HomeMy WebLinkAbout2001-107
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RESOLUTION NO. 2001-107
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT
WITH STANTEC CONSULTING, INC. FOR PROVIDING PROFESSIONAL
SERVICES TO DEVELOP A PAVEMENT MANAGEMENT PROGRAM.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. That the Mayor is authorized to execute the Agreement with Stantec
Consulting, Inc. for providing Professional Services to develop a Pavement Management
Program (attached and incorporated herein as Exhibit "A"). A contract is entered into with said
firm for the actual costs incurred, not to exceed $99,400.00, with a contingency amount of
$15,000.00, but such agreement shall be effective only upon being fully executed by both
parties. The Mayor is hereby authorized and directed to execute said agreement on behalf of
the City; a copy of the proposal is on file in the office of the City Clerk and incorporated herein
by reference as fully as though set forth at length.
SECTION 2. This agreement and any amendment or modifications thereto shall not
take effect or become operative until fully signed and executed by the parties and no party shall
be obligated hereunder until the time of such full execution. No oral agreements, amendments,
modifications or waivers are intended or authorized and shall not be implied from any act or
course of conduct of any party.
SECTION 3. This resolution is rescinded if the parties to the contract fail to execute it
within sixty (60) days of passage of the resolution.
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2001-107
RESOLUTION...AUTHORIZING THE EXECUTION OF AN AGREEMENT
WITH STANTEC CONSULTING, INC. FOR PROVIDING PROFESSIONAL
SERVICES TO PERFORM PAVEMENT MANAGEMENT PROGRAM.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
joint
and Common Council of the City of San Bernardino at a regular meeting thereof, held on the
.lih.. day of May
,2001, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN ABSENT
ESTRADA
x
LIEN
x
MC GINNIS
x
SCHNETZ
x
SUAREZ
x
ANDERSON
x
MC CAMMACK
x
)d~f-Kp~o.. 'Deput.
City Clerk j ._~
The foregoing resolution is hereby approved this It 1/-< day of _.May
,2001.
Approved as to
form and legal content:
J . h Valles, Mayor
i of San Bernardino
JAMES F. PENMAN,
City Atwrney ,
By: );~>:; ;~
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2001-107
Exhibit "A"
..
AGREEMENT FOR PROFESSIONAL SERVICES
This AGREEMENT is made and entered into this 'l'Tl-'l of ~ 2001, by and
between the CITY OF SAN BERNARDINO, California, a municipal corporatiOII., hereinafter referred
to as the "CITY" and Stantec Consulting, Inc., an Arizona corporation, hereinafter referred to as
"CONSULTANT".
WITNESSETH
WHEREAS, City desires to obtain professional services to develop a Pavement Management
Program.
WHEREAS, in order to develop a Pavement Management Program it is necessary to retain the
professional services of a qualified consulting firm; and
WHEREAS, Consultant is qualified to provide said professional services; and
WHEREAS, San Bernardino City Council has elected to engage the services of Consultant upon
the terms and conditions as hereinafter set forth; and
NOW, THEREFORE, it is mutually agreed, as follows:
I. SCOPE OF SERVICES
Consultant shall perform those services specified in "Scope of Services" and as contained
in the cost proposal dated February 13, 2001, (which is on file at the City Clerk's Office)
and "Price Form", a copy of which is attached hereto as Exhibit" 1" and incorporated
herein as though set forth in full.
2. TERM OF AGREEMENT
Consultant shall commence within thirty (30) days after the City has authorized work to
start by issuance of a Notice to Proceed. These services shall be completed within four
(4) months after Notice to Proceed unless amended by the City.
3. STANDARD OF PERFORMANCE
Consultant shall complete all work products and design in conformance with Standard
Specifications for Public Works Construction (Green Book) and the City of San
Bernardino's Standard Drawings.
4. CHANGES/EXTRA SERVICES
A. Performance of the work specified in the "Scope of Services", is made an
obligation of Consultant under this Agreement, subject to any changes made
subsequently upon mutual agreement of the parties. All such changes shall be
2001-107
considered as additional tasks and shall be incorporated by written amendments to
this Agreement and include any increase or decrease in the amount of
compensation due Consultant for the change in scope. Any change, which has
not been so incorporated, shall not be binding on either party.
