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HomeMy WebLinkAbout07.J- Public Works 7.J RESOLUTION (ID#2081) DOC ID: 2081 B CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract From: Jim Smith M/CC Meeting Date: 11/19/2012 Prepared by: Michael Grubbs, (909) 384- 5140 Dept: Public Works Ward(s): 1 &3 Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Approving an Agreement with MCM Construction, Inc., for a Design and Build Project to Remove Existing Shoring and Install Replacement Temporary Shoring for Mount Vernon Avenue Overcrossing at the BNSF Yards (Bridge No. 54C-0066). Financial Impact: The estimated cost of this project is$400,000 to stabilize the shoring for the Mount Vernon Overcrossing at the BNSF Yards. This is a public safety issue and absent these improvements the bridge is unable to be certified by the engineer. The cost is $400,000 from Account No. 264-160-5504-7121-0025 (Restricted Funds) Account Description: Mt. Vernon Ave Bridge Replacement Motion: Adopt the Resolution. Synopsis of Previous Council Action: 06/18/12 Resolution No. 2012-175 adopted approving an Agreement with MCM Construction, Inc., for a design and build project to remove existing shoring and install replacement temporary shoring for Mount Vernon Avenue Overcrossing at the BNSF Yards (Bridge No. 54C-0066). MCM Construction, Inc. declined to execute the Agreement. Background: This design and construction Agreement was previously awarded to MCM Construction, hic.,by Resolution No. 2012-175 on June 18, 2012. However, due to uncertainty of the City's financial status and the City's intent to file for Chapter 9 protection, MCM Construction, hic., declined to execute the agreement within 60 days of passage as required by the resolution, therefore the authorization to execute the Agreement was rescinded. Most of the Mt. Vernon Bridge temporary shoring was installed in 2004 with an expected life of not more than two years. It is now 8 years later and the design engineer for the shoring will no longer certify that the shoring is adequate to support the bridge. Closing the bridge will be required if adequate shoring is not installed. MCM Construction, hic., is still willing to perform the work in accordance with the terms, conditions and fee requirements indicated in their original proposal. MCM Construction, Inc., has stated that they will execute a new Agreement if it is approved after the date of filing for bankruptcy, which was August 1, 2012. Attached is the Resolution and Agreement. Since the Updated: 11/14/2012 by Olivia Wolff B 2081 new approval will be after the bankruptcy date, the Contractor will have all legal recourse at its disposal should payment not be made in accordance with terms of the Agreement. City Attorney Review: Sunnortine Documents: reso 2081 (PDF) agnnt 2081 (PDF) Attach 1 MCM Proposal (PDF) Attach 2 MCM Fee Proposal (PDF) Updated: 11/14/2012 by Olivia Wolff B Packet Pg. 448 7.J.a / 1 RESOLUTION NO. l 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AN AGREEMENT WITH MCM CONSTRUCTION, 3 INC.,FOR A DESIGN AND BUILD PROJECT TO REMOVE EXISTING SHORING AND INSTALL REPLACEMENT TEMPORARY SHORING FOR MOUNT VERNON AVENUE 4 OVERCROSSING AT THE BNSF YARDS (BRIDGE NO. 54C-0066). 5 6 WHEREAS, the City desires to remove the existing shoring and install replacement 7 temporary shoring for Mount Vernon Avenue Overcrossing at the BNSF Yards. Bridge No. 54C- 0066) (Project); and E 8 WHEREAS, the City, on January 12, 2012, issued a request for design/build proposals for 9 said Project; and 10 S WHEREAS, on February 14, 2012, proposals were received from four (4) Contractors; y 11 and c 12 WHEREAS, the Proposal submitted by MCM Construction, Inc. has been determined to 13 best meet the requirements of the RFP and the needs of the City. 14 c NOWTHEREFORE BE IT RESOLVED BY THE MAYOR AND COMMON = 15 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: c 16 4 SECTION 1. The City Manager is authorized and directed to execute an Agreement for 2 17 18 Professional and Contracting Services for a design and build project to remove existing shoring c and install replacement temporary shoring for Mount Vernon Avenue Overcrossing at the BNSF y 19 d ZO Yards (Bridge No. 54C-0066) (attached and incorporated herein as Exhibit"A"). c d E 21 SECTION 2. Said Agreement shall not take effect or become operative until fully signed 22 and executed by the parties and no party shall be obligated hereunder until the time of such full a 23 execution. No oral agreements, amendments, modifications or waivers are intended or authorized 24 and shall not be implied from any act or course of conduct of any party. 25 26 SECTION 3. The authorization to execute said Agreement is rescinded if the parties fail 27 to execute it within sixty (60) days of passage of the resolution. 28 1 C:\Davmenb agtl SeltinV\empmoU.ocnlSRtivy\TonpUlinahT.ng4mhemartliuoitycaLa]nnbernerAinaityp.IQMiwm\WOrk4ltmchmmbU82].doc Paeket Pg,.449 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 1 SAN BERNARDINO APPROVING AN AGREEMENT WITH MCM CONSTRUCTION, 2 INC.,FOR A DESIGN AND BUILD PROJECT TO REMOVE EXISTING SHORING AND INSTALL REPLACEMENT TEMPORARY SHORING FOR MOUNT VERNON AVENUE 3 OVERCROSSING AT THE BNSF YARDS (BRIDGE NO. 54C-0066). 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting 6 thereof,held on the day of 2012,by the following vote to wit: 7 Council Members: Ayes Nays Abstain Absent N g MARQUEZ d U � T R 9 JENKI V S U CL 10 VALDIVIA m 11 SHORETT y KELLEY o 12 E JOHNSON > 13 — MC CAMMACK 14 C o N_ 15 Georgeann Hanna, City Clerk 16 4 N 17 The foregoing Resolution is hereby approved this day of 2012. 18 0 N O 19 20 Patrick J. Morris, Mayor City of San Bernardino E 21 R Approved as to form: 22 a James F. Penman 23 City Attorney 24 By: 25 26 ©27 28 Q: n.mews..asece.gsWemp...Wouisramg,\rem \mmmar.y�,.b<r..mmoairrx(p`ienbernerdin.citya.IQM2.c.m\WodWtmcbmen[sU82ZE.