner
and the Consultant agrees to thus perform the services and require the same of any
subcontractors. Therefore, any acceptance of such services by the City shall not operate
as a release of the Consultant or any subcontractors from said professional standards.
7. Indemnification. To the furthest extent allowed by law including California
Civil Code section 2782.8, the Consultant shall indemnify, hold harmless and defend the
City and each of its officers, officials, employees, agents and volunteers from any and all
loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or
strict liability, including but not limited to personal injury, death at any time and property
damage), and from any and all claims, demands and actions in law or equity (including
reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or relate
to the negligence, recklessness or willful misconduct of the Consultant, its principals,
officers, employees, agents or volunteers in the performance of this Agreement.
If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall require each subcontractor to
indemnify, hold harmless and defend the City and each of its officers, officials, employees,
agents and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. Insurance.
(a) Throughout the life of this Agreement, the Consultant shall pay for
and maintain in full force and effect all insurance as required in Exhibit B, which is
incorporated into and part of this Agreement, with an insurance company(ies) either
(i) admitted by the California Insurance Commissioner to do business in the State of
California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as
may be authorized in writing by the City’s Risk Manager or designee at any time and in
its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain
limits of liability of not less than those amounts stated therein. However, the insurance
limits available to the City, its officers, officials, employees, agents and volunteers as
additional insureds, shall be the greater of the minimum limits specified therein or the full
limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, the
Consultant or any of its subcontractors/sub-consultants fail to maintain any required
insurance in full force and effect, all services and work under this Agreement shall be
discontinued immediately, and all payments due or that become due to the Consultant
shall be withheld until notice is received by the City that the required insurance has been
restored to full force and effect and that the premiums therefore have been paid for a
period satisfactory to the City. Any failure to maintain the required insurance shall be
sufficient cause for the City to terminate this Agreement. No action taken by the City
pursuant to this section shall in any way relieve the Consultant of its responsibilities under
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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.
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, 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
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any appearance of a conflict of interest. Upon discovery of any facts giving rise to the
appearance of a conflict of interest, the Consultant shall immediately notify the City of
these facts in writing.
(c) In performing the work or services to be provided hereunder, the
Consultant shall not employ or retain the services of any person while such person either
is employed by the City or is a member of any City council, commission, board,
committee, or similar City body. This requirement may be waived in writing by the City
Manager, if no actual or potential conflict is involved.
(d) The Consultant represents and warrants that it has not paid or
agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or
procure this Agreement or any rights/benefits hereunder.
(e) Neither the Consultant, nor any of the Consultant’s subcontractors
performing any services on this Project, shall bid for, assist anyone in the preparation of
a bid for, or perform any services pursuant to, any other contract in connection with this
Project. The Consultant and any of its subcontractors shall have no interest, direct or
indirect, in any other contract with a third party in connection with this Project unless such
interest is in accordance with all applicable law and fully disclosed to and approved by
the City Manager, in advance and in writing.
(f) If the Consultant should subcontract all or any portion of the work to
be performed or services to be provided under this Agreement, the Consultant shall
include the provisions of this Section 9 in each subcontract and require its subcontractors
to comply therewith.
(g) This Section 9 shall survive expiration or termination of this
Agreement.
10. 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.
(ci) Cooperate with and demonstrate to the satisfaction of the City’s Solid
Waste Management Division the establishment of the recycling program in paragraph (i)
above and the ongoing maintenance thereof.
11. General Terms.
(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.
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(b) Records of the Consultant’s expenses pertaining to the Project shall
be kept on a generally recognized accounting basis and shall be available to the City or
its authorized representatives upon request during regular business hours throughout the
life of this Agreement and for a period of three years after final payment or, if longer, for
any period required by law. In addition, all books, documents, papers, and records of the
Consultant pertaining to the Project shall be available for the purpose of making audits,
examinations, excerpts, and transcriptions for the same period of time. If any litigation,
claim, negotiations, audit or other action is commenced before the expiration of said time
period, all records shall be retained and made available to the City until such action is
resolved, or until the end of said time period whichever shall later occur. If the Consultant
should subcontract all or any portion of the services to be performed under this
Agreement, the Consultant shall cause each subcontractor to also comply with the
requirements of this paragraph. This Section 11(b) shall survive expiration or termination
of this Agreement.
