HomeMy WebLinkAbout1997-280
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RESOLUTION NO. 97-280
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH HNTB CORPORATION RELATIVE TO THE
EXTENSION OF STATE STREET, FROM RANCHO AVENUE, SOUTH OF FOOTHILL
BOULEVARD, TO NINTH STREET.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
5 CITY OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1.
The Mayor of the City of San Bernardino is
hereby
authorized and directed to execute, on behalf of said
City,
for Professional
Services with HNTB
an
Agreement
9 Corporation relative to the extension of State Street, from
10 Rancho Avenue, south of Foothill Boulevard, to Ninth Street. A
11 copy of said agreement is attached hereto, marked Exhibit "A" and
12 incorporated herein by reference as fully as though set forth at
13 length.
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The agreement shall not take effect until
SECTION 2.
15 fully signed and executed by both parties. The City shall not be
16 obligated hereunder unless and until the agreement is fully
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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This resolution is rescinded if the parties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.
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8-28-97
97-280
RES: EXECUTING AGREEMENT WITH HNTB CORPORATION RELATIVE TO
EXTENSION OF STATE STREET, FROM RANCHO AVENUE, SOUTH OF
FOOTHILL BOULEVARD, TO NINTH STREET.
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I HEREBY CERTIFY that the foregoing resolution was duly
2 adopted by the Mayor and Common Council of the City of San
3 Bernardino at a joint reqular
meeting thereof, held on the
4 15~day of September
, 1997, by the following vote, to-wit:
5 Council Members:
6 NEGRETE
7 CURLIN
8 ARIAS
9 OBERHELMAN
10 DEVLIN
11 ANDERSON
12 MILLER
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The foregoing
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day of September
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20 Approved as to form
and legal content:
21 James F. Penman
22 City Attorney
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Ka ~,Ad t(t [lA}0
Rachel.. Cl:r~, C~~y,Slerk
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resolution-As hereby ~ppioved th~s\
, 1997.
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Tom Minor, Mayor
Ci ty of San Bernardino
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ny,
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AGREEMENT FOR PROFESSIONAL SERVICES
7.LL
This AGREEMENT is made and entered into this
day of
, ,r
Oc-'c?~
, 1997, by and between the CITY OF
SAN BERNARDINO, California, a municipal corporation, hereinafter
referred to as the "CITY" and HNTB, Corporation., a Delaware
corporation, hereinafter referred to as "ENGINEER."
WIT N E SSE T H
WHEREAS, City desires to obtain professional services to
prepare plans, specifications, estimates and construction docu-
ments for the bridges and roadway improvements for the development
of State Street from Rancho Avenue south of Foothill Boulevard
(5th. st) to 9th Street.
WHEREAS, in order to develop, plans, specifications, estimates
and construction documents, it is necessary to retain the profes-
sional 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 Julv 3. 1997. and
as modified on Auaust 25. 1997, a copy of which is attached hereto
as Exhibit "1" and incorporated as though set forth in full.
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EXHIBIT I A I
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1 2. TERM OF AGREEMENT
2 The services of Engineer are to commence within thirty (30)
3 days after the City has authorized work to start by issuance of a
4 Notice to Proceed. The scheduled completion dates specifically set
5 forth in Exhibit "2" attached hereto and incorporated herein as
6 though set forth in full, will be adjusted by Engineer as the City
7 authorizes the work. Such adjustments shall require City approval
8 prior to commencement of performance of each phase. This Agreement
9 shall expire as specified by the Exhibit "2" schedule unless ex-
10 tended by written agreement of the parties.
11 3. STANDARD OF PERFORMANCE
12 Engineer shall complete all work product and design in confor-
13 mance with Standard Specifications for Public Works Construction
14 (Greenbook) current edition, Caltrans Bridge Design Standards and
15 the City of San Bernardino's Standard Drawings using the same
16 degree of care, skill, and diligence ordinarily possessed and
17 exercised by other members of the engineering profession, currently
18 practicing, under similar circumstances.
