HomeMy WebLinkAboutSoltek - Stipend Agreement - PWP24-015.pdf 1 DOCUMENT 00 4900
2 DESIGN-BUILD STIPEND AGREEMENT
3 This Stipend Agreement ("Agreement") is made and entered into in Fresno County,
4 California, by and between SOLPAC Construction, Inc. dba Soltek Pacific Construction Company
5 a California Corporation (Design-Build Entities) , and the County of Fresno, a political
6 subdivision of the State of California ("County") (collectively, the Parties) with respect to the
7 Clovis Regional and Reedley Libraries project ("the Project") performed independently or
8 cooperatively by the Parties.
9 Recitals
10 A. It is an industry best practice to provide a stipend to Design-Build Entities to cover a
11 portion of the costs expended on requests for proposals for Design-Build projects when not
12 selected as the Design-Build Entity awarded with the Design-Build of the Project, and
13 B. Department issued a Request for Qualifications # PWP24-015 for Design-Build services
14 for the construction of the Project on April 18, 2024 ("RFQ"); and
15 C. Department on June 24, 2024 based on its evaluation of all qualification responses
16 received in response to the RFQ, Department shortlisted three (3) Design-Build Entity teams to
17 participate in County's procurement process for Design-Build Project; and
18 D. The shortlisted Design-Build Entity teams thereafter formed, or will form, with the
19 County's approval, Proposal teams with prequalified Design-Build subcontractors; and
20 E. The County has, or will, issue a Request for Proposals for the Project ("RFP") which
21 includes, or will include, draft instruction to the Design-Build Entities; and
22 F. Design-Build Entity is, or will become, an integrated Design-Build Entity team eligible to
23 submit a Proposal for the RFP, consisting of all parties contributing intellectual property to the
24 Proposal; and
25 G. Department desires to compensate the non-awarded teams in exchange for County
26 ownership of the team's work product and intellectual property associated with the Proposal.
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1 H. As a condition to the Design-Build Entity's eligibility to receive a stipend with respect to
2 the RFP, Design-Build Entity is required to execute and deliver to County a signed Stipend
3 Agreement no later than September 25, 2024; and
4 I. On February 28, 2023, County of Fresno Board of Supervisors adopted a resolution
5 delegating authority to the Director of Public Works and Planning to execute stipend
6 agreements with non-selected vendors; and
7 J. The Parties now desire to enter into this Stipend Agreement to govern the non-awarded
8 Proposals for the Project.
9 NOW, THEREFORE, in consideration of the mutual acknowledgments, covenants, and
10 conditions herein contained, it is hereby agreed as follows:
11 Article 1
12 Definitions
13 1.1 "Background Intellectual Property" means all Intellectual Property authored, created,
14 invented, or first put into practice prior to, independent of, and not of the purposes of Design-
15 Build Entity's Proposal or the Procurement Process.
16 1.2 "Background Work Product" means all material and items as described in the
17 definition of Work Product that, rather than generated or developed in connection with Design-
18 Build Entity's Proposal or the Procurement Process, are authored, created, invented, or first put
19 into practice prior to, independent of, and not for the purposes of Design-Build Entity's Proposal
20 or the Procurement Process.
21 1.3 "Intellectual Property" means all current and future legal and/or equitable rights and
22 interests in know how (including processes, methodologies, trade secrets and confidential
23 business information which have been recorded in or on any media), copyrights (including moral
24 rights), designs (registered and unregistered), other design rights, utility models, other
25 intellectual activity, and all analogous rights in other jurisdictions and applications (drafted or
26 pending), and applications of or for any of the foregoing, subsisting in or incorporated into the
27 Work Product.
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1 1.4 "Transferred Intellectual Property" means Intellectual Property which is authored,
2 created, invented, or first put into practice for the purposes of Design-Build Entity's Proposal or
3 during the Procurement Process, except Background Intellectual Property.
4 1.5 "Work Product" means, collectively, all work product (including all written and
5 electronic material, tapes, disks, designs, concepts, ideas, technology, techniques, methods,
6 processes, drawings, reports, studies, surveys, plans, specifications, exhibits, photographs,
7 information, documents, data, and other graphic and visual aids) generated or developed by or
8 on behalf of Design-Build Entity or any of its team members during the RFP and Procurement
9 Process in connection with the Project, including aesthetic design concepts, interim design
10 submittals, and all other items generated or developed in any medium, media, or format by or
11 on behalf of Design-Build Entity in connection with Design-Build Entity's Proposal, and including
12 data and information gathered and reports prepared from any surveys or site investigations by
13 or on behalf of Design-Build Entity. "Work Product" excludes Intellectual Property subsisting in
14 or incorporated into any of the foregoing.
15 Article 2
16 Design-Build Entity's Services
17 2.1 Professional services of a Design-Builder to submit a Proposal in connection with the
18 RFP, to design and construct the Project.
19 2.2 Ownership and Transfer of Work Product:
20 (A) Except for Background Work Product, Design-Build Entities agree that all Work
21 Product, whether it includes Intellectual Property or not, is deemed to be owned by
22 County and will not be returned to Design-Build Entity.
23 (B) In consideration for County's payment to Design-Build Entity pursuant to this
24 Stipend Agreement, Design-Build Entity grants to County all rights, title, and interest in
25 and to the Transferred Intellectual Property, free of all intellectual property rights and
26 claims, without further action on County's part, and without restriction or limitation on
27 their use, exploitation, exercise of rights, or transferability.
