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HomeMy WebLinkAbout2005-370 ~,--~ ~ ~ ~~< ~~..~c _e_ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 III 21 III 22 23 24 25 26 27 28 RESOLUTION NO. 2005-370 RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING AN AGREEMENT FOR PROFESSIONAL SERVICES WITH TRANSTECH ENGINEERS, INC. TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR THE SANTA FE DEPOT PARKING STRUCTURE PROJECT (GB04-19). BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. Transtech Engineers, Inc., 198 N. Arrowhead Avenue, Suite "I", San Bernardino, CA 92408, is competent, experienced and has provided the most advantageous and best proposal for provision of program management services for design and construction of the Santa Fe Depot parking structure project (GB04-19) per Agreement for Professional Services, attached hereto and incorporated herein as Exhibit "A", for the not-to-exceed amount of $586,000, based on the consJlltant's re..sponse to tl),l::,Request for Proposal (RFP), attached hereto ," " '..' .' and incorporated herein as Exhibit "B." Pursuant to this determination, the Purchasing Manager is hereby authorized and directed to issue Purchase Orders for said services to said firm which references this Resolution. The Mayor is hereby authorized and directed to execute said Agreement on behalf of the City. SECTION 2. The authorization to execute the above referenced Agreement is rescinded ifit is not executed within sixty (60) days of the passage of this resolution. - 1 - , ,', - -"..-._,~--,....,- '-"~='-'-~'-- -~"--'" , _ _ ,~,-,-_~_~___,~-_" , ,',.' " ____ _ ~_ '__'W_~"" ,. - "'~'_ 2005-370 1 RESOLUTION ............ APPROVING AN AGREEMENT FOR 2 PROFESSIONAL SERVICES WITH TRANSTECH ENGINEERS, INC. TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR THE SANTA FE DEPOT PARKING 3 STRUCTURE PROJECT (GB04-19). 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a j oint regular meeting thereof, held on the 7th day of November , 2005, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA X - LONGVILLE X MC GINNIS X DERRY --1L- KELLEY X JOHNSON X - MC CAMMACK X ~JJ~ Rachel Clark, City Clerk The foregoing resolution is hereby approved this Ip-li. November ,2005, Approved as to form and legal content: th Valles, Mayor of San Bernardino JAMES F, PENMAN, City Attorney . i?0---. -2- ~_,,-_.~,~;Y:~-~f,'1~~':'~';i=-"'~lr,,"~'~,,_.::~C'''c~.'''~'~----- ~, ~~, EXHIBIT" A" PROGRAM MANAGEMENT SERVICES - METROLINk PARKING STRUCTURE AT SANTA FE DEPOT AGREEMENT FOR SERVICES FOR THEMETROLlNK PARKING STRUCTURE AT SANTA FE DEPOT BY AND BETWEEN CITY OF SAN BERNARDINO AND TRANSTECH ENGINEERS, INC. (EXHIBIT "A") This AGREEMENT FOR PROGRAM MANAGEMENT SERVICES BY AND BETWEEN CITY OF SAN BERNARDINO (AGENCY) and TRANSTECH ENGINEERS, INC. (CONSULTANT), is made and entered into effective as of the Ltth day otl~, 2005, by and between the AGENCY and the CONSULTANT. SECTION 1. TERM OF AGREEMENT. The term of this AGREEMENT shall be for a period of 36 months from the effective date of this AGREEMENT, as first shown above. Such term may be extended upon written agreement of both parties to this AGREEMENT. SECTION 2. SUBCONTRACTORS. CONSULTANT shall perform the services contemplated under this AGREEMENT using the resources available within its own organization and any subcontractors that have been authorized, in writing, by the AGENCY. Any substitution of subcontractors must be approved, in writing, by the AGENCY. Any Sl:lbcontract with a value in excess of TWENTY- FIVE THOUSAND DOLLARS ($25,000) that is executed by CONSULTANT in connection with this AGREEMENT shall contain all of the provisions of this AGREEMENT that are stipulated herein to be applicable to subcontractors. SECTION 3. SCOPE OF SERVICES. CONSULTANT agrees .to perform the services set forth in Attachment 1 of this AGREEMENT. SECTION 4. ADDITIONAL SERVICES. (a) CONSULTANT shall not be compensated for any services rendered in connection with its performance of this AGREEMENT which are in addition to or outside of those described in this AGREEMENT, unless such additional services are authorized in advance and in writing by the AGENCY. CONSULTANT shall be compensated for any such additional authorized services in the amounts and in the manner agreed to in writing by the I AGENCY. (b) 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 Page 1 AGREEMENT _,?A;=_""'_'_~""~"C"";"':"-;-". ~ ~~~ ~~"="iW""",,,.'_~"cr'r~rl "~ I rl ~ 7 ' ,,~, '_~~_~_,'" PROGRAM MANAGEMENT SERVICES. METROLlNK PARKING STRUCTURE AT SANTA FE DEPOT Agreement, and such failure shall not constitute a default in performance, the AGENCY 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. SECTION 5. COMPENSATION AND METHOD OF PAYMENT. (a) CONSULTANT. Shall be compensated in the manner and amounts specified in Attachment 2 of this AGREEMENT. The total compensation due CONSULTANT shall not exceed the amount set forth in the budget contained in Attachment 2 unless additional compensation has been approved in writing in advance by the AGENCY. Notwithstanding the established not-to-exceed budget, CONSULTANT shall incur only such costs as are reasonable and necessary and in the best interests of the AGENCY. If, at any time, CONSULTANT estimates the cost' of performing the services described in CONSULTANT's Proposal will exceed the budget for such services including approved additional compensation, CONSULTANT shall notify the AGENCY immediately in writing indicating the additional amount necessary to complete the services. Any cost incurred by CONSULTANT in excess of the aforesaid limitation without the express written consent of the AGENCY shall be at CONSULTANT's own risk. (b) As soon as practical after the first day of each calendar month, CONSULTANT shall furnish to AGENCY an original invoice. The invoice shall identify all compensation due CONSULTANT by AGENCY and shall be in accord with CONSULTANT's Proposal. AGENCY shall use its best efforts to pay the amount invoiced in full within thirty (30) days after receipt of invoice. (c) AGENCY shall independently review each invoice submitted by the CONSULTANT to determine if said invoice is in compliance with all provisions of this AGREEMENT. All CONSULTANT costs and expenses and any subcontractor costs and expenses must be in accord with the Contract Cost Principles and Procedures of the Federal Acquisition Regulation, 48 CFR Part 31 et seq. (the FAR), and Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local ~ Governments, 49 CFR Part 1.8. Any costs and expenses for which payment has been made to CONSULTANT and/or CONSULTANT's subcontractors that are determined by subsequent audit to be unallowable are subject to repayment by CONSULTANT and/or CONSULTANT's subcontractors to AGENCY. The eligibility requirements for subcontractor cost and expenses, as described in this SECTION 5(c), must be contained in all subcontracts of CONSULTANT. Further, all subcontracts of CONSULTANT must include a provision mandating reimbursement of AGENCY for any costs for which payment has been made that are determined to be unallowable by subsequent audit. (d) In the event AGENCY disputes any costs or expenses in any invoice, AGENCY shall notify CON~L TANT within thirty (30) days of receipt by AGENCY of said invoice. AGENCY shall process the undisputed portion of said invoice. CONSULTANT shall correct and resubmit any properly disputed portions of said invoice. Page 2 AGREEMENT __ __~."':.-:-__.:':-.::!._-7_---~~.V._H---..,a.---.--- -~-- - "-,,=, -,~ PROGRAM MANAGEMENT SERVICES. METROLlNK PARKING STRUCTURE AT SANTA FE DEPOT (e) Payment to CONSULTANT for services performed pursuant to this AGREEMENT shall not be deemed to waive any deficiencies in services performed by CONSULTANT. SECTION 6. DEFICIENT SERVICES. CONSULTANT represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the services required under this AGREEMENT. CONSULTANT shall at all times competently, and, consistent with its ability, experience and talents, perform all services described herein. In meeting its obligations under this AGREEMENT, CONSULTANT shall employ, at a minimum, generally accepted standards and practices utilized by consulting firms engaged in providing services similar to those required of CONSULTANT under this AGREEMENT. AGENCY may disapprove services that do not conform to these standards and practices and may withhold or deny compensation for deficient services. Upon disapproval of services by AGENCY, CONSULTANT shall immediately reperform, at its own costs, the services that are deficient. AGENCY must notify CONSULTANT in writing of the existence of such deficient services within a reasonable time, not to exceed sixty (60) days after its discovery thereof, but in no event later than one (1) year after the completion of such deficient services. No approval, disapproval, or omission to provide approval or disapproval shall release CONSULTANT from any responsibility under this AGREEMENT. SECTION 7. OWNERSHIP OF DOCUMENTS. "'-- All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by CONSULTANT in the course of providing any services pursuant to this AGREEMENT shall be the sole property of AGENCY and may be used, reused or otherwise disposed of by AGENCY without the permission of the CONSULTANT. Upon satisfactory completion of, or in the event of expiration, termination, suspension, or abandonment of this AGREEMENT, CONSULTANT shall turn over to AGENCY all such maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, fdes and other documents which CONSULTANT may have temporarily retained for use by CONSULTANT staff. With respect to computer files, CONSULTANT shall make available to the AGENCY, upon reasonable written request by the AGENCY, the necessary computer software and hardware for purposes of accessing, compiling, transferring and printing computer files. SECTION 8. CONSULTANT'S BOOKS AND RECORDS. (a) CONSULTANT shall maintain any and all documents and records demonstrating or relating tp CONSULTANT's performance of services pursuant to this AGREEMENT. CONSULTANT shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to AGENCY pursuant to this AGREEMENT Page 3 ~€pl""'=,"--:'''-' , ' "''" " ',.' PROGRAM MANAGEMENT SERVICES. METROLINK PARKING STRUCTURE AT SANTA FE DEPOT AGREEMENT. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by CONSULTANT pursuant to this AGREEMENT. Any and all such documents or records shall be maintained for not less than four years from the date of final payment made in accordance with this AGREEMENT and to the extent required by laws relating to audits of public agencies and their expenditures. (b) Any and all records or documents required to be maintained pursuant to this SECTION 8 shall be made available for inspection, audit and copying, at any time during regular business hours, upon written request by AGENCY or its designated representatives or representatives of any governmental entity, including the Federal Highway Administration and Caltrans, that is providing funding for the Project, if a portion of such funding is used to compensate CONSULTANT hereunder. Copies of such documents or records shall be provided directly to the AGENCY for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at CONSULTANT's address indicated for receipt of notices in this AGREEMENT. (c) Where AGENCY has reason to believe that any of the documents or records required to be maintained pursuant to this SECTION 8 may be lost or discarded due to dissolution or termination of CONSULTANT's business, AGENCY may, by written request, require that custody of such documents or records be given to the requesting party and that such documents and records be maintained by the requesting party. Access to such documents and records shall be granted to AGENCY, as well as to its successors-in-interest and authorized representatives. --, SECTION 9. STATUS OF CONSULTANT. (a) CONSULTANT is and shall at all times remain a wholly independent CONSULTANT and not an officer, employee or agent of AGENCY. CONSULTANT shall have no authority to bind AGENCY in any manner, nor to incur any obligation, debt or liability of any kind on behalf. of or against AGENCY, whether by contract or otherwise, unless such authority is expressly conferred under this AGREEMENT or is otherwise expressly conferred in writing by AGENCY. (b) The personnel performing the services under this AGREEMENT on behalf of CONSULTANT shall at all times be under CONSULTANT's exclusive direction and control. Neither AGENCY, nor any elected or appointed boards, officers, officials, employees or agents of AGENCY, shall have control over the conduct of CONSULTANT or any of CONSULTANT's officers, employees or agents, except as set forth in this AGREEMENT. CONSULTANT shall not at any time or in any manner represent that CONSULTANT or any of CONSULTANT's officers;, employees or agents are in any manner officials, officers, employees or agents of AGENCY. AGREEMENT Page 4 ~_":L' ~~OW"O'" '0 , ~' , PROGRAM MANAGEMENT SERVICES - METROLlNK PARKING STRUCTURE AT SANTA FE DEPOT (c) Neither CONSULTANT, nor any of CONSULTANT's officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to AGENCY's employees. CONSULTANT expressly waives any claim CONSULTANT may have to any such rights. (d) Pers Eligibility Indemnity. In the event that CONSULTANT or any employee, agent, or subcontractor of CONSULTANT providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, CONSULTANT shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of CONSULTANT or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS, LICENSES. CONSULTANT shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this AGREEMENT. CONSULTANT shall obtain any and all licenses, permits and authorizations necessary to perform the services set forth in this AGREEMENT. SECTION 11. DISADVANTAGED BUSINESS ENTERPRISES. ~-- {a) During the term of this AGREEM_ENT, CONSULTANT shall make good faith efforts to ensure that Disadvantaged Business Enterprises (DBEs) have the maximum opportunity to successfully participate in the work under this AGREEMENT and that CONSULTANT meets the required DBE goal(s). A good faith effort to ensure DBEs have the maximum opportunity to participate in work under this AGREEMENT shall include but not be limited to the following: (1) Negotiating in good faith to attempt to finalize and execute subcontract agreements with all DBEs that have been proposed' to AGENCY by CONSULTANT. (2) Utilizing DBE suppliers and DBE subcontractors, where possible, and documenting all efforts to do so. (3) Providing assistance to DBE subcontractors or suppliers in obtaining required bonding and lines of credit. (4) Notifying a DBE in writing of any potential problem and attempting to resolve the problem prior to formally requesting AGENCY approval to substitute for the DBE. Page 5 AGREEMENT .""