(c) Prior to execution of this Agreement by the City, the Consultant shall
have provided evidence to the City that the Consultant is licensed to perform the services
called for by this Agreement (or that no license is required). If the Consultant should
subcontract all or any portion of the work or services to be performed under this
Agreement, the Consultant shall require each subcontractor to provide evidence to the
City that subcontractor is licensed to perform the services called for by this Agreement
(or that no license is required) before beginning work.
12. Nondiscrimination. To the extent required by controlling federal, state and
local law, the Consultant shall not employ discriminatory practices in the provision of
services, employment of personnel, or in any other respect on the basis of race, religious
creed, color, national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled
veteran or veteran of the Vietnam era. Subject to the foregoing and during the
performance of this Agreement, the Consultant agrees as follows:
(a) The Consultant will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity made possible by or resulting from this
Agreement.
(b) The Consultant will not discriminate against any employee or
applicant for employment because of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The
Consultant shall ensure that applicants are employed, and the employees are treated
during employment, without regard to their race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
Such requirement shall apply to the Consultant’s employment practices including, but not
be limited to, the following: employment, upgrading, demotion or transfer; recruitment or
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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 City employees. The Consultant shall be solely liable and
responsible for all payroll and tax withholding and for providing to, or on behalf of, its
employees all employee benefits including, without limitation, health, welfare and
retirement benefits. In addition, together with its other obligations under this Agreement,
the Consultant shall be solely responsible, indemnify, defend and save the City harmless
from all matters relating to employment and tax withholding for and payment of the
Consultant’s employees, including, without limitation, (i) compliance with Social Security
and unemployment insurance withholding, payment of workers’ compensation benefits,
and all other laws and regulations governing matters of employee withholding, taxes and
payment; and (ii) any claim of right or interest in the City employment benefits,
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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 Law. In providing the services required under this
Agreement, the Consultant shall at all times comply with all applicable laws of the United
States, the State of California and the City, and with all applicable regulations
promulgated by federal, state, regional, or local administrative and regulatory agencies,
now in force and as they may be enacted, issued, or amended during the term of this
Agreement.
18. Waiver. The waiver by either party of a breach by the other of any provision
of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions of this
Agreement may be waived unless in writing and signed by all parties to this Agreement.
Waiver of any one provision herein shall not be deemed to be a waiver of any other
provision herein.
19. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction. Venue
for purposes of the filing of any action regarding the enforcement or interpretation of this
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Agreement and any rights and duties hereunder shall be Fresno County, California.
20. Headings. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify or add to
the interpretation or meaning of the provisions of this Agreement.
21. Severability. The provisions of this Agreement are severable. The
invalidity, or unenforceability of any one provision in this Agreement shall not affect the
other provisions.
22. 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. Attorney's Fees. If either party is required to commence any proceeding or
legal action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing party in such proceeding or action shall be entitled to recover from the other
party its reasonable attorney's fees and legal expenses.
24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by
the reference, incorporated into and made a part of this Agreement.
25. Precedence of Documents. In the event of any conflict between the body
of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and conditions
expressed within the Exhibit or Attachment. Furthermore, any terms or conditions
contained within any Exhibit or Attachment hereto which purport to modify the allocation
of risk between the parties, provided for within the body of this Agreement, shall be null
and void.
26. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
27. No Third Party Beneficiaries. The rights, interests, duties and obligations
defined within this Agreement are intended for the specific parties hereto as identified in
the preamble of this Agreement. Notwithstanding anything stated to the contrary in this
Agreement, it is not intended that any rights or interests in this Agreement benefit or flow
to the interest of any third parties.
28. Extent of Agreement. Each party acknowledges that they have read and
fully understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the parties with respect to the subject matter hereof
and supersedes all prior negotiations, representations or agreements, either written or
oral. This Agreement may be modified only by written instrument duly authorized and
executed by both the City and the Consultant.
[Signatures follow on the next page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
By:
Michael Carbajal,
Director
Department of Public Utilities
ATTEST:
YVONNE SPENCE, MMC CRM
City Clerk
By:
Deputy
No signature of City Attorney required.
Standard Document #DPU-S 8.3/02-2021
has been used without modification, as
certified by the undersigned.
