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HomeMy WebLinkAbout1989-315 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7/28/89 28 RESOLUTION NO. AQ 11t:; RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH LLOYD WEVERKA RELATING TO THE PRO- VISION OF CONSTRUCTION INSPECTION SERVICES FOR THE INTERCEPTOR SEWERS IN THE MUSCOY AREA. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to execute, on behalf of said City, an agreement with Lloyd Weverka, relating to the provision of construction inspection services for Interceptor Sewers in the Muscoy Area, a copy of said agreement is attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. SECTION 2. The agreement shall not take effect until fully signed and executed by both parties. The City shall not be obligated hereunder unless and until the agreement is fully executed and no oral agreement relating thereto shall be implied or authorized. SECTION 3. This resolution is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Cornmon Council of the Ci ty of San Bernardino at a ~ day of August / / / / / / / / / / / / / / / / regular meeting thereof, held on the , 1989, by the following vote, to- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7/28/89 RESO: AUTHORIZING EXECUTION OF AGREEMENT WITH LLo.YD WEVERKA RELATING TO CONSTRUCTION INSPECTION SERVICES FOR THE MUSCOY AREA INTERCEPTOR SEWERS. wit: AYES: Council Members Estrada, Reilly, Flores, Minor, Pope-Ludlam, Miller NAYS: None ABSENT: Council Member Maudsley Jb$~~fb / City 'Clerk The foregoing resolution is hereby approved this Pi~ day of , 1989. Auqust Approved as to form and legal content: James F. Penman City Attorney ,11 ;1 By ~ J~ () - 2 - ." ", -3ij'- AGREEMENT FOR PROFESSIONAL SERVICES /;. Thj.s AGREEMENT is made and entered into this rtL day of f.J.J..P-Cf,./JA...-{ ,1989, by and between the CITY OF SAN BERNA~INO, a municipal corporation of the State of California, hereinafter referred to as the "CITY," and Lloyd J. Weverka, P. E. , hereinafter referred to as "INSPECTOR." WITNESSETH WHEREAS, CITY desires to obtain inspection services for the installation of an interceptor sewer per plan No. 7648 in Macy and California Streets; and WHEREAS , it is necessary to retain the services of a qualified INSPECTOR; and WHEREAS, INSPECTOR is qualified to provide said services; and WHEREAS, San Bernardino City Council has elected to engage the services of INSPECTOR upon the terms and conditions as hereinafter set forth. NOW, THEREFORE, it is mutually agreed, as follows: 1. SCOPE OF SERVICES INSPECTOR shall perform inspection services for the construction of interceptor sewers in the Muscoy Area, per Plan No. 7648. 2. TERM OF AGREEMENT The services of INSPECTOR are to commence immediately after the CITY has authorized work to start. This Agreement shall expire upon completion and acceptance of the project, unless extended by written agreement of the parties. 3. STANDARD OF PERFORMANCE INSPECTOR shall perform all work product in conformance with City of San Bernardino's Standard Drawings, project specifi- cations and referenced specifications. 4. COMPENSATION A. The CITY shall compensate the INSPECTOR for costs (including labor costs, employee benefits, overhead, profit, other direct and indirect costs) incurred by the INSPECTOR in performance of the work, in an amount not to exceed $35.00 per hour, and not to exceed a total amount of $15,000. B. The INSPECTOR is required to comply with all Federal, State and local laws and ordinances applicable to the work. The INSPECTOR is required to comply wi th prevailing wage rates in accordance with California Labor Code Section 1775. 5. PAYMENT BY CITY A. The billings for all services rendered pursuant to this Agreement shall be submitted monthly by INSPECTOR to CITY and shall be paid by CITY within twenty (20) days after receipt of same, excepting any amounts disputed by CITY. Dispute over any invoiced amount shall be noticed to the INSPECTOR within ten (10) days of billing and a meet and confer meeting for purposes of resolution of such dispute shall be initiated by the CITY within ten (10) days of notice of such dispute. Interest of 1- 1/2 percent per month (but not exceeding the maximum rate allowable by law) will be payable on any amounts not in dispute and not paid within thirty (30) days of the billing date, payment thereafter to be applied first to accrued interest and then to the principal unpaid amount. On disputed amounts, interest shall accrue from thirty (30) days of the invoice date if the amount in dispute is resolved in favor of the INSPECTOR. B. Should litigation be necessary to enforce any term or provision of this Agreement, or to collect any portion of the amount payable under this Agreement, then all litigation and collection expenses, wi tness fees, and court costs, and attorney's fees shall be paid to the prevailing party. 6. SUPERVISION AND ACCEPTANCE OF SERVICES A. The Director of Public Works of CITY, or his designee, shall have the right of general supervision over all work performed by INSPECTOR and shall be CITY'S agent with respect to obtaining INSPECTOR'S compliance hereunder. No payment for any services rendered under this Agreement shall be made without prior approval of the Director of Public Works or his designee. 7. COMPLIANCE WITH CIVIL RIGHTS LAWS INSPECTOR hereby certifies that he will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status or national origin. INSPECTOR shall promote affirmative action in his hiring practices and employee policies for minorities and other designated classes in accordance wi th federal, state and local laws. Such action shall include, but not be limited to, the following: recruitment and recruitment advertising, employment, upgrading, and promotion. In addition, INSPECTOR shall not exclude from participation under this Agreement any employee or applicant for employment on the basis of age, handicap or religion in compliance with State and Federal laws. - 2 - 8. TERMINATION OF AGREEMENT A. This agreement may be terminated by either party upon thirty (30) days' written notice in the event of substantial failure of the other party to perform in accordance with the terms of this Agreement. Each party shall have twenty (20) days following date of such notice wi thin which to correct the sub- stantial failure giving rise to such notice. In the event of termination of this Agreement, CITY shall within