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1 (C) County grants to Design-Build Entity and members of Design-Build Entity's team
2 an irrevocable, perpetual, non-exclusive, transferable, license, without incremental
3 charge, to use, exploit, manufacture, distribute, reproduce, adapt, and display the Work
4 Product and Transferred Intellectual Property.
5 (D) Except as provided below and subject to Design-Build Entity's receipt of the
6 stipend provided by this Stipend Agreement, Design-Build Entity grants to County an
7 irrevocable, perpetual, non-exclusive, transferable, license, without incremental charge,
8 to use, exploit, manufacture, distribute, reproduce, adapt, and display the Background
9 Intellectual Property and Background Work Product solely in connection with the Project.
10 This right and license shall not cover:
11 (1) Design-Build Entity's or any Design-Build Entity team member's name, logo,
12 and other branding elements;
13 (2) Background Intellectual Property.
14 2.3 License terms shall survive the expiration or earlier termination of this Stipend
15 Agreement.
16 2.4 If County cancels the procurement prior to the submission of the Technical Proposal
17 by Design-Build Entity, all Work Product and Transferred Intellectual Property developed by
18 Design-Build Entity at any time through the cancellation date will become property of and owned
19 by County and shall be promptly submitted to County as a condition precedent to payment
20 under this Stipend Agreement.
21 2.5 Design-Build Entity agrees that the Work Product and Transferred Intellectual
22 Property have been specially ordered and commissioned by County, and that Transferred
23 Intellectual Property shall be considered "work-made-for-hire," as that term is defined in Section
24 101 of Title 17 of the U.S. Code ("Copyright Law"). To the extent that the Transferred
25 Intellectual Property is determined by a court of competent jurisdiction, or the U.S. Copyright
26 Office, not to be work-made-for-hire, Design-Build Entity hereby agrees to assign to County all
27 right, title, and interest in and to all Transferred Intellectual Property. Neither Design-Build Entity
28 nor any of its team members shall claim, retain, apply for, and/or register any U.S. or
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1 international Intellectual Property rights in the Transferred Intellectual Property including
2 copyright or patent rights.
3 2.6 Design-Build Entity agrees that County shall be entitled to use, exploit, and exercise
4 all rights in the Transferred Intellectual Property and Work Product, Background Intellectual
5 Property, in whole or in part, to the extent described in this Stipend Agreement (subject to
6 Section 4 subsection b part iv) regarding Background Intellectual Property and Background
7 Work Product). Starting after County's issuance of the Selection Notice, County will have the
8 right to inform the Best Value Design-Build Entity regarding the contents of Design-Build Entity's
9 Work Product and Transferred Intellectual Property as well as the Background Work Product
10 and Background Intellectual Property covered by County's right and license, and incorporate
11 such Work Product, Transferred Intellectual Property, Background Intellectual Property and
12 Background Work Product or concepts based thereon into the Agreement; provided such Best
13 Value Design-Build Entity agrees to use such Background Intellectual Property and Background
14 Work Product solely for the Project and for no other purpose, and further agrees to keep such
15 Background Intellectual Property and Background Work Product Intellectual Property
16 confidential and not to disclose it to third parties except as otherwise required in connection with
17 the Project.
18 2.7 Use of the Work Product under this Stipend Agreement, whether in connection with
19 the Project or otherwise, and use of the Background Work Product in connection with the
20 Project, by County or any other person or entity acting through or on behalf of County is at
21 County's and such other person's or entity's sole risk and discretion, and shall in no way be
22 deemed to confer liability on Design-Build Entity. Further, Design-Build Entity makes no
23 warranties, express or implied, as to the conduct, completeness, success or particular results of
24 the Work Product or Background Work Product, or the condition, merchantability, or fitness for a
25 particular purpose of the Work Product or Background Work Product.
26 2.8 Design-Build Entities must submit signed copies of this Stipend Agreement. Should
27 one or more of the selected Design-Build Entities decline to execute the Project Stipend
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1 Certification, the County reserves the right to invite the next highest scoring Design-Build Entity
2 from the RFQ process to participate in the RFP phase.
3 Article 3
4 County's Responsibilities
5 3.1 The County shall review the Proposals and assign points using the methodology
6 described in the Request for Proposals (Document 00 1119). The County agrees to compensate
7 the two lowest scoring Design-Build Entities from the RFQ shortlist for the design-build
8 procurement of the Project.
9 Article 4
10 Compensation, Invoices, and Payments
11 4.1 The County agrees to pay, and the two (2) Design-Build Entity agrees to receive,
12 compensation for the performance of its services under this Agreement as described in this
13 section.