~.",,..... .c:::3~:lr~"'YmJ ._.'_C.~" '..""'11" PROGRAM MANAGEMENT SERVICES - METROLlNK PARKING STRUCTURE AT SANTA FE DEPOT (5) Making timely payment of all monies due and owing to DBE subcontractors and suppliers. (6) Alerting AGENCY in a timely manner of any problems anticipated in attaining CONSULTANT's DBE participation goal(s}. (b) If CONSULTANT seeks approval from the AGENCY for the substitution of DBE subcontractors or suppliers, CONSULTANT shall use good faith efforts to substitute other DBE subcontractors or suppliers. (c) Changes to this AGREEMENT that increase or decrease DBE participation shall be appropriately reflected in all reports to AGENCY that describe DBE participation in the Project. (d) All subcontractors and suppliers that are to be counted by CONSULTANT toward the achievement of CONSULTANT's DBE goal must be certified. CONSULTANT is responsible for verifying and monitoring the certificate status of its DBE subcontractors and suppliers. AGENCY is not a DBE certifying agency. AGENCY will accept DBE certification by Caltrans. or other organizations that certify the eligibility of DBEs in accordance with 49 CFR 26. (e) CONSULTANT and AGENCY agree that CONSULTANT shall make a good faith effort to achieve the DBE goal. (f) A good faith effort to achieve the DBE goal may be demonstrated by CONSULTANT through one or more of the fotlewing: - (1) Planning to use DBE subcontractors and suppliers to a greater degree than that needed to achieve any DBE goal established for this AGREEMENT. (2) Actively soliciting substitute DBE subcontractors and suppliers to replace DBE organizations that are unable to participate in the Project in spite of the initial agreement of said DBE organizations to undertake work for the Project. - (3) Providing additional work to existing Project DBE subcontractors should changes in CONSULTANT's Incremental Scopes of Services eliminate or reduce work assignments planned for DBE subcontractors. (g) CONSULTANT must carefully record CONSULTANT's good faith efforts to achieve the DBE goal and must share said records with AGENCY if requested to do so. Page 6 AGREEMENT ~ ;'Yr"'C'"' . " , ": ~, '."~~, ",,' "",,' , " PROGRAM MANAGEMENT SERVICES - METROLINK PARKING STRUCTURE AT SANTA FE DEPOT SECTION 12. FAIR EMPLOYMENT PRACTICES. (a) In the performance of this AGREEMENT, CONSULTANT will not discriminate against any employee because of race, color, sex, religion, national origin, age, ancestry, pregnancy, disability, sexual orientation, medical condition or marital status and shall comply with the provisions of the State Fair Employment Practices Act as set forth in Part 4.5 of the Division 2 of the California Labor Code; the Federal Civil Rights Act of 1964, and all amendments thereto; Executive Order No. 11246; and all administrative rules and regulations issued pursuant to such acts and order. CONSULTANT will take affirmative action to ensure that employees are treated during employment without regard to their race, sex, actual or perceived sexual orientation, color, religion, ancestry, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of payor other forms of compensation; and selection for training, including apprenticeship. CONSULTANT shall post in conspicuous places, available to employees for employment, notices provided by state and federal agencies regarding fair employment practices. (b) Remedies for willful violation: (1) The AGENCY may determine a willful violation of the fair employment provision of this AGREEMENT to have occurred upon receipt of a final judgment to that effect from a court in an action to which CONSULTANT was a party, or upon receipt of a written notice form the Fair Employment and Housing Commission that it has investigated and determined that CONSUL TAN"fi=las violated the Fair Employment Practices Act and had issued an order under Labor Code Section 1426 which has become final or has obtained an injunction under Labor Code Section 1429. (2) For willful violation of the fair employment provision of this AGREEMENT, the AGENCY shall have the right to terminate this AGREEMENT, either in whole or in part, and any loss or damage sustained by AGENCY in securing the goods or services described herein shall be bome by and paid for by CONSULTANT and AGENCY may deduct from any moneys due or that thereafter may become due to CONSULTANT, the difference between the price named in the AGREEMENT and the actual cost thereof to AGENCY to cure CONSULTANT's breach of this AGREEMENT SECTION 13. NONDISCRIMINATION ASSURANCES. (a) CONSULTANT hereby agrees that it will comply with Title VI of the Civil Rights Act of 1964,78 Stat. 252,42 U.S.C. 2000d 42 U.S.C. 2000d-4 (the ACT), and all requirements imposed by; or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-Assisted Programs of the Department of Transportation Effectuation of Title VI of the Civil Rights Act of 1964 (the REGULATIONS), the Federal- Page 7 AGREEMENT ~~~~"';JC' 'rl"'~r--" '-~~ ",.,....--- ...~ . PROGRAM MANAGEMENT SERVICES - METROLlNK PARKING STRUCTURE AT SANTA FE DEPOT Aid Highway Act of 1973, and other pertinent directives, to the end that in accordance with the ACT, REGULATIONS, and other pertinent directives, no person in the United States shall, on the basis of race, color, sex, national origin, religion, age or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity of CONSULTANT under this AGREEMENT. (b) CONSULTANT, without limiting the above general assurance, hereby gives the following specific assurances: (1 ) CONSULTANT agrees that each program and each facility as defined in subsections 21.23(e) and 21.23(b) of the REGULATIONS will be conducted or will be operated in compliance with all requirements imposed by, or pursuant to, the REGULATIONS. (2) CONSULTANT shall insert the following notification in all solicitations for bids for work or material made in connection with this AGREEMENT and, in adapted form, in all proposals for negotiated agreements: CONSULTANT hereby notifies all bidders that it will affirmatively ensure that in any agreement entered into pursuant to this advertisement, minority business enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex, national origin, age, religion, or disability in consideration for an award. (3) CONSULTANT agrees--that the United States and the State of California have a right to seek judicial enforcement with regard to any matter arising under the ACT, the REGULATIONS, and this AGREEMENT. (4) CONSULTANT shall provide for such methods of administering its obligations under the AGREEMENT as are found by the U.S. Secretary of Transportation, or the official to whom he delegates specific authority, to giv.e reasonable guarantee that CONSULTANTS and its agents, subcontractors, and successors in interest will comply with all requirements imposed by, or pursuant to the ACT, the REGULATIONS, and this AGREEMENT. SECTION 14. UNAUTHORIZED ALIENS. CONSULTANT hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A.. 1101, et sea., as amended, and, in connection therewith, shall not employ unauthorized aliens as defined therein. Should CONSULTANT so employ such unauthorized aliens for the performance of work and/or services covered by this AGREEMENT, and should any liability or sanctions be imposed against AGENCY for such use of unauthorized aliens, CONSULTANT hereby agrees to and shall reimburse AGENCY for the cost of all such liabilities or sanctions imposed, together AGREEMENT Page 8 ~~~"",,-==-,,-,-<-=--~-~!~-~~:'--~';1'1~_:1~:Swl~::~:::r~rr=Mfi'~-~="'~ ",_..-,~=~---,..^~ - -,,~ - PROGRAM MANAGEMENT SERVICES. METROLlNK PARKING STRUCTURE AT SANTA FE DEPOT with any and all costs, including attorneys' fees, incurred by AGENCY in connection therewith. SECTION 15. CONFLICTS OF INTEREST. (a) CONSULTANT covenants that neither it, nor any of its officers or principals has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of AGENCY or which would in any way hinder CONSULTANT's performance of services under this AGREEMENT. CONSULTANT further covenants that in the performance of this AGREEMENT, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the AGENCY. CONSULTANT agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of AGENCY in the performance of this AGREEMENT. . (b) AGENCY understands and acknowledges that CONSULTANT is, as of the date of execution of this AGREEMENT, independently involved in the performance of non- related services for other governmental agencies and private parties. CONSULTANT is unaware of any stated position of AGENCY relative to such projects. Any future position of AGENCY on such projects shall not be considered a conflict of interest for purposes of this section. SECTION 16. RESTRICTIONS ON LOBBYING ON FEDERALLY FUNDED PROJECTS. --. {a) By signing this AGREEMENT, CONSULTANT certifies, to the best of its knowledge and belief, that no federal appropriated funds have been paid or will be paid, by or on behalf of CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or an employee of the Congress, or an employee of a Member of Congress in connection with this AGREEMENT. (b) If any funds, other that federal appropriated funds, have been"lJaid or will be paid to any person for influencing or attempting to influence an officer or an employee of any federal agency, a Member of Congress, an officer or employee of Congress or an employee of a Member of Congress in connection with this Agreement, CONSULTANT shall complete and submit all required lobbying disclosure forms and reports. (c) This certification is a material representation of fact upon which reliance was placed when this AGREEMENT was executed. (d) The language of this SECTION shall be included in all subcontracts that exceed ONE HUNDRED TH,oUSAND DOLLARS ($100,000) in value. Page 9 AGREEMENT - ~"~""-"-;r PROGRAM MANAGEMENT SERVICES. METROLINK PARKING STRUCTURE AT SANTA FE DEPOT SECTION 17. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work products produced by CONSULTANT in performance of this AGREEMENT shall be considered confidential, unless such information is in the public domain or already known to CONSULTANT. CONSULTANT shall not release or disclose any such information or work products to persons or entities other than AGENCY without prior written authorization from the AGENCY, except as may be required bylaw. (b) CONSULTANT, its officers, employees, agents or subcontractors shall not, without prior written authorization from the AGENCY or unless requested by the Counsel to the AGENCY, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information conceming the work performed under this AGREEMENT. Response to a subpoena or court order shall not be considered "voluntary" provided CONSULTANT gives AGENCY notice of such court order or subpoena. (c) If CONSULTANT, or any officer, employee, agent or subcontractor of CONSULTANT, provides any information or work product in violation of this AGREEMENT, then AGENCY shall have the right to reimbursement and indemnity from CONSULTANT for any damages, costs and fees, including attorneys fees, caused by or incurred as a result of CONSULTANT's conduct. (d) CONSULTANT shall promptly notify AGENCY should CONSULTANT, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this AGREEMENT and the work performed thereunder. AGENCY retains the right, but has no obligation, to represent CONSULTANT or be present at any deposition, hearing or similar proceeding. CONSULTANT agrees to cooperate fully with AGENCY and to provide AGENCY with the opportunity to review any response to discovery requests provided by CONSULTANT. However, this right to review any such response does not imply or mean the right by AGENCY to control, direct, or rewrite said response. SECTION 18. INDEMNIFICATION. CONSULTANT shall indemnify, defend and hold harmless AGENCY 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 from CONSULTANT's negligent performance of services under this AGREEMENT. CONSULTANT shall not be responsible for, and AGENCY 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 from the AGENCY's negligence. With respect to any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorneys' fees) and AGREEMENT Page 10 """"""15F - "'J ~-cw-~. ~.~, ." PROGRAM MANAGEMENT SERVICES - METROLINK PARKING STRUCTURE AT SANTA FE DEPOT liabilities of, by or with respect to third parties, which arise from the joint or concurrent negligence of CONSULTANT and AGENCY, each party shall assume responsibility in proportion to the degree of its respective fault. SECTION 19. INSURANCE. (a) CONSULTANT's liability to the AGENCY for injury or damage to persons or property arising out of work performed by the Consultant 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 or injury on account of any error, omission or other professional negligence, CONSULTANT's liability shall be limited to a sum not to exceed $50,000 or CONSULTANT's fee, whichever is greater. (b) The AGENCY will require the CONSULTANT to provide Worker's Compensation and Comprehensive General Liability Insurance, with coverage sufficient to insure the CONSULTANT's liability, as above required; and, such insurance shall include the AGENCY, and each of its officers, agents and employees as additional insured with exception to additional insured under Worker's Compensation. (c) CONSULTANT shall provide evidence of insurance with a 10-day notice to AGENCY of termination or material change. SECTION 20. ASSIGNMENT. --- The expertise and experience of CONSULTANT are material considerations for this AGREEMENT. AGENCY has an interest in the qualifications of and capability of the persons and entities that will fulfill the duties and obligations imposed upon CONSULTANT under this AGREEMENT. In recognition of that interest, CONSULTANT shall not assign or transfer any portion of this AGREEMENT or the performance of any of CONSULTANT's duties or obligations under this AGREEMENT without the prior written consent of the AGENCY. Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach. of this AGREEMENT entitling AGENCY to any and all remedies at law or in equity, including summary termination of this AGREEMENT. SECTION 21. PROJECT STAFF. AGENCY reserves the right to request that CONSULTANT replace a staff person assigned to perform services under this AGREEMENT in the event the AGENCY, in its sole discretion, determines such a replacement is necessary. AGREEMENT Page 11 ]m' ',"""'"C"~'" "ucm_~ l' PROGRAM MANAGEMENT SERVICES - METROLINK PARKING STRUCTURE AT SANTA FE DEPOT SECTION 22. TERMINATION OF AGREEMENT. (a) AGENCY may terminate this AGREEMENT, with or without cause, at any time by giving ninety (90) days written notice of termination to CONSULTANT. In the event such notice is given, CONSULTANT shall cease immediately all work in progress. (b) CONSULTANT may terminate this AGREEMENT at any time upon ninety (90) days written notice of termination to AGENCY. (c) If either CONSULTANT or AGENCY is in default under this AGREEMENT, then, in addition to any other remedies, either CONSULTANT, or AGENCY may terminate this AGREEMENT immediately upon written notice. (d) Upon termination of this AGREEMENT by either CONSULTANT or AGENCY, all property belonging to AGENCY, which is in CONSULTANT's possession, shall be returned to AGENCY. CONSULTANT shall furnish to AGENCY a final invoice for work performed and expenses incurred by CONSULTANT, prepared as set forth in this AGREEMENT. This final invoice shall be reviewed and paid in the same manner as set forth in this AGREEMENT. SECTION 23. DEFAULT. If either CONSULTANT or AGENCY fails to perform any material obligation under this AGREEMENT, the non-breaching party shall notify the breaching party in writing. Within thirty (30) days of receipt of such written notice, the breaching party shall commence curing such breach and shall diligently pursue such cyre to completion. If the breaching party fails to diligently pursue such cure to completion, the breaching party shall be in default under the terms of this AGREEMENT. In the event that CONSULTANT is in default, the AGENCY shall not have any obligation or duty to continue compensating CONSULTANT for any services performed after the date of default, and AGENCY, without limiting any other legal or equitable remedies available to it, shall be entitled to withhold from CONSULTANT amounts unpaid hereunder and to offset such amounts against damages or losses incurred by the AGENCY, including increased costs of services. SECTION 24. SCHEDULE. The project shall be completed per the schedule shown in Attachment 3 of this AGREEMENT. SECTION 25. EXCUSABLE DELAYS. CONSULTANT shall not be liable for damages, including liquidated damages, if any, caused by delay in perform~nce or failure to perform due to causes beyond the control of CONSULTANT. Such causes include, but are not limited to, acts of God, acts of the public enemy. acts of federal, state or local governments, court orders, fires, floods, epidemics, Page 12 AGREEMENT - ~ ,. "F~~~~~~~'" "'(-I "'~ ~~ ~.' -, ,~,~,,',~~ ~-'" ....' .'.' '=='=''''''~'-' "".~"'," ,n '~"n , ~~, ' PROGRAM MANAGEMENT SERVICES. METROLINK PARKING STRUCTURE AT SANTA FE DEPOT strikes, embargoes, and unusually severe weather. The term and price of this AGREEMENT shall be equitably adjusted for any delays due to such causes. SECTION 26. NOTICES. All notices required or permitted to be given under this AGREEMENT shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows: To AGENCY: James Funk, Director of Development Services City of San Bernardino Development Services Department 300 North D Street San Bernardino, CA 92418-0001 To CONSULTANT: AIi Cayir, PE, Principal Transtech Engineers, Inc. 198 North Arrowhead Avenue, Suite I San Bernardino, CA 92408 Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service. SECTION 27. AUTHORITY TO EXECUTE.---- - The person or persons executing this AGREEMENT on behalf of CONSULTANT warrants and represents that he/she/they has/have the authority to execute this AGREEMENT on behalf of his/her/their corporation and warrants and represents that he/she/they has/have the authority to bind CONSULTANT to the performance of its obligations hereunder. SECTION 28. BINDING EFFECT. This AGREEMENT shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. SECTION 29. MODIFICATION OF AGREEMENT. No amendment to or modification of this AGREEMENT shall be valid unless made in writing and approved by th~ CONSULTANT and by the AGENCY. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void. AGREEMENT Page 13 ~,..~ PROGRAM MANAGEMENT SERVICES. METROLINK PARKING STRUCTURE AT SANTA FE DEPOT SECTION 30. WAIVER. Waiver by any party to this AGREEMENT of any term, condition, or covenant of this AGREEMENT shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any default of the provisions of this AGREEMENT shall not constitute a waiver of any other provision, nor a waiver of any subsequent default or violation of any provision of this AGREEMENT. Acceptance by AGENCY of any work or services by CONSULTANT shall not constitute a waiver of any of the provisions of this AGREEMENT. SECTION 31. lAW TO GOVERN; VENUE. This AGREEMENT shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of San Bernardino. SECTION 32. ATTORNEYS FEES, COSTS AND EXPENSES. In the event litigation or other proceeding is required to enforce or interpret any provision of this AGREEMENT, the prevailing party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled. The costs, salaries and expenses of the City Attorney and members of his office shall be considered as attorney's fees for the purposes of this section of the Agreement. SECTION 33. ENTIRE AGREEMENT. This AGREEMENT, including the attachments listed, is the entire, complete, final and exclusive expression of the parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between CONSULTANT and AGENCY prior to the execution of this AGREEMENT. No statements, representations or other agreements, whether oral or written, made by any party which are not embodied herein shall be valid and binding. No amendment to this AGREEMENT shall be valid and binding unless in writing duly executed by the parties or their authorized representatives. SECTION 34. SEVERABiliTY. If any term, condition or covenant of this AGREEMENT is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this AGREEMENT shall not be affected thereby and the AGREEMENT shall be read and construed without the invalid, void or unenforceable provisions. AGREEMENT Page 14 __e'''''o'''~''~' 'P' -,-,.,. -.,=. . . ""--- PROGRAM MANAGEMENT SERVICES - METROLINK PARKING STRUCTURE AT SANTA FE DEPOT IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date shown below. CONSULTANT Date: CITY OF SAN BERNARDINO Date: (I/;() / ()5" I I ATTEST: ~Ci~~~ Approved as to form and legal content: James F. Penman, City Attorney ATTACHMENT 1: SCOPE OF WORK ATTACHMENT 2: FEE ATTACHMENT 3: SCHEDULE by: ~ Signature ~t~Na~~r I lcf~'fel{ by: i Valles, Mayor of San Bernardino ~'- AGREEMENT Page 15 c,~ ....~ PROGRAM MANAGEMENT SERVICES. METROLlNK PARKING STRUCTURE AT SANTA FE DEPOT ATTACHMENT 1: SCOPE OF WORK The scope of services for this project is to provide program management, including, but not limited to: . Preparation of all necessary funding documents for the obligation and authorization of the use of federal funds, and coordination with required agencies to obtain such approvals/authorizations. . Preparation of an RFP to solicit proposals from parking structure design architects. . Assistance to the City in the selection process of the design architect. . Management of design consultant. . Technical review of the design plans, including acting as an extension of City Building Department, building plan check and approval for compliance with the applicable codes. · Quality control plan check. · Value engineering. · Review of cost estimates. . Budget and funding control to make sure the project is completed within available budget with all aspects. . Preparation of necessary documentation and submittals to obtain necessary approvals, including environmental (assumed to be a negative declaration without requiring any studies), PE, Authorization to Advertise, Authorization to Award, Authorization to Proceed with Construction and Final Report as required on Federally Funded Projects. · Enforcement of federal fund requirements. . Construction management. · Contract administration. ~~- · Specialty Inspections. . Acting as an extension of Building Department, provide necessary building code inspection. The following is anticipated tasks that Transtech will provide for various project phases. I. Federal Fund Obligation and Project Authorization: . Preparation of all. necessary funding documents for the obligation and authorization of the use of federal funds, and coordination with required agencies to obtain such approvals/authorizations. II. Selection of Design Architect: . Preparation of an RFP to solicit proposals from parking structure design architects. . Assistance to the City in the selection process of the design architect. III. PS&E: . Oversight and management of design architect. . Management of design consultant. Design plans and technical specifications to be provided by the design architect. . Technical review of the design plans, including acting as an extension of City Page 1 ATTACHMENT 1-SCOPE OF WORK T ~ .... ""T~ .- PROGRAM MANAGEMENT SERVICES. METROLINK PARKING STRUCTURE AT SANTA FE DEPOT Building Department, building plan check and approval for compliance with the applicable codes. · Quality control plan check. · Value engineering. · Review of cost estimates. . Budget and funding control to make sure the project is completed within available budget with all aspects. . Preparation of administrative section of bid specifications in compliance with federal fund requirements. . Preparation of all necessary paper work, including environmental clearances, federal approval of bid package and approvals of all involved regulatory agencies to produce a complete PS&E bid package for construction bidding. · Compilation of complete bid packages. . Conducting a "Constructability Review" of the plans. . Assume the responsibility for the plan check of the plans as an extension of the City's Building Department. The building plan check will be performed by experienced certified plans examiners. . During the PS&E phase, hold progress meetings with the City staff, and prepare and make presentations to the City Council on the project as necessary and as requested by the City. IV. Bidding and Advertisement: · Advertising the project for bids. · Conducting pre-bid meetings. · Responding to bidder's questions. · Preparing and distributing addenda-.- . Conducting bid evaluation and analysis. . Recommending award of contract to lowest responsible and qualified bidder for construction. . Coordinating the award and execution of the contract between the City and a contractor. . Preparing necessary documentation and submittals to obtain federal approval to award contract and to proceed with construction. V. Construction: . Providing on-site Construction Manager and Quality Control Inspectors to manage all aspects of the construction. . Providing building code required inspections. Transtech will be responsible for the building code required inspections as an extension of the City's Building Department. The building inspections will be performed by experienced licensed building inspectors. . Providing specialty inspections and testing as required by the Building Code. Transtech will retain qualified sub-consultants for specialty inspections and testing after the; PS&E is completed, after which the extent of specialty inspection work will be finalized. The specialty inspections and testing will be performed by experienced licensed personsllabs. ATTACHMENT 1-SCOPE OF WORK Page 2 - - ~~.".", PROGRAM MANAGEMENT SERVICES. METROLlNK PARKING STRUCTURE AT SANTA FE DEPOT . Maintaining safety. Federal, State and Local laws have established occupational safety and health standards with which all employers must comply. . Coordinating performance of required tests. We will use California and/or the American Society for Testing and Materials (ASTM) as applicable. . Delivering a final completed project to the City which is in compliance with PS&E package, and all applicable codes, standards and requirements . Conducting construction progress meetings with the contractor, City, and other involved parties. Preparation and distribution of meeting minutes. . Preparing and distributing all required notices, and responding to complaints and resolving problems as necessary. . Developing a master construction schedule, and monitoring and updating construction schedule. . Reviewing contractor change order requests, and preparing necessary documentation for submittal and approval or denial by the City. . Reviewing contractor pay requests and preparing necessary documentation for submittal and approval by the City. . Managing all construction activities and project controls. . Conducting project walk-through(s) and preparing punch Iist(s). Maintaining proper project files and documentation. The project file will contain all data pertinent to the work and to the requirements of the specifications. The file will be complete, available at a single location, and organized and maintained in a manner that permits inspection by City and/or any other funding agency personnel during process reviews or random checks. . Coordinating close out of the project, obtain necessary operation manuals, warranties, guarantees and other applicable necessary information. . Presenting to the City a complete 'Pf"-oject close out file. . Preparation of Final Project report aSJequired by federally funded projects. VI. Federal Fund Management: . Transtech will be responsible for management, coordination, preparation of necessary paperwork and reports for approvals, and all aspects of federally funded project requirements in compliance with federal requirements. ATTACHMENT 1-SCOPE OF WORK Page 3 ---~"U'R"~~C'~~"'T'- ,c.. ~ c. TO.""","" , .0' ,.. . ,.""