HomeMy WebLinkAboutMark Thomas & Company, Inc. Agreement Consultant Services 11-16-23 AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT (Agreement) is made and entered into, effective
NWf✓6'�.1J2,ZQ�Z3_, by and between the CITY OF FRESNO, a California
municipal corporation (City), and MARK THOMAS & COMPANY, INC., a California
corporation (Consultant).
RECITALS
WHEREAS, the City desires to obtain professional engineering services for the
design of plans and general construction contract documents for SHIELDS AVENUE
AND VAN NESS BOULEVARD SECTION 130 RAILROAD GRADE CROSSING
IMPROVEMENTS Project (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 Public Works
Department Director (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 the services described herein and in Exhibit A to complete
the Project more fully described in Exhibit A, and this shall include all work incidental to,
or necessary to perform, such services even though not specifically described in Exhibit
A. The services of the Consultant shall consist of five Parts as described below. A
separate Notice to Proceed will be issued for each of the aforementioned Parts. By entry
into this Agreement and upon the City's issuance of a written "Notice to Proceed," the
City contracts for the services in Part One. The Consultant shall not perform any other
Part of the Agreement, and this Agreement shall not be a contract for any other Part, until
further performance is authorized by the City's issuance of a written "Notice to Proceed."
It shall, however, remain the Consultant's offer to perform all remaining parts described
herein. In the event the Consultant performs services without the City's prior written
authorization, the Consultant will not be entitled to compensation for such services.
(a) Part One. Schematic Design Phase.
(1) The Consultant shall review the description of the Project set
forth in Exhibit A and consult with designated representatives of the City to
ascertain the requirements of the Project.
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(2) The Consultant shall conduct studies and investigations as
necessary to confirm requirements of design including, but not limited to, (i)
consulting with the various utility agencies, and (ii) obtaining all information and
data from the respective responsible the City department/division that is available
in the City's records and is required by the Consultant in connection with the
consulting services including, but not limited to, maps, surveys, reports,
information, restrictions, and easements. The Consultant shall notify the City if a
topographic survey is required.
(3) The Consultant shall provide a preliminary evaluation of the
Project taking into consideration the City's estimate of the cost of construction
(Construction Budget) of One Million Two Hundred Thousand Dollars
($1,200,000.00), including alternative approaches to design and construction of
the Project.
(4) Based upon the mutually agreed upon Project requirements
and any adjustments authorized by the City in the Construction Budget, the
Consultant shall design and prepare schematic design drawings and other
documents for review, modification, if required, and acceptance by the City staff
sufficient to show the concept and scope of the proposed Project and the scale
and relationship of Project components.
(5) The Consultant shall submit a preliminary estimate of
construction cost for review and acceptance by the City. As used herein,
"construction cost" means the cost of construction under the general construction
contract and does not include the Consultant's compensation as herein provided.
Such estimate shall include, and shall separately state, the cost of any add or
deduct alternatives, the cost of any work which may be let on a segregated bid
basis and any equipment or fixtures which may be incorporated in or excluded from
the general construction contract as may be necessary to stay within the
Construction Budget.
(6) The Consultant shall make as many submittals as may be
necessary or desirable to obtain the acceptance by the City and shall assist the
City in applying for and obtaining from applicable public agencies any approval
permit, or waiver required by law, which assistance shall include, but not be limited
to, making Project information available to the City.
(7) The Consultant may not rely upon any as-builts provided by
the City but shall investigate the existing conditions and ascertain the adequacy of
such as-builts for the Consultant's design. The Consultant shall bring to the City's
attention any discrepancies in the as-builts that are discovered by the Consultant'.
The City makes no representations regarding any as-builts.
(8) Services shall be undertaken and completed in a sequence
assuring expeditious completion. All services shall be rendered, and deliverables
submitted within Sixty Three (63) calendar days from the issuance of a Notice to
Proceed for this Part unless an extension of time is approved in writing by the
Director. Re-submittals, as necessary to obtain the acceptance by the City, shall
be submitted to the City within Seven (7) calendar days from receipt of the City's
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comments unless an extension of time is approved in writing by the Director.
(b) Part Two. Design Development Phase. After review and
acceptance of the schematic design phase and issuance of a written Notice to Proceed
with this Part Two:
(1) Based upon the accepted schematic design documents and
the Construction Budget, including authorized revisions thereto, the Consultant
shall prepare for review and acceptance by the City the design development
documents consisting of drawings and other documents to fix and describe the
size and character of the Project as necessary to show treatment of significant
details. In addition, the Consultant shall provide outline specifications of the work
as to kinds of materials, systems, and other such design elements as may be
required. Such design development documents and specifications shall be subject
to review and acceptance by the City.
(2) The Consultant shall submit a revised estimate of construction
cost for review and acceptance by the City. The revised estimate shall include, but
shall separately state, the cost of any add or deduct alternates, any work which
may be let on a segregated bid basis, and any furnishings, equipment or fixtures
which may be incorporated in or excluded from the general construction contract
as may be necessary to stay within the Construction Budget, including authorized
revisions thereto.
(3) In the event that the revised estimate of construction cost
exceeds the preliminary estimate of construction cost previously accepted,
excluding therefrom any add alternate, any work which may be let on a segregated
bid basis and any furnishing, equipment or fixtures which was identified in Part 1
as that which may be excluded from the general construction contract, the City
shall have the option of accepting or rejecting the revised estimate and the
Consultant shall, at no additional cost to the City, make such design changes as
may be necessary to reduce the revised estimate so that it shall not exceed the
preliminary estimate of construction cost previously accepted by the City. The City
shall not increase the scope of the Project except by modification of this Agreement
which shall include an agreed upon increase in the Consultant's compensation.
(4) The Consultant shall make as many submittals as may be
necessary or desirable to obtain the acceptance by the City and shall assist the
City in applying for and obtaining from applicable public agencies any approval,
permit, or waiver required by law, which assistance shall include, but not be limited
to, making Project information available to the City.
(5) Services shall be undertaken and completed in a sequence
assuring expeditious completion. All services shall be rendered, and deliverables
submitted within Ninety Seven (97) calendar days from the issuance of a Notice to
Proceed for this Part unless an extension of time is approved in writing by the
Director. Re-submittals, as necessary to obtain the acceptance by the City, shall
be submitted to the City within Seven (7) calendar days from receipt of the City's
comments unless an extension of time is approved in writing by the Director.
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(c) Part Three. Construction Document Phase. After review and
acceptance of the design development phase and issuance of a written Notice to Proceed
with this Part Three.
(1) The Consultant shall prepare from the accepted design
development documents, detailed plans and specifications setting forth the
complete work to be done, and the materials, workmanship, finishes and
equipment, fixtures, and site work required. The Consultant shall also prepare
necessary bidding information, general and special conditions of the general
construction contract, technical specifications of the general construction contract,
and the bid proposal and general construction contract forms. Such documents
shall be subject to the review and acceptance by the City. The Consultant shall
cooperate with, assist and be responsive to the City's Purchasing Manager in
preparation of all documents including, without limitation, slip-sheeting final
documents for printing when requested. The City's Standard Specifications must
be used by the Consultant where possible. Final drawings shall be drawn, printed,
or reproduced by a process providing a permanent record in black on vellum,
tracing cloth, polyester base film, or high-quality bond copy. Bid, general
conditions, contract and bond document forms or formats regularly used by the
City shall be used by the Consultant unless the Director determines they would be
impractical for this Project. The Consultant shall be responsible for assuring that
the special conditions, technical specifications, and any other documents prepared
by the Consultant are consistent with any documents regularly used by the City
that are used for this Project.
(2) Upon request of the City, the Consultant shall provide the
calculations used to determine the general construction contract quantities; and
structural calculations for the purpose of obtaining any building permits.