14 4.2 Maximum Compensation. The maximum compensation payable to a Design-Build
15 Entity under this Agreement is Forty Thousand 0/100 Dollars ($40,000.00) during the term of
16 the Agreement. Under no circumstances will the maximum compensation for all services
17 performed under this agreement be in excess of Forty Thousand 0/100 Dollars ($40,000.00).
18 The Design-Build Entity acknowledges that the County is a local government entity and does so
19 with notice that the County's powers are limited by the California Constitution and by State law,
20 and with notice that the Design-Build Entity may receive compensation under this Agreement
21 only for services performed according to the terms of this Agreement and while this Agreement
22 is in effect, and subject to the maximum amount payable under this section. The Design-Build
23 Entity further acknowledges that County employees have no authority to pay the Design-Build
24 Entity except as expressly provided in this Agreement.
25 4.3 Invoices. The Design-Build Entity shall submit a completed Exhibit A titled "Stipend
26 Invoice" The Design-Build Entity shall submit Exhibit A within 60 calendar days after the month
27 in which the Design-Build Entity performs services and in any case within 30 Calendar days
28 after the end of the term or termination of this Agreement.
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1 4.4 Payment. The County shall pay each correctly completed and timely submitted
2 Stipend Invoice within 45 calendar days after receipt. The County shall remit any payment to the
3 Design-Build Entity's address specified in the invoice.
4 4.5 Incidental Expenses. The Design-Build Entity is solely responsible for all of its costs
5 and expenses that are not specified as payable by the County under this Agreement.
6 Article 5
7 Term of Agreement
8 5.1 Term. This Agreement is effective upon contract execution and terminates on within
9 six (6) months of the award of the RFP Contract of the top ranked firm or payment in full,
10 whichever is sooner.
11 Article 6
12 Notices
13 6.1 Contact Information. The persons and their addresses having authority to give and
14 receive notices provided for or permitted under this Agreement include the following:
15
For the County:
16 Design Services
Department of Public Works and Planning
17 County of Fresno
2220 Tulare Street, 61h Floor
18 Fresno, CA 93721
DesignServices()fresnocountyca.gov
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For the Design-Build Entity:
20 Ronald L. Hicks Executive Vice President
SOLPAC Construction, Inc.dba Soltek Pacific Construction Company
21 1080 Holland Ave
Clovis CA 93612
22 rhicks@soltekpacific.com
23 6.2 Change of Contact Information. Either party may change the information in section
24 6.1 by giving notice as provided in section 6.3.
25 6.3 Method of Delivery. Each notice between the County and the Design-Build Entity
26 provided for or permitted under this Agreement must be in writing, state that it is a notice
27 provided under this Agreement, and be delivered either by personal service, by first-class
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1 United States mail, by an overnight commercial courier service, or by Portable Document
2 Format (PDF) document attached to an email.
3 (A) A notice delivered by personal service is effective upon service to the recipient.
4 (B) A notice delivered by first-class United States mail is effective three County
5 business days after deposit in the United States mail, postage prepaid, addressed to the
6 recipient.
7 (C)A notice delivered by an overnight commercial courier service is effective one
8 County business day after deposit with the overnight commercial courier service,
9 delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
10 the recipient.
11 (D)A notice delivered by PDF document attached to an email is effective when
12 transmission to the recipient is completed (but, if such transmission is completed outside
13 of County business hours, then such delivery is deemed to be effective at the next
14 beginning of a County business day), provided that the sender maintains a machine
15 record of the completed transmission.
16 6.4 Claims Presentation. For all claims arising from or related to this Agreement,
17 nothing in this Agreement establishes, waives, or modifies any claims presentation
18 requirements or procedures provided by law, including the Government Claims Act (Gov. Code,
19 § 810 et seq.).
20 Article 7
21 Termination and Suspension
22 7.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
23 contingent on the approval of funds by the appropriating government agency. If sufficient funds
24 are not allocated, then the County, upon at least thirty (30) days advance written notice to the
25 Design-Build Entity, may:
26 (A) Modify the services provided by the Design-Build Entity under this Agreement; or
27 (B) Terminate this Agreement.
28 7.2 Termination for Breach.
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1 (A) Upon determining that a breach (as defined in paragraph (C) below) has
2 occurred, the County may give written notice of the breach to the Design-Build Entity.
3 The written notice may suspend performance under this Agreement and must provide at
4 least 30 days for the Design-Build Entity to cure the breach.
5 (B) If the Design-Build Entity fails to cure the breach to the County's satisfaction
6 within the time stated in the written notice, the County may terminate this Agreement
7 immediately.
8 (C) For purposes of this section, a breach occurs when, in the determination of the
9 County, the Design-Build Entity has:
10 (1) Obtained or used funds illegally or improperly;
11 (2) Failed to comply with any part of this Agreement;
12 (3) Submitted a substantially incorrect or incomplete report to the County; or
13 (4) Improperly performed any of its obligations under this Agreement.
14 7.3 Termination without Cause. In circumstances other than those set forth above, the
15 County may terminate this Agreement by giving at least 30 days advance written notice to the
16 Design-Build Entity.
17 7.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
18 under this Article 7 is without penalty to or further obligation of the County.