By:
Samuel Nadores
Professional Engineer
Department of Public Utilities
REVIEWED BY:
Glenn A Knapp, Supervising Professional
Engineer
Department of Public Utilities
Addresses:
CITY:
City of Fresno
Attention: Samuel Nadores,
Professional Engineer
2101 G Street
Fresno, CA 93706
Phone: (559) 621-1602
Facsimile (559) 498-4126
E-mail: Samuel.Nadores@fresno.gov
PCUBED ASSOCIATES
INCORPORATED,
a California corporation
By:
Name:
Title:
(If corporation or LLC., Board
Chair, Pres. or Vice Pres.)
By:
Name:
Title:
(If corporation or LLC., CFO,
Treasurer, Secretary or Assistant
Secretary)
Any Applicable Professional License:
Number:
Name:
Date of Issuance:
CONSULTANT:
Pcubed Associates Inc.
Attention: Pawan Gupta
PHD,SE,PE,LEED,
Principal In Charge
221 E Lexington Drive, #304
Glendale, CA 91206
Phone: (559) 247-9835
Facsimile” [area code and #]
E-mail pawan@pcubedassociates.com
Attachments: 1. Exhibit A - Scope of Services
2.Exhibit B - Insurance Requirements
3.Exhibit C - Conflict of Interest Disclosure Form
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Pawan R Gupta
Pawan R Gupta
12/17/2014
S6198
5/20/2021
Principal
Prabha Gupta
Secretary
5/20/2021
5/21/2021
5/21/2021
6/18/2021
Marco Martinez
6/21/2021
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EXHIBIT A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno (City)
and Pcubed Associates Inc. (Consultant)
Forensic Investigation of Structural Components at Fresno-Clovis Regional Wastewater
Reclamation Facility(RWRF)
Scope of Service:
Based on the project scope and our proposed approach we have developed the following
phased work plan to assess the current deterioration and repair/upgrade the structure.
As we go through the various phases, the work plan will be refined/expanded in
coordination with the City Staff based on the project needs.
PHASE 1: PROJECT COORDINATION
We will meet with the City representatives and other involved stakeholders to discuss
project intent and expectations. We have found these preliminary meetings to be key in
establishing a shared vision for the successful completion of the project and
understanding the project constraints.
Task 1: Understand Your Objectives / Learn the History
We will meet with City personnel prior to commencement of the work to gain an
understanding of the needs and long-term service life, and level of service objectives of
the headworks building.
• We will review the original construction documents, as well as previous
assessments and repair reports if available to learn about the history of the structure.
• We will conduct a preliminary field review to understand the types of issues to be
included in the program.
• Based on the initial review and discussions we will finalize the assessment and
testing program.
Ongoing Coordination with the City
Throughout the duration of the project we will discuss progress and coordinate with the
City personnel in periodic conference calls and design charettes to allow us to provide
update and get input from the stakeholders at critical phases of the assessment/design.
Task 3: Quality Control
We have a robust Quality Assurance and Quality Control program for the project. An
experienced engineer will review the documents at critical stages of the project. The
QA/QC engineer will conduct an overall review of the documents and provide feedback
on the quality of the documents point out elements that may be missing. In our experience
having a fresh pair of experienced eyes review the documents is invaluable in catching
possible errors.
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Consultant Services for Phase 1 is estimated to be $8,100.
Estimated Miscellaneous Direct Expenses to be $300.
PHASE II: ASSESSMENT AND CONDIONS SURVEY
Task 1: Field Assessment/Review
Visual Review
We will conduct a visual assessment of the structure to document the current physical
condition of structural, waterproofing and facade elements. The review will be conducted
at times convenient to the client. The assessment will include visual observations of
readily observable elements of the structure showing evidence of structural distress
including:
• Floors, columns, beams, walls, ceilings and other structural elements of the areas
that have evidence of distress based on the initial field review. The visual review will
document noticeable distress such as cracks, leaks, spalls, joint deterioration and other
similar adverse conditions;
• Stairs structures and other similar structural elements;
• Architectural and exterior façade elements;
• Other elements that are noted during the field evaluation and discussion with the
City personnel;
• We will prioritize the observed conditions into three categories (High Priority,
Medium Priority and Low Priority) according to the perceived immediacy of performing
repairs. A fourth category (Non-Structural/Enhancements) may also be included if
conditions are observed that are not technically structural in nature but may have a
significant impact on the ongoing performance and condition of the structure or enhance
the appearance and efficiency of the structure.
