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HomeMy WebLinkAbout37-Public Works . CiTY .OF SAN BER~RDINO - . REQUEST O~~n C~~l~CIL ACTION Authorization to Execute Agreement Subject: for Professional Services with ASL CONSULTANTS, INC. - Widening Kendall Dr. & Cajon Boulevard Bridges over Devil's Canyon Channel . From: ROGER G. HARDGRAVE Dept: Public Works Date: 3-19-92 Synopsis of Previous Council action: June, 1991 -- Allocation of $200,000 approved in 1991/92 Measure "I" - 1/2C Sales Tax Budget. Recommended motion: Adopt resolution. cc: Shauna Clark JiM Penman Od~ Contact person: Roger G. Hardarave Staff Report, Aareement & Resolution Phone: 5025 Supporting data attached: Ward: 5 & 6 FUNDING REQUIREMENTS: Amount: $144,082 (l/2C Sales. Tax - Local Funds) Source: (Acct. No.) 129-309-57839 Acct. Descri tion Widen Brid and Caion Boulevard Finance: f(] ,-....--- Council Notes: 75-0262 Agenda Item No. ~: .J;l . CITY OF SAN BERtt)RDINO - REQUEST O>>R COUNCIL ACTION STAFF REPORT In September of 1991, letters of interest were sent to 31 firms concerning performing professional engineering services on seven different projects. In October of 1991, a screening com- mittee selected between 3 and 6 firms to receive Requests for Proposals on each of the projects. Proposals were submitted on October 31, 1991. An evaluation committee was selected, with representatives from the Mayor's Office, Council Office, Administrator's office and Public Works. On November 12th and 13th, oral interviews were conducted with each of these firms. Selection of the most qualified firm was made for each of the projects. The firm of ASL CONSULTANTS, INC. was selected to perform the engineering services for the widening of the Kendall Drive and Cajon Boulevard bridges over the Devil's Canyon Flood Control Channel. A contract has been negotiated in accordance with the standard City format. The agreement provides, in general, that ASL CONSULTANTS, INC., will prepare plans, specifications and estimates for the widening of these bridges, for a fee not to exceed $144,082. a separate contract will be needed for preliminary soils investiga- tion, at an estimated price of $9,500. All costs incurred for services provided under this contract will be paid from the approximate $200,000 allocated under Account No. 129-309-57839, in the 1991/92 Measure "I" Sales Tax Fund. Staff recommends adoption of the resolution authorizing execution of the agreement. 3-19-92 7<;_n,:)1".4 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 ~ o o RESOLUTION NO. RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH ASL CONSULTANTS, INC. RELATING TO THE PROVISION OF PROFESSIONAL ENGINEERING DESIGN SERVICES FOR WIDENING THE KENDALL DRIVE AND CAJON BOULEVARD BRIDGES OVER THE DEVIL'S CANYON FLOOD CONTROL CHANNEL. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to execute, on behalf of said City, an agreement with ASL Consultants, Inc.. relating to the provision of professional engineering design services for widening the Kendall Drive and Cajon Boulevard bridges over the Devil's Canyon Flood Control Channel, a copy of which agreement is attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. SEe -ON 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 (601 days of the passage of this resolution. / / / / / / / / / / / / / / / / / / / / / / / / 3-19-92 I RESO: l I AUTHORIZING EXECUTION OF AGREEMENT WITH ASL CONSULTANTS, : INC. , '" RELATING TO ENGINEERING DESIGN SERVICES FOR THE 'I' WIDE1( )G OF KENDALL DRIVE AND ClI""') BOULEVARD BRIDGES. ~ .~. I I HEREBY CERTIFY that the foregoing resolution was duly I 1 2 adopted by the Mayor and Common Council of the City of San 3 Bernardino at a meeting thereof. held on the 4 day of , 1992, by the following vote, to-wit: 5 Council Members: AYES ABSTAIN ABSENT NAYS 6 ESTRADA 7 REILLY 8 HERNANDEZ 9 MAUDSLEY 10 MINOR 11 POPE-LUDLAM 12 MILLER 13 14 15 16 Rachel Krasney, City Clerk The foregoing resolution is hereby approved this day of , 1992. 17 18 19 20 21 22 23 24 25 26 27 28 W. R. Holcomb, Mayor Ci ty of San Bernardino Approved as to form and legal content: James F. Penman City Attorney By a!