19 7.5 County's Rights upon Termination. Upon termination for breach under this Article
20 7, the County may demand repayment by the Design-Build Entity of any monies disbursed to
21 the Design-Build Entity under this Agreement that, in the County's sole judgment, were not
22 expended in compliance with this Agreement. The Design-Build Entity shall promptly refund all
23 such monies upon demand. This section survives the termination of this Agreement.
24 Article 8
25 Independent Contractor
26 8.1 Status. In performing under this Agreement, the Design-Build Entity, including its
27 officers, agents, employees, and volunteers, is at all times acting and performing as an
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1 independent contractor, in an independent capacity, and not as an officer, agent, servant,
2 employee, joint venturer, partner, or associate of the County.
3 8.2 Verifying Performance. The County has no right to control, supervise, or direct the
4 manner or method of the Design-Build Entity's performance under this Agreement, but the
5 County may verify that the Design-Build Entity is performing according to the terms of this
6 Agreement.
7 8.3 Benefits. Because of its status as an independent contractor, the Design-Build Entity
8 has no right to employment rights or benefits available to County employees. The Design-Build
9 Entity is solely responsible for providing to its own employees all employee benefits required by
10 law. The Design-Build Entity shall save the County harmless from all matters relating to the
11 payment of Design-Build Entity's employees, including compliance with Social Security
12 withholding and all related regulations.
13 8.4 Services to Others. The parties acknowledge that, during the term of this
14 Agreement, the Design-Build Entity may provide services to others unrelated to the County.
15 Article 9
16 Indemnity and Defense
17 9.1 Indemnity. The Design-Build Entity shall indemnify and hold harmless and defend
18 the County (including its officers, agents, employees, and volunteers) against all claims,
19 demands, injuries, damages, costs, expenses (including attorney fees and costs), fines,
20 penalties, and liabilities of any kind to the County, the Design-Build Entity, or any third party that
21 arise from or relate to the performance or failure to perform by the Design-Build Entity (or any of
22 its officers, agents, proposed subcontractor, or employees) under this Agreement. The County
23 may conduct or participate in its own defense without affecting the Design-Build Entity's
24 obligation to indemnify and hold harmless or defend the County.
25 9.2 Survival. This Article 9 survives the termination of this Agreement.
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1 Article 10
2 Inspections, Audits, and Public Records
3 10.1 Inspection of Documents. The Design-Build Entity shall make available to the
4 County, and the County may examine at any time during business hours and as often as the
5 County deems necessary, all of the Design-Build Entity's records and data with respect to the
6 matters covered by this Agreement, excluding attorney-client privileged communications. The
7 Design-Build Entity shall, upon request by the County, permit the County to audit and inspect all
8 of such records and data to ensure the Design-Build Entity's compliance with the terms of this
9 Agreement.
10 10.2 State Audit Requirements. If the compensation to be paid by the County under this
11 Agreement exceeds $10,000, the Design-Build Entity is subject to the examination and audit of
12 the California State Auditor, as provided in Government Code section 8546.7, for a period of
13 three years after final payment under this Agreement. This section survives the termination of
14 this Agreement.
15 10.3 Public Records. The County is not limited in any manner with respect to its public
16 disclosure of this Agreement or any record or data that the Design-Build Entity may provide to
17 the County. The County's public disclosure of this Agreement or any record or data that the
18 Design-Build Entity may provide to the County may include but is not limited to the following:
19 (A) The County may voluntarily, or upon request by any member of the public or
20 governmental agency, disclose this Agreement to the public or such governmental
21 agency.
22 (B) The County may voluntarily, or upon request by any member of the public or
23 governmental agency, disclose to the public or such governmental agency any record or
24 data that the Design-Build Entity may provide to the County, unless such disclosure is
25 prohibited by court order.
26 (C)This Agreement, and any record or data that the Design-Build Entity may provide
27 to the County, is subject to public disclosure under the Ralph M. Brown Act (California
28 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
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1 (D)This Agreement, and any record or data that the Design-Build Entity may provide
2 to the County, is subject to public disclosure as a public record under the California
3 Public Records Act (California Government Code, Title 1, Division 7, Chapter 3.5,
4 beginning with section 6250) ("CPRA").
5 (E) This Agreement, and any record or data that the Design-Build Entity may provide
6 to the County, is subject to public disclosure as information concerning the conduct of
7 the people's business of the State of California under California Constitution, Article 1,
8 section 3, subdivision (b).
9 (F) Any marking of confidentiality or restricted access upon or otherwise made with
10 respect to any record or data that the Design-Build Entity may provide to the County
11 shall be disregarded and have no effect on the County's right or duty to disclose to the
12 public or governmental agency any such record or data.
