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HomeMy WebLinkAbout1992-343 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 / / / / 24 / / / / 25 / / / / 26 / / / / RESOLUTION NO. 92-343 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH DANIEL, MANN, JOHNSON & MENDENHALL (DMJM) RELATING TO THE PROVISION OF PROFESSIONAL ENGINEERING DESIGN SERVICES FOR THE EXTENSION OF ORANGE SHOW ROAD, FROM ARROWHEAD AVENUE TO TIPPECANOE AVENUE. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECT"rON 1. The Mayor of the City of San Bernardino is hereby authorized and directed to execute, on behalf of said City, an agreement with Daniel, Mann, Johnson & Mendenhall (DMJM) relating to the provision of professional engineering design services for the extension of Orange Show Road, from Arrowhead Avenue to Tippecanoe Avenue, a copy of which 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 This resolution is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. 27 / / / / 28 / / / / 7-28-92 RESO: AUTHORIZING EXECUTION OF AGREEMENT WITH DMJM RELATING TO PROVISION, OF ENGINEERING DESIGN FOR E~TEN?ION ,OF ORANGE SHOW ROAD, FROM ARROWHEAD AVENUE TO TIPPECANOE AVENUE. 1 I HEREBY CERTIFY that the foregoing resolution was duly 2 adopted by the Mayor and Corrnnon Council of the City of San 3 Bernardino at a regular meeting thereof, held on the 4 , 1992, by the following vote, to-wit: 17th day of AnqllJ;,t- 5 Council Members: AYES ABSTAIN ABSENT NAYS 6 ESTRADA 7 REILLY 8 HERNANDEZ x x x 9 MAUDSLEY x 10 MINOR 11 POPE-LUDLAM 12 MILLER x x x 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ~~~erk The foregoing resolution is (~~ , 1992. day of Hol omb, Mayor . of San Bernardino Approved as to form and legal content: James F. Penman City Attorney t. )th - 2 - ,(Approved per C of S Bdno Res 92-343 adopted 8/17/92) AGREEMENT FOR PROFESSIONAL SERVICES This AGREl'<l'IENT is made and entered into this 90 fl, day of lLIL~t , 1992, 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 re- ferred to as "ENGINEER". WIT N E SSE T H WHEREAS, City desires to obtain professional services to pre- pare plans, specifications, estimates and construction documents for the extension of Orange Show Road from Arrowhead Avenue to Tippecanoe Avenue including crossing of the flood control chan- nel, the railroad, Gage Canal and the Santa Ana River. WHEREAS, in order to develop, plans, specifications, esti- mates 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 herein- after set forth. NOW, THEREFORE, it is mutually agreed, as follows: 1. SCOPE OF SERVICES Engineer shall perform those services specified in "Scope of Services" a copy of which is attached hereto as Exhibit "I" 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 by written agreement of the parties. 1 3. STANDARD OF PERFORMANCE Engineer shall complete all work product and design in con- formance with Standard Specifications for Public Works Construc- tion (Greenbook) and the city of San Bernardino's Standard Draw- ings. 4. CHANGES/EXT~ SERVICES A. Performance of the work specified in the "Scope of Services", is made an obligation of Engineer under this Agree- ment, subject to any changes made subsequently upon mutual agree- ment 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 (undated) , a copy of which is attached hereto as Exhibit "4" and incorporated herein as though set forth in full. 5. COMPENSATION A. The city shall compensate the Engineer in accordance with Exhibit 3 attached hereto and incorporated herein as though set forth in full for performance of the work, in an amount not to exceed $598,611.00. 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 commence- ment 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 per- formed; and 3. Duration of work if the change from the time period specified in the Agreement for Completion of the work warrants such adjustment. 2 C. The Engineer is required to comply with all Federal, state and local laws and ordinances applicable to the work. The Engineer is required to comply with prevailing wage rates in accordance with California Labor Code section 1775 in effect as of the date of issuance of the Notice to Proceed. 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 there- after 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 pay- ment. B. section 9-10 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 requirements 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 litigation and collection expenses, witness fees, and court costs, and attor- ney'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 per- formed 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. 