(3) The Consultant shall make as many submittals as may be
necessary or desirable to obtain the acceptance by the City and shall assist the
City in applying for and obtaining from applicable public agencies any approval,
permit, report, statement, or waiver required by law,which assistance shall include,
but not be limited to, making Project information available to the City.
(4) The Consultant shall provide the City with Five (5) sets of
completed plans and Five (5) sets of completed specifications for review and final
acceptance by the City. Should the plans and specifications as submitted by the
Consultant not be accepted by the City, the Consultant shall revise the plans and
specifications as needed to obtain final acceptance at no additional cost to the
City.
(5) After acceptance of final corrections, if any, the Consultant
shall provide the City with one set of accepted reproducible tracings and bid
documents for the Project. In addition, the Consultant shall provide the City with
one complete set of CAD/System disk files of drawings and complete disk files of
specifications in the following format: AutoCAD, Adobe PDF and/or Microsoft Word
as applicable.
(6) The Consultant shall submit a final estimate of construction
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cost for review and acceptance by the City. Such estimate shall be calculated as
of the date all general construction contract documents are delivered to the City in
final form ready for reproduction and advertising. Such estimate shall include, but
shall separately state, the cost of any add or deduct alternates, any work which
may be let on a segregated basis, and any equipment, or fixtures which may be
incorporated in or excluded from the general construction contract.
(7) In the event that the final estimate of construction cost
exceeds the revised estimate of construction cost previously accepted, excluding
therefrom any add alternate, any work which may be let on a segregated bid basis
and any furnishings, equipment or fixtures which was identified in the final revised
estimate in Part 2 as that which may be excluded from the general construction
contract, the City shall have the option of accepting or rejecting the final estimate.
If the City elects to reject the final estimate, the Consultant shall at no additional
cost to the City, make such design changes as may be necessary to reduce the
final estimate so that it shall not exceed the revised estimate of construction cost
previously accepted by the City.
(8) Services shall be undertaken and completed in a sequence
assuring expeditious completion. All services shall be rendered, and deliverables
submitted within Fifty Five (55) calendar days from the issuance of a Notice to
Proceed for this Part unless an extension of time is approved in writing by the
Director. Re-submittals, as necessary to obtain the acceptance by the City, shall
be submitted to the City within Ten (10) calendar days from receipt of the City's
comments unless an extension of time is approved in writing by the Director.
(d) Part Four- Bidding Phase. After review and acceptance of the
construction document phase and if the City elects to proceed to bid, which shall
constitute a written Notice to Proceed with this Part Four:
(1) The Consultant shall assist the City in obtaining bids. The
Consultant shall not communicate with potential bidders regarding this Project
without the express prior written authorization of the City's Purchasing Manager.
(2) The Consultant shall, within 7 calendar days of any request
by the City, expeditiously draft and promptly provide addendum as determined by
the City to be reasonable or necessary for the bidding process.
(3) If the lowest responsible bid received for the general
construction contract exceeds by 10% or more the final estimate of construction
cost previously accepted by the City, excluding therefrom any add alternate, any
work which may be let on a segregated bid basis and any furnishings, equipment
or fixtures which are excluded from the general construction contract, the
Consultant shall, within 14 calendar days of any request by the City, revise the
plans and specifications as may be necessary to stay within 10% of such final
estimate of construction cost, at no additional cost to the City provided such bid is
received within 180 calendar days after completion of services in Section 1(c) of
this Agreement. The Consultant shall also submit such revised plans and
specifications, together with a new final estimate of construction cost, to the City
for review and acceptance. This procedure, using the latest accepted final estimate
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of construction cost, shall, upon written notice to the Consultant from the Director,
be repeated until an acceptable bid is received that does not exceed the accepted
final estimate of construction cost by more than 10%.
(e) Part Five. Construction Phase and General Construction Contract
Administration. The construction phase will begin with the award of the general
construction contract, which shall constitute a written Notice to Proceed with this Part Five
and will terminate when a Notice of Completion is filed. Upon award of a general
construction contract for the Project and under the direction of the Director through the
City's designated Construction Manager for the Project:
(1) The Consultant shall attend the pre-construction conference
and, if called upon by the City, act on the City's behalf in discussing the various
aspects of the construction phase.
(2) The Consultant shall review and recommend in writing to the
City acceptance or non-acceptance of shop drawings, equipment and material
submittals of the general construction contractor as required by the general
construction contract and applicable laws and regulations in a timely manner. The
period for The Consultant review shall be as specified in the general construction
contract, except if such period is not so specified, the period shall be as determined
in the pre-construction conference as mutually agreed upon by the City, the
Consultant, and the general construction contractor.
(3) The Consultant shall, at intervals appropriate to the state of
construction, familiarize itself with the progress and quality of the work and
determine in general if the work is proceeding in accordance with the general
construction contract documents, and keep the City informed of the progress of
the work. In the event that the Consultant's visit to the site results in the discovery
of any defect or deficiencies in the work of the general construction contractor, the
Consultant shall immediately advise the City and document, in writing, the work
the Consultant deems substandard, and make recommendations where
appropriate to reject any work not conforming to the intended design or
specifications. Based on the Consultant's best knowledge, information and belief,
the Consultant shall provide the City a general written assurance that the work
covered by a payment application meets the standards in the general construction
contract. As to technical aspects, the Consultant shall provide a written judgment
of the acceptability of the work for payment applications and final acceptance,
subject to the City's right to overrule the Consultant.
(4) Upon written request by the City, the Consultant shall render
interpretations of the general construction contract documents necessary for the
proper execution or progress of the work.
(5) Upon written request by the City, the Consultant shall render
written recommendations on change orders, claims, disputes, or other questions
arising out of the general construction contract, in a timely manner.
Recommendations by the Consultant in favor of a change order that is
consequently accepted by the City shall constitute approval by the Consultant who
shall then approve the change order in writing. The Consultant shall not
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unreasonably withhold written approval in the event the City accepts a change
order that the Consultant recommended to be rejected. In the event of any
technical disputes, the Consultant shall provide the City with the Consultant's
written interpretation of the contract documents. The period for the Consultant
review shall be as specified in the general construction contract, except if such
period is not so specified, the period shall be as determined in the pre-construction
conference as mutually agreed upon by the City, the Consultant, and the general
construction contractor. If the City, the Consultant, and the respective general
construction contractor are unable to mutually agree on such period for the
Consultant review, then the City will make the determination and that determination
will be final.
(6) Upon written request by the City, the Consultant shall provide
such design and specification services as may be requested by the City to
implement change orders necessary for clarification or interpretation of the general
construction contract documents or which may have resulted from errors or
omissions by the Consultant.
(7) Where change orders arise as a result of an increase in the
scope of work or are due to unforeseeable conditions, the parties may modify this
Agreement, which modification shall include an agreed upon increase in the
Consultant's compensation.
(8) Upon written request of the City, the Consultant shall assist
the City in the preparation of Progress Payment Estimates and other related
construction reports.
(9) The Consultant shall provide the City with two sets of original
as-grade plans wet-stamped and signed by the Consultant's Engineer of Record
for the Project submitted for final approval by the City's Building and Safety
Services Division of the Development and Resource Management Department on
all projects located outside the Right of Way.
(10) The Consultant shall prepare Record Drawings by updating
the accepted general construction documents in Part 3 to reflect all changes or
deviations that occurred during construction as reflected on or from each of the
following: (i) the general construction contractor provided red-lined plans, (ii) those
furnished by the City, (iii) the Consultant provided Request for Information
responses, and (iv) any the Consultant bulletins, amendments, or clarifications.
