HomeMy WebLinkAboutBureau Veritas Technical Assessments (BVTA) Agreement Consultant Services 10-13-23GSD-S Eng. CSA, Short Form Total Fee – Contingency (09-2023) CAO
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AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT (Agreement) is made and entered into, effective
____________________________, by and between the CITY OF FRESNO, a California
municipal corporation (City), and Bureau Veritas Technical Assessments (BVTA), a
Limited Liability Corporation (LLC) (Consultant).
RECITALS
WHEREAS, the City desires to obtain professional building assessment services
for the Veterans Memorial Auditorium Assessment (Project); and
WHEREAS, the Consultant is engaged in the business of furnishing services as
an assessment consulting firm 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 General
Services Department Director (Director) or the Director’s 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 March 31, 2024,
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 152 consecutive calendar days from such authorization to proceed.
3. Compensation.
(a) The Consultant’s sole compensation for satisfactory performance of
all services required or rendered pursuant to this Agreement shall be a total fee of Forty-
Eight Thousand Seven Hundred Seventy-Five Dollars ($48,775.00), and a contingency
amount not to exceed One Thousand Dollars ($1,000.00) for any additional work
rendered pursuant to Subsection (c) below and authorized in writing by the Director. Such
fees include all expenses incurred by the Consultant in performance of such services.
October 13, 2023
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(b) Detailed statements shall be rendered monthly and will be payable
in the normal course of City business.
(c) The parties may modify this Agreement to increase or decrease the
scope of services or provide for the rendition of services not required by this Agreement,
which modification shall include an adjustment to 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 the City fiscal year of this Agreement, or
insufficient funding for the Project; or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
the Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any
and all of its subcontractors to cease work; and (iii) return to the City any and all unearned
payments and all properties and materials in the possession of the Consultant that are
owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid
compensation for services satisfactorily performed prior to the effective date of
termination. The Consultant shall not be paid for any work or services performed or costs
incurred which reasonably could have been avoided.
(c) In the event of termination due to failure of the Consultant to
satisfactorily perform in accordance with the terms of this Agreement, the City may
withhold an amount that would otherwise be payable as an offset to, but not in excess of,
the City’s damages caused by such failure. In no event shall any payment by the City
pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement
which may then exist on the part of the Consultant, nor shall such payment impair or
prejudice any remedy available to the City with respect to the breach.
(d) Upon any breach of this Agreement by the Consultant, the City may
(i) exercise any right, remedy (in contract, law or equity), or privilege which may be
available to it under applicable laws of the State of California or any other applicable law;
(ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii)
recover all direct, indirect, consequential, economic and incidental damages for the
breach of the Agreement. If it is determined that the City improperly terminated this
Agreement for default, such termination shall be deemed a termination for convenience.
(e) The Consultant shall provide the City with adequate written
assurances of future performance, upon Director’s request, in the event the Consultant
fails to comply with any terms or conditions of this Agreement.
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(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.
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
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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, Consultant shall indemnify, hold harmless and defend City and
each of its officers, officials, employees, agents and volunteers from any and all loss,
liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict
liability, including but not limited to personal injury, death at any time and property
damage), and from any and all claims, demands and actions in law or equity (including
reasonable attorney's fees, litigation expenses and cost to enforce this agreement) that
arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of
Consultant, its principals, officers, employees, agents or volunteers in the performance of
this Agreement.
If Consultant should subcontract all or any portion of the services to be
performed under this Agreement, Consultant 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, 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
his or her sole discretion. The required policies of insurance as stated in Exhibit B shall
maintain limits of liability of not less than those amounts stated therein. However, the
insurance limits available to the City, its officers, officials, employees, agents, and
volunteers as additional insureds, shall be the greater of the minimum limits specified
therein or the full limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, the
Consultant or any of its subcontractors/sub-consultants fail to maintain any required
insurance in full force and effect, all services and work under this Agreement shall be
discontinued immediately, and all payments due or that become due to the Consultant
shall be withheld until notice is received by the City that the required insurance has been
restored to full force and effect and that the premiums therefore have been paid for a
period satisfactory to the City. Any failure to maintain the required insurance shall be
sufficient cause for the City to terminate this Agreement. No action taken by the City
pursuant to this section shall in any way relieve the Consultant of its responsibilities under
this Agreement. The phrase “fail to maintain any required insurance” shall include,
without limitation, notification received by the City that an insurer has commenced
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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
any appearance of a conflict of interest. Upon discovery of any facts giving rise to the
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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 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.
(c) Cooperate with and demonstrate to the satisfaction of the City’s Solid
Waste Management Division the establishment of the recycling program in
paragraph (a) above and the ongoing maintenance thereof.