13 10.4 Public Records Act Requests. If the County receives a written or oral request
14 under the CPRA to publicly disclose any record that is in the Design-Build Entity's possession or
15 control, and which the County has a right, under any provision of this Agreement or applicable
16 law, to possess or control, then the County may demand, in writing, that the Design-Build Entity
17 deliver to the County, for purposes of public disclosure, the requested records that may be in
18 the possession or control of the Design-Build Entity. Within five business days after the County's
19 demand, the Design-Build Entity shall (a) deliver to the County all of the requested records that
20 are in the Design-Build Entity's possession or control, together with a written statement that the
21 Design-Build Entity, after conducting a diligent search, has produced all requested records that
22 are in the Design-Build Entity's possession or control, or (b) provide to the County a written
23 statement that the Design-Build Entity, after conducting a diligent search, does not possess or
24 control any of the requested records. The Design-Build Entity shall cooperate with the County
25 with respect to any County demand for such records. If the Design-Build Entity wishes to assert
26 that any specific record or data is exempt from disclosure under the CPRA or other applicable
27 law, it must deliver the record or data to the County and assert the exemption by citation to
28 specific legal authority within the written statement that it provides to the County under this
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1 section. The Design-Build Entity's assertion of any exemption from disclosure is not binding on
2 the County, but the County will give at least 10 days' advance written notice to the Design-Build
3 Entity before disclosing any record subject to the Design-Build Entity's assertion of exemption
4 from disclosure. The Design-Build Entity shall indemnify the County for any court-ordered award
5 of costs or attorney's fees under the CPRA that results from the Design-Build Entity's delay,
6 claim of exemption, failure to produce any such records, or failure to cooperate with the County
7 with respect to any County demand for any such records.
8 Article 11
9 Disclosure of Self-Dealing Transactions
10 11.1 Applicability. This Article 11 applies if the Design-Build Entity is operating as a
11 corporation, or changes its status to operate as a corporation.
12 11.2 Duty to Disclose. If any member of the Design-Build Entity's board of directors is
13 party to a self-dealing transaction, he or she shall disclose the transaction by completing and
14 signing a "Self-Dealing Transaction Disclosure Form" (Exhibit B to this Agreement) and
15 submitting it to the County before commencing the transaction or immediately after.
16 11.3 Definition. "Self-dealing transaction" means a transaction to which the Design-Build
17 Entity is a party and in which one or more of its directors, as an individual, has a material
18 financial interest.
19 Article 12
20 General Terms
21 12.1 Modification. Except as provided in Article 7, "Termination and Suspension," this
22 Agreement may not be modified, and no waiver is effective, except by written agreement signed
23 by both parties. The Design-Build Entity acknowledges that County employees have no
24 authority to modify this Agreement except as expressly provided in this Agreement.
25 12.2 Non-Assignment. Neither party may assign its rights or delegate its obligations
26 under this Agreement without the prior written consent of the other party.
27 12.3 Governing Law. The laws of the State of California govern all matters arising from
28 or related to this Agreement.
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1 12.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
2 County, California. Design-Build Entity consents to California jurisdiction for actions arising from
3 or related to this Agreement, and, subject to the Government Claims Act, all such actions must
4 be brought and maintained in Fresno County.
5 12.5 Construction. The final form of this Agreement is the result of the parties' combined
6 efforts. If anything in this Agreement is found by a court of competent jurisdiction to be
7 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement
8 against either party.
9 12.6 Days. Unless otherwise specified, "days" means calendar days.
10 12.7 Headings. The headings and section titles in this Agreement are for convenience
11 only and are not part of this Agreement.
12 12.8 Severability. If anything in this Agreement is found by a court of competent
13 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
14 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
15 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
16 intent.
17 12.9 Nondiscrimination. During the performance of this Agreement, the Design-Build
18 Entity shall not unlawfully discriminate against any employee or applicant for employment, or
19 recipient of services, because of race, religious creed, color, national origin, ancestry, physical
20 disability, mental disability, medical condition, genetic information, marital status, sex, gender,
21 gender identity, gender expression, age, sexual orientation, military status or veteran status
22 pursuant to all applicable State of California and federal statutes and regulation.
23 12.10 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
24 of the Design-Build Entity under this Agreement on any one or more occasions is not a waiver of
25 performance of any continuing or other obligation of the Design-Build Entity and does not
26 prohibit enforcement by the County of any obligation on any other occasion.
27 12.11 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
28 between the Design-Build Entity and the County with respect to the subject matter of this
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1 Agreement, and it supersedes all previous negotiations, proposals, commitments, writings,
2 advertisements, publications, and understandings of any nature unless those things are
3 expressly included in this Agreement. If there is any inconsistency between the terms of this
4 Agreement without its exhibits and the terms of the exhibits, then the inconsistency will be
5 resolved by giving precedence first to the terms of this Agreement without its exhibits, then to
6 the terms of the exhibits, then the project RFP.
7 12.12 No Third-Party Beneficiaries. This Agreement does not and is not intended to
8 create any rights or obligations for any person or entity except for the parties.
9 12.13 Authorized Signature. The Design-Build Entity represents and warrants to the
10 County that:
11 (A) The Design-Build Entity is duly authorized and empowered to sign and perform
12 its obligations under this Agreement.
13 (B) The individual signing this Agreement on behalf of the Design-Build Entity is duly
14 authorized to do so and his or her signature on this Agreement legally binds the Design-
15 Build Entity to the terms of this Agreement.
16 12.14 Electronic Signatures. The parties agree that this Agreement may be executed by
17 electronic signature as provided in this section.
