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HomeMy WebLinkAboutAgreement A-16-176 with Electrical Power Systems Inc. Electrical.pdf Agreement No. 16-176 ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 THIS AGREEMENT is made and entered into this 26th day of April , 2016, 2 between the County of Fresno, a political subdivision of the State of California, (hereinafter 3 called "COUNTY"), and Electrical Power Systems, Inc., a California corporation, located at 4 4049 North Fresno Street, Fresno, CA 93726-4004 (hereinafter called "CONSULTANT"). 5 WITNESSETH : 6 WHEREAS, the COUNTY desires to retain a CONSULTANT Electrical Engineer to 7 assist the COUNTY Capital Projects Division Manager or his/her designated Project Manager g in completing various projects and advanced planning for future projects in the COUNTY's 9 Capital Improvement Programs and other COUNTY projects; and 10 WHEREAS, consistent with COUNTY Ordinance Code Chapter 4.10 and the Board of 11 Supervisors' adopted Policy governing the selection of architects, engineers, and other 12 professionals, a selection committee selected said CONSULTANT to provide the COUNTY 13 with Electrical Engineering services for said projects; and 14 WHEREAS, the COUNTY Capital Projects Division Manager or his/her designated 15 Project Manager shall administer this Agreement; and 16 WHEREAS, the professional Electrical Engineering services of the CONSULTANT 17 may be utilized by the Department of Public Works and Planning and other COUNTY 18 Departments; and 19 WHEREAS, staffing levels of COUNTY personnel may not be sufficient to perform 20 Electrical Engineering services for all projects, and 21 WHEREAS, said CONSULTANT represents that it is qualified and willing to perform 22 Electrical Engineering services. 23 NOW, THEREFORE,the parties hereto have and by these presents do agree as follows: 24 I. CONTRACTING OF CONSULTANT: BASIC PARAMETERS 25 A. The COUNTY hereby contracts with the CONSULTANT as an independent 26 contractor to provide Electrical Engineering services as described in Article II and enumerated 27 in Article III herein. 28 B. The CONSULTANT's services shall be performed as expeditiously as is Page 1 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 consistent with professional skill and the orderly progress of the work, based on project 2 schedules prepared by the COUNTY Capital Projects Division Manager or his/her designated 3 Project Manager. 4 C. The CONSULTANT shall notify the COUNTY of the names and classifications 5 of employees assigned to a project, and shall not change such assignments without prior 6 notification to and approval by COUNTY. 7 D. If requested by the COUNTY, the CONSULTANT shall retain qualified 8 subconsultant(s) to assist in completing the work. All subconsultants used by the 9 CONSULTANT shall be approved by the COUNTY before they are retained by the 10 CONSULTANT, which approval shall not be unreasonably withheld. Should CONSULTANT 11 retain subconsultants, the maximum Total Fee compensation that may be paid to 12 CONSULTANT hereunder, as specified in Article V below, shall not be increased. 13 E. The CONSULTANT shall not submit bids, or sub-bids, for the contract 14 construction phase of any project for which CONSULTANT provides services hereunder. The 15 CONSULTANT, and all other service providers, shall not provide any project related services 16 for, or receive any project related compensation from any construction contractor, subcontractor 17 or service provider awarded a construction contract for all or any portion of any project for 18 which CONSULTANT provides services hereunder. The CONSULTANT, and all other service 19 providers, may provide services for, and receive compensation from a construction contractor, 20 subcontractor or service provider who has been awarded a construction contract for all or any 21 portion of such a project, provided that such services are provided for, and compensation 22 received for,work outside the scope of this Agreement. 23 The contact person(s) for the CONSULTANT shall be: 24 Name: Joseph P. Prevendar, PE Position President 25 Telephone: (559) 221-7230 Fax: (559,) 221-0507 26 E-Mail: joegepsfresno.com 27 II. DESCRIPTION OF THE WORK COVERED BY THIS AGREEMENT: 28 A. The work covered by this Agreement is for all or a portion of the services Page 2 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 enumerated under Article III for various projects on an as needed basis. The CONSULTANT 2 agrees to provide the professional services that are necessary for each project when expressly 3 authorized in writing by the Capital Projects Division Manager or his/her designated Project 4 Manager. Such work by CONSULTANT shall not begin until CONSULTANT has received a 5 written Notice to Proceed from COUNTY authorizing the necessary project services, the agreed 6 upon not-to-exceed fee for the project in accordance with the approved hourly fee schedule 7 (Exhibit A, attached) and scope of work. All submittals of documents associated with the 8 project by the CONSULTANT will be made in both hard copy and electronic format. 9 B. Throughout the term of this Agreement, the CONSULTANT shall collaborate and 10 partner with the COUNTY and other Project participants in the interest of maintaining the 11 Project budget and schedule and minimizing claims. Partnering may be instituted during design 12 and/or during construction phases. The scope of the project will determine the level of 13 partnering to be implemented. Sessions shall be attended by all associated project and executive 14 level staff requested by COUNTY, at no additional cost to COUNTY. All sessions are to be 15 conducted at the Fresno County Plaza Building, 2220 Tulare Street, Fresno, California 93721, 16 although the location of any session(s) is subject to change upon notice by COUNTY. 17 III. CONSULTANT'S SERVICES: 18 A. Phase 1, Preliminary Design: 19 The CONSULTANT shall for each project: 20 1. Ascertain the requirements through a meeting with the Capital Projects Division 21 Manager or his/her designated representative and a review of an existing schematic layout of 22 each project if such layout is available. 23 2. Confirm existing building systems, including electrical, mechanical, plumbing, 24 communications, telephones, and computers through visual observations, review of record 25 documents, and discussions with the COUNTY Internal Services Department Building 26 Maintenance Superintendent as appropriate for each specific project. CONSULTANT shall not 27 be responsible for unknown conditions that could not be reasonably identified through the 28 methods described herein. (COUNTY's floor plans provided to CONSULTANT may not show Page 3 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 all of the exact wall locations and functions indicated on those plans.) 2 3. Meet with COUNTY staff every two (2) weeks or more often if necessary to 3 review the progress of the project. CONSULTANT shall prepare brief minutes of meetings 4 conducted. The minutes, including any direction provided by the COUNTY, shall be provided 5 at least four(4) days in advance of the next progress meeting. Meet with the Board of State and 6 Community Corrections (BSCC), California State Fire Marshal (CSFM), and/or local or other 7 jurisdictional building officials as appropriate for the specific project, to review applicable 8 building, seismic, and health codes and to confirm compliance with all code requirements 9 applicable to the project. 10 4. The Consultant shall conform with accessibility requirements under the 11 California Building Code and the Americans with Disabilities Act (ADA). Specific tasks may 12 include evaluation of existing facilities; preparation of ADA transition plans; design for the 13 remodel of and/or addition to existing facilities; or the design of new facilities. 14 5. Design the project to conform with the requirements of the Office of Statewide 15 Health Planning and Development (OSHPD), California State Fire Marshal (CSFM) and 16 California Board of State and Community Corrections (BSCC) and/or other jurisdictional 17 building officials, as applicable to a specific project, and the requirements of applicable 18 building, seismic, and health codes applicable to all projects. 19 6. Prepare and submit an opinion of probable construction cost identifying 20 significant area and system components of the project. The opinion of probable construction 21 cost shall be submitted in the Construction Specifications Institute (CSI) MasterFormat and 22 shall identify design contingency and escalation amounts to the mid-point of the proposed 23 construction period. 24 7. Monitor and keep COUNTY informed regarding the impact of design issues on 25 the project budget. Upon the request of the COUNTY, CONSULTANT shall incorporate into 26 the design such reasonable changes as the COUNTY deems appropriate, as a result of the 27 COUNTY's review process and impact on the budget or opinion of probable construction cost. 28 If CONSULTANT disagrees with the COUNTY's request, such disagreement must be Page 4 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 registered in writing and the COUNTY will attempt to reconcile such disagreement. If it is 2 impossible to make a reconciliation,the written disagreement will become a part of the project's 3 record. However, CONSULTANT shall then comply with the COUNTY's request. 4 8. The opinion of probable construction cost shall be projected to the midpoint of 5 the probable construction period and include material and labor unit costs, overhead, profit, 6 insurance, taxes, general requirements, supervision, and difficulty factors, and be submitted in 7 the CSI MasterFormat. 8 9. The opinion of probable construction cost shall identify escalation and design 9 contingency amounts, which must be approved by the COUNTY. 