11. General Terms.
(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 the City employees. The Consultant shall be solely liable
and responsible for all payroll and tax withholding and for providing to, or on behalf of, its
employees all employee benefits including, without limitation, health, welfare and
retirement benefits. In addition, together with its other obligations under this Agreement,
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 The Law. In providing the services required under this
Agreement, the Consultant shall at all times comply with all applicable laws of the United
States, including, but not limited to, the Americans with Disabilities Act (42 U.S.C. §§
12101 et seq.), the State of California and the City, and with all applicable regulations
promulgated by federal, state, regional, or local administrative and regulatory agencies,
now in force and as they may be enacted, issued, or amended during the term of this
Agreement.
18. Waiver. The waiver by either party of a breach by the other of any provision
of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions of this
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
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for purposes of the filing of any action regarding the enforcement or interpretation of this
Agreement and any rights and duties hereunder shall be Fresno County, California.
20. Headings. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify, or add to
the interpretation or meaning of the provisions of this Agreement.
21. Severability. The provisions of this Agreement are severable. The invalidity
or unenforceability of any one provision in this Agreement shall not affect the other
provisions.
22. 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.
29. The City Manager, or designee, is hereby authorized and directed to
execute and implement this Agreement. The previous sentence is not intended to
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delegate any authority to the City Manager to administer the Agreement, any delegation
of authority must be expressly included in the Agreement.
[Signatures follow on the next page.]
DocuSign Envelope ID: E937E391-D34F-4D23-BDEB-BF13F4662042
GSD-S Eng. CSA, Short Form Total Fee – Contingency (09-2023) CAO
-12-
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO,
A California municipal corporation
By:
Georgeanne A. White
City Manager
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Date
Deputy
No signature of City Attorney required.
Standard Document #GSD-S Eng. CSA,
Short Form Total Fee – Contingency
(09-2023) has been used without
modification, as certified by the
undersigned.
By: ____________________________
Bureau Veritas Technical Assessments,
a Limited Liability Corporation
By:
Name: Erik Piller
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:
REVIEWED BY:
Addresses:
CITY:
City of Fresno
Attention: Debbie Bernard,
Title: Project Manager
2101 'G' Street, Bldg. C
Fresno, CA 93706-1620
Phone: (559) 621-1201
E-mail: debra.bernard@fresno.gov
CONSULTANT:
Bureau Veritas Technical Assessments
Attention: Erik Piller
Title: Senior Vice President
Address: 180 Promenade Circle, Ste 150
Sacramento, CA 95834
Phone: (800) 733-0660
E-mail: erik.piller@bureauveritas.com
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
Senior Vice President
matt munter
Executive VP
Debbie Bernard
DocuSign Envelope ID: E937E391-D34F-4D23-BDEB-BF13F4662042
10/16/2023
10/17/2023
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Page 1 of 5
EXHIBIT A
EXHIBIT A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno (City)
and Bureau Veritas Technical Assessments (Consultant)
Veterans Memorial Auditorium Assessment
The Consultant shall compile an Assessment Report of the Veterans Memorial Auditorium
located at 2425 Fresno Street, prepared in a manner consistent with industry standards,
ASTM E2018-15 Standard Guide for Property Condition Assessments.
The Facility Condition Assessment for the Veterans Memorial Auditorium will consist of
the following:
Present condition and estimated life expectancy of various building systems and
components.
Identify and document present condition of all physical assets including grounds,
facilities, and infrastructure.
Recommend corrections for all deficiencies and provide cost estimates for
corrections.
Prioritize and categorize deficient conditions, associated corrective actions, and
information concerning building systems and efficiency categories.
Establish anticipated renewal and replacement costs for the various systems and
components.
Result in strategic plan for capital repairs, lifecycle component replacement, and
building modernization.
Calculate the Current Replacement Value (CRV) and Facility Condition Index (FCI)
for the facility.
The assessment will serve as a guide for future replacement, repairs, and improvements
for the City of Fresno to keep the facility, grounds, and infrastructure in proper working
condition. The Consultant will survey and assess all building systems and components
to identify deficient conditions and accurately estimate the cost to correct each deficiency.
The facility condition assessment will focus on the following facility and site systems and
components:
Site + Infrastructure
Topography - Observe the general topography and note any unusual problematic
features or conditons.
Paving, Curbing, and Parking: Identify the material types of paving and curbing
systems.
Flatwork: Identify the material flatwork (sidewalks, patios, etc.)
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EXHIBIT A
Landscaping and Appurtenances: Identify the material types of landscaping
(fences, retaining walls, etc.) and site appurtenances (irrigation systems, lighting,
signage, etc.)
Utilities: Identify the type of material utilities provided to the property (water,
electricity, natural gas, etc.). Assess condition, physical deficiencies, life cycle
repair, and replacement issues.