3 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. Engin- eer 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 sub- stantial 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 rea- son, Engineer will preserve and make immediately available to City, or its designated representatives, maps, notes, correspon- dence, or records related to work paid for by the city and re- quired 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 subse- quent use of such incomplete documents 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 satis- fied. 10. CONTINGENCIES In the event that, due to causes beyond the control of and without the fault or negligence of Engineer, Engineer fails to 4 meet any of its obligations under this Agreement, and such fail- ure shall not constitute a default in performance, and the City may grant to 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 Agree- ment. Engineer shall notify City within three (3) days in writ- ing 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 per- formance 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 Nei ther 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 Engi- neer and City: ENGINEER CITY DMJM & Assoc. 275 W. Hospitality San Bernardino, CA Lane, suite 314 92408 Mr. Roger Hardgrave Director of Public Works/ City Engineer 300 North "0" street 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. 5 . 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 autho- rized 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 Engi- neer 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, broker- age, 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 termi- nate 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 contin- gent fee. 17. HOLD HARMLESS CAUSE 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, which may arise from Engineer's negligent acts, errors or omis- sions 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, employ- ees, agents and other duly authorized representatives, of pro- grams or processes supplied to City by Engineer under this Agree- ment. 6 18. INDEMNITY Engineer shall indemnify, defend and hold harmless City from and against any and all claims, demands, suits, actions, proceed- ings, judgments, losses, damages, injuries, penalties, costs, expenses (including 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 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 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. 19. LIABILITY/INSURANCE A. Engineer's liability insurance for injury or damage to persons or property arising out of work for which legal liabil- ity may be found to rest upon Engineer other than for profes- sional 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, 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 sufficient to insure the Engineer'S indemnity, as above required; and, such insurance will include the city, the Engi- neer, their consultants, and each of their officers, agents and employees as additional insureds. C. Engineer shall provide evidence of insurance in the form of a policy 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 materi- als 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. 7 AGREEMENT: EXTENSION OF ORANGE SHOW ROAD FROM ARROWHEAD AVENUE TO TIPPECANOE AVENUE 20. VALIDITY Should any provision herein be found or deemed to be invalid, this Agreement shall be construed as not containing such provi- sion, 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 contempo- raneous negotiations, representations, under-standings and agree- ments, whether written or oral, with respect to the subject mat- ter thereof. This Agreement may be amended only by written instrument signed by both parties. 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: ~~N~ bAN'Ea.,#Mf\NN, '10HNSON, -tt'l\EMbEN "~ ~ BY: 0\11 j C ~ _ _ _ _ -,f._prO"'dont Approved as to form and legal content: CITY OF SAN BERNARDINO, a municipal corporation / / -- / / , , ////--/-/ , ~~~/W~ ;/Zi~I~',-~~Y6r " I AU6 2 0 199Z -. JAMES F. PENMAN City Attorney By: f1rto" 7- (J , t I ' 1 t/11~ 8 EXHIBIT "A" AGREEMENT FOR PROFESSIONAL SERVICES This AGREEMENT is made and entered into this day of , 1992, 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 re- ferred to as "ENGINEER". WIT N E SSE T H WHEREAS, city desires to obtain professional services to pre- pare plans, specifications, estimates and construction documents for the extension of Orange Show Road from Arrowhead Avenue to Tippecanoe Avenue including crossing of the flood control chan- nel, the railroad, Gage Canal and the Santa Ana River. WHEREAS, in order to develop, plans, specifications, esti- mates 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 herein- after set forth. NOW, THEREFORE, it is mutually agreed, as follows: 1. SCOPE OF SERVICES Engineer shall perform those services specified in "Scope of Services" a copy of which is attached hereto as Exhibit "I" 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 by written agreement of the parties. 1 3. STANDARD OF PERFORMANCE Engineer shall complete all work product and design in con- formance with Standard Specifications for Public Works Construc- tion (Greenbook) and the City of San Bernardino's Standard Draw- ings. 4. CHANGES/EXTRA SERVICES A. Performance of the work specified in the "Scope of Services", is made an obligation of Engineer under this Agree- ment, subject to any changes made subsequently upon mutual agree- ment 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 (undated) , a copy of which is attached hereto as Exhibit "4" and incorporated herein as though set forth in full. 5. COMPENSATION A. The City shall compensate the Engineer in accordance with Exhibit 3 attached hereto and incorporated herein as though set forth in full for performance of the work, in an amount not to exceed $598,611.00. 