~"". " ~~",. "F'" - . lranslech ATTACHMENT 2-FEE PROPOSAL ENGINEERS .PLANNERS .MUNICIPAL CONSUL TANTs 198 N. Arrowhead Avenue, Suite I .San Bernardino. California 92408 . Telephone: 1909\ 383.8579 . Facsimile: (909) 595.8863 FEE PROPOSAL SUBMITTED BY TRANSTECH ENGINEERS, INC. TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR THE PROPOSED SANTA FE DEPOT PARKING STRUCTURE PROJECT JULY 11, 2005 Project Major Phase Tasks and Costs Phase Phases Costs I. Federal Fund Obligation and Project Authorization $1,000 II. Selection of Design Architect $20,000 III. PS&E $100,000 IV. Bidding and Advertisement $15,000 V. ConstrLictlon (assume 18 month construction period) NOTE BY TRANSTECH: FEE IS FOR TOTAL CONSTRUCTION PERIOD, REGARDLESS $200,000 OF THE DURATION OF THE ACTUAL RELD CONSTRUCnON. THERE WILL NOT BE ANY FEE ADJUSTMENT REGARDLESS OF CONSTRUCnON DURA TION, EVEN IF THE DURA TION EXTENDS BEYOND 18 MONTHS AND/OR IS LESS THAN 18 MONTHS. VI. Federal Fund Management $50,000 Overall Project Management and Administration $150,000 Any and all other services and expenditures (Including direct reimbursables) not listed specifically above but would be necessary to provide complete Program Management services as necessary: $50,000 NOTE BY TRANSTECH: THE FEE IN THIS CATEGORY INCLUDES OUTSIDE SERVICES FOR SPECIAL TY INSPECTORS, S.OILS, AND WILL INCLUDE CITY REQUIRED 5% DBE PARnCIPATlON, Grand Total Program Management Consulting Fee (The total fee includes costs and expenditures for any and all services to complete the project. Transtech agrees that the City will $586,000 not accept any change order requests from the Program Management consultant for increased scope and/or claims that a service/cost was not part of the scope.) ., NOTE BY TRANSTECH: TRANSTECH'S PROPOSED FEE OF $586,000 REPRESENTS 9.7% OF A TOTAL PROJECT BUDGET OF $6,000,000. ~ ~~ ~~~ ,~, ~"~ ,...~ ~" ~ "" ~ ~ ~~~~ PROGRAM MANAGEMENT SERVICES. METROLlNK PARKING STRUCTURE AT SANTA FE DEPOT ATTACHMENT 3: SCHEDULE The project is estimated to be completed within 36 months. The following is estimated major task durations: City's Authorization to Proceed TIME IN MONTHS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20~ \, .... .. TASK Architect Selection Process ~~~ PS&E preparation f''''.'M4iJ''~';:;I'' ~ ' i ,~,o, r~~, , 'H . "I, , c, <'I:" , . Authorization from Caltrans for PS&E Certification and Adwrtisement Adwrtisement for Construction Bids Bid Relliew, Award, Authorization from Caltrans to proceed w/Construction - -. , ' I~ : ~ i.. ,"'" Pre-construction Prep by Contractor CONSTRUCTION ATTACHMENT3~CHEDULE Page 1 -0. --L- - - -~-. '___. '~""_F~__ .------'---y'-.,"'""--.-.l"~-~-~~F----- - - - .'0'- --.--.--0'" -,- .-~1Ir~ 1 EXHIBIT "B" REQUEST FOR STATEMENT OF QUALlFICATIONSrrECHNICAL PROPOSALS REQUEST FOR STATEMENT OF QUALIFICATIONS AND TECHNICAL PROPOSALS TO PROVIDE PROGRAM MANAGEMENT, INCLUDING MANAGEMENT OF DESIGN CONSULTANT, REVIEW OF PLANS, ENFORCEMENT OF FEDERAL AND STATE REQUIREMENTS, FUND MANAGEMENT, CONSTRUCTION MANAGEMENT, CONTRACT ADMINISTRATION FOR A PARKING STRUCTURE FOR METROLlNK STATION AT THE SANTA FE DEPOT LOCATED AT 1170 W. THIRD STREET IN THE CITY OF SAN BERNARDINO. ~:.-' ISSUED BY: CITY OF SAN BERNARDINO DEVELOPMENT SERVICES DEPARTMENT - JUNE 13, 2005 .' ,n t . REQUEST FOR STATEMENT OF QUALIFICATIONS AND TECHNiCAl PROPOSALS TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR A PARKING STRUCTURE FOR METROLlNK STATION AT THE SANTA FE DEPOT LOCATED AT 1170 W. THIRD STREET IN THE CITY OF SAN BERNARDINO TABLE OF CONTENTS SECTION . 1. INTRODUCTION 2. SCOPE OF WORK 3. FEE PROPOSAL SUBMITTAL 4. PROJECT SCHEDULE 5. DISADVANTAGED BUSINESS ENTERPRISE (DBE) PARTICIPATION REQUIREMENT 6. KEY PERSONNEL 7. GENERAL TERMS AND CONDITIONS 8. INSURANCE REQUIREMENTS 9. CONSULTANT SELECTION METHODOLOGY 10. CONTRACT TYPE, OVERHEAD RATE AND FEE 11. REQUIRED FORMAT FOR RFOIRFP SUBMITTAL 12. QUESTIONS REGARDING THIS REQUEST 13. PROPOSAL SUBMITTAL PROTOCOL 14. PRE-CONTRACTUAL EXPENSES IN RESPONDING TO THE RFOIRFP PREPARATION EXHIBIT 1 - CITY OF SAN BERNARDINO SAMPLE CONTRACT "-- .1. ~P',<",' ., , ," "" < er" " "" '^,,~, H~, n" , , '",''' t , REQUEST FOR STATEMENT OF QUALIFICATIONS AND TECHNICAL PROPOSALS TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR A PARKlOO STRUCTURE FOR METROLlNK STATION AT THE SANTA FE DEPOT LOCATED AT 1170 W. THIRD STREET IN THE CITY OF SAN BERNARDINO 1. INTRODUCTION The City of San Bernardino is soliciting Statement of Qualifications arid Technical Proposals (hereinafter referred to as RFaJRFP) from qualified firms to provide program management Services for a parking structure for Metrolink station at the Santa Fe Depot located at 1170 W. Third Street in the City of San Bernardino. The proposed parking structure is part of the overall Santa Fe Depot Distrid Area Development Plan. Federal funds in the amount of $6,000,000 have been secured for the project. The proposed parking structure will be located at the north-east comer of Mt. Vemon Avenue and 2M Street, and is proposed to approximately 300 parking spaces. z 'el Q' c III ::I Q iii )Jo, e, ., en......, Q 2. SCOPE OF WORK The scope of services for this projed is to provide program management. including, but not limited to: · Preparation of all necessary funding documents for the obligation and authorization of the use of federal funds, and coordination with required agencies to obtain such approvals/authorizations. The Request for Authorization for Preliminary Engineering has been submitted to Caltrans by City staff. · Preparation of an RFP to solicit proposals from parking structure design -2- ~.~_..._' , , REQUEST FOR STATEMENT OF QUALIFICATIONS AND TECHNICAL PROPOSALS TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR A PARKIN~ StRUCTURE FOR METROllNK STATION AT THE SANTA FE DEPOT LOCATED AT 1170 W. THIRD STREET IN THE CITY OF SAN BERNARDINO architects. · Assistance to the City in the selection process of the design architect. . · Management of design consultant. · Technical review of the design plans, including acting as an eXtension of City Building Department, building. plan check and approval for compliance with the applicable codes. · Quality control plan check. · Value engineering. · Review of cost estimates. · Budget and funding control to make sure the project is completed within available budget with all aspects. · Preparation of necessary documentation and submittals to obtain necessary approvals, including environmental. PE, Authorization to Advertise, Authorization to Award, Authorization to Proceed with Construction and Final Report as required on Federally Funded Projects. · Enforcement of federal fund requirements. · Construction management. · Contract administration. · Specialty Inspections. · Acting as an extension of Building Department, necessary building code inspection. The following is anticipated tasks for various project phases. I. Federal Fund Obligation and ProJ8C.t-Authorization: · Preparation of all necessary fundiQg documents for the obligation and authorization of the use of federal funds. and coordination with required agencies to obtain such approvals/authorizations. II. Selection of Design Architect: · Preparation of -an RFP to solicit proposals from parking structure design architects. · Assistance to the City.in the selection process of the design architect. 0_: ~'" ~; III. PS&E: · Oversight and management of design architect. · Management of design consultant. Design plans and technical specifications to be provided by the design architect. · Technical review of the design plans, including acting as an extension of City Building Department. building plan check and approval for compliance with the applicable codes. · Quality control plan check. · Value engineering. . \ · Review of cost estimates. · Budget and funding control to make sure the project is completed within available budget with all aspects. . -3 - "'J~-""~> n~" .. 'if 0 " " -- , ',""~>'-T',," ' ~ .. "".- , '.,' t. .. . REQUEST FOR STATEMENT OF QUAliFICATIONS AND TECHNICAL PROPOSALS TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR A PARKING STRUCTURE FOR METROLlNK STATION AT THE SANTA FE DEPOTlOCATED AT 1170 W. THIRD STREET IN THE CITY OF SAN BERNARDINO · Preparation of administrative section of bid specifications in compliance with federal fund requirements. · Preparation of all necessary paper work, including environmental clearances, federal approval of bid package and approvals of all involved regulatory agencies to produce a complete PS&E bid package for construction bidding. · Compilation of complete bid packages. ' · Conducting a "Constructability Review" of the plans. · The consultant shall be responsible for the plan check of the plans as an extension of the City's Building Department. The building plan check shall be performed by experienced certified plans examiners, who are not employed by the architectural consultant that will design the building. · During the PS&E phase the consultant shall hold monthly progress meetings with the City staff, and prepare and make at least 2 presentations to the City Council on the project. The consultant shall also prepare Council staff report and present to the City Council the completed PS&E Bid package and request to advertise for construction bids. IV. Bidding and Advertisement: · Advertising the project for bids. · Conducting pre-bid meetings. · Responding to bidder's questions. · Preparing and distributing addenda. · Conducting bid evaluation and analysis. · Recommending award of contract to lowest responsive bidder. · Preparing Council staff report...-and presenting to the City Council the recommended lowest responsible anll qualified bidder for the construction. · Coordinating the award and execution of the contract between the City and a contractor. · Preparing necessary documentation and submittals to obtain federal approval to award contract and to proceed with construction. V. Construction (a 12 month field construction period shall be assumed): · Providing on-site Construction Manager and Quality Control. Iflspectors to manage all aspects of the construction. '. · Providing building code. required inspections. The consultant shall be responsible for the building code required inspections as an extension of the 'City's Building Department. The building inspections shall be performed by experienced licensed building inspectors. · Providing specialty inspections and testing as required by the Building Code. The consultant shall be responsible for all specialty inspections and testing. The specialty inspections and testing shall be performed by experienced licensed persons/labs. · Delivering a final 9Qmpleted project to the City which is in compliance with PS&E package, and all applicable codes, standards and requirements · Conducting a weekly construction meeting with the contractor, City, and other involved parties. Preparation and distribution of meeting minutes. -4 - "" ~ ~ c, " ~ , ~ , .1. REQUEST FOR STATEMENT OF QUALIFICATIONS AND TECHNICAL PROPOSALS TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR A PARKING STRUCTURE FOR METROLlNK STATION AT THE SANTA FE DEPOT LOCATED AT 1170 W. THIRD STREET IN THE CITY OF SAN BERNARDINO · Preparing and distributing all required notices, and responding to complaints ~ and resolving problems as necessary. · Developing a master construction schedule, and monitoring and updating construction schedule. · Reviewing contractor change order requests, and preparing necessary documentation for submittal and approval or denial by the City. · Reviewing contractor pay requests and preparing necessary documentation for submittal and approval by the City. · Managing all construction activities and project controls. · Managing contract cost accounting system. · Conducting project walk-through(s) and preparing punch Iist(s). · Ensuring the project is implemented per the approved set of plans, and preparing as-built drawings at the completion of construction. · Maintaining proper project files and documentation. · Coordinating close out of the project, obtain necessary operation manuals, warranties, guarantees and other applicable necessary information. · Presenting to the City a complete project close out file. · Preparation of Final Project report as required by federally funded projects. VI. Federal Fund Management: · The consultant shall be responsible for management, coordination, preparation of necessary paperwork and reports for approvals, and all aspects of federally funded project requirements in compliance with federal requirements. ~~- In summary, the consultant shall be resp~nslble for all aspects of the project and deliver a complete project to the City wltfiln available budget and required time schedule. The Program Management consultant shall account for any and all services, costs and expenditures to complete the project (except the design services for which an architect will be hired). The City will not accept any change order requests from' the Program Management consultant for Increased SCope and/or claims that a service/cost was not part of the scope. '. .5- ~._"""" - " - " . '.' ,~- 'T'~__.'" ", , , , ,- ...-_. ,".'