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HomeMy WebLinkAbout2011-005 1 2 RESOLUTION NO. 2011-5 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN 4 AGREEMENT FOR PROFESSIONAL TRANSPORTATION MODELING SERVICES WITH SRINIV ASA S. BHA T. 5 6 7 8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the City Manager is authorized to execute the Agreement for 9 Professional Services with Srinivasa S. Bhat to provide professional transportation modeling services on an "as needed" basis (attached and incorporated herein as Exhibit "A"). A contract is 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 III 25 26 27 28 entered into with said consultant for the actual costs incurred, not to exceed $50,000.00, but such agreement shall be effective only upon being fully executed by both parties. SECTION 2. This agreement and any amendment or modifications thereto shall not take effect or become operative until fully signed and executed by the parties and no party shall be obligated hereunder until the time of such full execution. No oral agreements, amendments, modifications or waivers are intended or authorized and shall not be implied from any act or course of conduct of any party. SECTION 3. The Finance Department is authorized to issue a Purchase Order to the Consultant, which incorporates this Resolution and Agreement. SECTION 4. The authorization to execute this resolution is rescinded if the parties to the contract fail to execute it within sixty (60) days of passage of this resolution. - 1 - 2011-5 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN 2 AGREEMENT FOR PROFESSIONAL TRANSPORTATION MODELING SERVICES 3 WITH SRINIV ASA S. BHA T. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 10th day of January , 2011, by the following vote, to wit: I!attM~~' UaL4J~f~it2:.. Rachel Clark, City Clerk ~Cilr ,L The foregoing resolution is hereby approved this 1;17+ day of January ,2011. Approved as to form: JAMES F. PENMAN, City Attorney 27 28 - 2 - 2011-5 EXHIBIT A AGREEMENT FOR SERVICES THIS AGREEMENT is made and entered into this 10th day of January ,2011 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("City"), and SRINIV ASA S. BHA T ("Consultant"). WITNESSETH: A. WHEREAS, City proposes to have Consultant perform professional transportation modeling services on an as needed basis as described herein below; and B. WHEREAS, Consultant represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, City and Consultant desire to contract for specific services in connection with the project described below (the "Project") and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and D. WHEREAS, no official or employee of City has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONSULT ANT 1.1. Scope of Services. Consultant shall furnish professional transportation modeling services on an as needed basis to City in accordance with Attachment "I", Scope of Services, attached and incorporated herein. 1.2. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional consultants in similar fields and circumstances in accordance with sound professional practices. Consultant also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant's performance of this Agreement. 1.3. Warranty. Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Consultant shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every S:\_Engineering\RFCA's\2011 All\Ol-10-11 \ EVTM_Consultant_Services_Agreement\ Agrmt contract for EVT Model services 11- 23-10.doc 1 2011-5 EXHIBIT A nature and description including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Consultant's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, Consultant shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, or any other category protected by law, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. Consultant acknowledges that City may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. 1.7. Business License: The Consultant shall obtain and maintain a valid City Business Registration Certificate during the term of this Agreement. 1.8. Duty of Loyalty/Conflict of Interest: The Consultant understands and agrees that as the provider of the City's professional transportation modeling services on an as needed basis, Consultant shall maintain a fiduciary duty and a duty of loyalty to the City in performing Consultant's obligations under this Agreement. Consultant, in performing its obligations under this Agreement, is governed by California's conflict of interest laws, Government Code Section 87100 et seq., and Title 2, California Code of Regulations Section 18700 et seq. 1.8.1 Prior to performing any services to City under this Agreement, Consultant shall provide the City Engineer a written list of the Assessor Parcel Numbers and general location or address of any and all real property located in the City of San Bernardino in which Consultant has any ownership interest, or which is the location of any pending project that is a source of income for Consultant. Consultant shall keep this list current on a monthly basis during the entire term of this Agreement. 1.8.2 Consultant shall not work on any task that is related to any real property that is located within 500 feet of any parcel in which Consultant has any ownership interest or which is the location of any pending project that is a source of income for Consultant. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, Consultant shall be paid $60.00 per hour for such services, subject to not-to-exceed limit of $50,000 per fiscal year in payment for work performed by Consultant providing professional transportation modeling services on an S: \_Engineering\ RFCA's\ 2011 All\ 01-10-11 \ EVTM_ Consultant_Services_Agreement\ Agrmt contract for EVT Model services 11- 23-10.doc 2 2011-5 EXHIBIT A as-needed basis. 