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HomeMy WebLinkAbout1997-128 1 2 3 4 5 s 111 1 1 17 18 19 20 21 22 23 EFFECTIVE: 6-18-97 TSRlf: TBItO 12-31-97 97-128 RESOLUTION NO. RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT FOR PROFESSIONAL SERVICES WITH DANIEL, MANN, JOHNSON AND MENDENHALL, IPdC. (DMJM), RELATIVE TO WIDENING THE KENDALL DRIVE BRIDGE OVER CABLE CREEK CHANNEL. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to execute, on behalf of said City, an Agreement for Professional Services with Daniel, Mann, Johnson and Mendenhall, Inc. (DMJM), relative to Widening the Kendall Drive Bridge over Cable Creek Channel. A copy of said agreement is attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. SECTION 2. The agreement shall not take effect until fully signed and executed by both parties. The City shall not be obligated hereunder unless and until the agreement is fully executed and no oral agreement relating thereto shall be implied or authorized. SECTION 3. This resolution is rescinded if the parties to the agreement fail to execute it within ninety (90) days of the passage of this resolution. / / / / / / / / / / / / / / / / / / / / / / / / / / / / //// 04-28-97 1 2 3 4 5 s 7 g 9 10 11 12 13' 14 15 1 21 22 23 24 25 27 28 RESO: 97-128 EXECUTING AGREEMENT WITH DMJM -- KENDALL DRIVE BRIDGE: I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the 19th day of xay 1997, by the following vote, to-wit: Council Members: AYES NAYS ABSTAIN ABSENT x NEGRETE CURLIN X ARIAS X OBERHELMAN X DEVLIN X ANDERSON % MILLER x ~ ~~ Rachel Clark, C' y Clerk The foregoing resolution i hereby approved this~~ day of Map 1997. /c~~ Tom Minor, Mayor City of San Bernardino Approved as to form and legal content: James F. Penman City Attorney BY ~Civi.yY.~ -z- 97-128 EXHIBIT "A" AGREEMENT FOR PROFESSIONAL SERVICES This AGREEMENT is made and entered into this ~~ day of JUl1P 1997, by and between the CITY OF SAN BERNARDINO, California, a municipal corporation, hereinafter referred to as the "CITY" and Daniel. Mann, Johnson, & Mendenhall, Inc., a California corporation, hereinafter referred to as "ENGINEER." W I T N E S S E T H WHEREAS, City desires to obtain professional services to prepare plans, specifications, estimates and construction documents for the bridge widening on Kendall Drive at Cable Creek Channel. WHEREAS, in order to develop, plans, specifications, estimates and construction documents, it is necessary to retain the professional services of a qualified engineering and consulting firm; and WHEREAS, Engineer is qualified to provide said professional services; and WHEREAS, San Bernardino City Council has elected to engage the services of Engineer upon the terms and conditions as hereinafter set forth. NOW, THEREFORE, it is mutually agreed, as follows: 1. SCOPE OF SERVICES Engineer shall perform those services specified in "Scope of Services"and as contained in the proposal dated November 5, 1996 and as modified on March 3, 1997 and submitted on April 15, 1997, a copy of which is attached hereto as Exhibit "1" and incorporated as though set forth in full. 2. TERM OF AGREEMENT The services of Engineer are to commence within thirty (30) days after the City has authorized work to start by issuance of a Notice to Proceed. The scheduled completion dates specifically set forth in Exhibit "2" attached hereto and incorporated herein as though set forth in full, will be adjusted by Engineer as the City authorizes the work. Such adjustments shall require City approval prior to commencement of performance of each phase. This Agreement shall expire as specified by the Exhibit "2" schedule unless extended 97-128 by written agreement of the parties. 3. STANDARD OF PERFORMANCE Engineer shall complete all work product and design in conform- ance with Standard Specifications for Public Works Construction (Greenbook) current edition, Caltrans Bridge Design Standards and the City of San Bernardino's Standard Drawings. CHANGES/EXTRA SERVICES A. Performance of the work specified in the "Scope of Ser- vices," is made an obligation of Engineer under this Agreement, subject to any changes made subsequently upon mutual agreement of the parties. All such changes shall be incorporated by written amendments to this Agreement and include any increase or decrease in the amount of compensation due Engineer 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 Engineer under this Agreement unless such extra services are authorized, in writing, by City prior to performance of such work. Authorized extra services shall be invoiced based on Engineer's "Schedule of Hourly Rates" dated through 12-31-97, a copy of which is attached, hereto, as