- REQUEST FOR STATEMENT OF OUAlIFICA TIONS AND TECHNICAL PROPOSAlS TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR A PARKING STRUCTURE FOR METROLlNK STATION AT THE SANTA FE DEPOT LOCATED AT 1170 W. THIRD STREET IN THE CITY OF SAN BERNARDINO 3. FEE PROPOSAL SUBMITTAL The Fee Proposal shall be submitted in a separate sealed envelope. The fee shall be broken in major project components as shown below. For each component, the Ita t h II 'd b kd f ta k taft d h . d t 'I consu nsa provlea rea own 0 s s,s an ours In e al. Project Major Phase Tasks and Costs Phase Phases Costs , I. Federal Fund Obligation and Project Authorization S II. Selection of Design Architect S III. PS&E S IV. Bidding and Advertisement S .v V. Construction (assume 11 month construction period) S , VI. Federal Fund Management S Overall Project Management and Administration S Any and all other services and expenditures (including direct relmbursables) not listed specifically above but would be necessary to provide complete Program S Management services as necessary: Grand Total Program ManagementConsultrng Fee (The total fee shall Include costs'and expenditures for any and all services to complete the project. The City will not accept any change order requests from the Program Management S consultant for Increased scope and/or claims that a service/cost was not part of the scope.) 4. PROJECT SCHEDULE Task Be in advertisement for RFOIRFP RFOIRFP are due at the Ci Selection of shortlisted consultants Interview of short listed consultants Selection of most ualified consultant Pre-award Audit of Consultant Award of contract to selected consultant Notice to Proceed -6- ",~,_,-~~""' '",~"""~",,, " - 'T"" "" ,," "~ """"", "" , ,>~.W'~" , . REQUEST FOR STATEMENT OF QUALIFICATIONS AND TECHNICAL PROPOSALS TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR A PARKING STRUCTURE FOR METROLlNK STATION AT THE SANTA FE DEPOT LOCATED AT 1170 W. THIRD STREET IN THE CITY OF SAN BERNARDINO 5. DISADVANTAGED BUSINESS PARTICIPATION REQUIREMENT ENTERPRISE (DBE) PROGRAM The City of San Bernardino is committed to fulfilling the spirit and" intent of the Disadvantaged Business Enterprise (DBE) Program regulations published under Title 49 CFR Part 26; Participation by Disadvantaged Business Enterprises in Department of Transportation Programs. It is the policy of the City of San Bernardino to ensure that disadvantaged business enterprises have equitable access to participate in all federally funded projects. Further, it is the policy of the City of San Bernardino to promote equal opportunity and nondiscrimination on the basis of race. color, sex. or national origin in the award and/or performance of any federally funded . or in the administration of its DBE program or the requirements of 49 CFR Part 26. The City of San Bernardino has established a goal of 5% for DBE participation on this procurement. As it is recognized that DBE participation cannot be accurately determined until the scope has been finalized and the contracting parties have concluded negotiations, the award of the contract will be conditional upon the firm's ability to meet the established DBE participation goals at the conclusion of contract negotiations. If. after the conclusion of negotiations. the firm is unable to meet the DBE participation goal. or provide a showing of Good Faith Efforts to do so, the negotiations will be terminated and the City will seek a contract with the next qualified firm. 6. KEY PERSONNEL '-. ;::--- It is imperative that the key personnel providing the consulting services have the background, experience. and qualifications to- complete the project. The City reserves the right to approve all key personnel individually for work on this contract. All key staff shall be named in the contract. After the contract is signed. the proposer may not replace key staff unless their employment is terminated or agreed upon by the City. The City must approve replacement staff before a substitute person is assigned to the Project. The City reserves the right to request that the proposer replace a staff person assigned to the contract should the City consider such a replacement to b.e-for the good of the project. . 7. GENERAL TERMS AND CONDITIONS Exhibit 1 contains a copy of the anticipated contract the selected consultant will be required to sign for this project. Each prospective consultant is expected to review the general terms and conditions and acknowledge their acceptance of Exhibit 1 (or their objections to specific parts of Exhibit 1) as a mechanism to expedite the contract negotiation process. -7- ..~,~, IT n . ." . , C',""" " " , REQUEST FOR STATEMENT OF QUALIFICATIONS AND TECHNICAL PROPOSALS TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR A PARKING STRUCTURE FOR METROllNK STATION AT THE SANTA FE DEPOT LOCATED AT 1170 W. THIRD STREET IN THE CITY OF SAN BERNARDINO 8. INSURANCE REQUIREMENTS The Consultant will be required to maintain in force at all times during the performance of their work the following policy or policies of insurance covering its operations: a. Comprehensive General Liability, including contractual liability, products and completed operations and business automobile liability, all of which will include coverage for both bodily injury and property damage with a combined single limit of 2,000,000. The City shall be named as "additional insured" on all policies required to be furnished. b. Professional liability coverage with limits not less than 2,000,000 per occurrence and $4,000,000 aggregate. c. Workers' Compensation coverage at statutory limits. d. The consultant shall assume liability for the wrongful or negligent acts, errors and omissions of its officers, agents and employees and subcontractors, and have adequate insurance to cover such negligent acts, errors and omissions with limits of 2,000,000 dollars. 9. CONSULTANT SELECTION METHODOLOGY Upon receipt of Proposals, City's consWtant selection committee will rank the responding consultants and develop a short list of qualified consultants to invite for interviews. The final ranking of consultants Will be based on the interviews. The City will negotiate final scope and fee with the most qualified consultant. The proposals will be evaluated based upon several factors. These factors include the format, organization, and presentation of the proposal, the qualification and experience of the project staff, and the experience in the processes and procedures of the involved regulations. -~- The following is the process that wm be used for consultant selection: RECEIVElEVALUA TE STATEMENTS OF QUALIFICATIONS AND DEVELOP SHORT LIST As a first step in the evaluation process, it will be determined that each proposal contains all forms and other information required by the RFQ. Submittals may be considered non-responsive if all required information is not provided and rejected without evaluation. Late submittals, submittals to the wrong location and submittals with inadequate copies are considered non-responsive and will be rejected. Submittal of additional information after the due date will not be allowed. The Consultant Selection Commlttee will review the submitted Statements of Qualifications according to the published evaluation criteria and weighting factors. The committee will make an independent random check of one or more of the consultant's references. This check will also apply to major subconsultants. The committee will establish a short list of consultants which are determined to be best qualified to perform the contract work. The short list will include enough qualified consultants to ensure that at least -8- . . ,,' ~ f'l7'~"'~,"3' "~_". '. ','. '",,'''''~" . .<,<,'_0'" ~. u' ","" ." REQUEST FOR STATEMENT OF QUALIFICATIONS AND TECHNICAl PROPOSAlS TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR A PARKING STRUCTURE FOR METROLlNK STATION AT THE SANTA FE DEPOT LOCATED AT 1170 W. THIRD STREET IN THE CITY OF SAN BERNARDINO three consultants are interviewed. The following Criteria will be used for Written Proposal Evaluation: 1. Familiarity with Federally Funded Project Process. '" 2. Experience in working as an extension of City staff and providing turn-key' services in the capacity of Consultant City Engineer with minimal direction from City staff. 3. Local knowledge. familiarity and prior experience with involved agencies. 4. References and performance records on similar projects and/or undertakings. with emphasis on project cost and schedule control. 5. Completeness of the Proposal and compliance with the required format. Total possible score 20 Points 20 Points 20 Points 20 Points 20 Points 1 00 Points Each member will then rank the consultants by their respective "proposal score." The selection panel will convene to discuss and evaluate scoring. and to select a short list of the top-ranked consultant teams based upon the rankings (not scores) of the proposing firms. NOTIFY CONSULTANTS OF SHORT LIST All consultants that submitted a Statement of Qualifications will be notified of the results of the review. The notification will identify only those consultants that are to be requested to attend an interview. INTERVIEW TOP-RANKED CONSULTANTS Short-listed firms will be Invited to respond to questions about their proposalS at an oral interview. Presenters will be expected to participate in the interview to a degree commensurate with their role In the firm's proposal. Notification to the short-listed firms will include a time limit for their presentation after which the selection panel will evaluate each presentation using a 100-polnt scale and the following evaluation criteria to calculate an "oral-interview score" for each short-listed firm. The following Criteria will be used for Oral Presentation Evaluation: 1. Demonstration of Project Manager's knowledge in Federally Funded Project ,Process. 2. Experience of Project Manager functioning as exlension of City staff. 3. Demonstration of Project Manager's local knowledge, familiarity and prior experience with involved agencies. 4. Project Manager's experience in managing similar projects and oral communication and interpersonal skills. 5. Team's responses to interview questions. Total pOSSible score 20 Points 20 Points 20 Points 20 Points 20 Points 100 Points .- DEVELOP FINAL RANKING AND'NOTIFY CONSULTANTS OF RESULTS . After the oral interviews are complete, each selection panel member will rank the Consultants' by their respective "oral-interview score" (scores. and ran kings from the written evaluations are not considered). The selection panel will determine the highest qualified firm based on the rankings (not scores) of the oral interviews. . The Department Director will submit the recommendation of the selection panel to the City Council for approval. -9 - -~'~:~;'~:~:r~::'~::;~',~,c:~~'::: ~'Z'1''''' "'",TO- '~,. ''') 'F', '''T~.m ,. C'. ",-,"""""q?""~",-",~",,., -- '. C' ,,' .' , REQUEST FOR STATEMENT OF QUALIFICATIONS AND TECHNICAL PROPOSALS TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR A PARKING STRUCTURE FOR METROllNK STATION AT THE SANTA FE DEPOTLOCATED AT 1170 W, THIRD STREET IN THE CITY OF SAN BERNARDINO 10. CONTRACT TYPE, OVERHEAD RATE AND FEE The Fee for this contract will be based on an hourly rate (which include overhead and a fee limited to 10%) with a not-ta-exceed target for each task subject ~to an overall contract cap. Eligible Reimbursable and Subconsultant costs will be reimbursed at cost without markup. Proof of the prime consultant's audited overhead rate and its contents must be provided during the contract negotiation period. A pre-award audit as required on Federally Funded Projects will be conducted prior to contract award. Proof of overhead rate, or an accepted provisional rate for the prime, would be required in addition to compliance with Generally Accepted Accounting Principles (GAAP), all applicable provisions of federal, state, and local laws, statues, ordinances, rules, regulations, and procedural requirements including Federal Acquisition Regulations (FAR). Any contract resulting from this RFQlRFP will be awarded to a firm whose Technical Proposal and Statement of Qualifications meet the technical requirements of the RFP and is evaluated as one of the three highest ranked proposals. Proposals will be ranked in accordance with the evaluation criteria stated in this RFOIRFP. Negotiations regarding a fair and reasonable price will occur subsequent to consultant selection. Should the City be unable to obtain a fair and reasonable price through negotiations with the highest qualified proposer, the City shall enter into negotiations with the next highest qualified proposer and may award that contract if the parties are able to arrive at a fair and reasonable price. If that is unattainable, the City shall enter into negotiations with the next highest qualified proposer in sequence until an agreement is reached. --. 11. REQUIRED FORMAT FOR RFQJRFP!UBMITTAL The Technical Proposal and Statement of Qualifications, not including the Appendices, shall not exceed 60 pages in length, utilizing 8.5" x 11" pages with one-inch margins. Font size shall be not smaller than 12 point for text and a minimum of 8 point for graphics. Dividers used to separate sections would not be counted as part of the 60 page limit. .- Please submit your proposal in the. format specified below: Cover Letter This should be a summary emphasizing the strong points of the project team and the firm's experience. It should be brief (three pages maximum) and include the name, address, telephone number, title, and signature of the firm's contact person for this procurement.' The signatory shall be a person with the official authority to bind the company. The cover letter shall state that the submittal is valid for 120 days, and shall contain an acknowledgment of receipt of all amendments and/or addenda to the RFQ/RFP. " -10 - T' i'iT" "rrp . I ". 'T" ."