B. No extra services shall be rendered by Consultant under this Agreement unless
City authorizes such extra services in writing prior to performance of such work.
Authorized extra services shall be invoiced based on the authorized additional task
amounts.
5. COMPENSATION
A. The City shall reimburse the Consultant for actual costs (including labor costs,
employee benefits, overhead, profit, other direct and indirect costs) incurred by
the Consultant in performance of the work, in an amount not to exceed
$99,400.00. Actual costs shall not exceed the estimated wage rates and other
costs as set forth in Exhibit "1" attached hereto and incorporated herein as though
set forth in full.
B. Said compensation shall not be altered unless there is significant alteration in the
scope, complexity or character of the work to be performed. City and Consultant
shall agree upon any such significant alteration in writing before commencement
of performance of such significant alteration by Consultant.
Any adjustment of the total cost of services will only be permitted when the
Consultant establishes and City has agreed in writing that there has been, or is to
be, a significant change in:
1. Scope, complexity, or character of the services to be performed;
2. Conditions under which the work is required to be performed; and
3. Duration of work if the change from the time period specified m the
Agreement for Completion of the work warrants such adjustment.
C. The Consultant is required to comply with all Federal, State and Local laws and
ordinances applicable to the work. The Consultant is required to comply with
prevailing wage rates in accordance with California Labor Code Section 1770.
D. The Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR,
Federal Acquisition Regulations System, Chapter I, part 31 et seq., shall be used
to determine the allowability of individual items of cost.
E. The Consultant also agrees to comply with Federal procedures in accordance with
49 CFR, Part 19, Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments.
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2001-107
F. Any costs for which payment has been made to Consultant that are determined by
subsequent audit to be unallowable under 48 CFR, Federal Acquisition
Regulations System, Chapter 1, Part 31 et seq., or 49 CFR, Part 18, Uniform
Administrative Requirements for Grants and Cooperative Agreements to State and
Local Governments, are subject to repayment by Consultant to City.
G. Any subcontract in excess of $10,000, entered into as a result of this contract,
shall contain all the provisions of this Article.
6. PAYMENT BY CITY
A. The billings for all services rendered pursuant to this Agreement shall be
submitted every four (4) weeks by Consultant to City and shall be paid by City
within twenty (20) days after receipt of same, excepting any amounts disputed by
City. Dispute over any invoiced amount shall be noticed to the Consultant within
ten (10) days of billing and a meet and confer meeting for purposes of resolution
of such dispute shall be initiated by the City within (10) days of notice of such
dispute. Interest of 1-1/2 percent per month (but not exceeding the maximum rate
allowable by law) will be payable on any amounts not in dispute and not paid
within thirty (30) days of the billing date, payment thereafter to be applied first to
accrued interest and then to the principal unpaid amount. On disputed amounts,
interest shall accrue from thirty (30) days of the invoice date if the amount in
dispute is resolved in favor of the Consultant. All tasks as specified in Exhibit
"1" shall be completed prior to final payment.
B. No payment will be made for any work performed prior to approval of this
contract by City and issuance by City of Notification to Proceed.
7. SUPERVISION AND ACCEPTANCE OF SERVICES
A. The Director of Development Services of City, or his designee, shall have the
right of general supervision over all work performed by Consultant and shall be
City's agent with respect to obtaining Consultant's compliance hereunder. No
payment for any services rendered under this Agreement shall be made without
prior approval of the Director of Development Services or his designee.
8. COMPLIANCE WITH CIVIL RIGHTS LAWS
Consultant hereby certifies that it will not discriminate against any employee or applicant
for employment because of race, color, religion, sex, marital status, age, handicap or
national origin. Consultant shall comply with all State and Federal Civil Rights Laws in
its hiring practices and employee policies. Such action shall include, but not be limited
to, the following: recruitment and recruitment advertising, employment, upgrading, and
promotion.