The Consultant shall provide the City with one set of vellum Record Drawings for
the Project within Fourteen (14) calendar days from receipt of red-lined field
markups unless an extension of time is approved in writing by the Director. Re-
submittals, as necessary to obtain the acceptance by the City, shall be submitted
to the City within Seven (7) calendar days from receipt of the City comments unless
an extension of time is approved in writing by the Director. In addition, the
Consultant shall provide the City with one complete set of CAD/System disk files
of Record Drawings in the following format: Adobe PDF.
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2. The Cit 's responsibilities. The City will:
(a) 'Provide, upon request and cooperation of the Consultant, access to,
and make all provisions necessary to, enter upon public or private lands as required for
the Consultant to perform such services and inspections as are required in development
of the Project; provided, however, if the City is unable to obtain access to enter upon
public or private lands, the Consultant shall not be relieved from performing its services
as to those public and private lands that are accessible. If the Consultant notifies the City
that a topographic survey is required by the Consultant in connection with the consulting
services, then the City will be responsible for conducting the topographic survey.
(b) Manage and be responsible for all negotiations with owners in
connection with land or easement acquisition and provide all required title reports and
appraisals.
(c) With the exception of preparing correspondence required for design,
hold all required special meetings, serve all public and private notices, receive and act
upon all protests, and perform all services customarily performed by owners as are
necessary for the orderly progress of the work and the successful completion of the
Project, and pay all costs incidental thereto.
(d) Select the testing laboratory and pay the cost of borings, samplings,
and other work involved in soils testing during construction.
(e) Conduct onsite inspection during construction to check quality and
quantity of work as conditions warrant and be responsible for assuring that the general
construction contractor carries out all construction work in accordance with the plans and
specifications. However, this does not release the Consultant from its responsibility to
make periodic site visits under Section 1(e) for the purpose of observing the work to
determine its general conformity with the plans and specifications and reporting its
findings to the City.
(f) Prepare all change orders during construction in cooperation with the
Consultant.
(g) Prepare all Progress Payment Estimates in cooperation with the
Consultant following its general assurance that the work covered by a payment
application meets the standards in the general construction contract documents based
upon the Consultant's best knowledge, information, and belief.
(h) Pay, or cause to be paid, plan check fees, conditional use permit fees
and site plan review fees.
(i) Arrange for and pay, or cause to be paid, any fees associated with
Environmental Impact Reports or Statements.
0) Give reasonably prompt consideration to all matters submitted by the
Consultant for acceptance to the end that there will be no substantial delays in the
Consultant's program of work. For an acceptance, approval, authorization, a request, or
any direction to the Consultant to be binding upon the City under the terms of this
Agreement, such acceptance, approval, authorization, request, or direction must be in
writing, duly authorized by the City and signed on behalf of the City by the Director.
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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 One
Hundred Eighty Thousand Nine Hundred Thirteen Dollars ($180,913.00), and a
contingency amount not to exceed Ten Percent ($18,000.00) for any additional work
rendered pursuant to Subsection (d) below and authorized in writing by the Director. Such
fees include all expenses incurred by the Consultant in performance of such services.
(b) Detailed statements shall be rendered monthly and will be payable
in the normal course of the City business. Such statements shall be for an amount no
greater than that attributable to the Part upon which the Consultant is then engaged as
provided in Section 3(c) below.
(c) For purposes of determining the division of the total compensation to
the Consultant as provided in Section 3(a) above, or should performance of any
succeeding Part not be authorized by the City as provided in Section 1 of this Agreement,
it is agreed that the total compensation shall be allocated to the five Parts of the
Consultant's performance as follows: Part 1 — One Hundred Percent (100%), Part 2 —
Zero Percent (0%), Part 3 — Zero Percent (0%), Part 4 — Zero Percent (0%) and Part 5
—Zero Percent (0%). Prior to the award of a general construction contract for the Project,
or should such contract not be awarded, the approved Parts as provided above shall be
utilized for purposes of determining the fee due to the Consultant.
(d) 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. Subsequent to the date of completion of Part Three, changes due to Code
revisions or enactments adopted after such date shall constitute additional work subject
to this Section 3(d).
4. Termination Remedies. Force Maieure, and Consolidation of Dispute
(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) 7 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
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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 the request of the Director or designee, 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 the Director
or designee 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 the Director or designee of the cessation of such occurrence.
(g) the Consultant agrees that, notwithstanding any contrary provision in
this Agreement, any dispute arising from or relating to this Agreement (including, without
limitation, disputes based on contract, tort, equity, or statute) may, at the City's option, be
joined and consolidated with any other dispute or disputes arising from or relating to the
Project so that all disputes arising from or relating to the Project may be resolved in a
single proceeding. the Consultant hereby specifically waives any objection it may
otherwise have to such joinder and consolidation and specifically consents to mediation,
arbitration or any other dispute resolution mechanism, forum or proceeding necessary to
effectuate the joinder and consolidation contemplated by this provision.
(h) Any notice of termination sent to Consultant shall include the
reason(s) for such termination or state that it is without cause.
5. Confidential Information, Ownership of Documents and 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
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term of this Agreement, and thereafter, the Consultant shall not, without the prior written
consent of the City, disclose to anyone any Confidential Information. The term
Confidential Information for the purposes of this Agreement shall include all proprietary
and confidential information of the City, including but not limited to business plans,
marketing plans, financial information, designs, drawings, specifications, materials,
compilations, documents, instruments, models, source or object codes and other
information disclosed or submitted, orally, in writing, or by any other medium or media.
All Confidential Information shall be and remain confidential and proprietary in the City.
i. Permission granted to the Consultant to disclose information
on one occasion shall not authorize the Consultant to further disclose such
information or any other information or disseminate the same on any other
occasion.
ii. The Consultant shall not comment publicly to the press or any
other media regarding the Agreement or the City's actions on the same,
except to the City's personnel or the Consultant's personnel involved in the
performance of this Agreement at public hearings or in response to
questions from a Legislative committee.
iii. The Consultant shall not issue any news releases or any
public relations item of any nature, whatsoever, regarding work performed
or to be performed under this Agreement without prior review of the contents
thereof by the City and receipt of the City's written permission.
(b) Any and all original sketches, pencil tracings of working drawings,
plans, computations, specifications, computer disk files, writings and other documents
prepared or provided by the Consultant pursuant to this Agreement, in any form
whatsoever, are the property of the City at the time of preparation and shall be turned over
to the City upon expiration or termination of the Agreement or default by the Consultant.
The Consultant grants the City a copyright license to use such drawings and writings. The
Consultant shall not permit the reproduction or use thereof by any other person except as
otherwise expressly provided herein. The City may modify the design including any
drawings or writings. Any use by the City of the aforesaid sketches, tracings, plans,
computations, specifications, computer disk files, writings, and other documents in
completed form as to other projects or extensions of this Project, or in uncompleted form,
without specific written verification by the Consultant will be at the City's sole risk and
without liability or legal exposure to the Consultant. The Consultant may keep a copy of
all drawings and specifications for its sole and exclusive use.
i. In the event of the copyright of any reports or other products
prepared under this Agreement by the Consultant or any subcontractor, the
Federal Highway Administration (FHWA) shall have the royalty-free,
nonexclusive, and irrevocable right to reproduce, publish, or otherwise use,
and to authorize others to use, the work for government purposes.
(c) If the Consultant should subcontract all or any portion of the services
to be performed under this Agreement, the Consultant shall cause each subcontractor to
also comply with the requirements of this Section 5.
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(d) This Section 5 shall survive expiration or termination of this
Agreement.