~gl<J - 2 - o ~XBIBIT . A. AGREBMENT POR PROFBSSIONAL SBRVICBS This AGREEMENT is made and entered into this day of , 1992, by and between the CITY OF SAN BERNARDINO, California, a municipal corporation, hereinafter referred to as the "CITY" and ASL Consultants, Inc., a California corporation, hereinafter referred to as "ENGINEER". WIT N E SSE T H WHEREAS, City desires to obtain professional services to prepare plans, specifications, estimates and construction documents for the construction and widening of roadway bridges, one located on Kendall Drive at Devil's Canyon Channel and the other on Cajon Blvd. located at Cable Creek. WHEREAS, in order to develop, plans, specifications, estimates and construction documents, it is necessary to retain the professional services of a qualified engineering and consulting firm; and WHEREAS, Engineer is professional services; and qualified to provide said WHEREAS, San Bernardino City Council has elected to engage the services of Engineer upon the terms and conditions as hereinafter set forth. NOW, THEREFORE, it is mutually agreed, as follows: 1. SCOPE OF SERVICES Engineer shall perform those services specified in "Scope of Services"and as contained in the proposal dated October 31, 1991, a copy of which is attached hereto as Exhibit "1" and incorporated as though set forth in full. 2 . TERM OF AGREEMENT The services of Engineer are to commence within thirty (30) days after the city has authorized work to start by issuance of a Notice to Proceed. The scheduled completion dates specifically set forth in Exhibit "2" attached hereto and incorporated herein as though set forth in full, will be adjusted by Engineer as the City authorizes the work. Such adjustments shall require City approval prior to commencement of performance of each phase. This Agreement shall expire as specified by the Exhibit "2" schedule unless extended by written agreement of the parties. o o 3. STANDARD OF PERFORMANCE Engineer shall complete all work product and design in conformance with Standard Specifications for Public Works Construction (Greenbook) and the City of San Bernardino's Standard Drawings. 4. CHANGES/EXTRA SERVICES A. Performance of the work specified in the "Scope of Services", is made an obligation of Engineer under this Agreement, subject to any changes made subsequently upon mutual agreement of the parties. All such changes shall be incorporated by written amendments to this Agreement and include any increase or decrease in the amount of compensation due Engineer for the change in scope. Any change which has not been so incorporated shall not be binding on either party. B. No extra services shall be rendered by Engineer under this Agreement unless such extra services are authorized, in writing, by city prior to performance of such work. Authorized extra services shall be invoiced based on Engineer'S "Schedule of Hourly Rates" dated , a copy of which is attached hereto as Exhibit "4" and incorporated herein as though set forth in full. 5. COMPENSATION A. The City shall reimburse the Engineer for actual costs (including labor costs, employee benefits, overhead, profit, other direct and indirect costs) incurred by the Engineer in performance of the work, in an amount not to exceed $144.082.00. Actual costs shall not exceed the estimated wage rates and other costs as set forth in Exhibit "3", attached hereto and incorporated herein as though set forth in full. B. Said compensation shall not be altered unless there is significant alteration in the scope, complexity or character of the work to be performed. Any such significant alteration shall be agreed upon in writing by city and Engineer before commencement of performance of such significant alteration by Engineer. Any adjustment of the total cost of services will only be permitted when the Engineer establishes and City has agreed, in writing, that there has been, or is to be, a significant change in: 1. Scope, complexity, or character of the services to be performed; 2. Condi tions under which the work is required to be performed; and 2 o o 3. Duration of work if the change from the time period specified in the Agreement for Completion of the work warrants such adjustment. C. The Engineer is required to comply with all Federal, state and local laws and ordinances applicable to the work. The Engineer is required to comply with prevailing wage rates in accordance with Calif-ornia Labor Code Section 1775. 6. PAYMENT BY CITY A. The billings for all services rendered pursuant to this Agreement shall be submitted monthly by Engineer to city and shall be paid by City within twenty (20) days after receipt of same, excepting any amounts disputed by City. Dispute over any invoiced amount shall be noticed to the Engineer within ten (10) days of billing and a meet and confer meeting for purposes of resolution of such dispute shall be initiated by the City within ten (10) days of notice of such dispute. Interest of 1- 1/2 percent per month (but not exceeding the maximum rate allowable by law) will be payable on any amounts not in dispute and not paid within thirty (30) days of the billing date, payment thereafter to be applied first to accrued interest and then to the principal unpaid amount. On disputed amounts, interest shall accrue from thirty (30) days of the invoice date if the amount