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9. TERMINATION OF AGREEMENT
A. This Agreement may be terminated by either party upon thirty- (30) days' written
notice in the event of substantial failure of the other party to perform in
accordance with the terms of this Agreement. Each party shall have twenty (20)
days following date of such notice within which to correct the substantial failure,
giving rise to such notice. In the event of termination of this Agreement, City
shall within thirty (30) days pay Consultant for all the fees, charges and services
performed to City's satisfaction by Consultant, which finding of satisfaction shall
not be unreasonably withheld. Consultant hereby covenants and agrees that upon
termination of this Agreement for any reason, Consultant will preserve and make
immediately available to City, or its designated representatives, maps, notes,
correspondence, or records related to work paid for by the City and required for
its timely completion, and to fully cooperate with City so that the work to be
accomplished under this Agreement may continue within forty-five (45) days of
termination. Any subsequent use of such incomplete documents, other than their
originally intended use, shall be at the sole risk of the City, and the City agrees to
hold harmless and indemnify Consultant from any claims, losses, costs, including
attorney's fees and liability arising out of such use. Consultant shall be
compensated for such services in accordance with Exhibit "1".
B. This agreement may be terminated for the convenience of the City upon thirty-
(30) days written notice to Consultant. Upon such notice, Consultant shall
provide work product to City, and City shall compensate Consultant in the
manner set forth above.
C. Following the effective date of termination of this Agreement pursuant to this
section, the Agreement shall continue until all obligations arising from such
termination are satisfied.
10. CONTINGENCIES
In the event that, due to causes beyond the control of and without the fault or negligence
of Consultant, Consultant fails to meet any of its obligations under this Agreement, and
such failure shall not constitute a default in performance, the City may grant to
Consultant such extensions of time and make other arrangements or additions, excepting
any increase in payment, as may be reasonable under the circumstances.
Increases in payment shall be made only under .the "changes" provision of this
Agreement. Consultant shall notify City within three (3) days in writing when it
becomes aware of any event or circumstances for which it claims or may claim an
extension.
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2001-107
11. INDEPENDENT CONTRACTOR
Consultant shall act as an independent contractor in the performance of the services
provided for under this Agreement. Consultant shall furnish such services in its own
manner and in no respect shall it be considered an agent or employee of the City.
12. ASSIGNMENT OR SUBCONTRACTING
Consultant may not assign this Agreement, or any portion without the written consent of
City. Any attempt by Consultant to assign or subcontract any performance of this
Agreement without the written consent of the City shall be null and void and shall
constitute a breach of this Agreement. All subcontracts exceeding $10,000 shall contain
all provisions of this contract.
13. NOTICES
All official notices relative to this Agreement shall be in writing and addressed to the
following representatives of Consultant and City:
CONSULTANT
CITY
Mr. Jim Hallman
Stantec Consulting, Inc.
8211 South 48th Street
Phoenix, AZ 85044-5355
Mr. James Funk
Director of Development Services
300 North "D" Street
San Bernardino, CA 92418
14. RESPONSIBILITIES OF PARTIES
A. The Consultant may reasonably rely upon the accuracy of data provided through
the City or its agents.
B. Upon completion of all work under this contract, ownership and title to all
reports, documents, plans, specifications, and estimates, with the exception of
software and software documentation, produced as part of this contract will
automatically be vested in the City and no further agreement will be necessary to
transfer ownership to the City. The Consultant agrees that the City hereby
receives a royalty-free, non-exclusive and irrevocable right to use of internal
purposes, the software and the software documentation to be provided under this
Agreement. The City agrees it will not reproduce or circulate beyond its own
organization, either verbally or by written work, information pertaining to the
working components of the software and the documentation, either in part or in
full, without the written consent of the Contractor.
A separate software licensing agreement, providing for the use and ownership of
the software and software documentation, as per Exhibit 2, attached and
incorporated herein, shall be signed by both the City and the Consultant.
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2001-107
Any use of completed documents for projects other than that covered by this
Agreement andlor any use of uncompleted documents without specific written
authorization from Consultant will be at the City's sole risk and liability without
legal exposure to Consultant.
C. The Consultant is not liable for claims, liabilities or losses ansmg out of, or
connected with, the modification or misuse by the City of the machine readable
information and data provided by the Consultant under this agreement; further,
the Consultant is not liable for claims, liabilities or losses arising out of, or
connected with, any use by the City of the project documentation on other
projects, for additions to this project, or for the completion of this project by
others, excepting only such use as may be authorized, in writing, by Consultant.
