HomeMy WebLinkAboutQuad Knopf, Inc - Consultant Agreement - 06.23.23AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT (Agreement) is made and entered into, effective
,.. , by and between the CITY OF FRESNO, a California
municipal corporation (City), and Quad Knopf, Inc., a California Corporation (Consultant).
RECITALS
WHEREAS, the City desires to obtain professional architectural and engineering
services for the design of plans and general construction contract documents for Vinland
Park Futsal and Pickleball Courts (Project); and
WHEREAS, the Consultant is engaged in the business of furnishing services as a
a licensed architect and 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.
(2) The Consultant shall conduct studies and investigations as
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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 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 Six Hundred Fifty Thousand Dollars ($650,000.00),
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 One Hundred Thity Five (135) 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 twenty one (21) 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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(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.Services shall be undertaken
and completed in a sequence assuring expeditious completion. All services shall
be rendered, and deliverables submitted within Zero (0) 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 Zero (0) calendar days
from receipt of the City's comments unless an extension of time is approved in
writing by the Director.
(c) Part Three. Construction Document Phase. After review and
acceptance of the design development phase and issuance of a written Notice to Proceed
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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 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 two (2) sets of
completed plans and two (2) 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- DWG.
(6) The Consultant shall submit a final estimate of construction
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
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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 seventy-five (75) 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 twenty-one (21) 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 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%.
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(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
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
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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 twenty-eight (28) 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 twenty (20) 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: DWG.
2. The Citv'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
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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.
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
Hundered Eighteen Thousand Six Hunded Fifty Dollars (118,650.00), and a contingency
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amount not to exceed Ten Thousand Dollars ($10,000.00) 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 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 — Fifty Five (54%), Part 2 — Zero (00%)],
Part 3 — Thirty Six (36%)], Part 4 - Three (4%)] and Part 5 - Six (6%)]. 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 Disputes.
(a) This Agreement shall terminate without any liability of the City to the
Consultant upon the earlier of: (i) the Consultant's filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third
party against the Consultant; (ii) seven calendar days prior written notice with or without
cause by the City to the Consultant; (iii) the City's non -appropriation of funds sufficient to
meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient
funding for the Project; or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
the Consultant shall: (i) immediately stop all work hereunder; (ii) immediately cause any
and all of its subcontractors to cease work; and (iii) return to the City any and all unearned
payments and all properties and materials in the possession of the Consultant that are
owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid
compensation for services satisfactorily performed prior to the effective date of
termination. The Consultant shall not be paid for any work or services performed or costs
incurred which reasonably could have been avoided.
(c) In the event of termination due to failure of the Consultant to
satisfactorily perform in accordance with the terms of this Agreement, the City may
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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.
5. Confidential Information Ownership of Documents and C❑ ri ht License.
(a) Any reports, information, or other data prepared or assembled by the
Consultant pursuant to this Agreement shall not be made available to any individual or
organization by the Consultant without the prior written approval of the City. During the
term of this Agreement, and thereafter, the Consultant shall not, without the prior written
consent of the City, disclose to anyone any Confidential Information. The term
Confidential Information for the purposes of this Agreement shall include all proprietary
and confidential information of the City, including but not limited to business plans,
marketing plans, financial information, designs, drawings, specifications, materials,
compilations, documents, instruments, models, source or object codes and other
information disclosed or submitted, orally, in writing, or by any other medium or media.
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All Confidential Information shall be and remain confidential and proprietary in the City.
(b) Any and all original sketches, pencil tracings of working drawings,
plans, computations, specifications, computer disk files, writings and other documents
prepared or provided by the Consultant pursuant to this Agreement are the property of
the City at the time of preparation and shall be turned over to the City upon expiration or
termination of the Agreement or default by the Consultant. The Consultant grants the
City a copyright license to use such drawings and writings. The Consultant shall not
permit the reproduction or use thereof by any other person except as otherwise expressly
provided herein. The City may modify the design including any drawings or writings. Any
use by the City of the aforesaid sketches, tracings, plans, computations, specifications,
computer disk files, writings, and other documents in completed form as to other projects
or extensions of this Project, or in uncompleted form, without specific written verification
by the Consultant will be at the City's sole risk and without liability or legal exposure to
the Consultant. The Consultant may keep a copy of all drawings and specifications for
its sole and exclusive use.
(c) If the Consultant should subcontract all or any portion of the services
to be performed under this Agreement, the Consultant shall cause each subcontractor to
also comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this
Agreement.
6. Professional Skill.
It is further mutually understood and agreed by and between the parties hereto that
inasmuch as the Consultant represents to the City that the Consultant and its
subcontractors, if any, are skilled in the profession and shall perform in accordance with
the standards of said profession necessary to perform the 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
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Page 11 of 30
harmless and defend the City and each of its officers, officials, employees, agents, and
volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. Insurance.