2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the Scope of Services unless the City or its Managing Engineer for this Project, prior to Consultant performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. Consultant may submit invoices to City's Managing Engineer for approval on a progress basis, but no more often than monthly. Said invoice shall be based on the total of all Consultant's services which have been completed to City's sole satisfaction. City shall pay Consultant's invoice within forty-five (45) days from the date City receives said invoice. Each invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of Consultant's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City or its Managing Engineer for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TIME OF PERFORMANCE 3.1. Commencement and Completion of Work. The obligation to perform the professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of this Agreement. Said services shall be performed in strict compliance with the Project Schedule issued by the Managing Engineer. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement. 3.2. Excusable Delays. Neither party shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a party. 4.0. TERM AND TERMINATION 4.1. Term. This Agreement shall commence on the date approved by the City Manager and continue through June 30, 2011, unless previously terminated as provided herein or as otherwise agreed to in writing by the parties. An administrative extension of one additional year may be authorized, subject to the prior written agreement of both parties. 4.2. Notice of Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to Consultant. S:\_Engineering\RFCA's\2011 All\Ol-10-11 \EVTM_Consultant_Services_Agreement\Agrmt contract for EVT Model services 11- 23-10.doc 3 2011-5 EXHIBIT A The termination of this Agreement shall be deemed effective upon receipt of the notice of termination. In the event of such termination, Consultant shall immediately stop rendering services under this Agreement unless directed otherwise by the City. 4.3. Compensation. In the event of termination, City shall pay Consultant for reasonable costs incurred and professional services satisfactorily performed up to and including the date of City's written notice of termination. Compensation for work in progress shall be prorated as to the percentage of work completed as of the effective date of termination in accordance with the fees set forth herein. In ascertaining the professional services actually rendered hereunder up to the effective date of termination of this Agreement, consideration shall be given to both completed work and work in progress, to complete and incomplete drawings, and to other documents pertaining to the services contemplated herein whether delivered to the City or in the possession of the Consultant. 4.4 Documents. In the event of termination of this Agreement, all documents prepared by Consultant in its performance of this Agreement including, but not limited to, finished or unfinished design, development and construction documents, data studies, drawings, maps and reports, shall be delivered to the City within ten (10) days of delivery of termination notice to Consultant, at no cost to City. Any use of uncompleted documents without specific written authorization from Consultant shall be at City's sole risk and without liability or legal expense to Consultant. 5.0. INSURANCE 5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain and maintain during the life of this Agreement all of the following insurance coverages: (a) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. (d) Professional errors and omissions ("E&O") liability insurance with policy limits of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. Consultant shall obtain and maintain, said E&O liability insurance during the life of this Agreement and for three years after completion of the work hereunder. 5.2. Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: . S:\_Engineering\RFCA's\2011 All\01-10-11\EVTM_Consultant_Services_Agreement\Agrmt contract for EVT Model services 11- 23-10.doc 4 2011-5 EXHIBIT A (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 5.3. Certificates of Insurance. Consultant shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. 5.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Consultant may be held responsible for payments of damages to persons or property. 6.0. GENERAL PROVISIONS 6.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 6.2. Representatives. The City Engineer or his designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement. Consultant shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Consultant called for by this Agreement, except as otherwise expressly provided in this Agreement. 6.3. Proiect Managers. City shall designate a Managing Engineer to work directly with Consultant in the performance of this Agreement. Consultant shall designate a Project Consultant who shall represent it and be its agent in all consultations with City during the term of this Agreement. Consultant or its Project Consultant shall attend and assist in all coordination meetings called by City. S:\_Engineering\RFCA's\2011 All\01-10-11\EVTM_Consultant_Services_Agreement\Agrmt contract for EVT Model services 11- 23-10.doc 5 2011-5 EXHIBIT A 6.4. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. Tel: 909-630-8003 IF TO CITY: Robert Eisenbeisz City Engineer 300 North "D" Street San Bernardino, Ca 92418 Fax: 909-384-5573 Tel: 909-384-5019 IF TO CONSULTANT: Srinivasa S. Bhat 21 Silverwood Lane Pomona, CA 91766 6.5. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the City shall be considered as "attorneys' fees" for the purposes of this paragraph. 6.6. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 6.7. Assignment. Consultant shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Consultant of Consultant's obligation to perform all other obligations to be performed by Consultant hereunder for the term of this Agreement. 6.8 Indemnification and Hold Harmless. Consultant shall protect, defend, indemnify and hold harmless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not by way of limitation, all civil claims or workers' compensation claims, arising out of or in any way connected with the intentional or negligent acts, errors or omissions of Consultant, its employees, agents or subcontractors in the performance of this Agreement. 6.9. Independent Contractor. Consultant is and shall be acting at all times as an S:\_Engineering\ RFCA's\ 2011 All\ 01-10-11 \ EVTM_Consultant_Services_Agreement\ Agrmt contract for EVT Model services 11- 23-10.doc 6 2011-5 EXHIBIT A independent contractor and not as an employee of City. Consultant shall secure, at his expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Consultant and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. 6.10 Ownership of Documents. All findings, reports, documents, information and data including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by Consultant or any of its subcontractors in the course of performance of this Agreement, shall be and remain the sole property of City. Consultant agrees that any such documents or information shall not be made available to any individual or organization without the prior consent of City. Any use of such documents for other projects not contemplated by this Agreement, and any use of incomplete documents, shall be at the sole risk of City and without liability or legal exposure to Consultant. City shall indemnify and hold harmless Consultant from all claims, damages, losses, and expenses, including attorneys' fees, arising out of or resulting from City's use of such documents for other projects not contemplated by this Agreement or use of incomplete documents furnished by Consultant. Consultant shall deliver to City any findings, reports, documents, information, data, in any form, including but not limited to, computer tapes, discs, files audio tapes or any other Project related items as requested by City or its authorized representative, at no additional cost to the City. 6.11 Public Records Act Disclosure. Consultant has been advised and is aware that all reports, documents, information and data including, but not limited to, computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors, and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et. seq.). Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court. 6.12. Responsibility for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant occurs, then Consultant shall, at no cost to City, provide all necessary design drawings, estimates and other Consultant professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction. 6.13. Prohibited Employment. Consultant will not employ any regular employee of City while this Agreement is in effect. 6.14. Order of Precedence. In the event of an inconsistency or conflict in this Agreement and any of the attached Exhibits or Attachments, the terms set forth in this S:\_Engineering\RFCA's\2011 All\Ol-lO-11 \EVTM_Consultant_Services_Agreement\Agrmt contract for EVT Model services 11- 23-10.doc 7 2011-5 EXHIBIT A Agreement shall prevail. 6.15. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 6.16. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of <;ity and Consultant and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 6.17. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 6.18. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 6.19 Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement. 6.20. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver ofthose rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 6.21. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. 6.22. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 6.23. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Agreement. S:\_Engineering\RFCA's\2011 All\01-10-11 \EVTM_Consultant_Services_Agreement\Agrmt contract for EVT Model services 11- 23-10.doc 8 2011-5 EXHIBIT A 6.24 Damages. The Parties agree to waive any rights to incidental or consequential and punitive damages arising out of performance under this Agreement whether in torts or contracts or in law or in equity. III III S:\_Engineering\RFCA's\2011 All\Ol-10-11 \EVTM_Consultant_Services_Agreement\Agrmt contract for EVT Model services 11- 23-10.doc 9 2011-5 EXHIBIT A AGREEMENT FOR SERVICES IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, A Municipal Corporation CONSULTANT SRINIV ASA S. BHA T By . /0;Il4-- ~ure <; Klf\.1/ II ~ * 15J1,1-7 Name and Title CO N'S c) L- T/), tV /- Approved as to form: James F. Penman, City Attorney l/YvvvtA,,,- S:\_Engineering\RFCA's\20l1 All\Ol-lO-11 \EVTM_Consultant_Services_Agreement\Agrmt contract for EVT Model services 11- 23-10.doc 10 2011-5 ATTACHMENT "I" SERVICES AGREEMENT for Srinivasa S. Bhat Scope of Services: The CONSULTANT shall perform servIces including, but not limited to, the following activities: . Data Management ofthe City's East Valley Transportation Model (EVTM) . Network changes to EVTM . AM/PM Base Line (2003) and future (2030) EVTM Forecasts . Select Link/Select Zone processes . Turning movement data input and extraction from EVTM . Preparation of summary and status EVTM reports in a timely manner . CONSULTANT shall work under the direction of the City Engineer . CONSULTANT shall not share or provide any EVTM data with any person or organization . CONSULTANT shall not share or provide any EVTM data with any person or organization unless specifically directed by the City Engineer.