D. For the purpose of determining compliance with Public Contract Code
Section 10115, et. seq. and Title 21, California Code of Regulations, Chapter 21,
Section 2500 et. seq., when applicable, and other matters connected with the
performance of the contract pursuant to Government Code Section 8546.7, the
Consultant, and the City shall maintain all the books, documents, papers,
accounting records, and other evidence pertaining to the performance of the
contract, including but not limited to, the costs of administering the contract. All
parties shall make such materials available at their respective offices at all
reasonable times during the contract period and for three years from the date of
final payment under the contract. The State, the State Auditor, FHWA, or any
duly authorized representative of the Federal government having jurisdiction
under Federal laws or regulations (including the basis of Federal funding in whole
or in part) shall have access to any books, records, and documents of the
Consultant that are pertinent to the contract for audits, examinations, excerpts,
and transactions, and copies thereof shall be furnished if requested.
15. CONSTRUCTION COST ESTIMATES
A. Any opinion of the construction cost prepared by Consultant represents his
judgement as a design professional and is supplied for the general guidance of the
City. Since Consultant has no control over the cost of labor and material, or over
competitive bidding or market conditions, Consultant does not guarantee the
accuracy of such opinions as compared to contractor bids or actual cost to the
City.
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2001-107
16. COVENANT AGAINST CONTINGENT FEE
Consultant warrants that no person or selling agency has been employed or retained to
solicit or secure this Agreement upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Consultant for the purpose
of securing business. For breach or violation of this warranty, City shall have the right
to terminate this Agreement in accordance with the clause permitting termination for
cause and, at its sole discretion, to deduct from the Agreement price or consideration, or
otherwise recover, the full amount of such commission, percentage, brokerage or
contingent fee.
17. HOLD HARMLESS CLAUSE
A. Consultant shall indemnify, defend and hold free and harmless the City, its
officers, and its employees from all claims, damages, costs, expenses, and
liability, including, but not limited to, attorney's fees imposed upon them for any
alleged infringement of patent rights or copyrights of any person or persons in
consequence of the use by City, its officers, employees, agents, and other duly
authorized representatives, of programs or processes supplied to City by
Consultant under this Agreement.
B. The prevailing party in any legal action to enforce or interpret any provisions of
this Agreement will be entitled to recover from the losing party all reasonable
attorneys' fees, court costs, and necessary disbursements in connection with that
action. The costs, salary, and expense of the City Attorney and members of his
office, in connection with that action shall be considered as attorneys' fees for the
purposes of this Agreement.
18. INDEMNITY
Consultant agrees to indemnify, defend and hold harmless the City of San Bernardino,
and its agents, officers and employees from and against any and all liability , expense and
claims for damages of any nature whatsoever, including, but not limited to, costs, bodily
injury, death, personal injury, or property damages, arising from or connected with
Consultant's operations, or any aspect of its performance under this Agreement.
19. LIABILITYIINSURANCE
Consultant shall maintain insurance policies meeting the minimum requirements set forth
herein. All insurance maintained by the Consultant shall be provided by insurers
satisfactory to the City. Certificates evidencing all insurance coverage required herein
shall be delivered to the City prior to the Consultant performing any of the services
under this Agreement. All insurance certificates required herein shall name the City as
an additional insured and provide for thirty (30) days written notice from the insurer to
the City prior to cancellation of any insurance policy of the Consultant.
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2001-107
A. Errors and Omissions - The Consultant shall maintain errors and omissions
insurance with a combined single limit of not less than One Million Dollars
($1,000,000.00) per occurrence.
B. Comprehensive General Liability and Automobile Insurance - The Consultant
shall maintain comprehensive general liability and automobile liability insurance
with a combined single limit of not less than One Million Dollars ($1,000,000.00)
per occurrence.
C. Worker's Compensation Insurance - The Consultant shall maintain worker's
compensation insurance in accordance with the laws of the State of California for
all workers employed by the Consultant.
20. VALIDITY
Should any provision herein be found or deemed to be invalid, this Agreement shall be
construed as not containing such provision, and all other provisions which are otherwise
lawful shall remain in full force and affect, and to this end the provisions of this
Agreement are declared to be severable.