~ . . "~~_"",,,,;:,,.:-,,,:"""O-- . REQUEST FOR STATEMENT OF QUAliFICATIONS AND TECHNICAL PROPOSAlS TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR A PARKING STRUCTURE FOR METROLlNK STATION AT THE SANTA FE DEPOT LOCATED AT 1170 W. THIRD STREET IN THE CITY OF SAN BERNARDINO Table of Contents Include contents of proposal. Section 1: Approach and Scope of Work Provide your understanding of the project, approach, quality control, value engineering and scope of work. Section 2: Project Team, Key Personnel and Resumes Provide an organization chart showing the names and responsibilities of key personnel. Provide resumes of all key personnel identified in the organization chart. Section 3: Relevant Experience and References Provide minimum 3 maximum 5 public agency references for similar projects. Provide a brief summary of each referenced project, your firm's role and responsibilities, start and completion date of your services, engineer's estimate, and final construction cost. If your services were not completed within the approved schedule and/or the final construction cost was different than the engineer's estimate, explain the reasons. Section 4: Firm's Qualifications and Experience Provide a summary of firm's service capabilities, qualifications and experience. -"-::'" 12. . QUESTIONS REGARDING THIS REQYEST All inquiries and responses to this RFQ/RFP must be submitted in writing to: Mr. Michael W. Grubbs, Engineering Manager/Field Engineer Development SerVices Department City Hall, 3rd Floor City of San Bemardino . 300 North D Street San Bernardino, CA 92418. . -11 . '"T1-' "0,. 0 "il r-- , ,. "". ~,' 'C~_'u' " --' .. , " , . REQUEST FOR STATEMENT OF QUALIFICATIONS AND TECHNICAL PROPOSALS TO PROVIDE PROGRAM MANAGEMENT SERVICES FOR A PARKING STRUCTURE FOR METROLlNK STATION AT THE SANTA FE DEPOT LOCATED AT 1170 W. THIRD STREET IN THE CITY OF SAN BERNARDINO 13. PROPOSAL SUBMITTAL PROTOCOL In order to be considered in the selection process, interested parties shall submit ten (10) copies of their Statement of Qualifications and Technical Proposals no later than 4:00 PM, July 11, 2005 to: Mr. Michael W. Grubbs, P. E. Engineering Manager/Field Engineer Development Services Department City Hall, 3rd Floor City of San Bernardino 300 North D Street San Bernardino, CA 92418 Late proposals will not be accepted. 14. PRE-cONTRACTUAL EXPENSES IN RESPONDING TO THE RFaJRFP PREPARATION The City of San Bernardino shall not be liable for any pre-contractual expenses incurred by any proposer or by any selected consultant. Each proposer shall protect, defend, indemnify, and hold harmless the City of San Bernardino from any and all liability, claims, or expenses whosoever incurred by, or on behalf of, the entity participating in the preparation of its response to this RFOIRFP. Pre-contractual expenses are defined as expenses incurred by proposers and th&aelected consultant, if any, in: · - Preparing and submitting information ill response to this RFQ/RFP · Negotiations with the City of San Bernardino on any matter related to this procurement · Costs associated with interviews. meetings, travel or presentations · All other expenses incurred by a proposer/consultant prior to the date of award and a formal notice to proceed. The City reserves the right to amend, withdraw and cancel this RFQ/RFP. The City reserves the right to reject all responses to this request at any time prior to contract execution. The City reserves the right to request or obtain additional information about any and all proposals. -12 - _,,~,_l!_T ~ "n" ',"; 'Ii: ',"" ',' ""~r,n" ' " ''''''7''r~n~ ' EXHIBIT 1 CITY OF SAN BERNARDINO SAMPLE CONTRACT AGREEMENT FOR PROGRAM MANAGEMENT SERVICES BY AND BETWEEN AND CITY OF This AGREEMENT FOR SERVICES BY AND BETWEEN CITY OF (AGENCY) and (CONSULTANT), is made and entered into effective as of the _th day of 20_, by and between the AGENCY and the CONSULTANT. SECTION 1. TERM OF AGREEMENT. Subject to the provisions of SECTION 22 "TERMINATION OF AGREEMENr of this AGREEMENT, the term of this AGREEMENT shall be for a period of months from the effective date of this AGREEMENT, as first shown above. Such term may be extended upon written agreement of both parties to this AGREEMENT. SECTION 2. SUBCONTRACTORS. ..... , CONSULTANT shall perform the services contemplated under this AGREEMENT using the resources available within its own organization and any subcontractors that have been authorized, in writing, by the AGENCY. Any substitution of subcontractors must be approved, in writing, by the AGENCY. Any subcontract with a value in excess of TWENTY-FIVE THOUSAND DOLLARS ($25,000) that is executed by CONSULTANT in connection with this AGREEMENT shall contain all of the provisions of this AGREEMENT that are stipulated herein to ~ applicable to subcontractors. SECTION 3. SCOPE OF SERVICES. CONSULTANT agrees to perform the services set forth in Section of CONSULTANT's Proposal to the AGENCY dated SECTION 4. ADDITIONAL SERVICES. CONSULTANT shalf not be compensated for any services rendered in connection with its performance of this AGREEMENT which are in addition to or outside of those described in SECTION 3 above, unless such additional services are authorized in City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 1 ~,", - _'~",",~" n advance and in writing by the AGENCY . CONSULTANT shall be compensated for any such additional authorized services in the amounts and in the manner agreed to in writing by the AGENCY. SECTION 5. COMPENSATION AND METHOD OF PAYMENT. (a) CONSULTANT. Shall be compensated in the manner and amounts specified in Section of CONSULTANT's Proposal to the AGENCY dated The total compensation due CONSULTANT shall not exceed the amount set forth in the budget contained in CONSULTANT's Proposal unless additional compensation has been approved in writing in advance by the AGENCY. Notwithstanding the established not-to-exceed budget, CONSULTANT shall incur only such costs as are reasonable and necessary and in the best interests of the AGENCY. If, at any time, CONSULTANT estimates the cost of performing the services described in CONSUL T ANT's Proposal will exceed the budget for such services including approved additional compensation, CONSULTANT shall notify the AGENCY immediately in writing indicating the additional amount necessary to complete the services. Any cost incurred by CONSULTANT in excess of the aforesaid limitation without the express written consent of the AGENCY shall be at CONSULTANT's own risk. (b) As soon as practical after the first day of each calendar month, CONSULTANT shall furnish to AGENCY an original invoice. The invoice shall identify all compensation due CONSULTANT by AGENCY and shall be in accord with CONSULTANT's Proposal. AGENCY shall use its best efforts to pay the amount invoiced in full within thirty (30) days after RJceipt of invoice. (c) AGENCY shall independently review each invoice submitted by the CONSULTANT to determine if said invoice is in compliance with all provisions of this AGREEMENT. All CONSULTANT costs and expenses and any subcontractor costs and expenses must b~ in accord with the Contract Cost Principles and Procedures of the Federal Acquisition Regulation, 48 CFR Part 31 et seq. (the FAR), Uniform Administrative Requirements for Grants and Cooperative' Agreements to State and Local Governments, 49 CFR Part 18, the 1997 Contractor Cost Guideline-s of the Los Angeles County Metropolitan Transportation Authority (the MTA), "the travel and subsistence rates authorized under Califomia Department of Personnel Administration Rules, and the MT A's Proposition A & C Local Return Guidelines. Any costs and expenses for which payment has been made to CONSULTANT and/or CONSULTANT's subcontractors that are determined by subsequent audit to be unallowable are subject to repayment by CONSULTANT and/or CONSULTANT's subcontractors to AGENCY. The eligibility requirements for subcontractor cost and expenses, as described in this SECTION 5(c), must be contained in all subcontracts of CONSULTANT. Further, all subcontracts of CONSULTANT must include a provision mandating reimbursement of AGENCY for any costs for. which payment has been made that are determined to be unallowable by subsequent audit. City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 2 _ c~_ -C=?$"C,"q~_ c"'" '." '.c".'~.,,,.' ~.. T' (d) In the event AGENCY disputes any costs or expenses in any invoice, AGENCY shall notify CONSULTANT within thirty (30) days of receipt py AGENCY of said invoice. AGENCY shall process the undisputed portion of said invoice. CONSULTANT shall correct and resubmit any properly disputed portions of said invoice."'_ (e) Payment to CONSULTANT for services performed pursuant to this AGREEMENT shall not be deemed to waive any deficiencies in services performed by CONSULTANT. (f) The AGENCY will apply five percent (5%) retention to all payments made under this AGREEMENT. The AGENCY will make payment of all CONSULTANT retained funds. less any disallowance. no more than ninety (90) days after the issuance of the AGENCY's final audit report of CONSULTANT. In lieu of said retention, CONSULTANT may establish, at CONSULTANT's own cost. an escrow account that will bear interest for the 'benefit of CONSULTANT. to accept the deposit of those monies that otherwise would have been retained. Monies deposited to the escrow account will be released to CONSULTANT after the issuance of the AGENCY's final audit report of CONSULTANT . (e) CONSULTANT agrees to make payment to its subcontractors for work that is satisfactorily performed no later than fifteen (15) calendar days after CONSULTANT receives payment from AGENCY for the work of CONSULTANT's subcontractors. SECTION 6. DEFICIENT SERVICES. ...,::-- . CONSULTANT represents and warrants-that it has the qualifications, experience and facilities necessary to properly perform the services required under this AGREEMENT. CONSULTANT shall at all times competently, and, consistent with its ability, experience and talents, perform all services described herein. In meeting its obligations under this ~GREEMENT, CONSULTANT shall employ, at a minimum, generally accepted standards and practices utilized by consulting firms engaged in providing services similar to those required of CONSULTANT under this AGREEMENT. AGENCY may disapprove services that do not conform to these standards and practices and may withhold or deny compensation for deficient services. Upon disapproval of services by AGENCY, CONSULTANT shall immediately reperform, at its own costs. the services that are deficient. AGENCY must notify CONSULTANT in writing of the existence of such deficient services within a reasonable time, not to exceed sixty (60) days after its discovery thereof. but in no event later than one (1) year after the completion of such deficient services. No approval, disapproval, or omission to provide approval or disapproval shall release CONSULTANT from any responsibility under this AGREEMENT. City of San Bernardino. Sample Contract for Santa Fe Depot Parking Structure Page 3 _ ~rr'CC"""'c'^" C "''I'' ""," "~'" ' "'~'P "'F~"",' SECTION 7. OWNERSHIP OF DOCUMENTS. All original maps, models, designs, drawings, photographs; studies, surveys, reports, data, notes, computer files, files and other documents prepared" geveloped or discovered by CONSULTANT in the course of providing any services pursuant to this AGREEMENT shall be the sole property of AGENCY and may be used, reused or otherwise disposed of by AGENCY without the permiSSion of the CONSULTANT. Upon satisfactory completion of, or in the event of expiration, termination, suspension, or abandonment of this AGREEMENT, CONSULTANT shall turn over to AGENCY all such maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents which CONSULTANT may have temporarily retained for use by CONSULTANT staff. With respect to computer files, CONSUL T ANT shall. make available to the AGENCY, upon reasonable written request by the AGENCY, the necessary computer software and hardware for purposes of accessing, compiling, transferring and printing computer files. SECTION 8. CONSUL TANrS BOOKS AND RECORDS. (a) CONSULTANT shall maintain any and all documents and records demonstrating or relating to CONSUL TANrs performance of services pursuant to this AGREEMENT. CONSULTANT shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to AGENCY pursuant to this AGREEMENT. Any and all such documents or records shall be maintained in accordance with generally accepted accotmting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by CONSULTANT pursuant to this AGREEMENT. Any and all such documents or records shall be maintained for not less than four years from the date of final payment made in accordance with this AGREEMENT and to the extent required by iaws relating to audits of public agencies and their,expenditures. (b) Any and all records or documents required to be maintained ,pursuant to this SECTION 8 shall be made available for inspection, audit and copying: at any.time during regular business hours, upon written request by AGENCY or its designated representatives or representatives of any govemmental entity, including the Federal Highway Administration and Caltrans, that is providing funding for the Project, if a portion of such funding is used to compensate CONSULTANT hereunder. Copies of such documents or records shall be provided directly to the AGENCY for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at CONSULTANT's address indicated for receipt of notices in this AGREEMENT. ~ ~ (c) Where AGENCY has reason to believe that any of the documents or records required to be maintained pursuant to this SECTION 8 may be lost or discarded due to dissolution or termination of CONSULTANT's business, AGENCY may, by written City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 4 - , . .~'V=.TF~<'f"""""H .,- x"". .. ..... .