10 B. Phase 2 Construction Documents: 11 The CONSULTANT shall: 12 1. Prepare the final working drawings from the design development drawings 13 (preliminary design), as modified by the COUNTY, on 24" by 36" sheets or larger and technical 14 specifications on 8-1/2" by 11" pages setting forth in detail the work to be done, the materials, 15 workmanship, finishes, and equipment required for the architectural, structural, mechanical, 16 electrical, communications, and other components of construction necessary to provide the 17 COUNTY a complete and functional project for its intended purpose within the requirements of 18 this Agreement. 19 2. Monitor and keep COUNTY informed regarding the impact of design issues on 20 the project budget. Upon the request of the COUNTY, CONSULTANT shall incorporate into 21 the design such reasonable changes, as the COUNTY deems appropriate as a result of the 22 COUNTY's review processes and impact on the project budget or opinion of probable 23 construction cost. 24 3. Review, comment, and/or make recommendations on the form and content of the 25 COUNTY's General Conditions, Special Conditions, and Bid Form as they apply towards this 26 project. 27 4. In addition to the technical specifications, prepare special or supplemental 28 conditions for the construction contract documents. The COUNTY will package the Page 5 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 CONSULTANT's documents with the COUNTY's approved General Conditions, Notice to 2 Contractors calling for bids, the Bid Form, and related documents to complete the construction 3 contract and bid specifications. Specifications for asbestos abatement, if required for a specific 4 project, will be incorporated by the COUNTY into the bid package. 5 5. Include alternate bid items (preferably additive), not as separate design drawings 6 but incorporated into the original construction drawings, to allow construction element choices 7 or cost options by the COUNTY. The basis of award may be on the base bid only, or base bid 8 plus additive alternatives. Additive bid items may be necessary so that the COUNTY will be 9 able to award a construction contract not exceeding available construction funds. 10 6. Submit to the COUNTY the projected and final construction opinion of probable 11 construction cost organized in the CSI MasterFormat for the base bid work and alternate bid 12 items. The opinion of probable construction cost shall be projected to the midpoint of the 13 scheduled construction period to be scheduled by the COUNTY. Differences between the 14 design development (preliminary) and final opinion of probable construction cost shall be 15 explained in writing. 16 7. Verify the reasonableness of the estimated construction period for construction 17 contract bidding purposes as provided by the COUNTY and identify long delivery items of 18 materials and equipment which will impact the length of the construction contract. 19 8. If required for the construction of a specific project, propose and submit a 20 recommended testing and inspection list for materials identifying type, quantity, frequency, 21 schedule, and cost estimate of tests to be performed by an independent testing firm during 22 construction. 23 9. Submit progress originals and final originals of the plans, specifications, 24 calculations and opinion of probable construction cost for reproduction by the COUNTY seven 25 (7) days in advance of the final design presentation. 26 10. If required, submit additional copies of the completed plans, calculations, and 27 specifications to the COUNTY for transmittal to California State Fire Marshal (CSFM), Board 28 of State and Community Corrections (BSCC) and applicable plan check agencies for building, Page 6 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 seismic, and health code compliance, accessibility and approval as applicable for each project. 2 11. For projects requiring building permits to be issued by the County of Fresno 3 Development Services Division, submit three (3) sets of the completed plans and calculations 4 for plan check. The CONSULTANT shall be responsible for supplying all supporting 5 documentation required to obtain all permits as directed by Fresno County Development 6 Services. It is the intent that the CONSULTANT shall be responsible to provide and process all 7 drawings and data required to issue permits and approvals by Federal, State, County, City 8 and/or any other Government or Utility Company approvals. Review and/or permit fees shall 9 be reimbursed to the CONSULTANT on a dollar for dollar basis with no mark-up. Fresno 10 County Development Services fees, Division of State Architect fees and Pacific Gas and 11 Electric fees shall be paid for directly by the COUNTY. 12 12. If required by approval agencies, such as the CSFM, for the construction of each 13 project, submit to the COUNTY using the appropriate agency forms, project background 14 information and recommended testing and inspection list for materials to be used for each 15 project, identifying type, quantity, frequency, and schedule. 16 13. Modify plans as required to obtain plan check approval. 17 C. Phase 3, Bidding and Award: 18 The CONSULTANT shall: 19 1. Deliver to the COUNTY, two (2) weeks prior to the bid advertising date (which 20 will be determined by COUNTY), the final completed original drawings and specifications for 21 COUNTY printing and distribution of bid sets to interested contractors. The original drawings 22 and specification index sheet shall be stamped by a seal with CONSULTANT and subconsultant 23 license numbers and/or signed in accordance with the California Business and Professions 24 Code. 25 2. Submit a list of general and specialty contractors who may be interested in 26 bidding on this project. 27 3. Attend the pre-bid conference scheduled by the COUNTY. 28 4. Submit to the COUNTY for review and approval any addenda deemed Page 7 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 necessary. Addenda, if any, shall be submitted no later than seven (7) working days prior to the 2 scheduled bid opening. 3 5. Assist the COUNTY in evaluating the base bids and alternate bid items received. 4 6. Delete or otherwise change portions of the proposed construction work at the 5 request of the County if the lowest bid proposal for the construction contract exceeds the 6 COUNTY approved opinion of probable construction cost (which will include the 7 CONSULTANT's design contingency amount approved by the COUNTY) by 10% or more, 8 and if the COUNTY rejects all bids. The CONSULTANT shall revise the plans and 9 specifications to comply with such modifications and shall assist the COUNTY in obtaining 10 new proposals from contractors at no additional cost to the COUNTY. Modifications shall be 11 completed on a time schedule commensurate with the scope of the change and as set forth by 12 the COUNTY. 13 D. Phase 4 Construction Observation: 14 The CONSULTANT shall: 15 1. Attend the preconstruction conference scheduled by the COUNTY. 16 2. Provide construction observation including but not limited to: 17 a. Making recommendations to the COUNTY on all claims of the COUNTY or 18 construction contractor (hereinafter called "CONTRACTOR") and all other matters relating-to 19 the execution and progress of work, including interpretation of the CONSULTANT's contract 20 documents. 21 b. Except for color boards, within seven (7) working days of COUNTY's request, 22 reviewing and making recommendations for samples, schedules, shop drawings, and other 23 submissions for general conformance with the design concept of the project and for general 24 compliance with the plans and specifications and information provided by the 25 CONSULTANT's contract documents. 26 c. Within two (2) working days of COUNTY's request for information (RFI), 27 responding to the COUNTY Construction Engineer or CONTRACTOR, through the COUNTY 28 Construction Engineer with information and/or drawings needed from CONSULTANT in order Page 8 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 to clarify the intent of the construction contract plans and specifications of the project. 2 CONSULTANT shall review CONTRACTOR's cost proposals for all change orders associated 3 with any additional work as may be necessary by the RFI clarification. 4 d. Recommending and assisting in the preparation of necessary change orders, with 5 supporting documentation, calculations and opinion of probable construction cost, for review 6 and issuance of change orders by the COUNTY Construction Engineer to obtain appropriate 7 agency acceptance and approval. 8 (1) Drawings and work necessary to delineate the COUNTY's changes to the 9 construction contract or to make modifications as directed by the Board of Supervisors, which 10 shall be made as directed by the Construction Engineer. 11 (2) Notwithstanding the foregoing, where the change order arises as a result of an 12 error or omission of the CONSULTANT, the CONSULTANT shall not be compensated for 13 time spent or cost incurred in efforts connected with the correction thereof. In such event, the 14 costs incurred by COUNTY for rework of installed work shall be assessed upon the 15 CONSULTANT's contract payments. 16 (3) Assist COUNTY, at COUNTY's express, written authorization, with any claim 17 resolution process involving CONTRACTOR and COUNTY as specified hereunder, including 18 serving as a witness in connection with any public hearings or legal proceeding, including 19 dispute resolutions required by law. The parties recognize that this clause is provided as a 20 means of expediting resolution of claims among the CONTRACTOR, COUNTY and 21 CONSULTANT. However, it is understood the CONTRACTOR is not an intended third party 22 beneficiary of this clause. Compensation for these services under this subparagraph 23 III.E.2.d.