Structural Frame and Building Envelope
Identify the material elements of the structural frame and exterior walls, including
the foundation system, floor framing system, roof framing system, façade system,
glazing system, exterior sealant, doors, windows and stairways, etc.
Observe the general conditions and note any physical deficiencies or any unusual
items or conditions.
Visual inspection of observable areas for cracking and moisture infiltration as well
as areas of apparent foundation settlement and displacement.
In the event more information or exploratory testing is required, in order to provide
remedial measures, the report may include recommendation for additional
investigative testing (Tier 1 or Tier 2).
Wall Evaluation
Photograph elevations and details both from internal and external vantage points,
as well as from adjacent structures where possible.
Roofing (Non-Invasive Visual)
Identify the material roof systems including roof types, reported age, slope,
drainage, etc. Also identify any unusual roofing conditions or rooftop equipment.
Observe the general conditions of the roof systems such as membranes,
attachment methods, flashings, counter flashings, pitch pans, gravel stops,
parapets, miscellaneous appurtenances, insulation, etc.
Observe for evidence of material repairs, significant ponding, or evidence of
material roof leaks. Note if a roof warranty is in effect. Note any physical
deficiencies or any unusual items observed.
Identify the material rooftop equipment or accessories including antennas,
lightining protection, HVAC equipment, etc. Include any material problems
observed.
Plumbing
Identify the material plumbing systems including domestic water supply and
sanitary sewer.
Identify the type and condition of restroom fixtures, drinking fountains and/or other
miscellaneous plumbing equipment.
Observe the general conditions and note any physical deficiencies identified or any
unusual conditions observed. Include any reported material system inadequacies.
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EXHIBIT A
Heating
Identify the material heat generating systems.
Observe the general conditions, identify the reported age of the equipment, note
past material component replacements/upgrades and note the apparent level of
maintenance.
Identify and observe any special or unusual heating systems or equipment present,
and note any reported material problems or inadequacies.
Air-Conditioning + Ventilation
Identify the material air-conditioning and ventilation systems . Include material
equipment such as cooling towers, chillers (include type of refrigerant used),
package units, split systems , air handlers, etc.
Identify the material distribution systems (supply and return, make-up air, exhaust,
etc.).
Observe the general conditions and note any physical deficiencies identified or
any unusual items or conditions observed. Additionally, include any material
reported system inadequacies or operating deficiencies.
Electrical
Identify the electrical service provided and distribution system. Include material
switchgear disconnects, circuit breakers, transformers, meters, emergency
generators, general lighting systems, and other such equipment systems.
Oberve general electrical items such as distribution panels, type of wiring, energy
management systems, emergency power, lightning protection, etc.
Observe the general conditions and note any physical deficiencies identified or any
unusual items or conditions observed.
Observe the general condions and note any physical deficiencies identified or any
unusual items or conditions observed. Also note the presence of any special or
unusual electrical equipment, systems, or devices , and include reported material
problems or system inadequacies.
Life Safety + Fire Protection
Identify the material life safety/fire protection systems, including sprinklers and
stand pipes (wet or dry), fire hydrants, fire alarm systems, water storage, smoke
detectors, fire extinguishers, emergency lighting, stairwell pressurization, smoke
evacuation, etc.
Observe the general conditions and note any material physical deficiencies
identified or any unusual items or conditions observed including any reported
system inadequacies.
Interior Elements
Identify offices, special use areas and building standard finishes, including flooring,
ceilings, walls, etc. Furnishings and fixed components will be reviewed and
included in the cost estimate tables for replacements. Identify material building
amenities or special features.
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EXHIBIT A
Observe the general conditions and note any physical deficiencies identified or any
unusual items or conditions observed or reported.
Special Systems and Equipment
Include all special systems and equipment, such as radio towers, vaults, stages,
stage lighting systems and public address systems.
Suspected Fungal Growth
Perform a limited assessment of accessible areas for suspected fungal growth.
If the presence of mold, conditions conducive to mold growth, and/or evidence of
moisture, elevated relative humidity, water intrusion, and mildew-like odors are
discovered the affected areas will be photographed and recommendations for any
additional moisture intrusion studies will be made.
Environmental Features
Review environmental features of the property, to include appearance,
cleanliness, acoustics, ventilation, and humidity.
All findings and conclusions will be ranked and classified per commonly accepted
empirical Expected Useful Life (EUL) tables. Exposure to the weather elements, initial
system quality and installation, extent of use, the quality and amount of preventive
maintenance exercised are all factors that impact the effective age of a system or
component. As a result, a system or component may have an effective age that is greater
or less than its actual age. The Remaining Useful Life (RUL) of a component or system
equals the EUL less its effectve age.