Exhibit "4" and incorporated herein as though set forth in full. 5. A. The City shall reimburse the Engineer for actual costs (including labor costs, employee benefits, overhead, profit, other direct and indirect costs) incurred by the Engineer in performance of the work, in an amount not to exceed S85,460.00. Actual costs shall not exceed the estimated wage rates and other costs as set forth in Exhibit "3", 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. Any such significant alteration shall be agreed upon in writing by City and Engineer before commencement of performance of such significant alteration by Engineer. Any adjustment of the total cost of services will only be permitted when the Engineer 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 97-128 3. Duration of work if the change from the time period speci- fied in the Agreement for Completion of the work warrants such adjustment. C. The Engineer is required to comply with all Federal, State and Local laws and ordinances applicable to the work and which are in effect as of the date of the notice to proceed. The Engineer is required to comply with prevailing wage rates in accordance with California Labor Code Section 1770. 6. PAYMENT BY CITY A. The billings for all services rendered pursuant to this Agreement shall be submitted monthly by Engineer 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 Engineer 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 ten (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 Engineer. All tasks as specified in Exhibit "1" shall be completed prior to final payment. B. Section 9-1.10 of the Cal-Trans Standard Specifications is hereby specifically waived and not applicable to this agreement. The parties hereto otherwise agree not to be bound by any other require- ments for arbitration of any dispute arising hereunder. Disputes shall be resolved by agreement of the parties, or upon the failure of such agreement, by direct application to the Courts. C. Should litigation be necessary to enforce any term or provision of this Agreement, or to collect any portion of the amount payable under this Agreement, then all reasonable litigation and collection expenses, witness fees, and court costs, and attorney's fees shall be paid to the prevailing party. 7. SUPERVISION AND ACCEPTANCE OF SERVICES A. The Director of Public Works of City, or his designee, shall have the right of general supervision over all work performed by Engineer and shall be City's agent with respect to obtaining Engineer's compliance hereunder. No payment for any services rendered under this Agreement shall be made without prior approval of the Director of Public Works or his designee. B. The Office of the Administrator may review and inspect the Engineer's activities during the progress of the program. 97=128 8. COMPLIANCE WITH CIVIL RIGHTS LAWS Engineer hereby certifies that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status or national origin. Engineer shall promote affirmative action in its hiring practices and employee policies for minorities and other designated classes in accordance with Federal, State and Local laws. Such action shall include, but not be limited to, the following: recruitment and recruitment advertising, employment, upgrading, and promotion. In addition, Engineer shall not exclude from participation under this Agreement any employee or applicant for employment on the basis of age, handicap, or religion in compliance with State and Federal laws. 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 Engineer for all the fees, charges and services performed to City's satisfaction by Engineer, which finding of satisfaction shall not be unreasonably withheld. Engineer hereby covenants and agrees that upon termination of this Agreement for any reason, Engineer 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 Engineer from any claims, losses, costs, including attorney's fees and liability arising out of such use. Engineer shall be compensated for such services in accordance with Exhibit "4". B. This agreement may be terminated for the convenience of the City upon thirty (30) days written notice to Engineer. Upon such notice, Engineer shall provide work product to City, and City shall compensate Engineer 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. In the event that, due to causes beyond the control of and without the fault or negligence of Engineer, Engineer 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 97-128 Engineer 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. Engineer shall notify City within three (3) days in writing when it becomes aware of any event or circumstance for which it claims or may claim an extension. 