(3), shall be provided under Article V.0 of this Agreement, subject to the following: 24 (a) COUNTY may believe that CONSULTANT's work under this Agreement is 25 connected with errors, or omissions, or problems related to a claim. As a result and upon notice 26 of same by COUNTY, CONSULTANT's payment request for such services shall be held in 27 suspense by COUNTY until final determination in accordance with Article IX, "Errors or 28 Omission Claims and Disputes" of this Agreement, or by a court of law of the proportion that Page 9 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 CONSULTANT's fault bears to the fault of all parties concerned. 2 (b) Such amounts held in suspense, pending the final determination as to the 3 CONSULTANT's proportional fault, shall not be paid to CONSULTANT. However, the 4 appropriate percentage of such amount held in suspense shall be paid to CONSULTANT when, 5 once a final determination has been made, whether pursuant to Article IX, ("Errors or Omission 6 Claims and Disputes") of this Agreement, or by a court of law, CONSULTANT thereafter 7 submits a proper invoice to the Department of Public Works, which then shall evaluate and 8 approve the invoice in accordance with Article V.0 of this Agreement. 9 3. At intervals appropriate to the stage of construction, or as otherwise deemed 10 necessary by CONSULTANT, visit the site of the project as necessary to become familiar 11 generally with the progress and quality of the work and to determine that the work is proceeding 12 in general accordance with the contract documents. CONSULTANT shall not be required to 13 make exhaustive or continuous on-site inspections but shall give direction to the Construction 14 Inspector as hereinafter more specifically provided. 15 4. CONSULTANT shall not be responsible for the CONTRACTOR's failure to 16 carry out the construction work in accordance with the contract documents, however, 17 CONSULTANT shall immediately advise the COUNTY Representative of any known or 18 observed deviation from the contract documents. CONSULTANT shall not have control over 19 or charge of, and shall not be responsible for construction means, methods, techniques, 20 sequence, or procedure, or for the safety precautions, programs, or equipment in use of 21 connection with the work, since these are solely the CONTRACTOR's responsibility under the 22 contract for construction. 23 5. Based on CONSULTANT's visits to the site, CONSULTANT shall keep the 24 COUNTY informed through written reports as to the progress of the work, shall advise the 25 COUNTY of defects and deficiencies of the work of contractors, and may recommend that the 26 COUNTY reject work as failing to conform to the contract documents. 27 6. Conduct site visits which shall include, but not be limited to, on-site inspections 28 to determine the dates of substantial completion and final completion and to recommend to the Page 10 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 COUNTY its acceptance of the work, for the filing of the notice of completion and issuance of 2 final certificate for payment. 3 7. Conduct a"project shakedown" and staff orientation for the completed project. 4 E. Phase 5, Building Systems Testing and Staff Orientation: 5 1. At a minimum, twenty (20) working days prior to the completion of the Project 6 the CONSULTANT and his/her subconsultants shall begin conduction testing of all the 7 building's electrical and other systems included within the design contract. 8 2. The CONSULTANT and his/her subconsultants shall develop a punch-list of 9 items needing completion, repair or replacement to be delivered to the COUNTY's Project 10 Manager. A minimum of three (3) separate punch-list visits shall be included. 11 3. The CONSULTANT and his/her subconsultants shall conduct a building 12 maintenance staff orientation and training when the building systems are deemed complete and 13 in working order by the Project Manager. 14 F. Phase 6 Post-Construction Services: 15 The CONSULTANT shall: 16 1. Review and forward to the COUNTY two (2) copies of Operations and 17 Maintenance Manuals to be furnished by the CONTRACTOR. 18 2. Inform the COUNTY of all written guarantees required of the CONTRACTOR 19 by the CONSULTANT's technical specifications or special conditions. 20 3. Return to COUNTY all plans borrowed from COUNTY by CONSULTANT. 21 4. Require through the construction contract specifications that record drawings be 22 prepared by the CONTRACTOR and submitted to the COUNTY for acceptance by the 23 Construction Inspector and CONSULTANT. However, upon completion of the project, 24 CONSULTANT shall transfer the CONTRACTOR's record drawing changes onto the 25 CONSULTANT's original drawings. The complete record drawing set shall remain at all times 26 the property of the COUNTY. Changes shall be identified by cloud markings and shall identify 27 date of change and its source, such as from addenda, change order, or clarification. 28 CONSULTANT shall have no responsibility for the accuracy of information provided, either by Page 11 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 the CONTRACTOR or by the Construction Inspector, for transfer to record drawings. 2 5. If construction plans have been prepared with a CAD system, record drawings in 3 the form of.dxf or .dwg files shall be furnished and delivered to Department of Public Works 4 and Planning in addition to reproducibles. Such .dxf or .dwg files shall be furnished on compact 5 disk(CD-ROM). 6 6. Participate fully, aligned with and not adverse to the interests of the COUNTY, 7 upon request, in the early settlement discussions of construction claims resolution issues. In the 8 event such participation is requested of CONSULTANT, CONSULTANT shall be paid for such 9 services as provided under the provisions of Article V of this Agreement for the time spent in 10 such participation. All provisions of subparagraph III.E.2.d (3). of this Agreement shall apply 11 to CONSULTANT's participation in any early settlement discussions required by this Section 12 III.F. CONSULTANT'S participation in this process does not preclude the COUNTY's right to 13 make an error and omissions claim against the CONSULTANT. 14 7. No final payment to the CONSULTANT will be issued until the services of this 15 phase have been performed and errors and omissions attributed to the CONSULTANT have 16 been resolved. 17 G. Phase 7, Construction Inspection Services: 18 COUNTY may not have sufficient staff available at the time of construction to 19 provide onsite construction inspection or construction testing required to ensure the 20 CONTRACTOR's compliance with construction plans and specifications. At the sole option of 21 COUNTY, and upon written authorization and direction as to scope of services, 22 CONSULTANT may be required to perform construction inspection and construction testing 23 services for the Capital Projects. It is understood that COUNTY may delete any or all of 24 construction inspection and construction testing from CONSULTANT's services at any time 25 prior to award of the construction contract and perform the construction inspection and testing 26 with its own forces. 27 The CONSULTANT shall: 28 1. Provide an Inspector Of Record (IOR) who will provide full time or part time Page 12 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 inspection of the projects, as agreed in writing by the CONSULTANT and the COUNTY. The 2 IOR shall be completely familiar with the project plans and specifications and knowledgeable 3 and experienced in the type of construction involved. 4 2. Provide all quality control testing required during construction. The testing shall 5 be performed by a qualified, certified testing laboratory. 6 3. Based upon his/her observations of the progress of construction and the 7 CONTRACTOR's application for payment, and the IOR's recommendation, determine on a 8 monthly basis, the amount owing to the CONTRACTOR under the contract documents and 9 shall recommend, through appropriate certificates,payments on such amounts. Such certificates 10 shall constitute a representation to the COUNTY that the work has progressed to the point 11 indicated and that to the best of the CONSULTANT's knowledge information and belief, the 12 quality of the work is in accordance with the contract documents. 13 IV. COUNTY'S OBLIGATIONS: 14 The COUNTY will,for each project: 15 A. Compensate the CONSULTANT as provided in this Agreement. 16 B. Provide a "COUNTY Representative" who will represent the COUNTY and who 17 will coordinate with the CONSULTANT as appropriate to facilitate CONSULTANT'S 18 performance of its obligations under this Agreement. The COUNTY Representative will be the 19 Capital Projects Division Manager or his/her designated representative through award of the 20 construction contract and the COUNTY Construction Engineer after award of the construction 21 contract to completion of the project by the CONTRACTOR. The CONSULTANT shall 22 communicate and coordinate with the COUNTY Representative who will provide the following 23 services as appropriate for each project: 24 1. Provide basic design layouts and drawing layouts as may be required for each 25 project unless otherwise agreed by the COUNTY and the CONSULTANT. 26 2. Prepare the title sheet for each project's plans unless otherwise agreed by the 27 COUNTY and the CONSULTANT. 28 3. Loan or provide copies of any available building plans to the CONSULTANT. Page 13 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 4. Examine documents submitted to the COUNTY by the CONSULTANT and 2 timely render decisions pertaining thereto. 3 5. Provide communication between the CONSULTANT and COUNTY officials 4 and commissions (including user Department). 5 C. Give reasonably prompt consideration to all matters submitted by the 6 CONSULTANT for approval to the end that there will be no substantial delays in the 7 CONSULTANT's program of work. Any approval, authorization or request to the 8 CONSULTANT given by the COUNTY will be binding upon the COUNTY under the terms of 9 this Agreement only if it is made in writing and signed on behalf of the COUNTY by the 10 COUNTY Representative or his/her designee.