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From:
ROGER G. HARDGRAVE
- REQUEST FOR COUNCIL ACTION
File No. 4.42-20
Authorization to Execute Aqree-
Subject: JUent for Professional Services
with GTS Associations, Inc. -
Mill Street StOrM Drain -
Pennsylvania to Rancho
~ITY OF SAN BERNOIDINO
Dept:
Public Works
Date:
7-01-92
Synopsis of Previous Council action:
June, 1991 Allocation of $250,000.00 in 1991/92 Storm Drain Con-
struction Fund Budget approved.
04-06-92 Resolution NO. 92-117 adopted authorizing execution
of agreement for Professional Services with GTS and
Associates, Inc.
Recommended motion:
Adopt resolution.
cc: Shauna Clark
Jim Penman
Contact person: Gene R. Klatt Phone: 5125
Staff Report, Agreement
Supporting data attached: & Resolution Ward: 1
FUNDING REQUIREMENTS: Amount: $11,199 (Storm Drain Construction Fund)
Source: (Acct. No.)
248-368-57882
(Acct. Descriotion)
Mill Street Storm Drain -
Finance: ~,.J fl..'
Rancho to Pennsylvania
Council Notes:
15-0262
Agenda Item No
IS
CITY OF SAN BERN()IDINO - REQUEST QR COUNCIL ACTION
STAFF REPORT
In April of 1992, this item was presented to the Mayor and
Common Council for authorization to execute an agreement.
Authorization was given and the agreement was approved. However,
one of the provisions of the agreement was that the Engineer
provide $50,000 in errors and omissions insurance. The selected
Engineer made every reasonable effort to obtain said insurance
but was not able to secure same hased mainly on the basis that
50% of his work was for a single agency.
The Engineer has agreed to deposit $50,000.00 in a certi-
ficate of deposit naming the City as certificate holder to meet
this obligation. The City Attorney I s office has approved this
type of arrangement in the past.
The City Clerk has informed this office that the action of
4-6-92 has been rescinded, since both parties failed to execute
the Agreement within 60 days.
This recommended action is to authorize execution of a
revised agreement which includes the amended Section 19, allowing
the posting of a certificate of deposit to meet the errors
and omissions insurance requirements.
Staff recommends adoption of the resolution authorizing
execution of the new agreement.
7-01-92
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RESOLUTION NO.
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH GTS ASSOCIATES, INC. RELATING TO
THE PROVISION OF PROFESSIONAL ENGINEERING DESIGN SERVICES FOR
EXTENSION OF STORM DRAIN IN MILL STREET, FROM THE EXISTING
TERMINUS WESTERLY OF PENNSYLVANIA AVENUE TO WESTERLY OF RANCHO
AVENUE.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
6 CITY OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Mayor of the City of San Bernardino is
8 hereby authorized and directed to execute, on behalf of said
9 City, an agreement with GTS Associates, Inc., relating to the
10 provision of professional engineering design services for
11 extension of storm drain in Mill Street, from existing terminus
12 westerly of Pennsylvania Avenue to westerly of Rancho Avenue, a
13 copy of which agreement is attached hereto, marked Exhibit "A"
14 and incorporated herein by reference as fully as though set forth
15 at length.
16 SECTION 2. The agreement shall not take effect until
17 fully signed and executed by both parties. The City shall not be
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obligated hereunder unless and until the agreement is fully
executed and no oral agreement relating thereto shall be implied
or authorized.
SECTION 3.
The authorization to execute the above-
referenced agreement is rescinded if the parties to the agreement
fail to execute
resolution.
I I I I
I I I I
I I I I
I I I I
7-01-92
it within sixty (60) days of the passage of this
RESO: AUTHORIZING EXECUTION OF AGREE~T WITH GTS ASSOCIATES,
INC. .t<O:,LATING TO ENGINEERING DES. }l SERVICES FOR EXTENSION
OF S~ DRAIN IN MILL STREET.
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I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a
meeting thereof, held on the
4 day of
5 Council Members:
6 ESTRADA
7 REILLY
8 HERNANDEZ
9 MAUDSLEY
10 MINOR
11 POPE-LUDLAM
12 MILLER
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, 1992, by the following vote, to-wit:
AYES
NAYS
ABSTAIN
ABSENT
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day of
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Rachel Krasney, City Clerk
The foregoing resolution is hereby approved this
, 1992.
Approved as to form
and legal content:
W. R. Holcomb, Mayor
Ci ty of San Bernardino
James F. Penman
City Attorney
23 By
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EXHIBIT "A"
AGREEMENT FOR PROFESSIONAL SERVICES
This AGREEMENT is made and entered into this day of
1992, by and between the CITY OF
SAN BERNARDINO, California, a municipal corporation, hereinafter
referred to as the "CITY" and GTS Associates, Inc., a California
corporation, hereinafter referred to as "ENGINEER".