in dispute is resolved in favor of the Engineer. All tasks as specified in Exhibit "1" shall be completed prior to final payment. B. section 9-10 of the Cal-Trans Standard Specifications is hereby specifically waived and not applicable to this agreement. The parties hereto otherwise agree not to be bound by any other requirements for arbitration of any dispute arising hereunder. Disputes shall be resolved by agreement of the parties, or upon the failure of such agreement, by direct application to the Courts. C. Should litigation be necessary to enforce any term or provision of this Agreement, or to collect any portion of the amount payable under this Agreement, then all litigation and collection expenses, witness fees, and court costs, and attorney's fees shall be paid to the prevailing party. 7. SUPERVISION AND ACCEPTANCE OF SERVICES A. The Director of Public Works of City, or his designee, shall have the right of general supervision over all work performed by Engineer and shall be city's agent with respect to obtaining Engineer'S compliance hereunder. No payment for any services rendered under this Agreement shall be made without prior approval of the Director of Public Works or his designee. - 3 - o o B. The Office of the Administrator inspect the Engineer's activities during the program. may review and progress of the 8. COMPLIANCE WITH CIVIL RIGHTS LAWS Engineer hereby certifies that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status or national origin. Engineer shall promote affirmative action in its hiring practices and employee policies for minorities and other designated classes in accordance with federal, state and local laws. Such action shall include, but not be limited to, the following: recruitment and recruitment advertising, employment, upgrading, and promotion. In addition, Engineer shall not exclude from participation under this Agreement any employee or applicant for employment on the basis of age, handicap or religion in compliance with State and Federal laws. 9. TERMINATION OF AGREEMENT A. This agreement may be terminated by either party upon thirty (30) days' written notice in the event of substantial failure of the other party to perform in accordance with the terms of this Agreement. Each party shall have twenty (20) days following date of such notice within which to correct the substantial failure giving rise to such notice. In the event of termination of this Agreement, City shall within thirty (30) days pay Engineer for all the fees, charges and services performed to City's satisfaction by Engineer, which finding of satisfaction shall not be unreasonably withheld. Engineer hereby covenants and agrees that upon termination of this Agreement for any reason, Engineer will preserve and make immediately available to City, or its designated representatives, maps, notes, correspondence, or records related to work paid for by the City and required for its timely completion, and to fully cooperate with city so that the work to be accomplished under this Agreement may continue within forty-five (45) days of termination. Any subsequent use of such incomplete documents shall be at the sole risk of the City and the City agrees to hold harmless and indemnify Engineer from any claims, losses, costs, including Attorney's fees, and liability arising out of such use. Engineer shall be compensated for such services in accordance with Exhibit "4". B. This agreement may be terminated for the convenience of the City upon thirty (30) days written notice to Engineer. Upon such notice, Engineer shall provide work product to City and City shall compensate Engineer in the manner set forth above. C. Following the effective date of termination of this Agreement pursuant to this section, the Agreement shall - 4 - o o continue until all obligations arising from such termination are satisfied. 10. CONTINGENCIES In the event that, due to causes beyond the control of and without the fault or negligence of Engineer, Engineer fails to meet any of its obligations under this Agreement, and such failure shall not constitute a default in performance, and the city may grant to Engineer such extensions of time and make other arrangements or additions, excepting any increase in payment, as may be reasonable under the circumstances. Increases in payment shall be made only under the "changes" orovision of this Agreement. Engineer shall notify City within :hree (3) days in writing when it becomes aware of any event or circumstance for which it claims or may claim an extension. 