19 4. CHANGES/EXTRA SERVICES
20 A. Performance of the work specified in the "Scope of Ser-
21 vices," is made an obligation of Engineer under this Agreement,
22 subject to any changes made subsequently upon mutual agreement of
23 the parties. All such changes shall be incorporated by written
24 amendments to this Agreement and include any increase or decrease
25 in the amount of compensation due Engineer for the change in scope.
26 Any change which has not been so incorporated shall not be binding
27 on either party.
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1 B. No extra services shall be rendered by Engineer under
2 this Agreement unless such extra services are authorized, in writ-
3 ing, by city prior to performance of such work. Authorized extra
4 services shall be invoiced based on Engineer's "Schedule of Hourly
5 Rates" dated throuqh Auqust 31. 1998 a copy of which is
6 attached, hereto, as Exhibit "4" and incorporated herein as though
7 set forth in full.
8 5. COMPENSATION
9 A. The city shall reimburse the Engineer for actual costs
10 (including labor costs, employee benefits, overhead, profit, other
11 direct and indirect costs) incurred by the Engineer in performance
12 of the work, in an amount not to exceed $293.510.00. Actual costs
13 shall not exceed the estimated wage rates and other costs as set
14 forth in Exhibit "3", attached hereto and incorporated herein as
15 though set forth in full.
16 B. Said compensation shall not be altered unless there is
17 significant alteration in the scope, complexity or character of the
18 work to be performed. Any such significant alteration shall be
19 agreed upon in writing by city and Engineer before commencement of
20 performance of such significant alteration by Engineer.
21 Any adjustment of the total cost of services will only be
22 permitted when the Engineer establishes and City has agreed, in
23 writing, that there has been, or is to be, a significant change in:
24 1. Scope, complexity, or character of the services to
25 be performed;
26 2. Conditions under which the work is required to be
27 performed; and
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1 3. Duration of work if the change from the time period
2 specified in the Agreement for Completion of the work warrants such
3 adjustment.
4 C. The Engineer is required to comply with all Federal,
5 state and Local laws and ordinances applicable to the work and
6 which are in effect as of the date of the notice to proceed. The
7 Engineer is required to comply with prevailing wage rates in accor-
8 dance with California Labor Code Section 1770.
9 6. PAYMENT BY CITY
10 A. The billings for all services rendered pursuant to this
11 Agreement shall be submitted monthly by Engineer to city and shall
12 be paid by City within twenty (20) days after receipt of same,
13 excepting any amounts disputed by City. Dispute over any invoiced
14 amount shall be noticed to the Engineer within ten (10) days of
15 billing and a meet and confer meeting for purposes of resolution of
16 such dispute shall be initiated by the City within ten (10) days of
17 notice of such dispute. Interest of 1-1/2 percent per month (but
18 not exceeding the maximum rate allowable by law) will be payable on
19 any amounts not in dispute and not paid within thirty (30) days of
20 the billing date, payment thereafter to be applied first to accrued
21 interest and then to the principal unpaid amount. On disputed
22 amounts, interest shall accrue from thirty (30) days of the invoice
23 date if the amount in dispute is resolved in favor of the Engineer.
24 All tasks as specified in Exhibit "1" shall be completed prior to
25 final payment.
26 B. Section 9-1.10 of the CalTrans Standard Specifications is
27 hereby specifically waived and not applicable to this agreement.
28 The parties hereto otherwise agree not to be bound by any other
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1 requirements for arbitration of any dispute arising hereunder.
2 Disputes shall be resolved by agreement of the parties, or upon the
3 failure of such agreement, by direct application to the Courts.
4 C. Should litigation be necessary to enforce any term or
5 provision of this Agreement, or to collect any portion of the
6 amount payable under this Agreement, then all reasonable litigation
7 and collection expenses, witness fees, and court costs, and
8 attorney's fees shall be paid to the prevailing party.
9 7. SUPERVISION AND ACCEPTANCE OF SERVICES
10 A. The Director of Public Works of City, or his designee,
11 shall have the right of general supervision over all work performed
12 by Engineer and shall be City's agent with respect to obtaining
13 Engineer's compliance hereunder. No payment for any services
14 rendered under this Agreement shall be made without prior approval
15 of the Director of Public Works or his designee.