thirty (30) days pay INSPECTOR for all the fees, charges and services performed to CITY'S satisfaction by INSPECTOR, which finding of satisfaction shall not be unreasonably withheld. INSPECTOR hereby covenants and agrees that upon termination of this Agreement for any reason, INSPECTOR will preserve and make immediately available to City, or its designated representatives, maps, notes, correspondence, or records related to work paid for by the CITY and required for its timely completion, and to fully cooperate with CITY so that the work to be accomplished under this Agreement may continue. Any subsequent use of such incomplete documents shall be the sole risk of the CITY and the CITY agrees to hold harmless and indemnify INSPECTOR from any claims, losses, costs, including Attorney's fees, and liabili ty arising out of such use. INSPECTOR shall be compensated for such services in accordance with Section "4." B. This agreement may be terminated for the convenience of the CITY upon thirty (30) days wri tten notice to INSPECTOR. Upon such notice, INSPECTOR shall provide work product to CITY and CITY shall compensate INSPECTOR in the manner set forth above. C. Following the effective date of termination of this Agreement pursuant to this section, the Agreement shall continue until all obligations arising from such termination are satisfied. 9. CONTINGENCIES In the event that, due to causes beyond the control of and without the fault or negligence of INSPECTOR, INSPECTOR fails to meet any of its obligations under this Agreement, and such failure shall not consti tute a default in performance, and the City may grant to INSPECTOR such extensions of time and make other arrangements or additions, excepting any increase in payment, as may be reasonable under the circumstances. 10. INDEPENDENT CONTRACTOR INSPECTOR shall act as an independent contractor, and not as an employee of the CITY. In the performance of personal services pursuant to the provisions of this agreement, INSPECTOR shall not be supervised, directed, or under the control or authority of any CITY officer or employee, except and to the - 3 - extent as may be expressly or implici tly required by the terms and provisions of this agreement. Any direction or control so required under this agreement shall be limited to broad objectives or goals of the project or program to be accomplished and not to the details and procedures to accomplish such objectives or goals. INSPECTOR shall not be obligated to conform to the supervision or direction of CITY officers or employees which are not authorized herein. Changes or modifications of said objectives and goals may be made by written recommendations of either party subject to the concurrence of the other party in writing. 11. ASSIGNMENT OR SUBCONTRACTING Neither this Agreement, nor any portion thereof, may be assigned by INSPECTOR without the written consent of City. Any attempt by INSPECTOR to assign or subcontract any performance of this Agreement without the written consent of the CITY shall be null and void and shall constitute a breach of this agreement. 12. NOTICES All official notices relative to this Agreement shall be in writing and addressed to the following representatives of INSPECTOR and CITY: INSPECTOR CITY Lloyd S. Weverka, P.E. 783 Oak Glade Drive Monrovia, CA 91016 Mr. Roger G. Hardgrave Director of Public Works/ City Engineer 300 North "D" Street San Bernardino, CA 92418 13. RESPONSIBILITIES OF PARTIES A. The INSPECTOR may reasonably rely upon the accuracy of data provided through the City or its agents without independent evaluation. 14. COVENANT AGAINST CONTINGENT FEE INSPECTOR warrants that no person or selling agency has been employed or retained to solici t or secure this agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the INSPECTOR for the purpose of securing business. For breach or violation of this warranty, CITY shall have the right to terminate this Agreement in accordance with the clause permitting termination for cause and, at its sole discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. - 4 - t. 15. HOLD HARMLESS CLAUSE A. INSPECTOR hereby agree s and appointive boards, officers, and liabili ty for damage or claims for including death, as well as from which may arise from INSPECTOR'S omissions under this Agreement. to hold CITY, i ts elective employees, harmless from any damage for personal injury, claims for property damage, negligent acts, errors or 16. INDEMNITY INSPECTOR shall indemnify, defend and hold harmless CITY from and against any and all claims, demands, sui ts, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorneys' fees) and liabilities, of, by, or with respect to third parties, which arise solely from INSPECTOR'S negligent performance or services under this Agreement. INSPECTOR shall not be responsible for, and CITY shall indemnify, defend and hold harmless INSPECTOR from and against, any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorney's fees) and liabilities of, by or with respect to third parties, which arise solely from the CITY'S negligence. with respect to any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorney's fees) and liabilities of, by or wi th respect to third parties, which arise from the joint or concurrent negligence of INSPECTOR and CITY, each party shall assume responsibility in proportion to the degree of its respective fault. 17. VALIDITY Should any provision herein be found or deemed to be invalid, this Agreement shall be construed as not containing such provision, and all other provisions which are otherwise lawful shall remain in full force and effect, and to this end the provisions of this Agreement are declared to be severable. 18. ENTIRE AGREEMENT This Agreement represents the entire and integrated agreement between the parties hereto and supercedes all prior and contemporaneous negotiations, representations, understandings and agreements, whether written or oral, with respect to the subject matter thereof. This Agreement may be amended only by written instrument signed by both parties. [To Page No.6... - 5 - IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date written above by their duly authorized officers on their behalf. BY:~~ . SPECTOR '--- CITY OF SAN BERNARDINO, a municipal corporation ATTEST: By: ~?2d/Z?Kf~~/ Shauna Clark, City Clerk Approved as to form and legal content: James F. Penman City Attorney By Lt-.l~ rJ - 6 -