The analysis will include all costs associated with the observations and will be ranked by
Priority Class. The five classes are as follows:
Priority 1: Currently Critical (Immediate): Requiring immediate action including a cited
safety hazard and areas of accelerated deterioration, returning a building component to
normal operation.
Priority 2: Potentially Critical (Year 1): Requiring action in the next year including
components experiencing intermittent operations, potential life safety issues, and rapid
deterioration, returning a building component to normal operation.
Priority 3: Necessary – Not Yet Critical (Years 2-5): Requiring appropriate attention to
preclude predictable deterioration, potential downtime, additional damage, and higher
costs to remediation if deferred further.
Priority 4: Recommended (Years 6-10, 15, 20): Representing a sensible improvement to
the existing conditons (not required for the most basic function of the facility; however,
will improve overall usability and/or reduce long-term maintenance costs).
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EXHIBIT A
Priority 5: Does Not Meet Current Code but “Grandfathered”: No action required at this
time but should substantial work be undertaken correction would be required.
Deliverables will be one (1) Draft of the full Assessment Report, and is due within 45
working days (7 weeks) after receipt of the written Notice to Proceed. The final full
Assessment Report will be due within 20 working days (4 weeks) after receipt of all
comments from the City.
The Consultant Fee is broken down as follows:
Facilities Condition Assessment with MEP $9,600
Fire Sprinkler and Alarm Study $10,200
ACM Inspection/Report $8,375
LBP Inspection/Report $5,000
Strucural Study – General Conditions Report $9,600
ADA Titel II Survey $6,000
$48,775
DocuSign Envelope ID: E937E391-D34F-4D23-BDEB-BF13F4662042
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EXHIBIT C
EXHIBIT B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (City)
and Bureau Veritas Technical Assessments LLC. (Consultant)
Veterans Memorial Auditorium Assessment
MINIMUM SCOPE OF INSURANCE
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 Commercial Auto Coverage Form CA 00 01, providing
liability coverage arising out of the ownership, maintenance or use of automobiles in the
course of your business operations. The Automobile Policy shall be written on an
occurrence form and shall provide coverage for all owned, hired, and non-owned
automobiles or other licensed vehicles (Code 1- Any Auto).
3. Workers’ Compensation insurance as required by the State of California and
Employer’s Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to Consultant’s
profession.
MINIMUM LIMITS OF INSURANCE
CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits
of liability of not less than those set forth below. However, insurance limits available to
CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall
be the greater of the minimum limits specified herein or the full limit of any insurance
proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work performed under
the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
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EXHIBIT B
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.
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 under
the General Liability policy for all ongoing and completed operations by use of
endorsements providing additional insured status as broad as that contained in ISO Form
CG 20 10 11 85 or CG 20 10 04 13.
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. 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 on the General Liability policy by use of ISO
Form CG 20 01 04 13, or by an executed endorsement that provides primary and
noncontributory status as broad as that contained in ISO Form CG 20 01 04 13.
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EXHIBIT B
4. 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.
5. 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, 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.
6. 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.
7. 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.
CLAIMS-MADE POLICIES
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.
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EXHIBIT B
VERIFICATION OF COVERAGE
Consultant shall furnish City with all certificate(s) and applicable endorsements effecting
coverage required hereunder. All certificates and applicable endorsements are to be
received and approved by the City’s Risk Manager or his/her designee prior to City’s
execution of the Agreement and before work commences. All non-ISO endorsements
amending policy coverage shall be executed by a licensed and authorized agent or
broker. Upon request of City, Consultant shall immediately furnish City with a complete
copy of any insurance policy required under this Agreement, including all endorsements,
with said copy certified by the underwriter to be a true and correct copy of the original
policy. This requirement shall survive expiration or termination of this Agreement.
SUBCONTRACTORS
If Consultant subcontracts any or all of the services to be performed under this
Agreement, Consultant shall require, at the discretion of the City Risk Manager or
designee, subcontractor(s) to enter into a separate side agreement with the City to
provide required indemnification and insurance protection. Any required side
agreement(s) and associated insurance documents for the subcontractor must be
reviewed and preapproved by City Risk Manager or designee. If no side agreement is
required, Consultant shall require and verify that subcontractors maintain insurance
meeting all the requirements stated herein and Consultant shall ensure that City, its
officers, officials, employees, agents, and volunteers are additional insureds. The
subcontractors' certificates and endorsements shall be on file with Consultant, and City,
prior to commencement of any work by the subcontractor.
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EXHIBIT C
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Veterans Memorial Auditorium Assessment
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)
X
X
X
X
X
X
10/3/2023
Erik Piller
Bureau Veritas Technical Assessments LLCA
Sacramento, CA 95834
180 Promenade Circle #150
DocuSign Envelope ID: E937E391-D34F-4D23-BDEB-BF13F4662042