6. Professional Skill.
It is further mutually understood and agreed by and between the parties hereto that
inasmuch as the Consultant represents to the City that the Consultant and its
subcontractors, if any, are skilled in the profession and shall perform in accordance with
the standards of said profession necessary to perform the services agreed to be done by
it under this Agreement, the City relies upon the skill of the Consultant and any
subcontractors to do and perform such services in a skillful manner and the Consultant
agrees to thus perform the services and require the same of any subcontractors.
Therefore, any acceptance of such services by the City shall not operate as a release of
the Consultant or any subcontractors from said professional standards.
7. Indemnification.
To the furthest extent allowed by law, 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, litigation expenses and cost to enforce this agreement) 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
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discontinued immediately, and all payments due or that become due to the Consultant
shall be withheld until notice is received by the City that the required insurance has been
restored to full force and effect and that the premiums therefore have been paid for a
period satisfactory to the City. Any failure to maintain the required insurance shall be
sufficient cause for the City to terminate this Agreement. No action taken by the City
pursuant to this section shall in any way relieve the Consultant of its responsibilities under
this Agreement. The phrase "fail to maintain any required insurance"shall include, without
limitation, notification received by the City that an insurer has commenced proceedings,
or has had proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by the Consultant shall not be
deemed to release or diminish the liability of the Consultant, including, without limitation,
liability under the indemnity provisions of this Agreement. The duty to indemnify the City
shall apply to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of indemnification
to be provided by the Consultant. Approval or purchase of any insurance contracts or
policies shall in no way relieve from liability nor limit the liability of the Consultant, its
principals, officers, agents, employees, persons under the supervision of the Consultant,
vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone
employed directly or indirectly by any of them.
(d) If the Consultant should subcontract all or any portion of the services
to be performed under this Agreement, the Consultant shall require each
subcontractor/sub-consultant to provide insurance protection, as an additional insured, to
the City and each of its officers, officials, employees, agents, and volunteers in
accordance with the terms of this section, except that any required certificates and
applicable endorsements shall be on file with the Consultant and the City prior to the
commencement of any services by the subcontractor. the Consultant and any
subcontractor/sub-consultant shall establish additional insured status for the City, its
officers, officials, employees, agents, and volunteers by using Insurance Service Office
(ISO) Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 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, 23 U.S.C. § 112, FHWA regulations
applicable to design and engineering consulting contracts found at 23 C.F.R. 172.1 et
seq., California Government Code Section 1090 et. seq., the California Political Reform
Act (California Government Code Section 87100 et. seq.), the regulations of the Fair
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Political Practices Commission concerning disclosure and disqualification (2 California
Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal
Code (Ineligibility to Compete). At any time, upon written request of the City, the
Consultant shall provide a written opinion of its legal counsel and that of any subcontractor
that, after a due diligent inquiry, the Consultant and the respective subcontractor(s) are
in full compliance with all laws and regulations. The Consultant shall take, and require its
subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest.
Upon discovery of any facts giving rise to the appearance of a conflict of interest, the
Consultant shall immediately notify the City of these facts in writing.
(c) In performing the work or services to be provided hereunder, the
Consultant shall not employ or retain the services of any person while such person either
is employed by the City or is a member of any City council, commission, board,
committee, or similar City body. This requirement may be waived in writing by the City
Manager, if no actual or potential conflict is involved.
(d) The Consultant represents and warrants that it has not paid or
agreed to pay any compensation, lawful or unlawful, contingent, or otherwise, direct, or
indirect, to any party to solicit or procure this Agreement or any rights/benefits hereunder.
The City shall have the right, in its discretion, to deduct from any payment to the
Consultant under this Agreement, or otherwise recover the full amount of, any rebate,
kickback or other consideration paid by the Consultant in violation of any representation
or warranty under this section.
(e) Neither the Consultant, nor any firm affiliated with the Consultant, nor
any of the Consultant's subcontractors performing any services on this Project, shall bid
for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any
other contract in connection with this Project with the exception of any subcontractor
whose services are limited to providing surveying or materials testing information. the
Consultant and any of its subcontractors shall have no interest, direct or indirect, in any
other contract with a third party in connection with this Project unless such interest is in
accordance with all applicable law and fully disclosed to and approved by the City
Manager, in advance and in writing. An affiliated firm is one which is subject to the control
of the same person(s) through joint-ownership or otherwise.
(f) The Consultant shall disclose any financial, business, or other
relationship with the City that may have an impact upon the outcome of this Agreement
or any ensuing the City construction project. The Consultant shall also disclose any
current clients who may have a financial interest in the outcome of this Agreement or any
ensuing the City construction project, which will follow.
(g) The Consultant hereby certifies that it does not now have, nor shall
it acquire any financial or business interest that would conflict with the performance of
services under this Agreement.
(h) If the Consultant should subcontract all or any portion of the work to
be performed or services to be provided under this Agreement, the Consultant shall
include the provisions of this Section 9 in each subcontract and require its subcontractors
to comply therewith.
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(i) This Section 9 shall survive expiration or termination of this
Agreement.
10. Recycling Program.
In the event the Consultant maintains an office or operates a facility(ies), or is required
herein to maintain or operate same, within the incorporated limits of the City of Fresno,
the Consultant at its sole cost and expense shall:
(a) Immediately establish and maintain a viable and ongoing recycling
program, approved by the City's Solid Waste Management Division, for each office and
facility. Literature describing the City recycling programs is available from the City's Solid
Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-
1111.
(b) Immediately contact the City's Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit and cooperate with such Division in their
conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of the City's Solid
Waste Management Division the establishment of the recycling program in paragraph
(a) above and the ongoing maintenance thereof.
11. General Terms. Federal and State Assurances and Requirements.
(a) Except as otherwise provided by law, all notices expressly required
of the City within the body of this Agreement, and not otherwise specifically provided for,
shall be effective only if signed by the Director or designee.
(b) Records of the Consultant's expenses pertaining to the Project shall
be kept on a generally recognized accounting basis. The Consultant and its
subcontractors shall maintain all books, documents, papers, accounting records, and
other evidence pertaining to the performance of the Agreement including, but not limited
to, the costs of administering the Agreement. The Consultant and its subcontractors shall
make such materials available at their respective offices at all reasonable times during
the period of this Agreement and for 3 years, or longer if required by law, from the date
of final payment under the Agreement. the City, the State, the State Auditor, FHWA or
any duly authorized representative of the federal government shall have access to any
books, records, papers, accounting records and other documents of the Consultant and
its subcontractors that are pertinent to the Agreement for audit, examinations, excerpts,
and transcriptions. Copies thereof shall be furnished by the Consultant, if requested. If
any litigation, claim, negotiations, audit, or other action is commenced before the
expiration of the 3-year time period, all records shall be retained and made available until
such action is resolved, or until the end of said time period whichever shall later occur. If
the Consultant should subcontract all or any portion of the services to be performed under
this Agreement, the Consultant shall cause each subcontractor to also comply with the
requirements of this section and in the event a subcontract is entered into for an amount
in excess of $25,000 the subcontract shall include this paragraph in its entirety. This
Section 11(b) shall survive expiration or termination of this Agreement.
(c) Prior to execution of this Agreement by the City, the Consultant shall
have provided evidence to the City that the Consultant is licensed to perform the services
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called for by this Agreement (or that no license is required). If the Consultant should
subcontract all or any portion of the work or services to be performed under this
Agreement, the Consultant shall require each subcontractor to provide evidence to the
City that subcontractor is licensed to perform the services called for by this Agreement
(or that no license is required) before beginning work.
(d) The Consultant's services pursuant to this Agreement shall be
provided under the supervision of Matt Magaw, PE, and he/she shall not assign another
to supervise the Consultant's performance of this Agreement without the prior written
approval of the Director.
(e) The City will carry out applicable federal requirements in the
administration of this Agreement. Notwithstanding Section 25 herein, the Consultant
agrees to comply with all applicable federal and state assurances and requirements
identified in Exhibit D along with its Appendix A and require that each subcontract include
the same assurances by each of its subcontractors.