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 commence- ment 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 per- formed; and 3. Duration of work if the change from the time period specified in the Agreement for Completion of the work warrants such adjustment. 2 C. The Engineer is required to comply with all Federal, state and local laws and ordinances applicable to the work. The Engineer is required to comply with prevailing wage rates in accordance with California Labor Code section 1775 in effect as of the date of issuance of the Notice to Proceed. 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 there- after 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 pay- ment. B. section 9-10 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 requirements 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 litigation and collection expenses, witness fees, and court costs, and attor- ney'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 per- formed 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. 3 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. Engin- eer 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 sub- stantial 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 rea- son, Engineer will preserve and make immediately available to City, or its designated representatives, maps, notes, correspon- dence, or records related to work paid for by the City and re- quired 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 subse- quent use of such incomplete documents 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 satis- fied. 10. CONTINGENCIES In the event that, due to causes beyond the control of and without the fault or negligence of Engineer, Engineer fails to 4 meet any of its obligations under this Agreement, and such fail- ure shall not constitute a default in performance, and the City may grant to 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 Agree- ment. Engineer shall notify city within three (3) days in writ- ing 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 per- formance 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 Nei ther 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 Engi- neer and City: ENGINEER CITY DMJM & Assoc. 275 W. Hospitality San Bernardino, CA Lane, suite 314 92408 Mr. Roger Hardgrave Director of Public Works/ City Engineer 300 North "0" Street 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. 5 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 autho- rized 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 Engi- neer 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, broker- age, 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 termi- nate 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 contin- gent fee. 17. HOLD HARMLESS CAUSE 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, which may arise from Engineer's negligent acts, errors or omis- sions 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, employ- ees, agents and other duly authorized representatives, of pro- grams or processes supplied to City by Engineer under this Agree- ment. 6 18. INDEMNITY Engineer shall indemnify, defend and hold harmless City from and against any and all claims, demands, suits, actions, proceed- ings, judgments, losses, damages, injuries, penalties, costs, expenses (including 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 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 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. 19. LIABILITY/INSURANCE A. Engineer's liability insurance for injury or damage to persons or property arising out of work for which legal liabil- ity may be found to rest upon Engineer other than for profes- sional 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, 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 sufficient to insure the Engineer's indemnity, as above required; and, such insurance will include the City, the Engi- neer, their consultants, and each of their officers, agents and employees as additional insureds. C. Engineer shall provide evidence of insurance in the form of a policy 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 materi- als 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. 7 AGREEMENT: EXTENSION OF ORANGE SHOW ROAD FROM ARROWHEAD AVENUE TO TIPPECANOE AVENUE 20. VALIDITY Should any provision herein be found or deemed to be invalid, this Agreement shall be construed as not containing such provi- sion, 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 contempo- raneous negotiations, representations, under-standings and agree- ments, whether written or oral, with respect to the subject mat- ter thereof. This Agreement may be amended only by written instrument signed by both parties. 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: DMJM, INC. BY: President RACHEL KRASNEY, City Clerk CITY OF SAN BERNARDINO, a municipal corporation By: W. R. Holcomb, Mayor Approved as to form and legal content: JAMES F. PENMAN city Attorney By: 8