21. ENTIRE AGREEMENT
This Agreement represents the entire and integrated agreement between the parties hereto
and supersedes all prior and contemporaneous negotiations, representations,
understandings, and agreements, whether written or oral, with respect to the subject
matter thereof. This Agreement may be amended only by written instrument signed by
both parties.
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AGREEMENT FOR Professional Services with Stantec Consulting, Inc.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the
date written above by their duly authorized officers on their behalf.
ATTEST:
BY: R a..cJtL (!J~
Rachel Clark, City Clerk
City of San Bernardino
~ j/J0/Ylri.JuL, 'rrucLinfN; k pu~
Approved as to form
and legal content:
JAMES F. PENMAN
City Attorney
/?
. tf.c;u
CITY OF SAN BERNARDINO
~
BY:
dith Valles, Mayor
City of San Bernardino
STANTEC CONSULTING, INC.
BY:~
Signature
NAME: JI<'~' Q,V"w..,.""C;-
TITLE:
V,e.&.- P"'-"f,'d~... t
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2001-107
Exhibit 1
PRICE FORM
(To be submitted in a sealed envelope separate from proposal documents)
REQUEST FOR PROPOSALS: RFP F-01-55
DESCRIPTION OF WORK: Pavement Management Program
NAMEJTELEPHONE NO. OF
AUTHORIZED REPRESENTATIVE James R. Hallman
(602) 438-2200
Please provide detailed Finn Fixed Price cost information in the space provided below, and any
other incidental or additional costs required to complete the Technical Specification requirements.
Comprehensive Pavement Management Program Fees
Task 1. Project Initiation .
Task 2. Implementation & Software
Task 3. Data Collection (576 test miles)
Task 4. Analysis
Task 5. Reports
Task 6. Training
Total
6,600.00
26,680.00
43,200.00
10,700.00
5,300.00
6,920.00
$ 99,400.00
The Alternatives are address on the following page.
Are there any other additional or incidental costs which will e required by your firm in order to
meet the requirements of the Technical Specifications? Yes I No . (circle one). If you
answered "Yes", please provide detail of said additional costs: see deviati on" ; n C;pr+i on 4
Please indicate any elements of the Technical Specifications which cannot be met by your firm. -
2001-107
EXHIBIT "2"
SOFTWARE LICENSE AGREEMENT
Agreement Number: 620-71550
This License Agreement, made and entered into by and,
BETWEEN:
CITY OF SAN BERNARDINO
300 North "0" Street
San Bernardino, CA 92418.0001
Hereinafter called 'CLlENT'
- and-
STANTEC CONSUL1ING INC.
8211 South 48'" street
Phoenix, AZ 85044
Hereinafler called 'STANTEe'
IN CONSIDERATION OF the mutual covenants contained hell!in, tile partiea hereto ,agree ..
follows:
TERMS AND CONDITIONS
1. SCOPE
Thi. Ucense Agreement (hereinafter referred to as 'AGREEMENT) shall apply to the Il!ntal,
leale andlor license of the proprietary computer software pmduct(s) specified in Paragraph 1
herein. For purposllS of this Agreement, the term "PRODUCT' shall mean that specltlc
proprietary computer software product (Including programs, documentation and any subsequent
updates) specified as follows:
Pavement Management Application
(Muftj..User- Up to.5 Seats)
Rehsbl1it11tion Module
Historical Data Madule
GIS UnlrlDattJ &pott Morlule
Mapping Module
2. LICENSE
The PRODUCT Is protected by copyright laws and international copyright tr-eatiell, as _II as
other intellectual property laws and treatillB. The PRODUCT ilS ficeMed, not sold.
STANTEC hereby granlll to, and the CUENT hereby lIccepl&. SUbject to the terms and
conditions specified herein, a nontransferable and nonexclusive license to use the PRODUCT
exclusively in the CLIENT's business. for the CLIENT's benefit and on CLIENT operated
computing eqUipment. The CUENT expressly agrees 10 use the PRODUCT for itG own internel
operations only and not to allow the PRODUCT 10 be re-marketed, 'hared, assigned or used in
any manner whatsoever by any other party.
01/01
Nan SllIndard Agn:cmcol
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2001-107
The PRODUCT shall be used by the CLIENT only at the following location:
CITY OF SAN BERNARDINO, 300 North -D- Snit, San Bern:lrdlna, CA 92418-0001
This license and the PRODUCT may not be shared or used concurrently on different computers
unless authorized to do so herein. The PRODUCT is licensed as a single product. Its
component parts may not be separated for use on more than one computer.