~,.... request, require that custody of such documents or records be given to the requesting party and that such documents and records be maintained by the requesting party. Access to such documents and records shall be granted to AGENCY, as well as to its successors-in-interest and authorized representatives. SECTION 9. STATUS OF CONSULTANT. (a) CONSULTANT is and shall at all times remain a wholly independent CONSULTANT and not an officer, employee or agent of AGENCY. CONSULTANT shall have no authority to bind AGENCY in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against AGENCY, whether by contract or otherwise, unless such authority is expressly conferred under this AGREEMENT or is otherwise expressly conferred in writing by AGENCY. (b) The personnel perfoll'liing the services under this AGREEMENT on behalf of CONSULTANT shall at all times be under CONSULTANT's exclusive direction and control. Neither AGENCY, nor any elected or appointed boards, officers, officials, employees or agents of AGENCY, shall have control over the conduct of CONSULTANT or any of CONSULT ANrs officers, employees or agents, except as set forth in this AGREEMENT. CONSULTANT shall not at any time or in any manner represent that CONSULTANT or any of CONSULT ANrs officers, employees or agents are in any manner officials, officers, employees or agents of AGENCY. (c) Neither CONSULTANT, nor any of CONSULTANT's officers, employees or agents, shall obtain any rights to retirement;health care or any other benefits which may otherWise accrue to AGENCY's employees. CONSULTANT expressly waives any claim CONSULTANT may have to any such rights. SECTION 10. COMPl.lANCE WITH APPLICABLE LAWS; PERMITS, LICENSES. CONSULTANT shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in'-effect. during the term of this AGREEMENT. CONSULTANT shall obtain any and all licenses, permits and authorizations necessary to perform the services set forth in this AGREEMENT. Neither AGENCY, nor any elected or appointed boards, officers, officials, employees or agents of AGENCY, shall be liable, at law or in equity, as a result of any failure of CONSULTANT to comply with this SECTION 10. SECTION 11. DISADVANTAGED BUSINESS ENTERPRISES. (a) During the term of this AGREEMENT, CONSULTANT shall make good faith efforts to ensure that Disadvantaged Business Enterprises (DBEs) have the maximum opportunity to successfully participate in the work under this AGREEMENT City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 5 , . '~'~".'~"'""'-T ~ ,. ','" , . and that CONSULTANT meets the DBE goal(s} specifically identified in Section ~ of CONSULTANT's Proposal to the AGENCY. For the purposes of this SECTION 11, a good faith effort to ensure DBEs have the maximum opportunity to participate in work under this AGREEMENT shall include but not be limited to the following~" , (1) Negotiating in good faith to attempt to finalize and execute subcontract agreements with all DBEs that have been proposed to AGENCY by CONSULTANT; (2) Utilizing DBE suppliers and DBE subcontractors, where possible. and documenting all efforts to do so; (3) Providing assistance to DBE, subcontractors or suppliers in obtaining required bonding and lines of credit; (4) Notifying a DBE in writing of any potential problem and attempting to resolve the problem prior to formally requesting AGENCY approval to substitute for the DBE. (5) Making timely payment of all monies due and owing to DBE subcontractors and suppliers, see Section 5, part (g); and (6) Alerting AGENCY in a timely manner of any problems anticipated in attaining CONSULTANT's DBE participation goal(s) (b) If CONSULTANT seeks apprcwal from the AGENCY for the substitution of DBE'subcontractors or suppliers, CONSUlTANT shall use good faith efforts to substitute other DBE subcontractors or suppliers. (c) Changes to this AGREEMENT that increase or decrease DBE participation shall be appropriately r~flected in all reports to AGENCY that describe DBE participation in the Project. ,- (d) Participation by.-DBE subcontractors and suppliers in the Project shall be documented by CONSULTANT through submittal to AGENCY of a completed "LIST OF PROPOSED SUBCONTRACTORS", an uncompleted copy of which is set forth in EXHIBIT A. Subcontractors and suppliers that are not DBEs must also be included in the submittal of this form. (e) CONSULTANT shall submit to AGENCY a copy of each executed DBE agreement within ten (10) working days after the execution of each agreement. (f) CONSULTANT shall submit monthly progress reports to AGENCY by the 15th of every month during the term of the AGREEMENT. CONSULTANT progress reports shall be in the form of EXHIBIT B "MONTHLY DBE SUBCONTRACTORS PAID REPORT SUMMARY". AGENCY will review CONSULTANT's progress report to ensure City of San Sernardlno, Sample Contract for Santa Fe Depot Parking Structure Page 6 '~~=v~W' """'-' ,-- , -~"-,-,"",,-,,,'y-" '. . that CONSULTANTs use of DBE subcontractors and suppliers is consistent with CONSULTANT's DBE goal(s) in this AGREEMENT. (g) All subcontractors and suppliers that are to be counted by CONSULTANT toward the achievement of CONSULTANTs DBE goal must be certified.-CONSUL TANT is responsible for verifying and monitoring the certificate status of its DBE subcontractors and suppliers. AGENCY is not a DBE certifying agency. AGENCY will accept DBE certification by Caltrans, or other organizations that certify the eligibility of DBEs in accordance with 49 CFR 26. (h) CONSULTANT and AGENCY agree that a failure by CONSULTANT to achieve any DBE goal established for this AGREEMENT will have a material, adverse effect upon the overall DBE Plan for the Project. CONSULTANTs failure to meet a DBE goal may require that AGENCY modify its DBE Plan and/or seek additional DBE participation in other' segments of the Project. CONSULTANT and AGENCY acknowledge the difficulty associated with accurately calculating the damages that would be incurred by AGENCY should CONSULTANT fail to meet a DBE goal. Accordingly, as a fair measure of said damages, CONSULTANT and AGENCY both agree that CONSULTANT, as liquidated damages, shall have its compensation reduced by an amount equal to DOLLARS ($ .00) for every one percent (1%) or portion of one percent that CONSULTANT fails to meet any DBE goal for the Project. However, CONSULTANT shall not be subjected to liquidated damages if CONSULTANT's failure to meet a DBE goal is the result of circumstances beyond the control of CONSULTANT and if CONSULTANT makes a good faith effort to achieve the DBE goal in spite of the circumstances beyond its control. -- , (i) For purposes of this SECTION j 1, a good faith effort to achieve the DBE goal may be demonstrated by CONSULTANT through one or more of the following: (1) Planning to use DBE subcontractors and suppliers to a greater degree than that needed to achieve any DBE goal established for this AGREEMENT; (2) Actively soliciting substitute DBE subcontractors and suppliers to replace DBE organizations that are unable to participate in 'the Project in spite of the initial agreement of said DBE organizations to undertake work for the Project; (3) Providing additional work to existing Project DBE subcontractors should changes in CONSULTANTs Incremental Scopes of Services eliminate or reduce work assignments planned for DBE subcontractors. 0) CONSULTANT must carefully record CONSULTANT's good faith efforts to achieve the DBE goal and must share said records with AGENCY if requested to do so. City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 7 ~-~', ,cTT=~~" _'",N",'," ,< SECTION 12. FAIR EMPLOYMENT PRACTICES. (a) In the performance of this AGREEMENT, CONSULTANT will not discriminate against any employee because of race, color, sex, religion, national origin, age, ancestry, pregnancy, disability, sexual orientation, medical condition or marital status and shall comply with the provisions of the State Fair Employment Practices Act as set forth in Part 4.5 of the Division 2 of the California Labor Code; the Federal Civil Rights Act of 1964, and all amendments thereto; Executive Order No. 11246; and all administrative rules and regulations issued pursuant to such acts and order. CONSULTANT will take affirmative action to ensure that employees are treated during employment without regard to their race, sex, actual or perceived sexual orientation, color, religion, ancestry, or national origin. Such action shall include, . but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of payor other forms of compensation; and selection for training, including apprenticeship. CONSULTANT shall post in conspicuous places, available to employees for employment, notices provided by state and federal agencies regarding fair employment practices. (b) CONSUL T ANT will permit access to the records of employment, employment advertisements, application forms, and other pertinent data and records by representatives of any agency designated by the State of California to investigate or ascertain compliance with this SECTION 12 of this AGREEMENT. (c) Remedies for willful violation: .~.-:.-:-- (1) The AGENCY may determine a willful violation of the fair employment provision of this AGREEMENT to have occurred upon receipt of a final judgment to that effect from a court in an action to which CONSULTANT was a party, or upon receipt of a written notice form the Fair Employment and Housing Commission that it has investigated and determined that CONSULTANT has violated the Fair Employment Practices Act and had issued an order under Labor Code Section 1426 which has become final or has obtained an injunction under .labor Code Section 1429. - (2) For willful violation of the fair employment provision of this AGREEMENT, the AGENCY shall have the right to terminate this AGREEMENT, either in whole or in part, and any loss or damage sustained by AGENCY in securing the goods or services described herein shall be borne by and paid for by CONSULTANT and AGENCY may deduct from any moneys due or that thereafter may become due to CONSULTANT, the diff~rence between the price named in the AGREEMENT and the actual cost thereof, to AGENCY to cure CONSUL T ANrs breach of this AGREEMENT City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 8 illi"....'~... . '.~T.<."' -eo .' _.. SECTION 13. NONDISCRIMINATION ASSURANCES. (a) CONSULTANT hereby agrees that it will comply with Title VI of the Civil Rights Act of 1964.78 Stat. 252. 42 U.S.C. 2000d 042 U.S.C. 2000d-4,(the DACTO). and all requirements imposed by or pursuant to Title 49. Code of Federal Regulations, Department of Transportation, Subtitle A. Office of the Secretary. Part 21, ONondiscrimination in Federally-Assisted Programs of the Department of Transportation o Effectuation of Title VI of the Civil Rights Act of 19640 (the OREGULATIONSO), the Federal-Aid Highway Act of 1973. and other pertinent directives, to the end that in accordance with the ACT. REGULATIONS. and other pertinent directives, no person in the United States shall, 6n the basis of race, color. sex, national origin. religion, age or disability, be excluded from participation in. be denied the benefits of, or be otherwise subjected to discrimination under any program or activity of CONSULTANT un(ter this AGREEMENT. CONSULTANT hereby gives assurance that CONSULTANT will promptly take any measures necessary to effectuate this SECTION 13. (b) CONSULTANT, without limiting the above general assurance. hereby gives the following specific assurances: (1) CONSULTANT agrees that each Oprogramo and each OfacilityD as defined in subsections 21.23(e) and 21.23(b) of the REGULATIONS will be conducted or will be operated in compliance with all requirements imposed by, or pursuant to. the REGULATIONS. (2) CONSULTANT shall insert the following notification in all solicitations for bids for work or material--ilfade in connection with this AGREEMENT and, in adapted form. in all proposals for negotiated agreements: CONSUL T ANT hereby notifies all bidders that it will affirmatively ensure that in any agreement entered into pursuant to this advertisement, minority business enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex, national origin. age, religion, or disability in consideration foran'award., (3) CONSULTANT- shall insert the clauses of EXHIBIT C into every subcontract under this AGREEMENT. (4) CONSULTANT agrees that the United States and the State of California have a right to seek judicial enforcement with regard to any matter arising under the ACT, the REGULATIONS, and this AGREEMENT. (5) CONSULTANT shall provide for such methods of administering its obligations under the AGREEMENT as are found by the U.S. Secretary of Transportation. or the official to whom he delegates specific authority. to give reasonable guarantee that CONSULTANTS and its agents. City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 9 . "'~TT".. ~".~ . ... subcontractors, and successors in interest will comply with all requirements imposed by, or pursuant to the ACT, the REGULATIONS, and this AGREEMENT. SECTION 14. UNAUTHORIZED ALIENS. CONSULTANT hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A.. 1101, et ~., as amended, and, in connection therewith, shall not employ unauthorized aliens as defined therein. Should CONSULTANT so employ such unauthorized aliens for the performance of work and/or services covered by this AGREEMENT, and should any liability or sanctions be imposed against AGENCY for such use of unauthorized aliens, CONSULTANT hereby agrees to and shall reimburse AGENCY for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attomeys' fees, incurred by AGENCY in connection therewith. ' SECTION 15. CONFLICTS OF INTEREST. (a) CONSULTANT covenants that neither it, nor any of its officers or principals has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of AGENCY or which would in any way hinder CONSUL TANrs performance of services under this AGREEMENT. CONSULTANT further covenants that in the performance of this AGREEMENT, no person having any such interest shall be employed by it as an officer, employee, agent-or subcontractor without the express written consent of the AGENCY . CONSULTANT agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of AGENCY in the performance of this AGREEMENT. (b) AGENCY understands and acknowledges that CONSULTANT is, as of the date of execution of thiS AGREEMENT, independently involved in the performance of non-related services for other governmental agencies and private parties. CONSULTANT is unaware oJ any stated position of AGENCY relative to such projects. Any future position of AGENCY on such projects shall not be considered a conflict of interest for purposes of this section~. SECTION 16. RESTRICTIONS ON LOBBYING ON FEDERALLY FUNDED PROJECTS. (a) By signing this AGREEMENT, CONSULTANT certifies, to the best of its knowledge and belief, that no federal appropriated funds have been paid or will be paid, by or on behalf of CONSULTANT, to any person for influencing or attempting to influence an officer or employee of <<;any federal agency, a Member of Congress, an officer or an employee of the Congress, or an employee of a Member of Congress in connection with this AGREEMENT. City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 10 Tr" IT--~-' n," a~=_"".