16 B. The Office of the Administrator may review and inspect
17 the Engineer's activities during the progress of the program.
18 8. COMPLIANCE WITH CIVIL RIGHTS LAWS
19 Engineer hereby certifies that it will not discriminate
20 against any employee or applicant for employment because of race,
21 color, religion, sex, marital status or national origin. Engineer
22 shall promote affirmative action in its hiring practices and em-
23 ployee policies for minorities and other designated classes in
24 accordance with Federal, State and Local laws. Such action shall
25 include, but not be limited to, the following: recruitment and
26 recruitment advertising, employment, upgrading, and promotion. In
27 addition, Engineer shall not exclude from participation under this
28 Agreement any employee or applicant for employment on the basis of
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EXHIBIT I A I
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1 age, handicap, or religion in compliance with state and Federal
2 laws.
3 9. TERMINATION OF AGREEMENT
4 A. This agreement may be terminated by either party upon
5 thirty (30) days' written notice in the event of substantial fail-
6 ure of the other party to perform in accordance with the terms of
7 this Agreement. Each party shall have twenty (20) days following
8 date of such notice within which to correct the substantial fail-
9 ure, giving rise to such notice. In the event of termination of
10 this Agreement, City shall within thirty (30) days pay Engineer for
11 all the fees, charges and services performed to city's satisfaction
12 by Engineer, which finding of satisfaction shall not be unreason-
13 ably withheld. Engineer hereby covenants and agrees that upon
14 termination of this Agreement for any reason, Engineer will pre-
15 serve and make immediately available to City, or its designated
16 representatives, maps, notes, correspondence, or records related to
17 work paid for by the city and required for its timely completion,
18 and to fully cooperate with city so that the work to be
19 accomplished under this Agreement may continue within forty-five
20 (45) days of termination. Any subsequent use of such incomplete
21 documents, other than their originally intended use, shall be at
22 the sole risk of the city, and the city agrees to hold harmless and
23 indemnify Engineer from any claims, losses, costs, including
24 attorney's fees and liability arising out of such use. Engineer
25 shall be compensated for such services in accordance with Exhibit
26 "4".
27 B. This agreement may be terminated for the convenience of
28 the City upon thirty (30) days written notice to Engineer. Upon
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1 such notice, Engineer shall provide work product to City, and City
2 shall compensate Engineer in the manner set forth above.
3 C. Following the effective date of termination of this
4 Agreement pursuant to this section, the Agreement shall continue
5 until all obligations arising from such termination are satisfied.
6 10. CONTINGENCIES
7 In the event that, due to causes beyond the control of and
8 without the fault or negligence of Engineer, Engineer fails to meet
9 any of its obligations under this Agreement, and such failure shall
10 not constitute a default in performance, the City may grant to
11 Engineer such extensions of time and make other arrangements or
12 additions, excepting any increase in payment, as may be reasonable
13 under the circumstances. Increases in payment shall be made only
14 under the "changes" provision of this Agreement. Engineer shall
15 notify City within three (3) days in writing when it becomes aware
16 of any event or circumstance for which it claims or may claim an
17 extension.
18 11. INDEPENDENT CONTRACTOR
19 Engineer shall act as an independent contractor in the perfor-
20 mance of the services provided for under this Agreement. Engineer
21 shall furnish such services in its own manner and in no respect
22 shall it be considered an agent or employee of City.
23 12. ASSIGNMENT OR SUBCONTRACTING
24 Neither this Agreement, nor any portion thereof, may be as-
25 signed by Engineer without the written consent of City. Any at-
26 tempt by Engineer to assign or subcontract any performance of this
27 Agreement without the written consent of the City shall be null and
28 void and shall constitute a breach of this Agreement. All subcon-
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1 tracts exceeding $10,000, shall contain all provisions of this
2 contract.
3 13. NOTICES
4 All official notices relative to this Agreement shall be in
5 writing and addressed to the following representatives of Engineer
6 and city:
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ENGINEER
CITY
8 HNTB Corporation
600 North Arrowhead Ave
9 suite 211
San Bernardino, CA
10 92401
Mr. Roger Hardgrave
Director of Public Works/
City Engineer
300 North "0" Street
San Bernardino, CA 92418
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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.