12. Nondiscrimination.
To the extent required by controlling federal, state, and local law, the Consultant shall not
employ discriminatory practices in the provision of services, employment of personnel, or
in any other respect on the basis of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject
to the foregoing and during the performance of this Agreement, the Consultant agrees as
follows:
(a) the Consultant will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity made possible by or resulting from this
Agreement.
(b) The Consultant will not discriminate against any employee or
applicant for employment because of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, and 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, and ethnicity, status as a disabled veteran or veteran of the Vietnam
era. Such requirement shall apply to the Consultant's employment practices including,
but not be limited to, the following: employment, upgrading, demotion or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The Consultant
agrees to post in conspicuous places, available to employees and applicants for
employment, notices setting forth the provision of this nondiscrimination clause.
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(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,
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.
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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
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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.
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.
22. 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.
23. Exhibits.
Each exhibit and attachment referenced in this Agreement is, by the reference,
incorporated into and made a part of this Agreement.
24. Precedence of Documents.
In the event of any conflict between the body of this Agreement and any Exhibit or
Attachment hereto, the terms and conditions of the body of this Agreement shall control
and take precedence over the terms and conditions expressed within the Exhibit or
Attachment. Furthermore, any terms or conditions contained within any Exhibit or
Attachment hereto which purport to modify the allocation of risk between the parties,
provided for within the body of this Agreement, shall be null and void.
25. Cumulative Remedies.
No remedy or election hereunder shall be deemed exclusive but shall, wherever possible,
be cumulative with all other remedies at law or in equity.
26. 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.
27. Extent of Agreement.
Each party acknowledges that they have read and fully understand the contents of this
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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.
28. RFQ Document.
Any Request for Qualifications and documents issued therewith (collectively referred to
herein as "RFQ") by the City that resulted in selection of the Consultant for entry into this
Agreement are hereby incorporated into and made a part of this Agreement. In the event
of a conflict between the RFQ and this Agreement (including any Exhibit hereto), this
Agreement (including any Exhibit hereto) shall take precedence.
29. The City Manager, or designee, is hereby authorized and directed to
execute and implement this Agreement. The previous sentence is not intended to
delegate any authority to the City Manager to administer the Agreement, any delegation
of authority must be expressly included in the Agreement.
[SIGNATURES FOLLOW ON THE NEXT PAGE.]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, on the day and year first above written.
CITY OF FRESNO, Mark Thomas & Company, INC.,
A California municipal corporation a California Coorperation
By: By:
Randall Morrison, PE,
Director Name: Zach Sivi lia
Capital Projects Department
Title: President
ATTEST: (If corporation or LLC., Board Chair,
TODD S T ERMER, CIVIC Pr s. or Vice Pres.)
City Cle By:
By. - Name: R. Matt Brogan
Deputy Title: Secretary
(If corporation or LLC., CFO, Treasurer,
No signature of City Attorney required. Secretary or Assistant Secretary)
Standard Document #DPW-S FHWA Eng.
CSA, Long Form Total Fee - Contingency Any Applicable Professional License:
(11-2022) has been used without Number:
modification, as certified by the undersigned. Name:
Date of Issuance:
By:
Melissa Blau
Projects Administrator
RA LD Y:
Melissa Blau, Projects Administrator
Public Works Department
Addresses:
CITY: CONSULTANT:
City of Fresno Mark Thomas
Attention:Melissa Blau, Project Attention: Matt Magaw, PE, Project
Administrator Manager
2600 Fresno St. 7571 N Remington Ave. #102
Fresno, CA 93721 Fresno, CA 93711
Phone: (559) 621-8717 Phone: (916) 847-0061
E-mail: Melissa.Blau@fresno.gov E-mail: mmagaw@markthomas.com
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
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3. Exhibit C - Conflict of Interest Disclosure Form
4. Exhibit D - Federal and State Assurances
5. Appendix A to Exhibit D
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Exhibit A
SCOPE OF SERVICES
Consultant Services Agreement Between City of Fresno ("City")
and Mark Thomas &Company,Inc. ("Consultant")
Engineering Services for the Shields Avenue and Van Ness Boulevard
Section 130 Railroad Grade Crossing Improvements Project at
Shields Avenue and BNSF Railway Tracks—PW00983
PART ONE— PROJECT MANAGEMENT & SCHEMATIC DESIGN
Task 1.1. Project Management
This task includes project management time to manage the scope tasks below. The Consultants' Project Manager
will plan, organize, direct and monitor project work activities and resources in accordance with contracted scope,
schedule, and budget. This task includes performing ongoing general project management with the client,
subconsultants and stakeholders including preparing contract paperwork, monthly status reports, memo's, letters,
and e-mail, making phone calls and maintaining project files.
Task 1.2. Schedule and Monthly Status Reports
This task includes developing a master Critical Path Method (CPM) schedule and maintaining it through the design
process. Input will be collected from PDT meetings and incorporated for the duration of the project. The CPM
schedule will be updated monthly and at major project milestones and will be prepared using Microsoft Project
software.
This task also includes preparing monthly status reports, which will be submitted with invoices.The status report will
outline all activities for which charges have been made by the Consultant or sub-Consultants. The Consultant will
prepare a draft status report and submit it for approval prior to submitting the first invoice.
Task 1.3. Meetings and Coordination
The Consultant will lead Project Development Team (PDT) meetings with subconsultants and City staff to ensure
mutual understanding of the intended purposes, objectives, milestones, and deliverables of the project. Additional
coordination meetings with County, BNSF, Caltrans and stakeholders as needed. Scope includes nine (9) PDT
meetings and one (1) coordination meeting.
Meetings will be held centered on or near key project milestones.The Consultant will lead in conductingthe meetings
including preparation and distribution of the meeting agenda, arrangement of attendance of meeting participants,
and preparation and distribution of meeting minutes, including the recap of actions to be taken prior to the next
meeting. This scope assumes a PDT meeting once per month until the project is completed.
Task 1.4. Quality Control
The Consultant's Quality Control plan consists of established procedures for performing the work, including methods
for design calculations, establishing appropriate levels of design development for intermediate submittals,
identification of regularly scheduled plan reviews, design checklists, and
1 Exhibit A
methods of project documentation.Specific methods for QA/QC will include:
• The Consultant's Quality Assurance Manager will perform an independent review of the project plans,
estimates, and reports at each submittal for consistency, constructability, and accuracy.
• Design Technicians will use a "review stamp" for each round of changes which will track who commented on
the plans, who checked the drafting, and when the final product was reviewed again by the design engineer.
The Consultant will implement and maintain these quality control procedures during the preparation of plans and
documents throughout the project.
Task 1.5. Utility Mapping
Consultant will perform research at the City and State, and utility companies and other agencies to obtain as-builts
and record maps of the project limits. This includes preparation and mailing of the Utility "A" letter upon City
approval. The Consultant will obtain utility mapping from utility companies and develop a utility base map. A Utility
Matrix will be created to track discussions and data received from utility agencies.
Task 1.6. Data Collection
The Consultant will review topographic survey information and right of way retracement provided by the City.The
Consultant will conduct site investigation to determine additional design needs and to coordinate with City for
additional required information needed for the project. This coordination will include providing a survey request
exhibit of the areas needing additional topographical survey.
Task 1.7. 30%Plan/Geometric Approval Drawing& Estimate
The Project Team will prepare two initial concept exhibits for changes to both the north and south Wishon Avenue
intersections with Shields. The City will review and approve one alternative that will be used to develop the 30%
Geometric Approval Drawing (GAD) for the proposed project improvements. The 30% GAD will include the limits
of the sidewalk improvements, median improvements, location of active and passive warning devices, signing,
striping, minimum clearances and include recommendations based on the traffic/pedestrian study.The 30% plans
will be used as the initial submittal to the railroad and the CPUC prior to the field diagnostic meeting.