- II V. COMPENSATION: 12 A. Total Fee: 13 1. Notwithstanding any other provisions in this Agreement, the Total Fee for the 14 services required under this Agreement shall not exceed a total amount of five hundred 15 thousand dollars ($500,000) over the entire term of this Agreement, which shall be computed at 16 the hourly and cost rates shown in Exhibit A, attached hereto and incorporated herein, and not 17 to exceed agreed maximums for each phase of each project. 18 2. The rates listed herein are to remain in effect for the duration of this Agreement. 19 Rates may be renegotiated annually after the first anniversary from the date of execution of this 20 Agreement at CONSULTANT's request. CONSULTANT's request for annual rate adjustments 21 may not exceed the Engineering News Record's Construction Cost Index or the California 22 Consumer Price Index as published by the California Department of Industrial Relations for the 23 year, whichever is lower. 24 B. Basic Fee: 25 1. Within the Total Fee amount of five hundred thousand dollars ($500,000) over 26 the entire term of this Agreement, the Basic Fee for each project shall be as mutually agreed to 27 in writing between CONSULTANT and Capital Projects Division Manager or his/her 28 designated representative. Page 14 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 2. All expenses incidental to CONSULTANT's performance of services under 2 Article III of this Agreement shall be borne by CONSULTANT. Incidental expenses include, 3 but may not be limited to, transportation and travel, postage and courier services, photo and 4 duplicating services, telephone and facsimile charges, computer storage media, drawing and 5 plotting media,printing of"check print" plans and plan sets and documents specifically required 6 by the provisions of Article III of this Agreement. 7 3. CONSULTANT shall not add markup percentages or costs to subconsultant's 8 costs or incidental costs unless expressly authorized in writing by the COUNTY. 9 a. If the CONSULTANT becomes aware of potential unforeseen expenses that 10 would not be covered by the Basic Fee agreed to for a project, CONSULTANT shall inform the 11 COUNTY in writing of the extent and nature of such expenses or services. Upon mutual 12 agreement of the CONSULTANT and the COUNTY Representative, the scope of work and 13 agreed fee for a project may be amended in writing to cover such unforeseen expense or cost. 14 C. Payments: 15 1. Progress payments will be made by the COUNTY upon receipt of the 16 CONSULTANT's monthly invoices and approval by COUNTY thereof based on the 17 COUNTY's evaluation of the completion of the respective components of the project(s). 18 Invoices shall clearly identify the specific project, the phase of the project, the percent of the 19 work completed, agreed maximum fee, and description of the work performed, and shall be 20 submitted with the documentation identified in paragraph V.C.5 below. CONSULTANT shall 21 submit separate invoices for each phase of each project for work being performed under this 22 contract. Invoices shall be forwarded to: 23 Stuart G. Seiden, Division Manager 24 Capital Projects Division 25 Fresno County Public Works& Planning Department 26 2220 Tulare Street, Suite 610 27 Fresno, CA 93721-2104 28 2. Upon receipt of a proper invoice, the COUNTY Department of Public Works & Page 15 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 Planning will take a maximum of five (5) working days to review, approve, and submit it to the 2 COUNTY Auditor-Controller / Treasurer-Tax Collector. Unsatisfactory or inaccurate invoices 3 will be returned to the CONSULTANT for correction and resubmittal. Payment, less retention, 4 will be issued to CONSULTANT within forty (40) calendar days of the date the Auditor- 5 Controller/Treasurer-Tax Collector receives the approved invoice. 6 3. COUNTY is entitled to and shall withhold a five percent (5%) retention from the 7 earned compensation in accordance with the provisions of Article VII of this Agreement. 8 4. An unresolved dispute over a possible negligent error or omission may cause 9 payment of CONSULTANT fees in the disputed amount to be withheld by the COUNTY. 10 5. Concurrently with the invoices, the CONSULTANT shall provide on COUNTY 11 request,pre-approved documentation, that complete payment, less a five percent(5%)retention, 12 has been made by CONSULTANT to all subconsultants as provided herein for all previous 13 invoices paid by the COUNTY. However,the parties do not intend that the foregoing creates in 14 any subconsultant or subcontractor a third party beneficiary status or third party beneficiary 15 rights, and expressly disclaim any such status or rights. 16 6. Final invoice, and separate invoice for retentions, shall be submitted to COUNTY no 17 later than thirty (30) days after a specific project is completed. Payment for retentions for each 18 project shall not be made until all services are completed for that project in accordance with the 19 provisions of Article III. 20 7. In the event the COUNTY reduces the scope of a specific project, the 21 CONSULTANT will be compensated on an hourly basis,not to exceed the agreed maximum for 22 that authorized phase, for actual work completed and accepted by the COUNTY in accordance 23 with the terms of this Agreement. 24 VI. COMPENSATION RECORDS: 25 The CONSULTANT shall keep complete records for the period of time referenced in 26 Article VIII.0 showing the hours and description of activities performed by each person who 27 works on the project and all associated costs or charges applicable to work covered by the Basic 28 Fee. The CONSULTANT will be responsible for all subconsultants keeping similar records. Page 16 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 VII. RETENTION FROM EARNED COMPENSATION: 2 The COUNTY is entitled to and may withhold a five percent (5%) retention from the 3 earned compensation of the CONSULTANT separately for each project. Such retention from 4 earned compensation may, at the COUNTY'S option, be applied to all phases of the consultant 5 services of a project to be provided under this Agreement, including those phases completed. 6 VIII. AUDITS,ACCOUNTING AND INSPECTIONS ACCESS: 7 A. The CONSULTANT shall establish accounting and bookkeeping practices 8 including, but not limited to, employee time cards, payrolls, and other records of transactions 9 including those to be paid from State Grant and Federal Grant funds in accordance with the 10 performance of this Agreement. 11 B. The CONSULTANT shall at any time during regular business hours, and as often as 12 the COUNTY may deem necessary, make available for examination by the Comptroller General 13 of the United States, HUD, State of California or the COUNTY Auditor-Controller/ Treasurer- 14 Tax Collector, or their authorized representatives, all of CONSULTANT'S records and data 15 with respect to matters covered by this Agreement. The CONSULTANT shall permit Federal, 16 State, or COUNTY authorities to audit and inspect all invoices, materials, payrolls, records of 17 personnel, conditions of employment, and other data relating to matters covered by this 18 Agreement. 19 C. The CONSULTANT shall be subject to the examination and audit of the Auditor 20 General for a period of three (3) years after final payment under this Agreement (Government 21 Code Section 8546.7). 22 IX. ERRORS OR OMISSION CLAIMS AND DISPUTES: 23 A. Definitions: 24 1. A "Consultant" is a duly licensed Architect or Engineer, or other provider of 25 professional services, acting as a business entity (owner, partnership, corporation,joint venture 26 or other business association) in accordance with the terms of an Agreement with the 27 COUNTY. 28 2. A "Claim" is a demand or assertion by one of the parties seeking, as a matter of Page 17 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 right, adjustment or interpretation of contract terms, payment of money, extension of time, 2 change orders, or other relief with respect to the terms of the contract. The term "Claim" also 3 includes other disputes and matters in question between the COUNTY and CONSULTANT 4 arising out of or relating to the contract. Claims must be made by written notice. The 5 provisions of Government Code Section 901, et seq., shall apply to every claim made to 6 COUNTY. The responsibility to substantiate claims shall rest with the parry making the claim. 7 The term "Claim" also includes any allegation of a negligent error or omission by the 8 CONSULTANT. 9 B. In the spirit of cooperation between the COUNTY and CONSULTANT, the 10 following procedures are established in the event of any claim or dispute by COUNTY or 11 CONSULTANT alleging a negligent error, act, or omission. 12 1. Claims, disputes or other matters in question between the parties, arising out of 13 or relating to this Agreement, shall not be subject to arbitration, but shall be subject to the 14 following procedures. 15 2. The Capital Projects Division Manager or his/her designated representative of 16 and CONSULTANT shall meet and confer and attempt to reach agreement on any dispute, 17 including what damages have occurred, the measure of damages and what proportion of 18 damages, if any, shall be paid by either party. The parties agree to consult and consider the use 19 of mediation or other form of dispute resolution prior to resorting to litigation. 