11. INDEPENDENT CONTRACTOR Engineer shall act as an independent contractor in the perfor- mance of the services provided for under this Agreement. Engineer shall furnish such services in its own manner and in no respect shall it be considered an agent or employee of City. 12. ASSIGNMENT OR SUBCONTRACTING Neither this Agreement, nor any portion thereof, may be assigned by Engineer without the written consent of City. Any attempt by Engineer 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 Engineer and City: ENGINEER CITY DMJM Mr. Roger Hardgrave 275 West Hospitality Lane Director of Public Suite 314 Works/City Engineer San Bernardino, CA 300 North "D" Street 92408 San Bernardino, CA 92418 14. RESPONSIBILITIES OF PARTIES A. The Engineer may reasonably rely upon the accuracy of data provided through the City or its agents without independent evaluation. B. The City shall pay all costs of inspection and permit fees. Charges not specifically covered by the terms of this Agreement shall be paid as agreed by the parties hereto at the time such costs arise; but in no event shall the work to be performed hereunder cease as a consequence of any unforeseen charges unless by mutual written agreement of City and Engineer. 97-128 C. All tracings, survey notes, and other original documents are instruments of service and shall remain the property of Engineer except where by law, precedent, or agreement these documents become public property. All such documents or records shall be made accessible to City. Engineer shall maintain all records for inspection by the City, State, or their duly authorized representatives for a period of three (3) years after final payment. Engineer shall stamp and sign all specifications, estimates, plans and engineering data furnished, and, where appropriate, indicate registration number. 15. CONSTRUCTION COST ESTIMATES A. Any opinion of the construction cost prepared by Engineer represents his judgment as a design professional and is supplied for the general guidance of the City. Since Engineer has no control over the cost of labor and material, or over competitive bidding or market conditions, Engineer does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to the City. 16. COVENANT AGAINST CONTINGENT FEE Engineer 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 Engineer 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. Engineer hereby agrees to hold City, its elective, and appointive boards, officers, and employees, harmless from any liability for damage or claims for damage for personal injury including death, as well as from claims for property damage, to the extent such are proximately caused by Engineer's negligent acts, errors or omissions under this Agreement. B. Engineer 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 Engineer under this Agreement. 97-128 C. 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. A. Engineer shall indemnify, defend and hold harmless City from and against any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including reasonable attorney's fees), and liabilities, of, by, or with respect to third parties, which arise solely from Engineer's negligent performance of services under this Agreement. Engineer shall not be responsible for, and City shall indemnify, defend, and hold harmless Engineer from and against, any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including reasonable attorney's fees) and liabilities of, by, or with respect to third parties, which arise solely from the City's negligence. With respect to any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including reasonable attorney's fees) and liabilities of, by or with respect to third parties, which arise from the joint or concurrent negligence of Engineer and City, each party shall assume responsibility in proportion to the degree of its respective fault. B. Neither party hereto shall be responsible for special, incidental, or consequential damages, except to the extent that such damages are awarded in an action by a third party, other than the Contractor on the Project, against the CITY and arise out of ENGINEER'S negligent acts, errors, or omissions. 19. LIABILITY/INSURANCE A. Engineer's liability insurance for injury or damage to persons or property arising out of work for which legal liability may be found to rest upon Engineer other than for professional errors and omissions, shall be a minimum of $1,000,000. For any damage on account of any error, omission, or other professional negligence, Engineer's insurance shall be limited in a sum not to exceed $50,000 or Engineer's fee, whichever is greater. B. The City will require the Engineer to provide Workers Compensation and comprehensive general liability insurance, including completed operations and contractual liability, with coverage suffi- cient to insure the Engineer's indemnity, as above required; and, such insurance will include the City, the Engineer, their consultants, and each of their officers, agents and employees as additional insureds. 