Task 1.8. Prepare Traffic Impact Analysis
• The Consultant will conduct an evaluation of the existing and planned circulation network to include the study
intersections and roadway segments.
+ Schedule and conduct new traffic counts for the study facilities. Count data will include freight and passenger train
activity. Average time of all train blockages will be measured/provided in the analysis to be factored into queuing
analysis. Furthermore,the Consultant will coordinate with the City of Fresno and Van Ness Boulevard Homeowners
Association to ensure that counts are collected to coincide with a Winter driving event as such is anticipated to result
in higher traffic volumes.
■ As part of the Traffic Impact Analysis,the Consultant will review at a high level the existing pavement delineation and
signage and as appropriate provide recommendations for changes that would improve motorist and pedestrian safety
in the vicinity of the existing BNSF at grade crossing at Shields Avenue.
• Existing roadway conditions,including geometrics and traffic controls,will be verified.
■ Forecast trip distribution will be made based on turn count information and knowledge of the existing and planned
circulation network in the vicinity of the Project.
• The Consultant will evaluate existing and forecast future levels of service (LOS) at the study intersection(s). The
Consultant will use HCM 6th Edition methodologies as appropriate to perform this analysis for the a.m.and p.m.peak
hours.
2 Exhibit A
• Intersection LOS will be prepared in Synchro software.The Consultant will identify the cause(s) of poor level
of service and proposed improvement measures (if any).
Prepare a five-year collision analysis based on the Statewide Integrated Traffic Reporting System (SWITRS)
database for all existing study intersections.
• A Pedestrian/Bike study, including counts/video to include sixteen-hour pedestrian/bicycle counts for seven
consecutive days for each of the two existing conditions study scenarios. These counts will be for the
following locations:
o Pedestrians and Bicycle users eastbound and westbound across the BNSF at grade crossing.
o Pedestrians and bicycle users crossing Shields Avenue near and east of the BNSF at grade crossing.
o Pedestrians and bicycle users crossing Shields Avenue near and west of the BNSF at grade crossing.
The Consultant will forecast and analyze traffic volumes for the following scenarios:
1. Existing Winter Event Traffic Conditions with proposed improvement measures (if any);
2. Existing Winter Event and Wishon Avenue Closed Traffic Conditions with proposed improvement measures
(if any);
3. Existing Post Winter Event Traffic Conditions with proposed improvement measures (if any); and
4. Existing Post Winter Event and Wishon Avenue Closed Traffic Conditions with proposed improvement
measures (if any).
Prior to analyzing/testing any likely improvement measures, The Consultant will first meet with City Traffic
Engineering staff to present the baseline traffic conditions and brainstorm likely improvement measures that should
be considered for analysis.
Peak Hours and Day of Week to be Analyzed:
The Consultant will consult with The City Traffic Engineering staff to determine the best day of week and peak periods
to be analyzed under each of the study scenarios. Our scope of work and fee assume that we will be analyzing up to
two peak periods. Since the peak periods are unknown, the scope of work for the collection of the traffic counts
assumes that we will be collecting count data continuously from 7 am to 9 pm; but only two peak periods will be
analyzed.
Intersections proposed to be analyzed:
1) Shields Avenue/Van Ness Boulevard
2) Shields Avenue/Wishon Avenue
3) Shields Avenue/Maroa Avenue
Note 1:Includes Signal Warrants 1(8-hr),Warrant 2(4hr),Warrant 3(peak hour),and Warrant 7(Collisions)
Queuing analysis is included in the proposed scope of work for the study intersections listed above under all study
scenarios. Average time of all train blockages will be measured/provided in the analysis to be factored into queuing
analysis.This analysis will be utilized to recommend minimum storage lengths for left and right turn lanes at all study
intersections.
Task 1.9. Railroad Coordination
The Consultant will coordinate with BNSF and CPUC for the proposed at-grade crossing modification. This includes
the preparation of materials, agenda, meeting minutes and exhibits for the field diagnostic meeting. Coordination
for the Grade Crossing Construction and Maintenance agreement and the CPUC GO-88B crossing modification
application will be done at a later phase.
3 Exhibit A
Task 1.10. Railroad Pre-emption Timing
The Consultant will prepare the necessary railroad preemption timing reports for the two traffic signals as such will
be needed as part of the GO 88-B application process and the plan review by the BNSF. The railroad preemption
timing reports and the GO 88-B provide critical components that will need to be included along with the signal
designs.
Task 1.11 Preparation of TIA Report
Based on the scope of work described above, a Draft TIA Report will be prepared.The Draft TIA Report will include
tables and graphics summarizing the results and conclusions of the study accompanied by a technical appendix.
Minor comments to the Draft TIA Report can be incorporated prior to the reports being provided to the BNSF,
Amtrack or CPUC.The Draft TIA Report will be revised considering the affected agency's comments from the review
of the Draft TIA Report and a Final TIA Report will be prepared. The Consultant will provide a PDF of the Final TIA
Report to the City.
Task 1.12 ISO Illumination Study
The Consultant will Prepare ISO illumination studies pursuant to the latest edition of the Caltrans Roadway Lighting
Manual.The ISO illumination study will be limited to the areas near the Shields Avenue railroad grade crossing.
PART TWO THROUGH PART FIVE
Contract to be amended to incorporate Parts Two, Three, Four, and Five, for design and construction after Traffic
Impact Analysis improvements have been confirmed.
4 Exhibit A
EXHIBIT B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno
(City) and Mark Thomas & Company, Inc. (Consultant)
Shields Avenue and Van Ness Boulevard
Section 130 Railroad Grade Crossin
Improvements Project
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
the Consultant's profession.
MINIMUM LIMITS OF INSURANCE
The Consultant, or any party the Consultant subcontracts with, shall maintain limits of
liability of not less than those set forth below. However, insurance limits available to the
City, its officers, officials, employees, agents, and volunteers as additional insureds, shall
be the greater of the minimum limits specified herein or the full limit of any insurance
proceeds available to the named insured:
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
DPW-S FHWA Eng.CSA,Long Form Total Fee—Contingency(09-2023)
Exhibit B
Page 24 of 33
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 the Consultant purchases an Umbrella or Excess insurance policy(ies) to
meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and
afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella
or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis
for the benefit of the City, its officers, officials, employees, agents, and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
The Consultant shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and the Consultant shall also be responsible for
payment of any self- insured retentions. Any deductibles or self-insured retentions must
be declared to on the Certificate of Insurance, and approved by, the the City's Risk
Manager or designee. At the option of the City's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the City, its officers, officials, employees,
agents, and volunteers; or
(ii) The Consultant shall provide a financial guarantee, satisfactory to
the City's Risk Manager or designee, guaranteeing payment of
losses and related investigations, claim administration and defense
expenses. At no time shall the City be responsible for the payment
of any deductibles or self- insured retentions.
OTHER INSURANCE PROVISIONSIENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be
endorsed to contain, the following provisions:
1. The City, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. the Consultant shall establish additional
insured status for the City and for all ongoing and completed operations by
use of ISO Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04
13 or by an executed manuscript insurance company endorsement
DPW-S FHWA Eng.CSA,Long Form Total Fee—Contingency(09-2023)
Exhibit B
Page 25 of 33
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 the City, its officers, officials, employees, agents, and
volunteers. Any available insurance proceeds in excess of the specified
minimum limits and coverage shall be available to the Additional Insured.