The CLIENT assumes fUll responSibility for the condition and effectivenesa of the operating
environment in which the PRODUCT Is to function,
The CLIENT shall use the PRODUCT for Internal purposes only. The CLIENT shall not copy or
duplicate the PRODUCT without the prior written conaent of STANTEC"except that the CLIENT
may copy the PRODUCT once, only to ensure adequate back-up il\SUpport of the CLIENra use
01 the PRODUCT. The CLIENT shall not provide, transfer, assign, rent, lease, lend or othelWise
make available the PRODUCT or any part or Copies in any form to any third 'party, except as may
be permitted in writing by STANTEC. The CLIENT may not copy the printed materials
accompanying the PRODUCT.
3. TITLE
Tille to the PRODUCT and any reproduction thereof, all property rights thell!in, and all materials
supplied 10 the CLIENT under. this Agreement shall remain the sole property of ST ANTEC. All
copyright, patent, trade secret and other intellectual and proprietary rights in the PRODUCT are
and remain the valuable property of STANTEC. .
4, NON.DISCLOSURE
The CLIENT ungeratands and agrees that the PRODUCT constitutes proprietary Infonnatlon and
trade aecrets of STANTEC. The CLIENT agrees to keep confidential and to exercise its best
efforts to prevent and protect the PRODUCT, or any part thereof, from disClosure to any person
other than the CLIENT's employees having need for disClosure Incident to the CLIENT's use of
the PRODUCT. In order to prevent unauthorized use, STANTEC may install such security
devices as they deem necessary.
6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY
Reverse engineering, decompilation or disassembly of the PRODUCT is prohibited, eXcept and
only to the extent that such activity is expressly permitted by applicable law notwithstanding this.
limitation.
8. YEAR 2000 COMPLIANCE
Stantec warranlll that the currently supported releases of the PRODUCT will:
a) correctly handle date Information before, during and after 1 January 2000, accept date input,
provide dllle output and perform calculations on dates, inclUding leap year calculationlS;
b) fUnctiDn according to the documentation, during and after 1 January 2000, without changes
in operation associated with the advent of the new century; and
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2001-107
c:) store and provide output of date information in ways that are unambiguous as to century
when configured and used according to the doc:umented instructions, provided that the
hardware, software. finnware, and other computing facilities used in combination with the
PRODUCT properly exchange date and other data with the PRODUCT.
7. NOWARRANTIES .
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW , STANTEC DISCLAIMS ALL.
OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FllNESS FOR A
PARTICULAR PURPOSE, TITLE AND .NON-INFRINGEMENT. WITH REGARD TO THE
PRODUCT. AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES,
EXCEPT FOR THOSE WARRANTIes AND CONDITIONS STANTEC HAS MADe IN THE
'PROPOSAL TO PROVIDE PROFESSIONAL SERVICES FOR A PAVEMENT MANAGEMENT
PROGRAM" SUBMITTED TO THE CITY OF SAN BERNARDINO FEBRUARY 200t
NOlWlTHSTANDING THE FOREGOING DISCLAIMER, THE CLIENT MAY HAVE SPECIFIC
LEGAL RIGHTS WITH RESPECT TO WARRANTIES, WHICH RIGHTS VARY FROM
STATE/JURISDICTION TO STATE/JURISDICTION.
8. LIMITS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
STANTEC BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION. DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INlERRUPllON, LOSS OF BUSINESS INFORMATION, OR
ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE
THE PRODUCT OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES,
EVEN IF STANTEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN
THE EVENT OF A BR!:ACH OF ANY WARRANTY, EXPRESS OR IMPLIED, OR ANY TERM
OF THIS AGREEMENT. STANTEC'S ENTIRE LIABILITY AND THE CL.IENTS EXCLUSIVE
REMEDY SHALL BE THE RIGHT TO TERMINATE THIS AGREEMENT BY RETURNING THE
PRODUCT AND OBTAINING A REFUND OF MONIES PAID TO STANTEC FOR me
PRODUCT. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO
THE CLIENT. '
9. RESTRICTED USE
The PRODUCT Will be used by the CLIENT to process or analyze data collected within the
jurisdiction of the CLIENT for the CLIENTs internal purposes lInd no other. The output from the
PRODUCT may be provided to a third party who is doing design work for the CLIENT for the
period of the working arrangement. Under no circumlllances shall the CLIENT use the
PRODUCTS to provide service., to any third party, related to infrastructure data, needs or
evaluation analysis.