(a) Throughout the life of this Agreement, the Consultant shall pay for
and maintain in full force and effect all insurance as required in Exhibit B, which is
incorporated into and part of this Agreement, with an insurance company(ies) either (i)
admitted by the California Insurance Commissioner to do business in the State of
California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as
may be authorized in writing by the City's Risk Manager or designee at any time and in
its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain
limits of liability of not less than those amounts stated therein. However, the insurance
limits available to the City, its officers, officials, employees, agents, and volunteers as
additional insureds, shall be the greater of the minimum limits specified therein or the full
limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, the
Consultant or any of its subcontractors/sub-consultants fail to maintain any required
insurance in full force and effect, all services and work under this Agreement shall be
discontinued immediately, and all payments due or that become due to the Consultant
shall be withheld until notice is received by the City that the required insurance has been
restored to full force and effect and that the premiums therefore have been paid for a
period satisfactory to the City. Any failure to maintain the required insurance shall be
sufficient cause for the City to terminate this Agreement. No action taken by the City
pursuant to this section shall in any way relieve the Consultant of its responsibilities under
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
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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, California Government Code Section 1090
et. Seq., the California Political Reform Act (California Government Code Section 87100
et. Seq.), the regulations of the Fair Political Practices Commission concerning disclosure
and disqualification (2 California Code of Regulations Section 18700 et. Seq.) and Section
4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written
request of the City, the Consultant shall provide a written opinion of its legal counsel and
that of any subcontractor that, after a due diligent inquiry, the Consultant and the
respective subcontractor(s) are in full compliance with all laws and regulations. The
Consultant shall take, and require its subcontractors to take, reasonable steps to avoid
any appearance of a conflict of interest. Upon discovery of any facts giving rise to the
appearance of a conflict of interest, the Consultant shall immediately notify the City of
these facts in writing.
(c) In performing the work or services to be provided hereunder, the
Consultant shall not employ or retain the services of any person while such person either
is employed by the City or is a member of any the City council, commission, board,
committee, or similar City body. This requirement may be waived in writing by the City
Manager, if no actual or potential conflict is involved.
(d) The Consultant represents and warrants that it has not paid or
agreed to pay any compensation, contingent or otherwise, direct, or indirect, to solicit or
procure this Agreement or any rights/benefits hereunder.
(e) Neither the Consultant, nor any of the Consultant's subcontractors
performing any services on this Project, shall bid for, assist anyone in the preparation of
a bid for, or perform any services pursuant to, any other contract in connection with this
Project. the Consultant and any of its subcontractors shall have no interest, direct or
indirect, in any other contract with a third party in connection with this Project unless such
interest is in accordance with all applicable law and fully disclosed to and approved by
the City Manager, in advance and in writing.
(f) If the Consultant should subcontract all or any portion of the work to
be performed or services to be provided under this Agreement, the Consultant shall
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include the provisions of this Section 9 in each subcontract and require its subcontractors
to comply therewith.
(g) This Section 9 shall survive expiration or termination of this
Agreement.
10. RecyclingProgram.
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 al
(559) 621-1452 and schedule a free waste audit and cooperate with such Division
in their conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of the City's Solid
Waste Management Division the establishment of the recycling program in paragraph
(a) above and the ongoing maintenance thereof.
11. General Terms.
(a) Except as otherwise provided by law, all notices expressly required
of the City within the body of this Agreement, and not otherwise specifically provided for,
shall be effective only if signed by the Director or designee.
(b) Records of the Consultant's expenses pertaining to the Project shall
be kept on a generally recognized accounting basis and shall be available to the City or
its authorized representatives upon request during regular business hours throughout the
life of this Agreement and for a period of three years after final payment or, if longer, for
any period required by law. In addition, all books, documents, papers, and records of the
Consultant pertaining to the Project shall be available for the purpose of making audits,
examinations, excerpts, and transcriptions for the same period of time. If any litigation,
claim, negotiations, audit, or other action is commenced before the expiration of said time
period, all records shall be retained and made available to the City until such action is
resolved, or until the end of said time period whichever shall later occur. If the Consultant
should subcontract all or any portion of the services to be performed under this
Agreement, the Consultant shall cause each subcontractor to also comply with the
requirements of this paragraph. This Section 11(b) shall survive expiration or termination
of this Agreement.
(c) Prior to execution of this Agreement by the City, the Consultant shall
have provided evidence to the City that the Consultant is licensed to perform the services
called for by this Agreement (or that no license is required). If the Consultant should
subcontract all or any portion of the work or services to be performed under this
Agreement, the Consultant shall require each subcontractor to provide evidence to the
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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 Ernie Escobedo, Branch Manager, and he/she shall not
assign another to supervise the Consultant's performance of this Agreement without the
prior written approval of the Director.
12. Nondiscrimination.
To the extent required by controlling federal, state, and local law, the Consultant shall not
employ discriminatory practices in the provision of services, employment of personnel, or
in any other respect on the basis of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject
to the foregoing and during the performance of this Agreement, the Consultant agrees as
follows:
(a) The Consultant will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity made possible by or resulting from this
Agreement.