18 (A) An "electronic signature" means any symbol or process intended by an individual
19 signing this Agreement to represent their signature, including but not limited to (1) a
20 digital signature; (2) a faxed version of an original handwritten signature; or (3) an
21 electronically scanned and transmitted (for example by PDF document) version of an
22 original handwritten signature.
23 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
24 equivalent to a valid original handwritten signature of the person signing this Agreement
25 for all purposes, including but not limited to evidentiary proof in any administrative or
26 judicial proceeding, and (2) has the same force and effect as the valid original
27 handwritten signature of that person.
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1 (C)The provisions of this section satisfy the requirements of Civil Code section
2 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
3 Part 2, Title 2.5, beginning with section 1633.1).
4 (D) Each party using a digital signature represents that it has undertaken and
5 satisfied the requirements of Government Code section 16.5, subdivision (a),
6 paragraphs (1) through (5), and agrees that each other party may rely upon that
7 representation.
8 (E) This Agreement is not conditioned upon the parties conducting the transactions
9 under it by electronic means and either party may sign this Agreement with an original
10 handwritten signature.
11 12.15 Counterparts. This Agreement may be signed in counterparts, each of which is an
12 original, and all of which together constitute this Agreement.
13 Article 13
14 Conflict of Interest
15 13.1 The Consultant shall comply with the provisions of the Fresno County Department of
16 Public Works and Planning Conflict of Interest Code, attached hereto as Exhibit C and
17 incorporated herein by this reference. Such compliance shall include the filing of annual
18 statements pursuant to the regulations of the State Fair Political Practices Commission
19 including, but not limited to, portions of Form 700.
20 13.2 During the term of this Agreement, the Consultant shall disclose any financial,
21 business, or other relationship with the County that may have an impact upon the outcome of
22 this contract, or any ensuing County construction project. The Consultant shall also list current
23 clients who may have a financial interest in the outcome of this contract, or any ensuing County
24 construction project, which will follow.
25 13.3 The Consultant certifies that it has disclosed to the County any actual, apparent, or
26 potential conflicts of interest that may exist relative to the services to be provided pursuant to
27 this Agreement. The Consultant agrees to advise the County of any actual, apparent or potential
28 conflicts of interest that may develop subsequent to the date of execution of this Agreement.
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1 The Consultant further agrees to complete any statements of economic interest if required by
2 either County ordinance or State law.
3 13.4 The Consultant hereby certifies that it does not now have nor shall it acquire any
4 financial or business interest that would conflict with the performance of services under this
5 Agreement.
6 13.5 The Consultant hereby certifies that the Consultant or subconsultant and any firm
7 affiliated with the Consultant or subconsultant that bids on any construction contract or on any
8 Agreement to provide construction inspection for any construction project resulting from this
9 Agreement, has established necessary controls to ensure a conflict of interest does not exist.
10 An affiliated firm is one, which is subject to the control of the same persons, through joint
11 ownership or otherwise.
12 Article 14
13 Ownership of Data
14 14.1 All documents, including preliminary documents, calculations, and survey data,
15 required in performing services under this Agreement shall be submitted to, and shall remain at
16 all times the property of the County regardless of whether they are in the possession of the
17 Consultant or any other person, firm, corporation or agency.
18 14.2 The Consultant understands and agrees the County shall retain full ownership rights
19 of the work product of the Consultant for the Project, to the fullest extent permitted by law. In
20 this regard, the Consultant acknowledges and agrees the Consultant's services are on behalf of
21 the County and are "works made for hire," as that term is defined in copyright law, by the
22 County; that the work product to be prepared by the Consultant are for the sole and exclusive
23 use of the County, and that the County shall be the sole owner of all patents, copyrights,
24 trademarks, trade secrets and other rights and contractual interests in connection therewith
25 which are developed and compensated solely under this Agreement; that all the rights, title and
26 interest in and to the work product will be transferred to the County by the Consultant to the
27 extent the Consultant has an interest in and authority to convey such rights; and the Consultant
28 will assist the County to obtain and enforce patents, copyrights, trademarks, trade secrets, and
17
1 other rights and contractual interests relating to said work product, free and clear of any claim
2 by the Consultant or anyone claiming any right through the Consultant. The Consultant further
3 acknowledges and agrees the County's ownership rights in such work product, shall apply
4 regardless of whether such work product, or any copies thereof, are in possession of the
5 Consultant, or any other person, firm, corporation, or entity.
6 14.3 If this Agreement is terminated during or at the completion of any Project phase,
7 electronic and reproducible copies of report(s) or preliminary documents shall be submitted by
8 the Consultant to the County, which may use them to complete the Project(s) at a future time.