15 B. The City shall pay all costs of inspection and permit
16 fees. Charges not specifically covered by the terms of this Agree-
17 ment shall be paid as agreed by the parties hereto at the time such
18 costs arise; but in no event shall the work to be performed hereun-
19 der cease as a consequence of any unforeseen charges unless by
20 mutual written agreement of City and Engineer.
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C.
All tracings, survey notes, and other original documents
22 are instruments of service and shall remain the property of Engi-
23 neer except where by law, precedent, or agreement these documents
24 become public property. Any use of such documents, except for the
25 specific purpose intended by this Agreement, will be at the user's
26 sole risk and without liability or legal exposure to Engineer. All
27 such documents or records shall be made accessible to City. Engi-
28 neer shall maintain all records for inspection by the City, State,
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1 or their duly authorized representatives for a period of three (3)
2 years after final payment. Engineer shall stamp and sign all
3 specifications, estimates, plans and engineering data furnished,
4 and, where appropriate, indicate registration number.
5 15. CONSTRUCTION COST ESTIMATES
6 A. Any opinion of the construction cost prepared by Engineer
7 represents his judgment as a design professional and is supplied
8 for the general guidance of the City. Since Engineer has no con-
9 trol over the cost of labor and material, or over competitive
10 bidding or market conditions, Engineer does not guarantee the
11 accuracy of such opinions as compared to contractor bids or actual
12 qost to the city.
13 16. COVENANT AGAINST CONTINGENT FEE
14 Engineer warrants that no person or selling agency has been
15 employed or retained to solicit or secure this Agreement upon an
16 agreement or understanding for a commission, percentage, brokerage,
17 or contingent fee, excepting bona fide employees or bona fide
18 established commercial or selling agencies maintained by the Engi-
19 neer for the purpose of securing business. For breach or violation
20 of this warranty, ci ty shall have the right to terminate this
21 Agreement in accordance with the clause permitting termination for
22 cause and, at its sole discretion, to deduct from the Agreement
23 price or consideration, or otherwise recover, the full amount of
24 such commission, percentage, brokerage or contingent fee.
25 17. HOLD HARMLESS CLAUSE
26 A. Engineer hereby agrees to hold city, its elective, and
27 appointive boards, officers, and employees, harmless from any
28 liability for damage or claims for damage for personal injury
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1 including death, as well as from claims for property damage, to the
2 extent such are proximately caused by Engineer's negligent acts,
3 errors or omissions under this Agreement.
4 B. Engineer shall indemnify, defend and hold free and harm-
5 less the city, its officers, and its employees from all claims,
6 damages, costs, expenses, and liability, including, but not limited
7 to, defense costs and reasonable attorney's fees imposed upon them
8 for any alleged infringement of patent rights or copyrights of any
9 person or persons in consequence of the use by City, its officers,
10 employees, agents, and other duly authorized representatives, of
11 programs or processes supplied to City by Engineer under this
12 Agreement.
13 C. The prevailing party in any legal action to enforce or
14 interpret any provisions of this Agreement will be entitled to
15 recover from the losing party all reasonable attorneys' fees, court
16 costs, and necessary disbursements in connection with that action.
17 The costs, salary, and expense of the City Attorney, and members of
18 his office, in connection with that action shall be considered as
19 attorneys' fees for the purposes of this Agreement.
20 18. INDEMNITY
21 A. Engineer shall indemnify, defend and hold harmless city
22 from and against any and all claims, demands, suits, actions,
23 proceedings, judgments, losses, damages, injuries, penalties,
24 costs, expenses (including defense costs and reasonable attorney's
25 fees), and liabilities, of, by, or with respect to third parties,
26 which arise solely from Engineer's negligent performance of servic-
27 es under this Agreement. Engineer shall not be responsible for,
28 and city shall indemnify, defend, and hold harmless Engineer from
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1 and against, any and all claims, demands, suits, actions, proceed-
2 ings, judgments, losses, damages, injuries, penalties, costs,
3 expenses (including reasonable attorney's fees) and liabilities of,
4 by, or with respect to third parties, which arise solely from the
5 City's negligence. with respect to any and all claims, demands,
6 suits, actions, proceedings, judgments, losses, damages, injuries,
7 penalties, costs, expenses (including reasonable attorney's fees)
8 and liabilities of, by or with respect to third parties, which
9 arise from the joint or concurrent negligence of Engineer and City,
10 each party shall assume responsibility in proportion to the degree
11 of its respective fault.