20 3. If the COUNTY and CONSULTANT cannot reach agreement under the 21 immediately preceding paragraph IX.B.2, the disputed issues may, upon concurrence by all 22 parties, be submitted to a panel of three (3) for a recommended resolution. The 23 CONSULTANT and the COUNTY shall each select one (1) member of the panel, and the third 24 member shall be selected by the other two panel members. The discovery rights provided by 25 California Code of Civil Procedure for civil proceedings shall be available and enforceable to 26 resolve the disputed issues. Either party requesting this dispute resolution process shall, when 27 invoking the rights to this panel, give to the other parry a notice describing the claims, disputes 28 and other matters in question. Prior to twenty (20) days before the initial meeting of the panel, Page 18 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 both parties shall submit all documents such parry intends to rely upon to resolve such dispute. 2 If it is determined by the panel that any parry has relied on such documentation, but has failed to 3 previously submit such documentation on a timely basis to the other party, the other party shall 4 be entitled to a twenty (20) -day continuance of such initial meeting of the panel. The decision 5 by the panel is not a condition precedent to arbitration,mediation or litigation. 6 4. Upon receipt of the panel's recommended resolution of the dispute issues, the 7 COUNTY and the CONSULTANT shall again meet and confer and attempt to reach agreement. 8 If the parties still are unable to reach agreement, each party shall have recourse to all 9 appropriate legal and equitable remedies. 10 C. The procedures to be followed in the resolution of claims and disputes may be 11 modified at any time by mutual agreement of the parties hereto. 12 D. The CONSULTANT shall continue to perform its obligations under this Agreement 13 pending resolution of any dispute, and the COUNTY shall continue to make payments of all 14 undisputed amounts due under this Agreement. 15 E. When a claim by either party has been made alleging the CONSULTANT's 16 negligent error, act, or omission, the COUNTY Capital Projects Division Manager or his/her 17 designated representative and the CONSULTANT shall meet and confer within twenty-one (21) 18 days after the written notice of the claim has been provided. 19 X. JOINDER OF PARTIES: 20 The CONSULTANT, the CONSULTANT's consultants of any tier, subcontractors of 21 any tier, suppliers and construction lenders shall all be bound by the dispute resolution 22 provisions of this Agreement, and immediately upon demand of COUNTY or CONSULTANT, 23 shall participate in and shall become parties to the dispute resolution process, provided they 24 have signed any document that incorporates or refers to the dispute resolution provisions of this 25 Agreement. Failure of CONSULTANT, whether intended or inadvertent, to ensure that such 26 nonparties have signed such a document shall inure only to CONSULTANT's detriment, if any 27 there be. COUNTY shall not suffer a detriment by CONSULTANT's action or inaction in this 28 regard. If such a party after due notice fails to appear at and participate in the dispute resolution Page 19 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 proceedings, the panel established in accordance with the provisions of paragraph IX.B.3 shall 2 make a decision based on evidence introduced by the party or parties who do participate. 3 XI. CONSULTANT'S OBLIGATIONS RELATING TO CONSTRUCTION CLAIMS: 4 A. The CONSULTANT will review and analyze construction contract claims and 5 recommend resolution of them as soon as possible following receipt of demand by COUNTY. 6 B. Within a reasonable time after receipt of a claim,the CONSULTANT shall provide a 7 written analysis of the claim to the COUNTY, signed by the CONSULTANT and any affected 8 subconsultants. The written analysis shall include the CONSULTANT's professional opinion of 9 the responsibility for payment of the claim, with supporting facts and documentation. A copy of 10 the written analysis shall be provided to the respective insurance adjusters for CONSULTANT 11 and any affected subconsultant. 12 C. Upon receipt of a claim, the CONSULTANT may also take one (1) or more of the 13 following actions,within ten(10) days of receipt of a claim: 14 1. Request additional supporting data from the claimant, requiring that such data be 15 supplied within ten(10) days of the request; 16 2. Submit a schedule to the parties indicating when the CONSULTANT expects to 17 respond to the claim, which schedule shall not exceed thirty (30) days from CONSULTANT's 18 original receipt of the claim; 19 3. Recommend rejection of the claim in whole or in part, stating the reasons for 20 such rejection; 21 4. Recommend approval of the claim by the other party, or 22 5. Suggest a compromise. 23 D. In every case, CONSULTANT shall provide its recommended resolution of a claim 24 within thirty (30) days from the original receipt of claim, unless the CONSULTANT obtains 25 COUNTY's prior written approval. 26 XII. INDEPENDENT CONTRACTOR: 27 A. In performance of the work, duties, and obligations assumed by CONSULTANT 28 under this Agreement, it is mutually understood and agreed that CONSULTANT, including any Page 20 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 and all of CONSULTANT's officers, agents and employees, will at all times be acting and 2 performing as an independent contractor, and shall act in an independent capacity and not as an 3 officer, agent, servant, employee, joint venturer, partner or associate of the COUNTY. 4 Furthermore, COUNTY shall have no right to control or supervise or direct the manner or 5 method by which CONSULTANT shall perform its work and function. However, COUNTY 6 shall retain the right to administer this Agreement so as to verify that CONSULTANT is 7 performing its obligations in accordance with the terms and conditions thereof. 8 CONSULTANT and COUNTY shall comply with all applicable provisions of law and the rules 9 and regulations, if any, of governmental authorities having jurisdiction over matters the subject 10 thereof. 11 B. Because of its status as an independent contractor, CONSULTANT shall have 12 absolutely no right to employment rights and benefits available to COUNTY employees. 13 CONSULTANT shall be solely liable and responsible for providing to, or on behalf of its 14 employees all legally required employee benefits. In addition, CONSULTANT shall be solely 15 responsible and save COUNTY harmless from all matters relating to payment of 16 CONSULTANT's employees, including compliance with Social Security, withholding, and all 17 other regulations governing such matters. It is acknowledged that during the term of this 18 Agreement CONSULTANT may be providing services to others unrelated to the COUNTY or 19 to this Agreement. 20 XIII. PARTIES BOUND BY AGREEMENT: 21 This Agreement shall be binding upon the COUNTY, the CONSULTANT, and their 22 respective successors in interest, legal representatives, executors, administrators, and assigns 23 with respect to all covenants as set forth herein. 24 XIV. REQUIRED APPROVALS: 25 It is understood that the CONSULTANT shall not assign, sublet, subcontract, or transfer 26 any of CONSULTANT's rights, duties, or obligations under this Agreement, without the prior 27 express, written consent of the COUNTY. Such consent and approval may be given only by the 28 COUNTY Board of Supervisors. Page 21 of 31 Pages r ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 XV. COMPLIANCE WITH LAWS: 2 A. CONSULTANT shall comply with all Federal, State, and local laws, ordinances, 3 regulations, and Fresno County Charter Provisions in effect at the time of CONSULTANT's 4 performance of the professional services to be provided hereunder. 5 B. CONSULTANT shall submit a current version of its Illness and Injury 6 Prevention Plan (IIPP), applicable safety programs and contact information for the 7 CONSULTANT's responsible person for these programs to the COUNTY Representative at the 8 time this Agreement is signed by the CONSULTANT. Throughout the term of this Agreement, 9 Consultant shall provide updates to the safety plans and programs to the COUNTY 10 Representative as they are implemented. 11 XVI. GOVERNING LAW: 12 A. Any controversy or claim arising out of or relating to this Agreement which cannot 13 be amicably settled without court action shall be litigated either in a State court for Fresno 14 County, California, or in the U.S. District Court for the Eastern District of California, located in 15 Fresno County. 16 B. The rights and obligations of the parties and all interpretations and performance of 17 this Agreement shall be governed in all respects by the laws of the State of California. 18 XVII. AMENDMENTS: 19 Any changes to this Agreement requested either by the COUNTY or CONSULTANT 20 may only be effected if mutually agreed upon in writing by duly authorized representatives of 21 the parties hereto. This Agreement shall not be modified or amended, nor shall any rights of a 22 party hereto be waived, except by such in writing. 23 XVIII.CONSULTANT'S LEGAL AUTHORITY: 24 A. Each individual executing this Agreement on behalf of CONSULTANT hereby 25 covenants, warrants, and represents: 26 1. That he or she is duly authorized to execute and deliver this Agreement on behalf 27 of such corporation in accordance with a duly adopted resolution of the corporation's board of 28 directors and in accordance with such corporation's articles of incorporation or charter and Page 22 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 bylaws; 2 2. That this Agreement is binding upon such corporation; and 3 3. That CONSULTANT is a duly organized and legally existing corporation in 4 good standing in the State of California. 5 XIX. HOLD HARMLESS: 6 A. CONSULTANT shall defend, hold harmless and indemnify COUNTY, its officers, 7 agents, and employees, against the payment of any and all costs and expenses (including 8 reasonable attorney fees and court costs), damages, claims, suits, losses, and liability for bodily 9 and personal injury to or death of any person or for loss of any property resulting from or 10 arising out of any negligent or wrongful acts, errors or omissions of CONSULTANT, its 11 officers, agents, and employees, in performing or failing to perform any work, services, or 12 functions under this Agreement. 