3. For any claims relating to this Agreement, the Consultant's insurance
coverage shall be primary insurance with respect to the City, its officers,
officials, employees, agents, and volunteers. Any insurance or self-
insurance maintained by the City, its officers, officials, employees, agents,
and volunteers shall be excess of the Consultant's insurance and shall not
contribute with it. the Consultant shall establish primary and non-
contributory status by using ISO Form CG 20 01 04 13 or by an executed
manuscript insurance company endorsement that provides primary and
non-contributory status as broad as that contained in ISO Form CG 20 01
0413.
The Workers' Compensation insurance policy_ is to contain, or be endorsed to contain, the
following provision: the Consultant and its insurer shall waive any right of subrogation
against the City, its officers, officials, employees, agents, and volunteers.
If the Professional 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 the Consultant.
2. Insurance must be maintained, and evidence of insurance must be provided
for at least five years after completion of the Agreement work or termination
of the Agreement, whichever occurs first, or, in the alternative, the policy
shall be endorsed to provide not less than a five-year discovery period.
3. If coverage is canceled or non-renewed, and not replaced with another
claims- made policy form with a retroactive date prior to the effective date
of the Agreement or the commencement of work by the Consultant, the
Consultant must purchase "extended reporting" coverage for a minimum of
five years after completion of the Agreement work or termination of the
Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to the
City for review.
5. These requirements shall survive expiration or termination of the
Agreement.
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty
(30) calendar days written notice by certified mail, return receipt requested, has been
given to the City. The Consultant is also responsible for providing written notice to the
City under the same terms and conditions. Upon issuance by the insurer, broker, or
DPW-S FHWA Eng.CSA, Long Form Total Fee—Contingency(09-2023)
Exhibit B
Page 26 of 33
agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, the
Consultant shall furnish the City with a new certificate and applicable endorsements for
such policy(ies). In the event any policy is due to expire during the work to be performed
for the City, the Consultant shall provide a new certificate, and applicable endorsements,
evidencing renewal of such policy not less than fifteen (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 the Consultant shall not be deemed to release or
diminish the liability of the Consultant, including, without limitation, liability under the
indemnity provisions of this Agreement. The policy limits do not act as a limitation upon
the amount of indemnification to be provided by the Consultant. Approval or purchase of
any insurance contracts or policies shall in no way relieve from liability nor limit the liability
of the Consultant, its principals, officers, agents, employees, persons under the
supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
VERIFICATION OF COVERAGE
The Consultant shall furnish the City with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements
are to be received and approved by the City's Risk Manager or designee prior to the City's
execution of the Agreement and before work commences. All non-ISO endorsements
amending policy coverage shall be executed by a licensed and authorized agent or
broker. Upon request of the City, the Consultant shall immediately furnish City with a
complete copy of any insurance policy required under this Agreement, including all
endorsements, with said copy certified by the underwriter to be a true and correct copy of
the original policy. This requirement shall survive expiration or termination of this
Agreement.
SUBCONTRACTORS - If the Consultant subcontracts any or all of the services to be
performed under this Agreement, the Consultant shall require, at the discretion of the City
Risk Manager or designee, subcontractor(s) to enter into a separate side agreement with
the City to provide required indemnification and insurance protection. Any required side
agreement(s) and associated insurance documents for the subcontractor must be
reviewed and preapproved by the City Risk Manager or designee. If no side agreement
is required, the Consultant shall require and verify that subcontractors maintain insurance
meeting all the requirements stated herein and the Consultant shall ensure that the City,
its officers, officials, employees, agents, and volunteers are additional insureds. The
subcontractors' certificates and endorsements shall be on file with the Consultant, and
the City, prior to commencement of any work by the subcontractor.
DPW-S FHWA Eng.CSA,Long Form Total Fee—Contingency(09-2023)
Exhibit B
Page 27 of 33
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Shields Avenue and Van Ness Boulevard Section 130 Railroad Grade Crossing
Improvements Protect
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 �J U
litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients who do rx
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 I x
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 x
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
I I i & 2�
Date
Zach Siviglia
Name
Mark Thomas & Company Inc.
Company
7571 N. Remington Avenue Suite 102
Address
Fresno, CA 93711
City, State, Zip
❑ Additional page(s) attached.
DPW-S FHWA Eng. CSA,Long Form Total Fee—Contingency(09-2023)
Exhibit C
Page 28 of 33
EXHIBIT D
FEDERAL AND STATE ASSURANCES
Consultant Service Agreement between
City of Fresno (City) and Mark Thomas & Company, Inc. (Consultant)
Shields Avenue and Van Ness Boulevard Section 130 Railroad Grade Crossing-
Improvements Project
1. The Consultant shall comply with and require its Subcontractors to comply with
the following:
a. 23 USC §112 regarding Highways and the letting of contracts to Architects and
Engineers;
b. The provisions of the Fair Employment and Housing Act (Government Code
Section 1290-0 et seq.), and the applicable regulations promulgated thereunder
(California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable
regulations of the Fair Employment and Housing Commission implementing
Government Code Section 12900(a-f), set forth in Chapter of Division 4 of Title
2 of the California Code of Regulations are incorporated into this Agreement by
reference and made a part hereof as if set forth in full. Give a written notice of
their obligations under this clause to any labor organizations with which they
have a collective bargaining or any other agreements as appropriate. INCLUDE
THIS ENTIRE CLAUSE IN ANY AND ALL SUBCONTRACTS.
c. Appendix A attached hereto and incorporated herein.
2. Cost Principles
a. The Consultant agrees that the Contract Cost Principles and Procedures, 48
CFR, Federal Acquisition Regulations System, Chapter 1 Part 31.000 et seq.,
shall be used to determine the allowability of cost for individual items.
b. The Consultant also agrees to comply with federal procedures in accordance
with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments.
c. Any costs for which payment has been made to the Consultant that are
determined by subsequent audit to be unallowable under 48 CFR, Federal
Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to
repayment by the Consultant to the City.
3. Subcontracting
a. The Consultant shall perform the work contemplated with resources available
within its own organization; and no portion of the work pertinent to this
Agreement shall be subcontracted without written authorization by the City's
Contract Manager, except that, which is expressly identified in the approved Cost
Proposal.
b. Any subcontract in excess of$25,000 shall contain ALL the provisions stipulated
in this Agreement to be applicable to subcontractors.
DPW-S FHWA Eng.CSA, Long Form Total Fee—Contingency(11-2022)
Appendix A to Exhibit D
Page 29 of 33
c. Any substitution of subconsultants/subcontractors must be approved in writing
by the City's Contract Manager.
4, Equipment Purchase
a. Prior authorization in writing, by the City's Contract Manager shall be required
before the Consultant enters into any unbudgeted purchase order, or
subcontract exceeding $5,000 for supplies, equipment, or the Consultant
services. The Consultant shall provide a written request which includes an
evaluation of the necessity or desirability of incurring such costs, three
competitive quotations obtained in the manner prescribed in the City's Municipal
Code Section 4-101(d) or 4-102 as applicable or a sole source justification as
provided in the City's Administrative Order No. 3-3.
b. Any equipment purchased as a result of this Agreement is subject to the
following: the Consultant shall maintain an inventory of all nonexpendable
property. Nonexpendable property is defined as having a useful life of at least
two years and an acquisition cost of$5,000 or more. If the purchased equipment
needs replacement and is sold or traded in, the City shall receive a proper refund
or credit at the conclusion of the Agreement, or if the Agreement is terminated,
the Consultant may either keep the equipment and credit the City in an amount
equal to its fair market value, or sell such equipment at the best price obtainable
at a public or private sale, in accordance with established the City procedures;
and credit the City in an amount equal to the sales price. If the Consultant elects
to keep the equipment, fair market value shall be determined at the Consultant's
expense, on the basis of a competent independent appraisal of such equipment.