9 14.4 The files provided by the Consultant to the County are submitted for an acceptance
10 period lasting until the expiration of this Agreement (i.e., throughout the duration of the contract
11 term, including any extensions). Any defects the County discovers during such acceptance
12 period will be reported to the Consultant and will be corrected as part of the Consultant's "Basic
13 Scope of Work."
14 Article 15
15 Rebates, Kickbacks or Other Unlawful Consideration
16 15.1 The Consultant warrants that this Agreement was not obtained or secured through
17 rebates, kickbacks or other unlawful consideration, either promised or paid to any County
18 employee. For breach or violation of this warranty, the County shall have the right, in its
19 discretion, to terminate this Agreement without liability; or to pay only for the value of the work
20 actually performed; or to deduct from this Agreement the price or consideration, or otherwise
21 recover, the full amount of such rebate, kickback or other unlawful consideration.
22 Article 16
23 Contingent Fees
24 16.1 The Consultant warrants, by execution of this Agreement that no person or selling
25 agency has been employed, or retained, to solicit or secure this Agreement upon an agreement
26 or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona
27 fide employees, or bona fide established commercial or selling agencies maintained by the
28 Consultant for the purpose of securing business. For breach or violation of this warranty, the
18
1 County has the right to: annul this Agreement without liability, and to pay only for the value of
2 the work actually performed; or in its discretion to deduct from the Agreement the price or
3 consideration, or otherwise recover, the full amount of such commission, percentage,
4 brokerage, or contingent fee.
5
6
7 IN WITNESS WHEREOF, they have executed this Agreement this 8th day of
8 October , 2024.
9
10
11 SOLPAC Construction,Inc.dba Soltek Pacific Construction
Company County of Fresno
12 (Design-Build Entity) (Owner)
Digitally signed by Ron Digitally signed by Steve
Hicks Whit
13 Ron Hicks Date:2024.09.09 15:02 10 Steve WhiteDatee2024.10.08
By: -07'00' By: 15:40:37-07'00'
14 Steve E. White, Director
Ronald L. Hicks Executive Vice President Department of Public Works and Planning
15 1080 Holland Ave County of Fresno
16 Clovis CA 93612
17
For accounting use only:
18
Org No.:
19 Account No.:
Fund No.:
20 Subclass No.:
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24
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28
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Exhibit A
Stipend Invoice
Reference is made to that Request for Proposals issued by County of Fresno Department of
Public Works and Planning ("County") for the PROJECT NAME Project, Number
("Project").
Reference is also made to the "PROJECT DESIGN-BUILD STIPEND AGREEMENT" dated as
of by and between County and ("Design-Build Entity").
1. Pursuant to the PROJECT RFP and the Stipend Agreement, Design-Build Entity hereby
requests payment of$ reflecting the amount to which
Design-Build Entity is entitled under Section 4 of the Stipend Agreement.
2. Upon Design-Build Entity's receipt of the amount of the stipend as prescribed under the
Stipend Agreement and the RFP, Design-Build Entity hereby:
a. Grants to County all rights, title, and interest in and to the Transferred Intellectual
Property, as defined in the Stipend Agreement, free of all intellectual property
rights and claims, without further action on County's part, and without restriction
or limitation on their use, exploitation, exercise of rights, or transferability;
b. Grants to County an irrevocable, perpetual, non-exclusive, transferable, without
incremental charge, to use, exploit, manufacture, distribute, reproduce, adapt,
and display the Background Intellectual Property, Background Work Product
solely in connection with the Project, which shall not cover:
i. Design-Build Entity's or any Design-Build Entity team member's name,
logo, and other branding elements;
ii. Any Background Intellectual Property or Background Work Product
embodied in the Project; or
iii. Background Intellectual Property;
c. Waives all rights to protest any aspect of the Procurement Process, including any
protest of ranking, award, or cancellation of the procurement; and
d. Fully unconditionally, and irrevocably releases and waives all claims against
County arising out of or relating to the County's use of the Work Product.
3. Design-Build Entity represents and warrants to County that: (a) the Stipend Agreement
Certification has been duly and validly executed and delivered to County and is in full force
and effect; and (b) Design-Build Entity is eligible for payment pursuant to the terms of the
Stipend Agreement and the Project RFP.
4. Design-Build Entity acknowledges that submission of this invoice, and payment by County of
any amount in response to this invoice, is in all respects subject to the terms and conditions
of the Stipend Agreement and the Project RFP.
Date: Design-Build Entity:
Signature: Name, Title:
Exhibit B
Self-Dealing Transaction Disclosure Form
In order to conduct business with the County of Fresno ("County"), members of a
contractor's board of directors ("County Contractor"), 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 used 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.
The form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
B-1
Exhibit B
(1) Company Board Member Information:
Name: N/A Date: N/A
Job Title: N/A
(2) Company/Agency Name and Address:
N/A
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a
party to)
N/A
(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code § 5233 (a)
N/A
(5) Authorized Signature
Signature: N/A Date: N/A
B-2
Exhibit C
COUNTY OF FRESNO
ORGANIZATIONAL CONFLICT OF INTEREST POLICY
APPLICABLE TO DESIGN-BUILD PROJECTS
1. PURPOSE
The purpose of this Organizational Conflict of Interest Policy ("Policy") is to
establish the County of Fresno's organizational conflict of interest guidelines
applicable to design-build projects procured pursuant to Public Contract Code
section 22160, et seq. and Federal Procurement Standards 2 CFR 200.319.