11. INDEPENDENT CONTRACTOR Engineer shall act as an independent contractor in the performance of the services provided for under this Agreement. Engineer shall furnish such services in its own manner and in no respect shall it be considered an agent or employee of City. 12. ASSIGNMENT OR SUBCONTRACTING Neither this Agreement, nor any portion thereof, may be assigned by Engineer without the written consent of City. Any attempt by Engineer to assign or subcontract any performance of this Agreement without the written consent of the City shall be null and void and shall constitute a breach of this Agreement. All subcontracts exceeding $10,000, shall contain all provisions of this contract. 13 . NOTICES All official notices in writing and addressed Engineer and city: relative to this Agreement shall be to the following representatives of ENGINEER CITY ASL Consultants, Inc. 9600 Central Ave, Suite 120 Rancho Cucamonga, CA 91730 Mr. Roger Hardgrave Director of Public Works/ City Engineer 300 North "0" Street San Bernardino, CA 92418 14. RESPONSIBILITIES OF PARTIES A. The Engineer may reasonably rely upon the accuracy of data provided through the city or its agents without independent evaluation. 5 o o B. The city shall pay all costs of inspection and permit fees. Charges not specifically covered by the terms of this Agreement shall be paid as agreed by the parties hereto at the time such costs arise; but in no event shall the work to be performed hereunder cease as a consequence of any unforeseen charges unless by mutual written agree-ment of city and Engineer. C. All tracings, survey notes, and other original documents are instruments of service and shall remain the property of Engineer except where by law, precedent, or agreement these documents become public property. All such documents or records shall be made accessible to city. Engineer shall maintain all records for inspection by the city, state, or their duly authorized representatives for a period of three (3) years after final payment. Engineer shall stamp and sign all specifications, estimates, plans and engineering data furnished, and, where appropriate, indicate registration number. 15. CONSTRUCTION COST ESTIMATES A. Any opinion of the Construction Cost prepared by Engineer represents his judgment as a design professional and is supplied for the general guidance of the City. Since Engineer has no control over the cost of labor and material, or over competitive bidding or market conditions, Engineer does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to the City. 16. COVENANT AGAINST CONTINGENT FEE Engineer warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Engineer for the purpose of securing business. For breach )r violation of this warranty, City shall have the right to terminate this Agreement in accordance with the clause permitting termination for cause and, at its sole discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 17. HOLD HARMLESS CAUSE A. Engineer hereby agrees to hold City, its elective and appointive boards, officers, and employees, harmless from any liability for damage orclaims for damage for personal injury including death, as well as from claims for property damage, which may arise from Engineer's negligent acts, errors or omissions under this Agreement. - 6 - o o B. Engineer shall indemnify, defend and hold free and harmless the City, its officers and its employees from all claims, damages, costs, expenses, and liability, including, but not limited to attorney's fees imposed upon them for any alleged infringement of patent rights or copyrights of any person or persons in consequence of the use by ci ty, its officers, employees, agents and other duly authorized representatives, of programs or processes supplied to City -by Engineer under this Agreement. 18. INDEMNITY Engineer shall indemnify, defend and hold harmless City from and against any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorney's fees) and liabilities, of, by, or with respect to third parties, which arise solely from Engineer'S negligent performance of services under this Agreement. Engineer shall not be responsible for, and City shall indemnify, defend and hold harmless Engineer from and against, any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorney's fees) and liabilities of, by or with respect to third parties, which arise solely from the City's negligence. with respect to any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorney's fees) and liabilities of, by or with respect to third parties, which arise from the joint or concurrent negligence of Engineer and City, each party shall assume responsibility in proportion to the degree of its respective fault. 