97-128 C. Engineer shall provide evidence of insurance in the form of a policy/certification of insurance or other acceptable evidence, in which the City is named as an additional named insured (except on Worker's Comp) to the extent of the coverage required by this Agreement. D. Notwithstanding anything to the contrary herein, the Engineer and its subconsultants and specialty consultants shall have no responsibility for the discovery, presence, handling, removal, disposal of or exposure of persons to hazardous materials in any form at the different sites of the Project including, but not limited to asbestos, asbestos products, polychlorinated biphenyl (pcb) or other toxic substances except for any such substances brought to the site by the Engineer or subconsultants or used by same in the performance of their work. 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. /// 97-128 AGREEMENT FOR: Professional Engineering Services for Bridge Widening on Kendall Drive at Cable Creek Channel 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. CITY OF SAN Tom Minor, Mayor ATTEST: Bv: ~C.lu%Yt.~C. ~--C-wyc~ /~Ra"c,.~h~e~l Clark, City~,,C~l"er~.~k ~~// ~ ~ Daniel, Mann, Johnson, & Mendenhall v; Approved as to form and legal content: JAMES F. PENMAN City Attorney BY: 97-128 EXHIBIT "1 " Scope of Services PROJECT; KENDALL BRIDGE WIDENING PRELIMINARY Data Collection -Research will be conducted to determine the locations of existing and proposed utilities, the location of existing and proposed Right of Way, and obtain copies of plans or documents that may have relevance to the design of the bridge, channel and road transitions. Surveys -Afield survey will be performed to obtain definition of existing topographic condfions within the Project area to enable the design of the bridge, channel and road transitions, as follows: • establish the centerline of Kendall Drive and the centerline of Cable Creek (as horizontal control for bridge placement) • cross section Kendall Drive 500 feet on both sides of the existing bridge (50-foot interval) • cross section Gable Creek 200 feet above and below the existing bridge (50-foot interval) • locate surface utility features (including dipping sewer manholes, etc.) Geotechnical Investigations -Field testing will be performed to provide design criteria in accordance with Caftrans procedures. The report will include foundation recommendations, scour and seismic design parameters. A design for the Kendall Drive pavement section will also be determined. BRIDGE Preliminary Design/Draft Pians -The existing bridge will not be analyzed for adequacy or compliance with current design standards. The widened portion of the bridge will be designed in accordance with the latest design criteria and standards established by the California Department of Transportation (Caltrans). However, there will not be compliance with CaRrans full bridge review procedures. Preliminary plans (65% complete) will be submitted to the City for inter- agency coordination and comments. Final Design and PS&E -Comments received on preliminary design wiii be incorporated in the final design. The final design will culminate with a completed set of plans, quantity calculations, cost estimates, design and quantity check calculations, and special provisions to be incorporated in specifications. The specifications will make reference to applicable Cattrans Standard Specifications and be augmented by the above mentioned special provisions. Page 1 97-128 CIVIL Preliminary Channel Improvement Plans - A plan will be prepared to indicate Cable Creek improvements required. The improvements will be limited to that which is necessary to transition from the existing channel to the widened bridge section and back to existing, with appropriate provisions for scour protection. Roadway Approach Plans - A plan and profile will be prepared to indicate Kendall Drive improvements required to accommodate the widened bridge. The bridge width will be based on the ultimate development of Kendall Drive as a Major Highway. Approach tapers will be designed fora 55-mph design speed. Pavement removal/replacement and widening will be delineated as well as signage and striping. Composite Utility Plans - A composite utility plan will be prepared showing all utility locations as per record information. Any deviations