Appraisals shall be obtained from an appraiser mutually agreeable to the City
and the Consultant, if it is determined to sell the equipment, the terms and
conditions of such sale must be approved in advance by the City. 49 CFR, Part
18 requires a credit to Federal funds when participating equipment with a fair
market value greater than $5,000.00 is credited to the project.
c. The above provisions shall be included in all subcontracts in excess of$25,000.
5. PROHIBITION OF EXPENDING the City STATE OR FEDERAL FUNDS FOR
LOBBYING
This section only applies to contracts where federal funding will exceed$100,000.
A. The Consultant certifies to the best of his or her knowledge and belief that:
1. No state, federal or the City appropriated funds have been paid, or
will be paid by-or-on behalf of the Consultant to any person for influencing or
attempting to influence an officer or employee of any state or federal agency; a
Member of the State Legislature or United States Congress; an officer or
employee of the Legislature or Congress; or any employee of a Member of the
Legislature or Congress, in connection with the awarding of any state or federal
contract; the making of any state or federal grant; the making of any state or
federal loan; the entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any state or federal
contract, grant, loan, or cooperative agreement.
DPW-S FHWA Eng.CSA,Long Form Total Fee—Contingency(11-2022)
Appendix A to Exhibit D
Page 30 of 33
2. If any funds other than federal appropriated funds have been paid, or
will be paid to any person for influencing or attempting to influence an officer or
employee of any federal agency; a Member of Congress; an officer or
employee of Congress, or an employee of a Member of Congress; in
connection with this federal contract, grant, loan, or cooperative agreement;
the Consultant shall complete and submit Standard Form-LLL, "Disclosure
Form to Report Lobbying," in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction
imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the
required certification shall be subject to a civil penalty of not less than $10,000
and not more than $100,000 for each such failure.
C. the Consultant also agrees by signing this document that he or she shall
require that the language of this certification be included in all lower-tier
subcontracts, which exceed $100,000, and that all such sub recipients shall
certify and disclose accordingly.
6. NON-DISCRIMINATION CLAUSE
During the performance of this Agreement, the Consultant and its subcontractors
shall not unlawfully discriminate, harass, or allow harassment against any employee
or applicant for employment because of sex, race, color, ancestry, religious creed,
national origin, physical disability (including HIV and AIDS), mental disability, medical
condition (e.g., cancer), age (over 40), marital status, and denial of family care leave.
The Consultant and subcontractors shall insure that the evaluation and treatment of
their employees and applicants for employment are free from such discrimination and
harassment. the Consultant and subcontractors shall comply with the provisions of
the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the
applicable regulations promulgated thereunder (California Code of Regulations, Title
2, Section 7285 et seq.). The applicable regulations of the Fair Employment and
Housing Commission implementing Government Code Section 12990 (a-f), set forth
in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are
incorporated into this Agreement by reference and made a part hereof as if set forth
in full. The Consultant and its subcontractors shall give written notice of their
obligations under this clause to labor organizations with which they have a collective
bargaining or other Agreement.
The Consultant shall include the nondiscrimination and compliance provisions of this
clause in all subcontracts to perform work under the Agreement.
DPW-S FHWA Eng CSA, Long Form Total Fee—Contingency(11-2022)
Appendix A to Exhibit D
Page 31 of 33
APPENDIX A TO EXHIBIT D
Consultant Service Agreement between
City of Fresno (City) and Mark Thomas & Company, Inc. (Consultant)
Shields Avenue and Van Ness Boulevard
Section 130 Railroad Grade Crossin
Improvements Project
(1) The Consultant shall comply with the regulations relative to nondiscrimination in
federally assisted programs of the Department of Transportation, Title 49, Code of
Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter
referred to as the REGULATIONS), which are herein incorporated by reference and made
a part of this Agreement.
(2) The Consultant, with regard to the work performed by it during the Agreement, shall
not discriminate on the grounds of race, color, sex, national origin, religion, age, or
disability in the selection and retention of sub-applicants, including procurements of
materials and leases of equipment. The Consultant shall not participate either directly or
indirectly in the discrimination prohibited by Section 21.5 of the REGULATIONS, including
employment practices when the Agreement covers a program set forth in Appendix B of
the REGULATIONS.
(3) In all solicitations either by competitive bidding or negotiation made by the
Consultant for work to be performed under a Sub-agreement, including procurements of
materials or leases of equipment, each potential sub-applicant or supplier shall be notified
by the Consultant of the Consultant's obligations under this Agreement and the
REGULATIONS relative to nondiscrimination on the grounds of race, color, or national
origin.
(4) The Consultant shall provide all information and reports required by the
REGULATIONS, or directives issued pursuant thereto, and shall permit access to the
Consultant's books, records, accounts, other sources of information, and its facilities as
may be determined by STATE or Federal Highway Administration (FHWA) to be pertinent
to ascertain compliance with such REGULATIONS or directives. Where any information
required of the Consultant is in the exclusive possession of another who fails or refuses
to furnish this information, the Consultant shall so certify to the State of California (STATE)
or the FHWA as appropriate and shall set forth what efforts the Consultant has made to
obtain the information.
(5) In the event of the Consultant's noncompliance with the nondiscrimination
provisions of this Agreement, STATE shall impose such agreement sanctions as it or the
FHWA may determine to be appropriate, including, but not limited to:
(a)withholding of payments to the City under the Agreement within a
reasonable period of time, not to exceed 90 days; and/or
(b)cancellation, termination, or suspension of the Agreement, in whole or in part.
(6) The Consultant shall include the provisions of paragraphs (1) through (6) in every
sub- agreement, including procurements of materials and leases of equipment, unless
exempt by the REGULATIONS, or directives issued pursuant thereto. the Consultant
DPW-S FHWA Eng.CSA,Long Form Total Fee—Contingency(11-2022)
Appendix A to Exhibit D
Page 32 of 33
shall take such action with respect to any sub-agreement or procurement as STATE or
FHWA may direct as a means of enforcing such provisions including sanctions for
noncompliance, provided, however, that, in the event the Consultant becomes involved
in, or is threatened with, litigation with a sub- applicant or supplier as a result of such
direction, the Consultant may request STATE enter into such litigation to protect the
interests of STATE, and, in addition, the Consultant may request the United States to
enter into such litigation to protect the interests of the United States.
(7) the Consultant shall execute the following CERTIFICATION OF CONSULTANT,
COMMISSIONS & FEES
HEREBY CERTIFY that I am Zach Sivigiia, President and duly
authorized representative of the firm of Mark Thomas &company, Inc.
whose address is 7571 N. Remington Ave. Suite 102,Fresno, CA 93711 , and that, except as
hereby expressly stated, neither I nor the above firm that I represent have:
(a) employed or retained for a commission, percentage, brokerage, contingent fee, or
other consideration, any firm or person (other than a bona fide employee working
solely for me or the above the Consultant) to solicit or secure this Agreement; nor
(b) agreed, as an express or implied condition for obtaining this Agreement, to employ
or retain the services of any firm or person in connection with carrying out the
Agreement; nor
(c) paid, or agreed to pay, to any firm, organization, or person (other than a bona fide
employee working solely for me or the above the Consultant) any fee, contribution,
donation, or consideration of any kind, for or in connection with, procuring or carrying
out this Agreement.
acknowledge that this Certificate is to be made available to the California Department
of Transportation (Caltrans) in connection with this Agreement involving
participation of Federal-aid Highway funds, and is subject to applicable state and
federal laws, both criminal and civil.
(Date) Cr 2 (Signature)
DPW-S FHWA Eng.CSA, Long Form Total Fee—Contingency(11-2022)
Appendix A to Exhibit D
Page 33 of 33