19. LIABILITY/INSURANCE A. Engineer'S liability insurance for injury or damage to persons or property arising out of work for which legal liability may be found to rest upon Engineer other than for professional errors and omissions, shall be a minimum of $1,000,000. For any damage on account of any error, omission or other professional negligence, Engineer'S insurance shall be limited to a sum not to exceed $50,000 or Engineer'S fee, whichever is greater. B. The City will require the Engineer to provide Workers Compensation and comprehe~sive general liabili~y .i~suran~e, including completed operat~ons and contractual l~ab~l~ty, w~th coverage sufficient to insure the Engineer's indemnity, as above required; and, such insurance will include the City, the Engineer, their consultants, and each of their officers, agents and employees as additional insureds. 7 ,~ o o c. Engineer shall provide evidence of insurance in the form of a policy of insurance, in which the city is named as an additional named insured to the extent of the coverage required by this Agreement. 20. VALIDITY Should any provision herein be found or deemed to ~ be invalid, this Agreement shall be construed as not containing such provision, and all other provisions which are otherwise lawful shall remain in full force and affect, and to this end the provisions of this Agreement are declared ~o be severable. 21. ENTIRE AGREEMENT This Agreement represents the entire and integrated agreement between the parties hereto and supersedes all prior and contemporaneous negotiations, representations, understandings and agreements, whether written or oral, with respect to the subject matter thereof. This Agreement may be amended only by written instrument signed by both parties. - 8 - o 0 AGREEMENT: PROFESSIONAL ENGINEERING SERVICES FOR WIDENING THE KENDALL DRIVE AND CAJON BLVD. BRIDGES OVER THE DEVIL'S CREEK CANYON FLOOD CONTROL CHANNEL. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date written above by their duly authorized officers on their behalf. ATTEST: ASL CONSULTANTS, INC. By: President RACHEL KRASNEY, City Clerk CITY OF SAN BERNARDINO, a municipal corporation By: W. R. Holcomb, Mayor Approved as to form and legal content: JAMES F. PENMAN city Attorney By: - 9 - o o AGREEMENT FOR PROFESSIONAL SERVICES This AGREEMENT is made and entered into this day of , 1992, by and between the CITY OF SAN BERNARDINO, California, a municipal corporation, hereinafter referred to as the "CITY" and ASL Consultants, Inc., a California corporation, hereinafter referred to as "ENGINEER". WIT N E SSE T H WHEREAS, city desires to obtain professional services to prepare plans, specifications, estimates and construction documents for the construction and widening of roadway bridges, one located on Kendall Drive at Devil's Canyon Channel and the other on Cajon Blvd. located at Cable Creek. WHEREAS, in order to develop, plans, specifications, estimates and construction documents, it is necessary to retain the professional services of a qualified engineering and consulting firm; and WHEREAS, Engineer is professional services; and qualified to provide said WHEREAS, San Bernardino City Council has elected to engage the services of Engineer upon the terms and conditions as hereinafter set forth. NOW, THEREFORE, it is mutually agreed, as follows: 1. SCOPE OF SERVICES Engineer shall perform those services specified in "Scope of Services"and as contained in the proposal dated October 31, 1991, a copy of which is attached hereto as Exhibit "1" and incorporated as though set forth in full. 2 . TERM OF AGREEMENT The services of Engineer are to commence within thirty (30) days after the City has authorized work to start by issuance of a Notice to Proceed. The scheduled completion dates specifically set forth in Exhibit "2" attached hereto and incorporated herein as though set forth in full, will be adjusted by Engineer as the City authorizes the work. Such adjustments shall require City approval prior to commencement of performance of each phase. This Agreement shall expire as specified by the Exhibit "2" schedule unless extended by written agreement of the parties. ..,.,....., o o 3. STANDARD OF PERFORMANCE Engineer shall complete all work product and design in conformance with Standard Specifications for Public Works Construction (Greenbook) and the City of San Bernardino's Standard Drawings. 