~ '~~7~~'",'-'~' (b) If any funds, other that federal appropriated funds, have been paid or will be paid to any person for influencing or attempting to influence an officer or an-employee of any federal agency, a Member of Congress, an officer or employee of-.C9ngress or an employee of a Member of Congress in connection with this Agreement, CONSULTANT shall complete and submit all required lobbying disclosure forms and reports. (c) This certification is a material representation of fact upon which reliance was placed when this AGREEMENT was executed. (d) The language of this SECTION 16 shall be included in all subcontracts that exceed ONE HUNDRED THOUSAND DOLLARS ($100,000) in value. SECTION 17. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) . All information gained or work products produced by CONSULTANT in performance of this AGREEMENT shall be considered confidential, unless such information is in the public domain or already known to CONSULTANT. CONSULTANT shall not release or disclose any such information or work products to persons or entities other than AGENCY without prior written authorization from the AGENCY, except as may be required by law. (b) CONSULTANT, its officers, employees, agents or subcontractors shall not, without prior written authorization from the AGENCY or unless requested by the Counsel to the AGENCY, voluntarily provide deClarations, letters of support, testimony at depositions, response to interrogatories or-::. other information concerning the work performed under this AGREEMENT. Response to a subpoena or court order shall not be considered "voluntary" provided CONSULTANT gives AGENCY notice of such court order or subpoena. (c) If CONSULTANT, or any officer, employee, agent or subcontractor of CONSULTANT, provides any information or work product in violation of this AGREEMENT, then AGENCY shall have the right to reimbursement and indemnity from CONSULTANT for any damages, costs and fees, including attomeys fees, caused by or incurred as a result of CONSUL T ANrs conduct. (d) CONSULTANT shall promptly notify AGENCY should CONSULTANT, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this AGREEMENT and the work performed thereunder. AGENCY retains the right, but has no obligation, to represent CONSULTANT or be present at any deposition, hearing or, similar proceeding. CONS~L TANT agrees to cooperate fully with AGENCY and to provide AGENCY with the opportunity to review any response to discovery requests provided by CONSULTANT. However, this right to review any such response does not City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 11 --~m'_'_''l~ llf - -",- ~- ~~-" imply or mean the right by AGENCY to control, direct, or rewrite said response. SECTION 18. INDEMNIFICATION. (a) The AGENCY and it's elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "INDEMNITEES") shall have no liability to CONSULTANT or any other person for, and CONSULTANT shall indemnify, defend, protect and hold harmless INDEMNITEES from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature, including reasonable attomeys' fees and disbursements (collectively "CLAIMS"), which INDEMNITEES may suffer or incur or to which INDEMNITEES may become subject by reason of or arising out of any injury to or death of any person(s), damage to third party property, loss of use of third party property, economic losS of third parties or otherwise occurring as a result of or allegedly caused during the term of this-AGREEMENT by the CONSULTANrs performance of or failure to perform any services under this AGREEMENT or by the negligent or willful acts or omissions of CONSULTANT, its agents, officers, directors or employees, committed in performing any of the services under this AGREEMENT. (b) If any action or proceeding is brought against INDEMNITEES by reason of any of the matters against which CONSULTANT has agreed to indemnify INDEMNITEES as provided above, CONSULTANT, upon notice from AGENCY, shall defend INDEMNITEES at its expense by counsel acceptable to AGENCY, such acceptance not to be unreasonably withheld. INDEMNITEES need not have first paid for any of the matters to which INDEMNITEES are eJitlUed to indemnification in order to be so indemnified. The insurance required to ~ maintained by CONSULTANT under SECTION 18 shall ensure CONSULTANrs obligations under this SECTION 18{b), but the limits of such insurance shall not limit the liability of CONSULTANT hereunder. The provisions of this SECTION 18 shall survive the expiration or earlier termination of this AGREEMENT. (c) The provisions of this SECTION 18 do not apply to CLAI~S occurring as a result of the AGENCY's sole negligence or willful acts or omissions., .- SECTION 19. INSURANCE. CONSULTANT agrees to obtain and maintain in full force and effect during the term of this AGREEMENT the insurance policies set forth in EXHIBIT 0 "INSURANCE" and made a part of this AGREEMENT. All insurance policies shall be subject to approval by AGENCY as to form and content. The insurance policy requirements as set forth in EXHIBIT 0 are subject to amendment or waiver if so approved in writing by the AGENCY. CONSULTANT agrees to.: provide AGENCY with certificates evidencing the required policies, upon request. City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 12 ---- '~~~, - --"","',"', , ! ' Subsequent to the date of this AGREEMENT, AGENCY intends to implement a wrap-up or owner controlled insurance program which will cover all Project work and which will name as insureds the AGENCY and all (1) on-site consultants, contractors, and subcontractors and (2) all Architects/Engineers wherever their services may -be preformed for professional liability only for that work undertaken on the Project. If and to the extent that a wrap-up policy is put in place by the AGENCY, then CONSULTANT agrees to delete any duplicative or overlapping coverage for the Project from CONSUL TANrs existing insurance program and to credit to AGENCY any cost savings that result. SECTION 20. ASSIGNMENT. The expertise and experience of CONSULTANT are material considerations for this AGREEMENT. AGENCY has an interest in the qualifications of and capability of the persons and entities that will fulfill the duties and obligations imposed upon CONSULTANT under this AGREEMENT. In recognition of that interest, CONSULTANT shall not assign or transfer any portion of this AGREEMENT or the performance of any of CONSULTANT's duties or obligations under this AGREEMENT without the prior written consent of the AGENCY. Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this AGREEMENT entitling AGENCY to any and all remedies at law or in equity, including summary termination of this AGREEMENT. SECTION 21. CONTINUITY OF PERSONNEL. --- , CONSULTANT may not replace key staff, set forth in CONSULTANrs Proposal, unless their employment is terminated or their replacement is agreed upon by the AGENCY. The AGENCY must approve replacement staff before the replacement staff is assigned to perform services under this AGREEMENT. AGENCY reserves the right to request that CONSULTANT replace a staff person assigned to perform services under this AGREEMENT in the event the AGENCY, in its sole discretion, determines such a replacement is necessary. Replacement staff in every case is subject to AGENCY approval prior to assignment to perform services under this AGREEMENT. ' ,- SECTION 22. TERMINATION OF AGREEMENT. (a) AGENCY may terminate this AGREEMENT, with or without cause, at any time by giving thirty (30) days written notice of termination to CONSULTANT. In the event such notice is given, CONSULTANT shall cease immediately all work in progress. (b) CONSULTANT may terminate this AGREEMENT at any time upon thirty (30) days written notice of tentlination to AGENCY. (c) If either CONSULTANT or AGENCY is in default under this AGREEMENT, City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 13 .._~ r"-"i!J"". "."".""" "~~"~~~_""H~' "."" ". .' , . then, in addition to any other remedies, either CONSULTANT, or AGENCY may terminate this AGREEMENT immediately upon written notice. (d) Upon termination of this AGREEMENT by either CONSULTANT or AGENCY, all property belonging to AGENCY, which is in CONSULTANT's possession, shall be returned to AGENCY. CONSULTANT shall furnish to AGENCY a final invoice for work performed and expenses incurred by CONSULTANT, prepared as set forth in SECTION 5 of this AGREEMENT. This final invoice shall be reviewed and paid in the same manner as set forth in SECTION 5 of this AGREEMENT. SECTION 23. DEFAULT. If either CONSULTANT or AGENCY fails to perform any material obligation under this AGREEMENT, the non-breaching party shall notify the breaching party in writing. Within thirty (30) days of receipt' of such written notice, the breaching party shall commence curing such breach and shall diligently pursue such cure to completion. If the breaching party fails to diligently pursue such cure to completion, the breaching party shall be in default under the terms of this AGREEMENT. In the event that CONSULTANT is in default, the AGENCY shall not have any obligation or duty to continue compensating CONSULTANT for any services performed after the date of default, and AGENCY, without limiting any other legal or equitable remedies available to it, shall be entitled to withhold from CONSULTANT amounts unpaid hereunder and to offset such amounts against damages or losses incurred by the AGENCY, including increased costs of services. .~:-::- SECTION 24. TIME IS OF THE ESSENCE. Time is of the essence in the performance of this AGREEMENT. SECTION 25. EXCUSABLE DELAYS. CONSULTANT shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of CONSULTANT. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this AGREEMENT shall be equitably adjusted for any delays due to such causes. SECTION 26. NOTICES. , 1 All notices required or permitted to be given under this AGREEMENT shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 14 '~~"1- .-'"-'''~''''''''='''''''''' ,w~""~,,~ ",0<' '" r . prepaid and return receipt requested, addressed as follows: To AGENCY: Name of Agency Address To CONSULTANT: Name of Consultant Address Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed. three (3) days after deposit of the same in the custody of the United States Postal Service. SECTION 27. AUTHORITY TO EXECUTE. The person or persons executing this AGREEMENT on behalf of CONSULTANT warrants and represents that helsheJthey haslhave the authority to execute this AGREEMENT on behalf of hislherltheir corporation and warrants and represents that helsheJthey haslhave the authority to bind CONSULTANT to the performance of its obligations hereunder. SECTION 28. BINDING EFFECT. ,:--....- '" ,'This AGREEMENT shall be binding upon the heirs, executors. administrators. successors and assigns of the parties. SECTION 29. MODIFICATION OF AGREEMENT. No amendment to or modification of this AGREEMENT shall be valid .unless made in writing and approved by the CONSULTANT and by the AGENCY. The parties agree that this requirement for written modifications cannot be waived and that' any attempted waiver shall be void. ' SECTION 30. WAIVER. Waiver by any party to this AGREEMENT of any term. condition, or covenant of this AGREEMENT shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any default of the provisions of this AGREEMENT shall not constitute a waiver of any;other provision, nor a waiver of any subsequent default or violation of any provision of this AGREEMENT. Acceptance by AGENCY of any work or services by CONSULTANT shall not constitute a waiver of any of the provisions of this City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 15 N ... N"_"~'_~~ . . ~,_~,,,,,,,,,""'''.'''' .. AGREEMENT. SECTION 31. LAW TO GOVERN; VENUE. This AGREEMENT shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of Los Angeles. SECTION 32. ATTORNEYS FEES, COSTS AND EXPENSES. In the event litigation or other proceeding is required to enforce or interpret any provision of this AGREEMENT, the prevailing party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it'may be entitled. SECTION 33. ENTIRE AGREEMENT. This AGREEMENT, including the attached EXHIBIT 1, is the entire, complete,final and exclusive expression of the parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between CONSULTANT and AGENCY prior to the execution of this AGREEMENT. No statements, representations or other a.9reements, whether oral or written, made by any party which are not embodied herein snail be valid and binding. No amendment to this AGREEMENT shall be valid and binding unless in writing duly executed by the parties or their authorized representatives. SECTION 34. SEVERABILITY. If any term, condition or covenant of this AGREEMENT is declared qr determined by any court of competent jurisdiction to be invalid, void or unenforceable, tI'Ie remaining provisions of this AGREEMENT shall not be affected thereby and the AGREEMENT shall be read and construed without the invalid, void or unenforceable provisions. City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 16 - o~~=>~" .""TJ'> >'7---~'~~."~.r..~rwrW'f" . . IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed the day and year first above written. '-. ~ ATTEST: THE CITY OF SAN BERNARDINO City Clerk By: Mayor APPROVED AS TO FpRM: CONSULTANT By: Its City Attorney :-:::: City of San Bernardino, Sample Contract for Santa Fe Depot Parking Structure Page 17