WIT N E SSE T H
WHEREAS, City desires to obtain professional services to pre-
pare plans, specifications, estimates and construction documents for
the Extension of a Storm Drain in Mill Street from the existing ter-
minus westerly of Pennsylvania Avenue to westerly of Rancho Avenue
in the Cities of San Bernardino and Colton; and
WHEREAS, in order to develop, plans, specifications, estimates
and construction documents, it is necessary to retain the profession-
al services of a qualified engineering and consulting firm; and
WHEREAS, Engineer is qualified to provide said professional
services; and
WHEREAS, San Bernardino city Council has elected to engage the
services of Engineer upon the terms and conditions as hereinafter set
forth.
NOW, THEREFORE, it is mutually agreed, as follows:
1. SCOPE OF SERVICES
Engineer shall perform those services specified in "Scope of
Services"and as contained in the proposal dated October, 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~
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3. STANDARD OF PERFORMANCE
Engineer shall complete all work product and design in confor-
mance 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 Servic-
es", is made an obligation of Engineer under this Agreement, subject
to any changes made subsequently upon mutual agreement of the par-
ties. 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 $11,199.00. 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, complexi ty, or character of the services to be
performed;
2. Condi tions under which the work is required to be per-
formed; and
3. Duration of work if the change from the time period speci-
fied in the Agreement for Completion of the work warrants
such adjustment.
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C. The Engineer is required to comply with all Federal, state
and local laws and ordinances applicable to the work. The Engineer
is required to comply with prevailing wage rates in accordance with
California Labor Code Section 1775.
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 require-
ments 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 ren-
dered under this Agreement shall be made without prior approval of
the Director of Public Works or his designee.
B. The Office of the Administrator may review and inspect the
Engineer's activities during the progress of the program.
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
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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, handi-
cap 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.
Agreement
until all
Following the effective date of termination of this
pursuant to this section, the Agreement shall continue
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 circwnstances. 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 exten-
sion.
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11. INDEPENDENT CONTRACTOR
Engineer shall act as an independent contractor in the perfor-
mance 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 as-
signed by Engineer without the written consent of city. Any attempt
by Engineer to assign or subcontract any performance of this Agree-
ment without the written consent of the City shall be null and void
and shall constitute a breach of this Agreement. All subcontracts
exceeding $10,000, shall contain all provisions of this contract.
13. NOTICES
All official notices relative to this Agreement shall be in
writing and addressed to the following representatives of Engineer
and City:
ENGINEER
CITY
GTS Associates, Inc
3272 N. "E" street
San Bernardino, CA
Suite A
92405
Mr. Roger Hardgrave
Director of Public Works/
City Engineer
300 North liD" Street
San Bernardino, CA
14.
RESPONSIBILITIES OF PARTIES
A.
provided
tion.
The Engineer may reasonably rely upon the accuracy of data
through the City or its agents without independent evalua-
B. The City shall pay all costs of inspection and permit
fees. Charges not specifically covered by the terms of this Agree-
ment 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 acces-
sible 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.
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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 estab-
lished 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 consider-
ation, 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 liabil-
ity for damage or claims for damage for personal injury including
death, as well as from claims for property damage, which may arise
from Engineer's negligent acts, errors or omissions under this
Agreement.
B. Engineer shall indemnify, defend and hold free and harm-
less 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, penal-
ties, costs, expenses (inClUding attorney's fees) and liabilities of,
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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 liabili-
ties 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 in a sum not to exceed $50,000
or Engineer's fee, whichever is greater. Engineer has agreed to
deposit $50,000 in a Certificate of Deposit (CD) in the name of the
City to meet this requirement. The C. D. shall remain on deposit
until completion of the design work at which time the City shall
release those funds to the Engineer.
B. The City will require the Engineer to provide Workers
Compensation and comprehensive general liability insurance, including
completed operations and contractual liability, with coverage suffi-
cient to insure the Engineer's indemnity, as above required; and,
such insurance will include the City, the Engineer, their consul-
tants, and each of their officers, agents and employees as additional
insureds.
C. Engineer shall provide evidence of insurance in the form
of a policy of insurance, in which the City is named as an additional
named insured to the extent of the coverage required by this Agree-
ment.
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 Agree-
ment 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 contemporane-
ous 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.
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AGREEMENT: PREPARE PLANS, SPECIFICATIONS AND ESTIMATES FOR CONSTRUC-
TION OF EXTENSION OF STORM DRAIN IN MILL STREET (PENNSYL-
VANIA TO RIALTO) IN CITIES OF SAN BERNARDINO AND COLTON
IN WITNESS WHEREOF, the parties hereto have caused this Agree-
ment to be executed on the date written above by their duly autho-
rized officers on their behalf.
ATTEST:
GTS ASSOCIATES, INC.
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
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