4. CHANGES/EXTRA SERVICES A. Performance of the work specified in the "Scope of Services", is made an obligation of Engineer under this Agreement, subject to any changes made subsequently upon mutual agreement of the parties. All such changes shall be incorporated by written amendments to this Agreement and include any increase or decrease in the amount of compensation due Engineer for the change in scope. Any change which has not been so incorporated shall not be binding on either party. B. No extra services shall be rendered by Engineer under this Agreement unless such extra services are authorized, in writing, by City prior to performance of such work. Authorized extra services shall be invoiced based on Engineer's "Schedule of Hourly Rates" dated , a copy of which is attached hereto as Exhibit "4" and incorporated herein as though set forth in full. 5. COMPENSATION A. The city shall reimburse the Engineer for actual costs (including labor costs, employee benefits, overhead, profit, other direct and indirect costs) incurred by the Engineer in performance of the work, in an amount not to exceed $144.082.00. Actual costs shall not exceed the estimated wage rates and other costs as set forth in Exhibit "3", attached hereto and incorporated herein as though set forth in full. B. Said compensation shall not be altered unless there is significant alteration in the scope, complexity or character of the work to be performed. Any such significant alteration shall be agreed upon in writing by City and Engineer before commencement of performance of such significant alteration by Engineer. Any adjustment of the total cost of services will only be permitted when the Engineer establishes and City has agreed, in writing, that there has been, or is to be, a significant change in: 1. Scope, complexity, or character of the services to be performed; 2. Conditions under which the work is required to be performed; and - 2 - . o o 3. Duration of work if the change from the time period specified in the Agreement for Completion of the work warrants such adjustment. C. The Engineer is required to comply with all Federal, state and local laws and ordinances applicable to the work. The Engineer is required to comply with prevailing wage rates in accordance with Calif-ornia Labor Code section 1775. 6. PAYMENT BY CITY A. The billings for all services rendered pursuant to this Agreement shall be submitted monthly by Engineer to city and shall be paid by City within twenty (20) days after receipt of same, excepting any amounts disputed by city. Dispute over any invoiced amount shall be noticed to the Engineer within ten (10.) days of billing and a meet and confer meeting for purposes of resolution of such dispute shall be initiated by the city within ten (10) days of notice of such dispute. Interest of 1- 1/2 percent per month (but not exceeding the maximum rate allowable by law) will be payable on any amounts not in dispute and not paid within thirty (30) days of the billing date, payment thereafter to be applied first to accrued interest and then to the principal unpaid amount. On disputed amounts, interest shall accrue from thirty (30) days of the invoice date if the amount in dispute is resolved in favor of the Engineer. All tasks as specified in Exhibit "1" shall be completed prior to final payment. B. section 9-10 of the Cal-Trans Standard Specifications is hereby specifically waived and not applicable to this agreement. The parties hereto otherwise agree not to be bound by any other requirements for arbitration of any dispute arising hereunder. Disputes shall be resolved by agreement of the parties, or upon the failure of such agreement, by direct application to the Courts. C. Should litigation be necessary to enforce any term or provision of this Agreement, or to collect any portion of the amount payable under this Agreement, then all litigation and collection expenses, witness fees, and court costs, and attorney's fees shall be paid to the prevailing party. 7. SUPERVISION AND ACCEPTANCE OF SERVICES A. The Director of Public Works of City, or his designee, shall have the right of general supervision over all work performed by Engineer and shall be City'S agent with respect to obtaining Engineer's compliance hereunder. No payment for any services rendered under this Agreement shall be made without prior approval of the Director of Public Works or his designee. - 3 - -,' o o B. The Office of the Administrator inspect the Engineer's activities during the program. may review and progress of the 8. COMPLIANCE WITH CIVIL RIGHTS LAWS Engineer hereby certifies that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status or national origin. Engineer shall promote affirmative action in its hiring practices and employee policies for minorities and other designated classes in accordance with federal, state and local laws. Such action shall include, but not be limited to, the following: recruitment and recruitment advertising, employment, upgrading, and promotion. In addition, Engineer shall not exclude from participation under this Agreement any employee or applicant for employment on the basis of age, handicap or religion in compliance wich State and Federal laws. 9. TERMINATION OF AGREEMENT A. This agreement may be terminated by either party upon thirty (30) days' written notice in the event of substantial failure of the other party to perform in accordance with the terms of this Agreement. Each party ,shall have twenty (20) days following date of such notice within which to correct the substantial failure giving rise to such notice. In the event of termination of this Agreement, City shall within thirty (30) days pay Engineer for all the fees, charges and services performed to city's satisfaction by Engineer, which finding of satisfaction shall not be unreasonably withheld. Engineer hereby covenants and agrees that upon termination of this Agreement for any reason, Engineer will preserve and make immediately available to ci ty, or its designated representatives, maps, notes, correspondence, or records related to work paid for by the city and required for its timely completion, and to fully cooperate with city so that the work to be accomplished under this Agreement may continue within forty-five (45) days of termination. Any subsequent use of such incomplete documents shall be at the sole risk of the City and the City agrees to hold harmless and indemnify Engineer from any claims, losses, costs, including Attorney's fees, and liability arising out of such use. Engineer shall be compensated for such services in accordance with Exhibit "4". B. This agreement may be terminated for the convenience of the City upon thirty (30) days written notice to Engineer. Upon such notice, Engineer shall provide work product to city and City shall compensate Engineer in the manner set forth above. C. Following the effective date of termination of this Agreement pursuant to this section, the Agreement shall , - 4 - o o continue until all obligations arising from such termination are satisfied. 10. CONTINGENCIES In the event that, due to causes beyond the control of and without the fault or negligence of Engineer, Engineer fails to meet any of its obligations under this Agreement, and such failure shall not constitute a default in performance, and the city may grant to Engineer such extensions of time and make other arrangements or additions, excepting any increase in payment, as may be reasonable under the circumstances. Increases in payment shall be made only under the "changes" provision of this Agreement. Engineer shall notify City within three (3) days in writing when it becomes aware of any event or circumstance for which it claims or may claim an extension. 11. INDEPENDENT CONTRACTOR Engineer shall act as an independent contractor in the performance of the services provided for under this Agreement. Engineer shall furnish such services in its own manner and in no respect shall it be considered an agent or employee of City. 12. ASSIGNMENT OR SUBCONTRACTING Nei ther this Agreement, nor any portion thereof, may be assigned by Engineer without the written consent of City. Any attempt by Engineer to assign or subcontract any performance of this Agreement without the written consent of the City shall be null and void and shall constitute a breach of this Agreement. All subcontracts exceeding $10,000, shall contain all provisions of this contract. 13. NOTICES All official notices in writing and addressed Engineer and City: relative to this Agreement shall be to the following representatives of ENGINEER CITY ASL Consultants, Inc. 9600 Central Ave, suite 120 Rancho Cucamonga, CA 91730 Mr. Roger Hardgrave Director of Public Works/ city Engineer 300 North "0" Street San Bernardino, CA 92418 14. RESPONSIBILITIES OF PARTIES A. The Engineer may reasonably rely upon the accuracy of data provided through the city or its agents without independent evaluation. 5 -.... o o B. The City shall pay all costs of inspection and permit fees. Charges not specifically covered by the terms of this Agreement shall be paid as agreed by the parties hereto at the time such costs arise; but in no event shall the work to be performed hereunder cease as a consequence of any unforeseen charges unless by mutual written agree-ment of City and Engineer. C. All tracings, survey notes, and other original documents are instruments of service and shall remain the property of Engineer except where by law, precedent, or agreement these documents become public property. All such documents or records shall be made accessible to City. Engineer shall maintain all records for inspection by the city, state, or their duly authorized representatives for a period of three (3) years after final payment. Engineer shall stamp and sign all specifications, estimates, plans and engineering data furnished, and, where appropriate, indicate registration number. 