10, TERM
This AGREI;:MENT is effective from the date of its acceptance by STANTEC and shall remaIn in
force until terminated by either party 8s provided herein. However, the tenns and oollditions of
t"'is AGREEMENT under Paragraphs 3, 4, and 8 shall continue in full force and effect and shall
01101
NOll StlI.dUd Agreemml
30fS
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2001-107
$urvive the terminallon of this AGREEMENT and any SChedule(s) that become B pa~ of this
ACREEMENT.
.
11. TERMINATION
(a) If either party shall be In default of ita obligations under thia AGREEMENT ~nd such
default continues for thirty (30) days after written notice thereof by the other p~rty, this
AGREEMENT may thereupon be terminated, by such other party.
(b) Upon any termination of this AGREEMENT, the CLIENT shall deliver to STANrEC
forthwith all the PRODUCT, copies. materials, reproductions and modificatIOns held by the
CLIENT and shall warrant in writing to STANTEC that all copies thereof have been returned to
STANTEc or destroyed. .
12. GENERAL PROVISIONS
(a) Neither party .hall be held responSible for any delay in performance hereunder ariBing
out of causes beyond its control and without its fault or negligence. Such causes may include,
but are not limited to, fires, strikes, embargoes, acts of God. inability to secure transPortation
facilities or other caUSllS beyond the control of either party.
(b) The failure of STANTEC In anyone or more instances to insist upon strict performance of
a[lY of the terms or provisions of thilS contract shall not be construed as a waiver or
relinquishment. to any elCtent, of the right to assert or rely upon any lSuch terms or provisions on
any Mure occasions. If any term, provision Dr condition of this AGREEMENT Is held to be
invalid, void or unenforceable by a court of competent jurisdiction. the remainder of the
AGREEMENT shall remain in full force and effect and in no way shall be affected, impaired or
invalidated.
(c) !h1a AGREEMENT, constitutes the enllre AGREEMENT between the partiea hltrsto with
respect to tha subject matter hereof and shall supersede all previous negotiations, commitments,
and writings and no representation or statement not contained in this AGREEMENT shall be
binding upon STANTEC as a warranty or otherwise, except for those statements In the
AGREEMENT for Professional Services with the City of San Bernardino and the 'Proposal
referenced in Section 7 herein.
Cd) The CLIENT agrees that because of the unique nature of the PRODUCT, irrep!lrable
harm will be caused by s breach by the CLIENT of its obligations hereunder, that rnonetllry
damages will be inadequate to compensate for such harm, and that Injunctive relief will be an
appropriate remedy to enforce this AGREEMENT. ,
(e) This AGREEMENT may not be released, discharged, modified or assigned, SUblicensed
or otherwise transferred or attached In any way except by a wrltten Instrument IlItified :by a dUly
authorized representative of each of the parties. This AGREEMENT sl\8l1 be governed by the
iaws of the State of California. Each of the parties hereto lrrevocablyattoma to jurisdiction of the
courts of the State of California and further agrees to commence any litigation which may arise
hereunder In tha courts located in state of California. The termlS and conditions contained herein
shall prevail notwithlltanding any variance with the terms and conditions of any other submitted
by the CLIENT.
OlIO!
Non _dud Asreem..l
40fS
L
,~ ,
2001-107
IN WITNESS WHEREOF, the partillB hereto have executed this AGREEMENT on this
day of , .
CITY OF ~AN BERNA INO
J~~(1) ,J:up14~) PER:
WITNESS " . cf
.alPIIIoIIBIJttIItrf}
.
SlANTEC C NSULTING INC.
PER:
,~Q['Q;
M.A. K.li n, Ph.D.
Vice President
Infrastructure Management
PER: ~/C/J
--Richard G. Dorwart, PE
Vice President
Infraatructure Management
.
01101
Non Standlord ApocmeIIl
S ofS