2. AUTHORITY
By this Policy, the Director of the Department of Public Works and Planning is
delegated the authority to make the County's final determination on whether any
Proposers have an Organizational Conflict of Interest in a manner consistent
with the Board's general and specific intent set forth herein, consistent with all
applicable laws, and in consultation with the Office of County Counsel.
The legal basis for this policy is Public Contract Code Sections, 22160-22169, as
may be amended from time to time, and such other statutory and regulatory
provisions as may be applicable.
3. POLICY
Contractors and Consultants participating as proposers on a design-build project or
joining a design-build team ("Proposers") may not have organizational conflicts of
interest.
3.1 Organizational Conflict of Interest Defined
Organizational conflicts of interest are circumstances arising out of a
Consultant's or Contractor's existing or past activities, business or
financial interests, familial relationships, contractual relationships, and/or
organizational structure (e.g., parent, entities, subsidiaries, affiliates) that
results in:
(i) impairment or potential impairment of a Consultant's or
Contractor's ability to render impartial assistance or advice to the
County or of its objectivity in performing work for the County;
(ii) an unfair competitive advantage for any bidder or proposer with
respect to a County procurement; or
(iii) a perception or appearance of impropriety with respect to any of
the County's procurements or contracts or a perception or
appearance of unfair competitive advantage with respect to a
procurement by the County (regardless of whether any such
1
perception is accurate).
While this Policy cannot and does not purport to describe every problematical situation
that may arise, the following are examples of circumstances that will constitute an
organizational conflict of interest:
3.1.1 A Proposer is the County's general engineering or architectural
Consultant to the design-build project, except that a sub-
consultant to the general engineering or architectural Consultant
that has not yet performed work on the contract to provide
services for the design-build project may participate as a proposer
or join a design-build team if it terminates the agreement to
provide work and provides no work for the County's general
engineering or architectural Consultant on the design-build project.
3.1.2 A Proposer has assisted or is assisting the County in the
management of the design-build project, including the
preparation of the request for proposals, evaluation criteria, or
any other aspect of the procurement.
3.1.3 A Proposer has conducted preliminary design services for the
design-build project such as conceptual layouts, preliminary
design, or preparation of bridging documents.
3.1.4 A Proposer performed design work related to the design-build
project for other stakeholders in the design-build project.
3.1.5 A Proposer performed design work on a previous contract
that specifically excludes it from participating as a proposer or
joining a design-build team for the design-build project.
3.1.6 A Proposer is under contract with any other entity or
stakeholder to perform oversight of the design-build project.
3.1.7 A Proposer has obtained advice from, or discussed any aspect
relating to the design-build project or procurement of the design-
build project with, any person or entity with an organizational
conflict of interest, including, but not limited to, the Consultants of
any entity that have provided technical support on the design-
build project.
3.1.8 Any circumstances that would violate California Government
Code Section 1090, et seq. or the Political Reform Act,
Government Code Section 80000, et seq.
3.2 Proposers' Obligations Before Contract Award
2
If a Proposer determines that a conflict of interest or potential conflict of
interest exists, Proposers must immediately make a full written disclosure of
the conflict or potential conflict of interest to disclosure to the Director of the
Department of Public Works and Planning and shall have a continuing
obligation to do so until they are no longer Proposers.
Such disclosure will not necessarily disqualify a Proposer from being
awarded a contract, however. The Proposer shall propose measures to
avoid, prevent, or mitigate all potential or actual conflicts. The Director of
the Department of Public Works and Planning shall determine whether
the proposed measures are sufficient to overcome the conflict or potential
conflict and whether the Proposer may continue with the procurement
process. In the event the conflict of interest involves the Director of the
Department of Public Works and Planning, the County Administrative
Officer would make the determination.
3.3 Proposers' Obligations After Contract Award
The successful Proposer to whom a contract is awarded ("Contractor")
has an ongoing obligation to monitor and disclose its conflicts or potential
conflicts of interest. The County has a right to ongoing enforcement of this
Policy. If an organizational conflict of interest is discovered after contract
award, the Contractor must make an immediate and full written disclosure
to the Director of the Department of Public Works and Planning that
includes a description of the action that the Contractor has taken or
proposes to take to avoid or mitigate such conflicts. If an organizational
conflict of interest is determined to exist and the Contractor was or
reasonably should have been aware of an organizational conflict of
interest prior to award of the contract while acting with due diligence to
search for such a conflict and did not disclose the conflict, the County may
terminate the contract, and Contractor shall disgorge all money paid to it
under the Contract, in addition to any other remedies available to the
County. If a new conflict of interest arises after contract award, and
Contractor's proposed measures to avoid or mitigate the conflict are
determined by the County to be inadequate to protect the County, the
County may terminate the contract. If the contract is terminated, the
County assumes no obligations, responsibilities and liabilities to reimburse
all or any portion of the costs incurred or alleged to have been incurred by
Contractor and the County further is entitled to pursue any and all
available legal remedies.
4. INCORPORATION BY REFERENCE
This Policy shall be incorporated by reference into all related Consultant and
Contractor design-build solicitations and contracts executed by the County.
3