Field Testing
The field evaluation will include field-testing, material testing and non-destructive
evaluation of select members. The field testing and visual review will be used to
understand the cause of distress in the structure and develop viable repair approaches
and alternatives. The following areas will be targeted during the testing program: Grit
Pump Room and Pump Mezzanine Room, Exterior cracking of the building façade, roof
and canopies above the Grit Pump Room. The following field tests are anticipated for the
testing program:
• Chain drag survey of selected areas of the supported concrete floor surfaces to
identify patterns of delaminated surfaces;
• Acoustic sounding of select elements to identify delaminated areas in columns,
beams and walls;
• Concrete cover measurement by GPR (Ground Penetrating Radar) at selected
locations;
• Galva pulse and/or half-cell potential readings of selected structural elements to
monitor their rate of corrosion of the mild reinforcement;
• Chloride ion content by extracting powder samples per ASTM C 1152 at equal
increments in the first 3" of the concrete to determine the chloride contamination at
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various depths of the floor slab;
• Concrete samples will be extracted from wall and floors and tested with 2%
phenolphthalein solution to determine the depth of carbonation in the concrete;
• Cores will be removed from the columns/walls for petrographic analysis of concrete
and determine the quality of the original concrete, determine the level of chemical
contamination and understand its influence on the long-term durability of concrete.
The preliminary field-testing program is expected to be as follows:
TEST UNIT UNIT
Concrete Cover (GPR) Loc 6
Petrographic Examination Loc 4
Chloride Content Loc 8
Carbonation Depth Loc 4
We will notify the City of items in need of immediate repairs for continued safe use of the
facility, if any.
Consultant Services for Phase 1 is estimated to be $11,600.
Estimated Miscellaneous Direct Expenses to be $14,700.
PHASE III: ASSESSMENT TECHNICAL MEMORANDUM
We will compile and analyze field review, and laboratory testing data to generate repair
alternatives, recommendations, and preliminary cost estimates and present them to the
City for discussion and feedback.
Based on the discussions and feedback, we will finalize our recommendations in a
comprehensive technical memorandum. This will include:
• Executive Summary of our review and recommendations;
• Observations made during the field survey with photographic documentations of
typical observed conditions;
• Summary of the tests conducted and discussion of the results and their
implications on the long-term performance of the structure;
• Prioritized list of repair/remediation recommendations for the structure;
• Engineer’s estimate of the repair/rehabilitation costs for various
alternatives with long term performance implications;
Based on available budget and discussion with City, we will finalize the repair program
and develop a detailed repair scope for the construction phase of the project.
Consultant Services for Phase 1 is estimated to be $15,700.
Estimated Miscellaneous Direct Expenses to be $400.
PHASE IV: CONSTRUCTION DOCUMENTS
Once the repair and upgrade scope has been finalized, we will develop construction
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documents to repair/rehabilitate the existing structure. In this phase we will develop plans
and technical specifications for competitive bidding by contractors. All work will be
performed under the direction of a California Licensed Structural Engineer based on the
local City codes, by-laws and industry standards that are currently in effect. All drawings
will be completed using AutoCAD.
• Once the City representatives have reviewed and agreed with the project bid items
and budget, we will prepare plans, details and technical specifications and present the
progress technical drawings and specifications along with an updated cost estimate to
the City representatives for 90% review.
• The City review comments will be incorporated into the 100% construction
documents. We will also work with the City to incorporate the front-end Division 1
specifications into the full specifications package at 100% construction documents.
• We will finalize the construction documents and submit stamped documents to the
city for solicitation of public bids.
Consultant Services for Phase IV is estimated to be $46,400.
Estimated Miscellaneous Direct Expenses to be $800.
PHASE V: CONSTRUCTION SERVICES (IF NEEDED)
We will provide the City with an estimate of providing “Services During Construction”.
Depending on the City’s needs we will be available to provide assistance to the City staff
in the implementation of the repairs on an as-needed basis; this includes:
• Attending pre-bid/pre-construction meetings;
• Responding to RFI during bid stage and issuing Addendums and clarifications as
necessary;
• Reviewing Contractor Submittals and RFI’s during construction;
• Performing field observations and project progress meetings as necessary;
• Preparing punch list of items upon substantial completion of the project.