13 B. COUNTY and CONSULTANT hereby declare their mutual intent to cooperate in 14 the defense of any claim, suit, or other action alleging liability, arising from the performance or 15 failure to perform of any COUNTY construction contractor or subcontractor in connection with 16 any project for which CONSULTANT has been retained under Article III above. Such 17 cooperation may include an agreement to prepare and present a cooperative defense after 18 consultation with CONSULTANT's professional liability insurance carrier. 19 XX. LIABILITY INSURANCE: 20 A. Prior to commencing the duties under the Agreement with the COUNTY, the 21 CONSULTANT shall furnish the COUNTY, at no additional cost to the COUNTY, certificates 22 for the following insurance policies which shall be kept in force during the term of the 23 Agreement (i.e., until the Agreement is terminated or it expires), and for such additional time as 24 may be specified herein with respect to a particular type of policy. 25 1. Commercial General Liability Insurance or Comprehensive General Liability 26 Insurance, naming the COUNTY as an additional insured, with limits of not less than one 27 million dollars ($1,000,000) per occurrence, with an annual aggregate of not less than two 28 million dollars ($2,000,000). Page 23 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 2. Comprehensive Automobile Liability Insurance with limits for bodily injury of 2 not less than two hundred fifty thousand dollars ($250,000) per person, five hundred thousand 3 dollars ($500,000) per accident and for property damages of not less than fifty thousand dollars 4 ($50,000), or such coverage with a combined single limit of five hundred thousand dollars 5 ($500,000). 6 3. Worker's Compensation insurance policy as required by the California Labor 7 Code. 8 4. Professional Liability Insurance: 9 a. Professional Liability Insurance with limits of not less than one million 10 dollars ($1,000,000) per occurrence, three million dollars ($3,000,000) annual aggregate, and 11 with a deductible not to exceed fifty thousand dollars ($50,000). 12 b. CONSULTANT and subconsultants shall make full disclosure, in writing to 13 the COUNTY, of all pending and open claims and disputes during the course of this Agreement 14 that affect the specified aggregate limits of the Professional Liability Insurance policy. 15 c. Professional Liability Insurance shall be kept in force for a minimum of two 16 (2) years past the date of final payment to CONSULTANT, and including the full and final 17 resolution of all claims, disputes, and matters in question regarding the project. 18 d. In the event that CONSULTANT voluntarily changes, or involuntarily 19 changes due to circumstances beyond its control, its Professional Liability Insurance policy 20 carrier during the period such coverage is required to be in force (as specified in the 21 immediately preceding subparagraph c. of this Article XX, Section A, Paragraph 4), such new 22 policy shall include prior acts coverage retroactive, at least, to the date of execution of this 23 Agreement. CONSULTANT may, at its option and expense, purchase supplemental or "tail" 24 coverage from the former policy carrier, negotiate a retroactive reporting date with the new 25 policy carrier for claims incurred but not reported as of the date of change in policy carrier, and 26 shall in any event maintain Professional Liability Insurance in a manner that provides 27 continuous coverage to the COUNTY throughout the term of this Agreement, and for a period 28 of two (2)years past the issuance of final payment to the CONSULTANT. Page 24 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 B. CONSULTANT shall give COUNTY at least thirty (30) days written advance notice 2 of any expiration, cancellation or reduction in the coverage of any of the aforesaid policies. 3 C. The COUNTY, its officers, agents and employees, individually and collectively, 4 shall be named as an additional insured under the policy for Commercial General Liability 5 Insurance or Comprehensive General Liability Insurance, but only insofar as the operations 6 under this Agreement are concerned. Such coverage of COUNTY as additional insured shall 7 apply as primary insurance and any other insurance, or self-insurance, maintained by the 8 COUNTY, its officers, agents, and employees, shall be excess only and not contributing with 9 insurance provided under the CONSULTANT's policies herein. 10 D. In the event CONSULTANT fails to keep in effect at all times insurance coverage as 11 herein provided, the COUNTY may, in addition to other remedies it may have, suspend or 12 terminate this Agreement upon the occurrence of such event. 13 E. All policies shall be issued by admitted insurers licensed to do business in the State 14 of California and possessing a current A.M. Best, Inc. rating of A FSC VII or better. 15 XXI. OWNERSHIP OF DOCUMENTS: 16 A. CONSULTANT understands and agrees that COUNTY shall retain full ownership 17 rights of the drawings and the work-product of CONSULTANT for each project, to the fullest 18 extent permitted by law. In this regard, CONSULTANT acknowledges and agrees that 19 CONSULTANT's services are on behalf of COUNTY and are "works made for hire," as that 20 term is defined in copyright law, by COUNTY; that the drawings and work-product to be 21 prepared by CONSULTANT are for the sole and exclusive use of COUNTY, and shall be the 22 sole property of COUNTY and its assigns, and the COUNTY and its assigns shall be the sole 23 owner of all patents, copyrights, trademarks, trade secrets and other contractual and intangible 24 rights of any kind or nature in connection therewith; that all the contractual or intangible rights 25 of any kind or nature, title, and interest in and to the drawings and work-product will be 26 transferred to COUNTY by CONSULTANT, and CONSULTANT will assist COUNTY to 27 obtain and enforce patents, copyrights, trademarks, trade secrets, and other contractual and 28 intangible rights relating to said drawings and work-product; that COUNTY shall be and Page 25 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 become the owner of such drawings and work product, free and clear of any claim by 2 CONSULTANT or anyone claiming any right through CONSULTANT. CONSULTANT 3 further acknowledges and agrees that COUNTY's ownership rights in such drawings and work 4 product shall apply regardless of whether such drawings or work product, or any copies thereof, 5 are in the possession of CONSULTANT, or any other person, firm, corporation, or entity. For 6 the purpose of this Agreement the terms "drawings and work-product" shall mean all reports 7 and study findings commissioned to develop the design of each project, drawings and schematic 8 or preliminary design documents of each project, certified reproducibles of the original final 9 construction contract drawings of each project, specifications of each project, the approved 10 opinion of probable construction cost of each project, record drawings of each project, as-built 11 plans of each project, and discoveries, developments, designs, improvements, inventions, 12 formulas, processes, techniques, or specific know-how and data generated or conceived or 13 reduced to practice or learning by CONSULTANT, either alone or jointly with others, that 14 result from the tasks assigned to CONSULTANT by COUNTY under this Agreement. County 15 acknowledges and agrees that details, concepts, ideas, devices, configurations, and designs 16 previously developed or used by the CONSULTANT, or developed by the CONSULTANT 17 without COUNTY compensation, shall remain the property of the CONSULTANT and use is 18 granted to COUNTY only for the specific project undertaken under this Agreement. 19 B. If a project is terminated prior to completion of the construction document phase of 20 any project under Article III, a reproducible copy and electronic files of documents as 21 completed at the time of termination of the project shall be submitted by CONSULTANT to the 22 COUNTY, which may use them to complete each project in future phases. 23 C. If the project is terminated at the completion of the construction document phase of 24 any project, a reproducible copy and electronic files of final construction contract drawings 25 (both .dwg and .pIt files), specifications, and approved opinion of probable construction cost 26 shall be submitted by CONSULTANT to COUNTY. 27 D. Documents, including drawings and specifications, prepared by CONSULTANT for 28 any project pursuant to this Agreement are not intended or represented to be suitable for reuse Page 26 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 by COUNTY or others on extensions of the services provided for that project or any other 2 project. Any use of completed documents for other projects and/or any use of uncompleted 3 documents will be at COUNTY's sole risk and without liability or legal exposure to 4 CONSULTANT. 5 E. COUNTY has requested that certain machine readable information and CAD data on 6 construction documents be provided by CONSULTANT for each project under this Agreement. 7 Such machine readable information and CAD data are more specifically described in Article III. 8 CONSULTANT shall not be liable for claims, liabilities or losses arising out of, or connected 9 with: 10 1. The modification or misuse by COUNTY, or anyone authorized by COUNTY, of 11 such machine readable information and CAD data; or 12 2. Decline of accuracy or readability of machine readable information and CAD 13 data due to inappropriate storage conditions or duration; or 14 3. Any use by COUNTY, or anyone authorized by COUNTY, of such machine 15 readable information and CAD data for additions to any such project or for the completion of 16 any such project by others, or for other projects. 