from record information as measured in the field will be so noted on the plan. The disposition of each utility will be specified as R relates to the construction of all Project related improvements. Copies of the plan will be supplied to all utility purveyors within the Project area to facilitate relocations by others where necessary. If a City sewer main needs to be relocated, a plan and profile will be prepared by DMJM to define its relocation. If a City water line needs to be relocated, DMJM will coordinate with the City Water Department as a separate Rem of work. F/nal Quantities/Costs -Upon completion of the plans for Final Submittal, an estimate of construction quantities and costs will be prepared and submitted to the City. Technical Specifications -Technical Specifications will be prepared based on Caltrans Specs for bridge construction and The Green Book for the remaining general construction. The City will incorporate these Technical Specifications into their standard boiler plate which covers all non- technical sections. Final Submittal -Once the Plans, Specifications, and Estimates have completed the agency review process and received City approval, submittal of final documents will occur. This will include mylar originals of plans and hard copies as well as electronic file copies of Technical Specifications and Estimates. Page 2 97-128 EXHIBIT " 2" Estimated Schedule* PROJECT: KENDALL BRIDGE WIDENING Event by Date Contract Finalization City Council approval of Contract 5-19-97 Notice to Proceed given to DMJM 5-23-97 Commencement of Work by DMJM Complete contract: arrangements with sub-consultants 5-30-97 Initiate Preliminary phase 6-02-97 Data Collection Surveys Geotechnical Investigations Begin Preliminary Bridge Design 6-16-97 Begin Preliminary Civil Design 6-16-97 Progress Submittal Submit 65°,G complete plans for City review and distribution 8-04-97 Final Design Commence final design and incorporate plan review comments 9-02-97 Quantity and Cost Estimates Draft set of Technical Specifications 100% Submittal Submit 100° complete plans, draft specifications, and estimates 10-6-97 Finalize PS&E Proceed with finalizing Pians, Specifications and Estimates and incorporate plan review comments from 100% review 10-27-97 Final PS&E Submittal Submit all final documents 11-17-97 *This is an estimated schedule that is subject to change depending on events outside the control of DMJM. Page 1 47-128 EXHIBIT "3" Estimated Cost of Services by Task PROJECT: KENDALL BRIDGE WIDENING Task Estimated Cost* (3/13/97) 1. Field Surveys $ 3,140 2. Geotechnical $ 9,690 3. Roadway Approaches $ 11,100 4. Utility Relocations $ 6,100 5. Hydrology and Channel Hydraulics $ - 6. Channel Improvements/Scour Analysis $ 6,000 7. Bridge Structure $ 43,030 8. Cost Estimate $ 2,000 9. Technical Specifications $ 3,300 10. Bid Period Support Services •* 11. Other Direct Costs $ 1,100 Total $ 85,460 *Exdudes Environmental Services *Excudes Construction Phase Services 'Exdudes As-Buit Conditions Report for Existing Structure '"Excludes Bid Period Support Services 97-128 EXHIBIT "4" SCHEDULE OF HOURLY RATES FOR AUTHORIZED EXTRA SERVICES PROJECT: KENDALL BRIDGE WIDENING A. The City shall compensate the ENGINEER for any authorized extra services in accordance with the following schedule of fully burdened hourly rates. Labor Class cation Hourlv Rate Project Director $172.00 Project Manager 102.00 Senior Bridge Engineer 132.00 Bridge Engineer 93.00 Senior Civil Engineer 93.00 Civil Engineer 83.00 Civil Designer 60.00 CADD Technician 56.00 Administration 44.00 Project Controls 113.00 B. The hourly rates indicated in "A" above are effective through December 31, 1997. Thereafter, for planning purposes, a 5% across the board average increase should be assumed, commencing the first day of each successive calendar year. C. For the use of any labor classification not identified in "A" above, but requested by the City, the ENGINEER will obtain the City's prior approval of the applicable fully burdened hourly rate. 97-i28 AGREEMENT FOR PROFESSIONAL SERVICES (Fees Less Than $25,000) cf t c ~~~ This AGREEMENT is made and entered into this 4th. day of September, 1997, by and between the CITY OF SAN BERNARDINO, California, a municipal corporation, hereinafter referred to as the "CITY" and , hereinafter referred to as "CONSULTANT" 17an.el,Ma~n,To~nson ~Mender.4,~~~ 1. SCOPE OF SERVICES Consultant shall perform those services specified in "Proposal of Services", dated April 30, 1997 being performance of preliminary assessment of the historical significance of the existing Mt. Vernon bridge at the BNSF yards suitable for use in the Bridge Evaluation Report. All work shall