12 B. Neither party hereto shall be responsible for special,
13 incidental, or consequential damages, except to the extent that
14 such damages are awarded in an action by a third party, other than
15 the Contractor on the Project, against the CITY and arise out of
16 ENGINEER's negligent acts, errors, or omissions.
17 19. LIABILITY/INSURANCE
18 A. Engineer's liability insurance for injury or damage to
19 persons or property arising out of work for which legal liability
20 may be found to rest upon Engineer other than for professional
21 errors and omissions, shall be a minimum of $1,000,000. For any
22 damage on account of any error, omission, or other professional
23 negligence, Engineer's insurance shall be limited in a sum not to
24 exceed $50,000 or Engineer's fee, whichever is greater.
25 B. The City will require the Engineer to provide Workers
26 Compensation and comprehensive general liability insurance, includ-
27 ing completed operations and contractual liability, with coverage
28 sufficient to insure the Engineer's indemnity, as above required;
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1 and, such insurance will include the city, the Engineer, their
2 consultants, and each of their officers, agents and employees as
3 additional insureds.
4 c. Engineer shall provide evidence of insurance in the form
5 of a pOlicy/certification of insurance or other acceptable evi-
6 dence, in which the city is named as an additional named insured
7 (except on Worker's Comp) to the extent of the coverage required by
8 this Agreement.
9 D. Notwithstanding anything to the contrary herein, the
10 Engineer and its subconsultants and specialty consultants shall
11 have no responsibility for the discovery, presence, handling,
12 removal, disposal of or exposure of persons to hazardous materials
13 in any form at the different sites of the Project including, but
14 not limited to asbestos, asbestos products, polychlorinated biphe-
15 nyl (pcb) or other toxic substances except for any such substances
16 brought to the site by the Engineer or subconsultants or used by
17 same in the performance of their work.
18 20. VALIDITY
19 Should any provision herein be found or deemed to be invalid,
20 this Agreement shall be construed as not containing such provision,
21 and all other provisions which are otherwise lawful shall remain in
22 full force and affect, and to this end the provisions of this
23 Agreement are declared to be severable.
24 21. ENTIRE AGREEMENT
25 This Agreement represents the entire and integrated agreement
26 between the parties hereto and supersedes all prior and contempora-
27 neous negotiations, representations, understandings, and agree-
28 ments, whether written or oral, with respect to the subject matter
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1 thereof. This Agreement may be amended only by written instrument
2 signed by both parties.
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11 ATTEST:
AGREEMENT FOR: PROFESSIONAL ENGINEERING SERVICES FOR BRIDGE CON-
STRUCTION AND ROADWAY IMPROVEMENTS ON STATE STREET
FROM RANCHO AVENUE SOUTH OF FOOTHILL BOULEVARD TO
9TH STREET
IN WITNESS WHEREOF, the parties hereto have caused this Agree-
ment to be executed on the date written above by their duly autho-
rized officers on their behalf.
CITY OF SAN BERNARDINO
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BY : I c:-.>>f/!,
/ Tom Ml. or, Mayor
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By: KrU1kt}... '{1()ft1u
Rachel Clark, City Clerk
tf .;JIl.fl[lVJJ/YLCdLn~ '~iJJ
HNTB Corporation
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presi ent)
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Approved as to form
and legal content:
JAMES F. PENMAN
city Attorney
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RESOLUTION 97-280
ADOPTED 9-15-97
State Street Improvement
From Rancho Ave. To 9th Street
Attachment to Agreement
Exhibits 1, 2, 3, & 4
ARCHITECTS
ENGINEERS
PLANNERS