17 XXII. TIME OF COMPLETION: 18 A. Upon request of the Capital Projects Division Manager or his/her designated 19 representative, the CONSULTANT shall submit for the Capital Projects Division Manager or 20 his/her designated representative's approval, schedules for the performance of the 21 CONSULTANT's services which may be adjusted by mutual agreement as the projects proceed, 22 and shall include allowances for periods of time required for the COUNTY's review and 23 approval of submissions by authorities having jurisdiction over the projects. Time limits 24 established by these schedules approved by Capital Projects Division Manager or his/her 25 designated representative shall not, except as provided in this Agreement, be exceeded by the 26 CONSULTANT. 27 B. CONSULTANT shall diligently proceed with the agreed scope of services and shall 28 provide such services in a timely manner. Failure of the CONSULTANT to meet any deadline Page 27 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 listed in the above-referenced schedules once such failure continues more than seven (7) 2 calendar days past the specified completion date (unless the delay is attributable to the 3 COUNTY or State), is sufficient cause to immediately terminate this Agreement, at the option 4 of the COUNTY, in accordance with Section XXIV.C. 5 XXIII.TERM: 6 The term of this Agreement shall be for a period of three (3) years, commencing on the 7 effective date as first set forth hereinabove. This Agreement may be extended for a maximum 8 of two (2) additional consecutive one-year periods upon approval of both parties no later than 9 thirty (30) days prior to the first day of the next twelve (12) month extension period. The 10 Director of the Department of Public Works and Planning or his/her designee is authorized to 11 execute such written approval on behalf of COUNTY based on CONTRACTOR'S satisfactory 12 performance. 13 XXIV.TERMINATION OF AGREEMENT: 14 A. This Agreement may be terminated without cause at any time by the COUNTY upon 15 thirty (30) calendar days written notice. If the COUNTY terminates this Agreement, the 16 CONSULTANT shall be compensated for services satisfactorily completed to the date of 17 termination based upon the compensation rates and subject to the maximum amounts payable 18 agreed to in Article V, together with such additional services satisfactorily performed after 19 termination which are expressly authorized by the COUNTY Representative in order to 20 conclude the work performed to date of termination. 21 B. If the CONSULTANT purports to terminate the Agreement, or otherwise refuses to 22 perform pursuant to the Agreement, for reasons other than material breach by the COUNTY, the 23 CONSULTANT shall reimburse the COUNTY, up to a maximum of seven thousand, five 24 hundred dollars ($7,500) for the actual expense of issuing a Request For Proposal (RFP), 25 engaging a new CONSULTANT, and the new CONSULTANT's cost in becoming familiar with 26 the previous CONSULTANT's design. 27 C. The COUNTY may immediately suspend or terminate this Agreement in whole or in 28 part, where in the determination of the COUNTY there is: Page 28 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 1. An illegal or improper use of funds; 2 2. A failure to comply with any term of this Agreement; 3 3. A substantially incorrect or incomplete report submitted to the COUNTY; 4 4. Improperly performed service. 5 D. In no event shall any payment by the COUNTY constitute a waiver by the COUNTY 6 of any breach of this Agreement or any default which may then exist on the part of the 7 CONSULTANT, nor shall such payment impair or prejudice any remedy available to the 8 COUNTY with respect to the breach or default. The COUNTY shall have the right to demand 9 of the CONSULTANT the repayment to the COUNTY of any funds disbursed to the 10 CONSULTANT under this Agreement, which, in the judgment of the COUNTY and as 11 determined in accordance with the procedures of Article IX ("Errors or Omissions Claims and 12 Disputes"), were not expended in accordance with the terms of this Agreement. The 13 CONSULTANT shall promptly refund any such funds upon demand. 14 E. The terms of this Agreement, and the services to be provided thereunder, are 15 contingent on the approval of funds by the appropriating government agency. Should sufficient 16 funds not be allocated, the services provided may be modified, or this Agreement terminated at 17 any time by giving the CONSULTANT thirty (30) days advance written notice. 18 XXV. CONFLICT OF INTEREST: 19 The CONSULTANT shall comply with the provisions of the Fresno County Department 20 of Public Works Conflict of Interest Code, attached hereto as Exhibit B and incorporated herein. 21 Such compliance shall include the filing of annual statements pursuant to the regulations of the 22 State Fair Political Practices Commission. 23 XXVI.DISCLOSURE OF SELF-DEALING TRANSACTIONS 24 A. This provision is only applicable if the CONSULTANT is operating as a corporation 25 (a for-profit or non-profit corporation) or if during the term of this Agreement, the 26 CONSULTANT changes its status to operate as a corporation. 27 B. Members of the CONSULTANT'S Board of Directors shall disclose any self-dealing 28 transactions that they are a parry to while the CONSULTANT is providing goods or performing Page 29 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT 1 services under this Agreement. A self-dealing transaction shall mean a transaction to which the 2 CONSULTANT is a party and in which one or more of its directors has a material financial 3 interest. Members of the CONSULTANT'S Board of Directors shall disclose any self-dealing 4 transactions that they are a party to by completing and signing a Self-Dealing Transaction 5 Disclosure Form(attached as Exhibit C and incorporated herein by this reference); and 6 submitting it to the COUNTY prior to commencing with the self-dealing transaction or 7 immediately thereafter. 8 XXVII. ENTIRE AGREEMENT: 9 This Agreement constitutes the entire agreement between the COUNTY and the 10 CONSULTANT with respect to the subject matter hereof and supersedes all previous 11 negotiations, proposals, commitments, writings, advertisements, publications, and 12 understandings of any nature whatsoever unless expressly included in this Agreement. 13 XXVIII.SEVERABILITY: 14 Should any provision herein be found or deemed to be invalid, this Agreement shall be 15 construed as not containing such provision, and all other provisions which are otherwise lawful 16 shall remain in full force and effect, and to this end the provisions of this Agreement are hereby 17 declared to be severable. 18 19 /// 20 /// 21 22 23 24 25 26 27 28 Page 30 of 31 Pages ELECTRICAL CONSULTANT SERVICES AGREEMENT i 1 IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed 2 as of the day and year first above written. 3 4 CONSULTANT COUNTY OF FRESNO BY: BY: SEPH P.-PREVVISIbAR, ERNEST BUDDY MENDES, HAIRMA_N 6 TITLE: PRESIDENT BOARD OF SUPERVISORS 7 ELECTRICAL POWER SYSTEMS, INC. 4049 NORTH FRESNO STREET 8 FRESNO, CA 93726-4004 9 REVIEWED AND RECOMMENDED APPROVED AS TO LEGAL FORM: 10 FOR APPROVAL DANIEL C. CEDERBORG, CO TY COUNSEL 11 / C12 1 � BY: BY. /&V 13 BE ARD IN ERIM DEPUTY ;- -- 14 DIRECTOR - -- - - DEPARTMENT O P BLIC WORKS 15 AND PLANNING 16 17 APPROVED AS TO ACCOUNTING FORM VICKI CROW, C.P.A. 18 AUDITOR-CONTROLLER/ TREASURER-TAX COLLECTOR 19 20 BY: nag DEPU . 21 22 FUND: 0001 ORG: 43601150 23 ACCT: 7295 ATTEST: BERNICE E.SEIDEL,Clerk 24 Board of Supervisors By �J_S�n� &t 25 Deputy 26 27 28 Page 31 of 31 Pages 4 EXHIBIT A ELECTRICAL. POWER SYSTEMS INC. Professionai and Consulting Eiie►ctriaal Engineering _2016 PROFESSIONAL RATE SCHEDULE Expert Research Testimony and Depositions------ - -------$325.00 per hour Principal Electrical Engineer— — ------ ------ ---- $235.00 per hour Professional Engineer- -- -------- ------------ ------$200.00 per hour E.I.T.--- ------- ------ — --------- — $180.00 per hour Field TechJDesigner/IT Programmer- -------- --- --$160.00 per hour Cad/Drafting Technician -- --------- ---$122.00 per hour Clerical ---- ----------- -- -------- -$85.00 per hour 1.0) PERSONNEL TRAVEL TIME, WHEN AUTHORIZED, WILL BE BILLED ON THE ABOVE HOURLY RATES. PERSONNEL TRAVEL TIME ON SATURDAY,SUNDAY AND HOLIDAYS WILL BE BILLED ON THE ABOVE HOURLY RATES TIMES 150%. 2.0) ADDITIONAL EXPENSES BELOW,WHEN AUTHORIZED,WILL BE TABULATED AND BILLED AS AN EXTRA COST: TRAVEL OUTSIDE A 60 MILE RADIUS OF THE FRESNO OFFICE OF ELECTRICAL POWER SYSTEMS,INC.(EPS),MEALS AND LODGING WHILE TRAVELING,TRANSPORTATION/PARKING(FULL SIZE AUTO).PRINTING OTHER THAN NORMAL DESIGN COORDINATION PLANS, SPECIFICATIONS, AND REPORTS, EXCESSIVE LONG DISTANCE TELEPHONE CHARGES OUTSIDE THE 559 AREA CODE,OR ANY OTHER UNORDINARY EXPENSE NECESSARY TO COMPLETE OUR WORK MILEAGE IS CHARGED AT $0.80 PER MILE WHEN PERSONAL CARS ARE USED. OUTSIDE PRINTING AND SHIPPING EXPENSES WILL BE BILLED AT COST PLUS 10%,AND FAX TRANSMISSIONS WILL BE BILLED AT$1.00 PER PAGE. 3.0) FEES FOR EXPERT TESTIMONY AT DEPOSITION, ARBITRATION, MEDIATION, OR TRAIL ARE BASED ON A NORMAL EIGHT HOUR DAY,WITH NORMAL MORNING,NOON AND AFTERNOON RECESSES. SAID FEES WILL BE APPLIED AT THE BEGINNING OF THE SCHEDULED APPEARANCE TIME, AND WILL INCLUDE ALL "OFF-THE-RECORD"TIME OR WAITING TIME,WHETHER TESTIMONY IS ACTUALLY GIVEN OR NOT. A MINIMUM DAILY WITNESS APPEARANCE FEE OF$1,800.00 WILL BE APPLIED TO ANY SCHEDULED APPEARANCE AS A WITNESS IN ANY GEOGRAPHIC LOCATION REQUIRING ABSENCE FROM FRESNO, CALIFORNIA FOR AN ENTIRE DAY. THIS INCLUDES STANDBY OR WAITING TIME FOR ANY APPEARANCE AS AN EXPERT WITNESS IN ANY GEOGRAPHICAL LOCATION. TERMS OF PAYMENT REGARDING EXPERT WITNESS TESTIMONY SHALL BE AS SET FORTH AND STATED IN SECTIONS 2034(1)(2)OF THE CALIFORNIA CODE OF CIVIL PROCEDURES AND 68092.5 OF THE GOVERNMENT CODE OF THE STATE OF CALIFORNIA,EVEN THOUGH SAID S T ATUTES MAY NOT BE EFFECTIVE OR APPLICABLE IN ANY OTHER GEOGRAPHICAL AREA. ANY PARTY(IES) DESIGNATION AN EMPLOYEE OF EPS AS AN EXPERT WITNESS WILL PAY THE AFOREMENTIONED EXPERT WITNESS FEES. REGARDLESS OF STIPULATION OR COURT ORDER TO THE CONTRARY OF THE FEES STATED ABOVE. THOSE SIGNATORY TO THE PROFESSIONAL SERVICES CONTRACT TO WHICH THIS RATE SCHEDULE IS ATTACHED TO WILL AGREE TO PAY ANY WITNESS FEES NORMALLY PAID BY A NOTICING ATTORNEY OR ENTITY,NOT PAID BY SAID NOTICING ATTORNEY OR ENTITY WITHIN THE TIME LIMITS AS SET FORTH IN THE AFOREMENTIONED STATE OF CALIFORNIA CODE SECTIONS REGARDING EXPERT WITNESS FEES. 4.0) IT IS OUR POLICY TO REQUEST FROM OUR CLIENTS, PERMISSION TO INCUR ANY ADDITIONAL EXPENSE TO OUR STATED FEE BEFORE THE ADDED CHARGE IS INCURRED. 