be performed as directed by the City of San Bernardino. Attached and incorporated herein as Exhibit A is a copy of the Proposal of Service. TERM OF AGREEMENT The services of Consultant are to commence after the City has authorized work to start by issuance of a Notice to Proceed. This Agreement shall expire as specified by the schedule unless extended by written agreement of the parties. STANDARD OF PERFORMANCE Consultant shall complete all work product and design in conformance with City of San Bernardino Standard Specifications and Standard Drawings. CHANGES/EXTRA SERVICES A. Performance of the work specified in the Proposal is made an obligation of Consultant under this Agreement, subject to any changes made subsequently upon mutual written agreement of the parties. Any change which has not been so incorporated shall not be binding on either party. 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 $3,650.00, for all work proposed in the letter of April 30, 1997 and completed for this project. Actual costs shall not exceed the estimated amounts as set forth in the proposal. 97-128 7. B. Said compensation shall not be altered unless there is significant alteration in the scope, complexity or char- acter of the work to be performed. 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. C. The Consultant is required to comply with all Federal, State and local laws and ordinances applicable to the work. PAYMENT BY CITY A. The billings for all services rendered pursuant to this Agreement shall be submitted monthly by Consultant to City and shall be paid by City within thirty (30) days after receipt of same, excepting any amounts disputed by City. All tasks as specified in proposal shall be completed prior to final payment. SIIPERVISION AND ACCEPTANCE OF SERVICES A. The Director of Public Works 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 Public Works or his designee. Each aspect of the project will be submitted and approved by the Director of Public Works/City Engineer prior to commencement of the next order of work. A meeting with the City staff shall be conducted prior to any work on the precise alignment study in order to establish the preferred alignment to be considered. COMPLIANCE WITH CIVIL RIGHTS LAWS AND AMERICAN WITH DISABILITIES ACT Consultant hereby certifies that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status, national origin or disability. Consultant shall promote affirmative action in its hiring practices and employee policies for minorities and other designated classes in accordance with Federal, State and local laws. Such action shall include, but not be limited to, the following: Recruitment and recruitment advertising, employment, upgrading, and promotion. In addition, Consultant shall not exclude from participation under this Agreement any employee or applicant for employment on the basis of age, 97-128 handicap, disability or, religion in compliance with State and Federal laws. 9. TERMINATION OF AGREEMENT A. This agreement may be terminated by either party upon thirty (30) days written notice in the event of substan- tial 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. 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 may continue. Any subsequent use of such incomplete documents shall be at the sole risk of the City and City agrees to hold harmless and indemnify Consultant from any claim, losses, costs, including Attorney's fees, and liability arising out of such use. 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. 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, and 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. 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 97-128 City. 12. ASSIGNMENT OR SIIBCONTRACTING Neither this Agreement, nor any portion thereof, may be assigned by Consultant 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 Agreement. 13. NOTICES All official notices relative writing and addressed to the Consultant and City: Consultant CITY Bedros Agopovich Mr. Roger Hardgrave ~.b,n~~-I,Man~~~~,~s~n,~1`~1er~9en~a~ Director of 275 W. Hospitality Lane Suite 314 Public Works/ San Bernardino, CA 92408 City Engineer 300 North "D" Street San Bernardino, CA 92418 14. RESPONSIBILITIES OF PARTIES A. Upon completion of all work under this Agreement, Consultant will transfer ownership and title to City of all programs, reports, documents, Plans and Specifications. 15. HOLD HARMLESS CLAUSE A. Consultant hereby agrees to hold City, its elective and appointive boards, officers, and employees, harmless from any liability for damage or claims for damage for person- al injury including death, as well as from claims for property damage, which may arise from Consultant's negli- gent acts, errors or omissions under this Agreement. B. 