Consultant Services for Phase 1 is estimated to be $17,200.
Estimated Miscellaneous Direct Expenses to be $2,100.
PROJECT DELIVERABLES
The following project deliverables are included in the forensic assessment and
construction documents phases of the project.
• Draft Forensic Assessment Technical Memorandum (6 hard copes + 1 pdf + 1 MS
Word).
• Final Forensic Assessment Technical Memorandum (6 hard copies, + 1 pdf + 1
MS Word).
• 90% Construction Documents Plans and specifications (5 sets of 11x17 plans and
5 hard copies of specifications + 1 pdf + 1 AutoCad/MS Word).
• Final signed and stamped bid set of construction documents (5 full size plans + 5
specifications + 1 pdf + 1 AutoCad/MS Word).
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SCHEDULE OF FEES
Pcubed Associates 2020 Billing Rates
Standard Hourly Labor Rates
Designation
Principal…….........................................................................................................$250.00
Associate Principal................................................................................................$225.00
Design Director…..................................................................................................$200.00
Senior Consultant..................................................................................................$185.00
Consultant.............................................................................................................$150.00
Engineer................................................................................................................$125.00
CAD Drafter………................................................................................................$125.00
Technician…………...............................................................................................$110.00
Project Accountant.................................................................................................$100.00
Administrative Assistant...........................................................................................$85.00
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Exhibit B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (“CITY”)
and Pcubed Associates Inc. (“CONSULTANT”)
Forensic Investigation of Structural Components at Fresno-Clovis Regional Wastewater
Reclamation Facility (RWRF)
PROJECT TITLE
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 00 01, providing liability coverage
arising out of your business operations. The Commercial General Liability
policy shall be written on an occurrence form and shall provide coverage
for “bodily injury,” “property damage” and “personal and advertising injury”
with coverage for premises and operations (including the use of owned
and non-owned equipment), products and completed operations, and
contractual liability (including, without limitation, indemnity obligations
under the Agreement) with limits of liability not less than those set forth
under “Minimum Limits of Insurance.”
2. The most current version of ISO *Commercial Auto Coverage Form CA 00
01, providing liability coverage arising out of the ownership, maintenance
or use of automobiles in the course of your business operations. The
Automobile Policy shall be written on an occurrence form and shall
provide coverage for all owned, hired, and non-owned automobiles or
other licensed vehicles (Code 1- Any Auto). If personal automobile
coverage is used, the CITY, its officers, officials, employees, agents, and
volunteers are to be listed as additional insureds.
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,
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(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 designee. At the option of the CITY’s Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-
insured retentions as respects CITY, its officers, officials,
employees, agents, and volunteers; or
(ii) CONSULTANT shall provide a financial guarantee, satisfactory to
CITY’s Risk Manager or designee, guaranteeing payment of losses
and related investigations, claim administration and defense
expenses. At no time shall CITY be responsible for the payment of
any deductibles or self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be
endorsed to contain, the following provisions:
1. CITY, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. CONSULTANT shall establish additional
insured status for the City and for all ongoing and completed operations by
use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and
CG 20 37 10 01 or by an executed manuscript insurance company
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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 policy 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 policy is written on a
claims-made form:
1. The retroactive date must be shown, and must be before the effective date
of the Agreement or the commencement of work by CONSULTANT.
2. Insurance must be maintained and evidence of insurance must be
provided for at least five (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.
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty
(30) calendar days written notice by certified mail, return receipt requested, has been
given to CITY. 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,
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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 do 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.
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 will be solely responsible for ensuring
that it’s subcontractors maintain insurance coverage at levels no less than those
required by applicable law and is customary in the relevant industry.
VERIFICATION OF COVERAGE
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.
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EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Forensic Investigation of Structural Components at Fresno-Clovis Regional Wastewater
Reclamation Facility (RWRF)
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 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:
Signature
Date
(Name)
(Company)
(Address)
Additional page(s) attached.
(City, State Zip)
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X
221 E Lexington Drive, #304
Pawan R Gupta
X
Pcubed Associates Inc.
X
X
5/20/2021
N/A
X
X
Glendale, CA 91206
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