5,0) EPS RESERVES THE RIGHT TO CHANGE THE ABOVE 2016 RATES AND EXPENSES FOR UNFORESEEN MANDATED GOVERNMENTAL AND INSURANCE INCREASES TO OUR OVERHEAD. THANK YOU AND IF YOU HAVE ANY QUESTIONS,PLEASE CALL. ELECTRICAL POWER SYSTEMS,INC. JOSEPH P.PREVENDAR P.E. PRESIDENT GARY R.OLSEN P.E. VP OF POWERIGENERATION _f. EXHIBIT B File #L5I23 . , Fe6zuasg 23, 1999 Resolution #99-086 1 BEFORE THE HOARD OF SUPERVISORS 2 OF THE COUNTY OF FRESNO 3 STATE OF CALIFORNIA Ir 4 In the matter of 8 Adoption of Standard Conflict of Interest Resolution 499-086 8 Code forAtl County Departments. 7 B Whereas,the Political Reform Act, Government Code section 81000 at seq., 9 requires state and local government agencies to adopt and promulgate conflict of Interest to codes;and 11 Whereas,the Fair Politioal Practices Commission has.adopted a regulation,2 12 Cattfomla Code of Regulations section 18730, which contains the terms of a standard ,13 conflict of Intemst code, and which may be amended by the Fair Political Practices 14 Commission after public notices and bearings to corifnrrn to amendments to the Poittlael 18 Relbrm Act;and 16 Whereas.any local agency may Incorporate this standard conflict oflntsrsstcode, 17 and thereafter need not amend the text of its code to conform to future an dr arft-to the i 8 Pallttcaal Relbrm Act or its nagulallons;and Whereas, the Board of Superviscra Is the code reviewing body for ali County 19 departments except crtutts;and 20 Whereas,the Board of Supervisors may adopt the standard conflict of interest 21 code on behalf of all County departments. 22 Now therefore be It resotved,that the tenns of 2 Caflfomia Code of Regulations 23 section 18730, and any amendments to It duty adopted by the Fair Political Practices 24 Commission,are hereby Incorporated!by reference and,along with the Exhibits A and B 25 approved previously,today,or in the future,by this Board for each County department,In 26 which officers and employees are deslgnated and disdosure categories are set forih, 27 28 1 'EXHIBIT B constitute the conflict of interest codes of each County department except courts. 2 Conflict of interestfomts shaft be Red as foQows: 3 1. As required by Government Code Section 87600, subdivision (ej►fire 4 County Administrative O fla r, District Attorney, County Counsel, and Auditcr- S ControilerMeasurer--Tax Collector shall Ile one original oftheir statements with the County 6 Clark. who shall make and retain copies and forward the criglnata to the Fair POW 7 Practices Commission,which she#be the'fifing officer. The County Adminisfative Ofticar,' 8 Distriot Attorney,County Counsel,and AuMor-Controlteri reasurer--Tax Collacbr shall also 9 file one copy ofthelr statements with the Clark to the Board of Supervisors. 10 2. As required by Government Code section 87600,subdiMon 0).afl oft 11 department heads shall No one original oftheirstatemahts withhtheirdepertments. Thef ing 12 offiicar of each department:shall make and retain a copy of the department head's statmrd 13 and shall forward the original to the Clerk to the Board of Supervisors. % 3. All other designated employees shell Igo one original of their statements vM 1s their departments. 16 All statements shalt be pubtic records and shall be made ova IsMe for puft 17 inspection and reproducfton. (Gov.Cate,§81008.) 18 Adopted at a regular nteattng ofihe Board of Supervisors,held on the 23rd day Of Febrset•2 i 199 byfhefhilowing vote,to wit 1s 20 Ayes: Supervisors Xalig m. Cane, AxambuU, okceu, Levy 21 Drown Mane 22 Absent: None 23 ,,�-r, lj - �t, aaAr3rs � 2$ ATTESTt SMI GRMMoon, cr sou 25 HUABD OF SOPIMM0&S 26 V1, 2728 P File 915123 Agenda #28 Usalution #99-086 2 ,- :--EXHIBIT B EXHIBIT"A„ PUBUC WORKS AND PLANNING Classification CatenorY Accountant I 1 It 2 Architect 1 Assistant Real Property Agent 1 Associate Real Property Agent 1 Building Inspector I/11 1 Building Plans Engineer 1 Capital Projects Division Manager 1 Chief Building Inspector 1 Chief of Field Surveys 1 Community Development Manager 1 Consultant Deputy Director of Planning 1 Deputy Director of Public Works 1 Development Services Manager 1 Director of Public Works and Planning 1 Disposal Site Supervisor 2 Engineer 11111111 1 Field Survey Supervisor 3 Housing Rehabilitation Specialist I/11 1 Information Technology Analyst I/11/III/IV 2 Planner I/If/111 1 Principal Accountant 1 Principal Engineer 1 Principal Planner 1 Principal Staff Analyst 1 Public Works and Planning Business Manager 1 Public Works Division Engineer 1 Resources Manager 1 Road Maintenance Supervisor 2,3 Road Superintendent 1 Senior Accountant 2 Senior Economic Development Analyst 1 Senior Engineer 1 Senior Engineering Technician 2 Senior Geologist 1 Senior Information Technology Analyst 2 Senior Planner 1 - . {--•EXHIBIT B Classification Category Senior Staff Analyst 1 Senior Systems and Procedures Analyst 2 Staff Analyst t 1111 ill t Supervising Accountant 2. 3 Supervising Building Inspector 1 Supervising Engineer 1 Supervising WatedWastewater Specialist 2,3 Systems and Procedures Analyst 11 It/Ill 2 Systems and Procedures Manager 2 Traffic Maintenance Supervisor 2 Consultants shall be included In the list of designated employees and shall disclose pursuant to the broadest disclosure category in the code subject to the following limitation: The Director of Public Works and Planning may determine in writing that a particular consultant,although a`designated position°, is hired to perform a range of duties that is limited In scope and thus is not required to fully comply with the disclosure requirements in this section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure-requirements. The Director of Public Works and Planning's determination is.a public record and shall be retained for public inspection in the same manner and location as this conflict of interest code. + QMBIT B EXHIBIT air EuBLiC WORKS ANP PLMNINGE I Parsons In this category must disclose all Investments, Interests In real property and Income,and business positions. Financial Interests are reportable drily Ifloceted within or subject to the jurisdiction of Fresno-Dountyi or if the business an*is-doing business or planning to do business In the lurlsdicllal,or has done business m4thin the jurisdiction at any tr'me during the Wb Y&A pr1d11td-1h&flft ofihb sWe dnL Real . property shall be deemed to be within ttoJurisdiction! of the County if k Is located within or not more than two miles outside the boundaries of the County(including Its Incorporated aides), or wtrthin two idles of any land owned or used by the County. 2. Persons in this category shall disclose all investments In,irrome from,and business positions with arty business entity which,within the last two years,has contracted or In the future may farsesslAy contract with Fresno County through its PubEiq Wanks and Planning©epartrnenk.SotfdWaste Coindssions within ths judsdiclron,or to any other Joint powers agency which Fresno County Is a member to provide servireq,supplies, materials,machinery,or equipment to the County. S. Persons In the category shall disclose all Interests In veal property within the ,jurisdiction. Real Property shag be deemed to b®wltWn the jr.rrisdregcin Ifthe property or any part of It Is kumd ad within or not more than two miles outside the boundaries of Fresno County Onc luding Its Incorporated cities)or within two nits of any lend awned or operated by the Cow*. Attachment C SELF-DEALING TRANSACTION DISCLOSURE FORM In order to conduct business with the County of Fresno (hereinafter referred to as "County"), members of a corporation's board of directors of the Consultant, must disclose any self-dealing transactions that they are a party to while providing goods, performing services, or both for the County. A self-dealing transaction is defined below: "A self-dealing transaction means a transaction to which the corporation is a party and in which one or more of its directors has a material financial interest" The definition above will be utilized for purposes of completing this disclosure form. INSTRUCTIONS (1) Enter board member's name, job title (if applicable), and date this disclosure is being made. (2) Enter the board member's company/agency name and address. (3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the County. At a minimum, include a description of the following: a. The name of the agency/company with which the corporation has the transaction; and b. The nature of the material financial interest in the Corporation's transaction that the board member has. (4) Describe in detail why the self-dealing transaction is appropriate based on applicable provisions of the Corporations Code. (5) Form must be signed by the board member that is involved in the self-dealing transaction described in Sections (3) and (4). Page 1 of 2 Attachment C (1)Company Board Member Information: Name: Date: Job Title: (2)Company/Agency Name and Address: (3)Disclosure(Please describe the nature of the self-dealing transaction you are a party to): (4)Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233(a): (5)Authorized Signature Signature: Date: Page 2 of 2