(b) The Consultant will not discriminate against any employee or
applicant for employment because of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The
Consultant shall ensure that applicants are employed, and the employees are treated
during employment, without regard to their race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
Such requirement shall apply to the Consultant's employment practices including, but not
be limited to, the following: employment, upgrading, demotion or transfer, recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of compensation;
and selection for training, including apprenticeship. the Consultant agrees to post in
conspicuous places, available to employees and applicants for employment, notices
setting forth the provision of this nondiscrimination clause.
(c) The Consultant will, in all solicitations or advertisements for
employees placed by or on behalf of the Consultant in pursuit hereof, state that all
qualified applicants will receive consideration for employment without regard to race,
religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a
disabled veteran or veteran of the Vietnam era.
(d) The Consultant will send to each labor union or representative of
workers with which it has a collective bargaining agreement or other contract or
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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.
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
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manner above described shall be deemed sufficiently served or given at the time of the
mailing thereof.
15. Bmdin .
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. Assi n�.
(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. Governinq Law and Venue.
This Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of California, excluding, however, any conflict of laws rule which
would apply the law of another jurisdiction. Venue for purposes of the filing of any action
regarding the enforcement or interpretation of this Agreement and any rights and duties
hereunder shall be Fresno County, California.
20. Headings.
The section headings in this Agreement are for convenience and reference only and shall
not be construed or held in any way to explain, modify, or add to the interpretation or
meaning of the provisions of this Agreement.
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21. Severability.
The provisions of this Agreement are severable. The invalidity, or unenforceability of any
one provision in this Agreement shall not affect the other provisions.
22. Interpretation.
The parties acknowledge that this Agreement in its final form is the result of the combined
efforts of the parties and that, should any provision of this Agreement be found to be
ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement
in favor of or against either party, but rather by construing the terms in accordance with
their generally accepted meaning.
23. Attorne 's Fees.
If either party is required to commence any proceeding or legal action to enforce or
interpret any term, covenant or condition of this Agreement, the prevailing party in such
proceeding or action shall be entitled to recover from the other party its reasonable
attorney's fees and legal expenses.
24. Exhibits.
Each exhibit and attachment referenced in this Agreement is, by the reference,
incorporated into and made a part of this Agreement.
25. Precedence of Documents.
In the event of any conflict between the body of this Agreement and any exhibit or
attachment hereto, the terms and conditions of the body of this Agreement shall control
and take precedence over the terms and conditions expressed within the exhibit or
attachment. Furthermore, any terms or conditions contained within any exhibit or
attachment hereto which purport to modify the allocation of risk between the parties,
provided for within the body of this Agreement, shall be null and void.
26. Cumulative Remedies.
No remedy or election hereunder shall be deemed exclusive but shall, wherever possible,
be cumulative with all other remedies at law or in equity.
27. No Third -Party Beneficiaries.
The rights, interests, duties, and obligations defined within this Agreement are intended
for the specific parties hereto as identified in the preamble of this Agreement.
Notwithstanding anything stated to the contrary in this Agreement, it is not intended that
any rights or interests in this Agreement benefit or flow to the interest of any third parties.
28. Extent of Agreement.
Each party acknowledges that they have read and fully understand the contents of this
Agreement. This Agreement represents the entire and integrated agreement between
the parties with respect to the subject matter hereof and supersedes all prior negotiations,
representations, or agreements, either written or oral. This Agreement may be modified
only by written instrument duly authorized and executed by both the City and the
Consultant.
29. The City Manager, or designee, is hereby authorized and directed to
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Page 18 of 30
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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Page 19 of 30
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, on the day and year first above written.
CITY OF FRESNO,
A California municipal corporation
RANDALL W. MORRISON, PE,
Assistant Director
Public Works Department
ATTEST.-
TODD STERMER, CMC
City Clerk
By- is
Deputy
No signature of City Attorney required.
Standard Document #DPW-S Eng. CSA,
Long Form Total Fee — Contingency (11-
2022) has been used without modification, as
certified by the undersigned.
HARLAVPREB
Harlavpreet S. Brar
Professional Engineer
REVIEWED BY:
FRANC ISM
Francisco V. Magos, PE, MBA, QSD
Public Works Department
Addresses-
CITY -
City of Fresno
Attention: Hadavpreet S. Brar, Professional
Engineer
2600 Fresno Street, Room 4016
Fresno, CA 93721-3620
Phone: (559) 621-8616
E-mail: Harlavpreet.Brar@fresno.gov
Quad Knopf, Inc.,
a California Corporation
r
By.
Name: Ron Wathen, PE #58690
Title: President
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
'
By: � L L `f S41, L ec G
Name: Amber Aguavo
Title: CFO/COO
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
Any Applicable Professional License:
Number: PE #58690
Name- Ronald J. Wathen. PE
Date of Issuance- July 31, 1998
CONSULTANT:
Quad Knopf, Inc.
Attention: Ernie Escobedo, Branch
Manager
601 Pollasky Avenue, Suite 301
Clovis, CA 93612
Phone: (559) 449-2400
E-mail: Ernie.Escobedo@gkinc.com
DPW-S Eng CSA, Long Form Total Fee — Contingency (11-2022)
Exhibit A
Page 20 of 30