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 of copyrights of any person or persons in consequence of the use by City, its officers, employees, agents and to this Agreement shall be in following representatives of 97-128 other duly authorized representatives, of programs or processes supplied to City of Consultant under this Agreement. 16. Consultant shall indemnify, defend and hold harmless City from and against any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorneys' fees) and liabilities, of, by, or with respect to third parties, which arise solely from Consultant's negligent performance of services under this Agreement. Consultant shall not be responsible for, and City shall indemnify, defend and hold harmless Consultant from and against, any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorneys' fees) and liabilities of, by or with respect to third parties, which arise solely from the City's negligence. With respect to any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorneys' fees) and liabilities of, by or with respect to third parties, which arise from the joint or concurrent negligence of Consultant and City, each party shall assume responsibility in proportion to the degree of its respective fault. 17. LIABILITY/INSURANCE A. Consultant's liability to the City for injury or damage to persons or property arising out of work performed by the City and for which legal liability may be found to rest upon Consultant other than for professional errors and omissions, shall be a minimum of $1,000,000. For any damage on account of any error, omission or other profes- sional negligence Consultant's liability, will be limited to a sum not be exceed $50,000 or Consultant's fee, whichever is greater. B. The City will require the Consultant to provide Worker's Compensation and Comprehensive General Insurance, with coverage sufficient to insure the Consultant's indemnity, as above required; and, such insurance will include the City, the Consultant, their consultants, and each of their officers, agents and employees as addi- tional insured with exception to additional insured under Worker's Compensation. C. Consultant shall provide evidence of insurance. 97-128 18. ATTORNEYS' FEES 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 attorneys' fees, court costs, and necessary disbursements in connection with that action. The costs, salary, and expenses 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. 19. 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 effect, and to this end the provisions of this Agreement are declared to be severable. 20. ENTIRE AGREEMENT This Agreement represents the entire and integrated understanding 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. (Consu ant) BY: ~ d~1 \ A`Ge President v, CITY OF SAN BERNARDINO, a municipal cgrporation BY: J n Murphy C' y Purchasing Manager 97-128 5 0 Y E A R S April 30, 1997 ~ /, ?o~~ Mr. Gene Klatt Assistant City Engineer Public Works Department City of San Bernardino 300 North "D" Street San Bernardino, Ca 92418-0001 Subject: Bridge Evaluation Project -Mount Vernon over the Burlington Northern/Santa Fe Railroad Yard Dear Mr. Klatt: In response to your verbal request, we are pleased to provide this proposal for services as an addftion to the scope of work previously identified for the subject project. Our understanding is that the City is in need of having a preliminary assessment of the historical significance of the existing bridge on Mt. Vernon Avenue crossing over the BNSF rail yard. To that end we propose the following: Scope • Research Records • Preliminary Evaluation • Preliminary Findings • Add Section to Evaluation Report, "Historical Significance" Our proposed fee for the above scope will be $3650.00. This is based on the following assumptions: • No Caltrans review/response • No ISTEAfunds • No Section 106 or 4(f) compliance • No State Historic Preservation Officer concurrence process It is also our understanding that the full evaluation and review process as outlined by Caltrans will be required at a subsequent stage in this project. The scope of work defined herein preliminarily lays the foundation upon which to complete this subsequent stage. We will utilize Myra Frank and Associates to pertorm this work. They are a noted specialist in such matters. Thank you for this additional opportunity to serve the City of San Bernardino. Very truly yours, DANIEL MANN, JOHNSON, & MENDENHALL p0vl 8edros Agopovich Vice President r: i'f (~ i~ 275 WEST HOSPITALITY LANE, SDITE 314, $AN BERNARDIND, CALIFORNIA 92J08 (909) 3866700 • FA% (909) 8861302