15. CONSTRUCTION COST ESTIMATES A. Any opinion of the Construction Cost. prepared by Engineer represents his judgment as a design professional and is supplied for the general guidance of the city. Since Engineer has no control over the cost of labor and material, or over competitive bidding or market conditions, Engineer does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to the city. 16. COVENANT AGAINST CONTINGENT FEE Engineer warrants that no person or selling agency has Jeen employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Engineer for the purpose of securing business. For breach or violation of this warranty, city shall have the right to terminate this Agreement in accordance with the clause permitting termination for cause and, at its sole discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 17. HOLD HARMLESS CAUSE A. Engineer hereby agrees to hold City, its elective and appointive boards, officers, and employees, harmless from any liability for damage orclaims for damage for personal injury including death, as well as from claims for property damage, which may arise from Engineer'S negligent acts, errors or omissions under this Agreement. - 6 - ---,"" " , o o B. Engineer shall indemnify, defend and hold free and harmless the City, its officers and its employees from all claims, damages, costs, expenses, and liability, including, but not limited to attorney's fees imposed upon them for any alleged infringement of patent rights or copyrights of any person or persons in consequence of the use by City, its officers, employees, agents and other duly authorized representatives, of programs or processes supplied to City by Engineer under this Agreement. 18. INDEMNITY Engineer shall indemnify, defend and hold harmless City from and against any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorney's fees) and liabilities, of, by, or with respect to third parties, which arise solely from Engineer's negligent performance of services under this Agreement. Engineer shall not be responsible for, and city shall indemnify, defend and hold harmless Engineer from and against, any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorney's fees) and liabilities of, by or with respect to third parties, which arise solely from the city's negligence. With respect to any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorney's fees) and liabilities of, by or with respect to third parties, which arise from the joint or concurrent negligence of Engineer and City, each party shall assume responsibility in proportion to the degree of its respective fault. 19. LIABILITY/INSURANCE A. Engineer's liability insurance for injury or damage to persons or property arising out of work for which legal liability may be found to rest upon Engineer other than for professional errors and omissions, shall be a minimum of $1,000,000. For any damage on account of any error, omission or other professional negligence, Engineer's insurance shall be limited to a sum not to exceed $50,000 or Engineer's fee, whichever is greater. B. The City will require the Engineer to provide Workers Compensation and comprehensive general liability insurance, including completed operations and contractual liability, with coverage sufficient to insure the Engineer's indemnity, as above required; and, such insurance will include the City, the Engineer, their consultants, and each of their officers, agents and employees as additional insureds. 7 o o C. Engineer shall provide evidence of insurance in the form of a policy of insurance, in which the City is named as an additional named insured to the extent of the coverage required by this Agreement. 20. VALIDITY Should any provision herein be found or deemed to be invalid, this Agreement shall be construed as not containing such provision, and all other provisions which are otherwise lawful shall remain in full force and affect, and to this end the provisions of this Agreement are declared to be severable. 21. ENTIRE AGREEMENT This Agreement represents the entire and integrated agreement between the parties hereto and supersedes all prior and contemporaneous negotiations, representations, understandings and agreements, whether written or oral, with respect to the subject matter thereof. This Agreement may be amended only by written instrument signed by both parties. - 8 - ~ . o o AGREEMENT: PROFESSIONAL ENG;t:NEERING SERVICES FOR WIDENING THE KENDALL DRIVE AND CAJON BLVD. BRIDGES OVER THE DEVIL'S CREEK CANYON FLOOD CONTROL CHANNEL. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date written above by their duly authorized officers on their behalf. ATTEST: ASL CONSULTANTS, INC. RACHEL KRASNEY, City Clerk By: President CITY OF SAN BERNARDINO, a municipal corporation By: W. R. Holcomb, Mayor Approved as to form and legal content: JAMES F. PENMAN city Attorney By,f-?~~ - 9 -