< Packet Pg.450 7.J.b EXHIBIT "A" AGREEMENT FOR PROFESSIONAL AND CONTRACTING SERVICES FOR A " DESIGN AND BUILD PROJECT TO REMOVE EXISTING SHORING AND INSTALL REPLACEMENT TEMPORARY SHORING FOR MOUNT VERNON AVENUE OVERCROSSING AT THE BNSF YARDS (BRIDGE NO. 54C-0066) THIS AGREEMENT is made and entered into this day of 2012 ("Effective Date'), by and between the CITY OF SAN BERNARDINO,a charter city ("City"), and MCM Construction, Inc. ("Contractor"). WITNESSETH : A. WHEREAS, City proposes to have Contractor provide structural engineering services to design replacement shoring for the Mt. Vernon Avenue Overcrossing at the BNSF Yards (Bridge No. 54C-0066) and construction services to remove the existing shoring and install E replacement temporary shoring as described herein below; and 0) M CL B. WHEREAS, Contractor 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 o L U) C. WHEREAS, City and Contractor desire to contract for specific services in connection o 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 co Agreement. ao 0 NOW, THEREFORE, for and in consideration of the mutual covenants and N conditions contained herein, the parties hereby agree as follows: E 1.0. SERVICES PROVIDED BY CONTRACTOR v E 1.1. Scone of Services. Contractor shall provide structural engineering services to design replacement shoring for the Mt. Vernon Avenue Overcrossing at the BNSF Yards (Bridge No. 54C-0066) and construction services to remove the existing shoring and install replacement temporary shoring in accordance with Contractor's proposal dated February 14, 2012, attached and incorporated herein as Attachment"1". 1.2. Professional Practices. All professional and contracting services to be provided by Contractor 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 and contractors in similar fields and circumstances in accordance with sound professional practices. Contractor 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 Contractor's performance of this Agreement. C:\Dk-.uments and Settings\hrnµn!nu\L(v,l &ef tints\Tang\MinuteTmy\santmmnrdirxx:ihrurc!wnbemardinocil}c.�.IQ�12.enm\Work\Athc}utunts\3.43?.dce 1 EXHIBrr"A" ® 1.3. Wanan Contractor 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. Contractor shall indemnify, defend, and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every 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 Contractor's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, Contractor shall not engage in, nor permit its agents to engage in, discrimination in employment of persons 0 because of their race, religion, color, national origin, ancestry, age, physical handicap, o 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 o Code, Section 1735. N >_ 0 1.5 Non-Exclusive Agreement, Contractor acknowledges that City may enter into agreements with other contractors for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services 2 contemplated by this Agreement. 00 0 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 CO written consent of City. N E 1.7. Business License: The Contractor shall obtain and maintain a valid City Business Registration Certificate during the tern of this Agreement. v E 1.8. Dm1y of Loyalty/Conflict of Interest: The Contractor understands and agrees that as the City's representative the Contractor shall maintain a fiduciary duty and a duty of loyalty to the City in performing Contractor's obligations under this Agreement. Contractor, 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, Contractor 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 Contractor has any ownership interest, or which is the location of any pending project that is a source of income for Contractor. Contractor shall keep this list current on a monthly basis during the entire term of this Agreement. C:\[kxumentti a,ut Settings\hemin•n,�\Lcaal Settii,g.\7'emp\MinaleTmy\stiilwrcnnrdincxityca�!?sanlHenu�r�lin,xityea.IQM?.mm\K'ork\:114icltm<nith\3it12,d,x 2 Packet Pg. 452 7.J.b EXHIBIT "A" 1.8.2 Contractor shall not work on any task that is related to any real property that is located within 500 feet of any parcel in which Contractor has any ownership interest or which is the location of any pending project that is a source of income for Contractor. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, Contractor shall be paid for such services for the fixed amount of $340,104.00 in accordance with Contractor's fee proposal attached and incorporated herein as Attachment"2". 2.2. Additional Services. Contractor shall not receive compensation for any services provided outside the scope of services specified in this Agreement unless the City or its Project Manager for this Project, prior to Contractor performing the additional services, approves such additional services in writing. It is specifically understood that oral requests E and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. a d 2.3. Method of Billing. Contractor may submit invoices to City's Project Manager for approval on a progress basis, but no more often than monthly. Said invoice shall be `o based on the total of all Contractor's services which have been completed to City's sole in satisfaction. City shall pay Contractor's invoice within forty-five(45) days from the date City o 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. 0 2.4. Records and Audits. Records of Contractor's services relating to this Agreement shall be maintained in accordance with generally recognized accounting N principles and shall be made available to City or its Project Manager and/or audit at mutually convenient times fora period of three 3 E p ( )years from the Effective Date. � 3.0. TIME OF PERFORMANCE d E 3.1. Commencement and ComRiction of Work. The obligation to perform the R professional and contracting 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 approved by the City's Project Manager. 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. C:\Lw.unwnts.uxi Settings\hemrenn\L.c�:.il S@tinya\I'emp\07inutcl'r,,ry\s,inlxrnerdinirihnius^sanM�nierdJ�ux-ityai.l4\t 2.tnm\4\'ork\AtMchmenlc\�,932dx 3 EXHIBIT"All 4.0. TERM AND TERMINATION 4.1. Term. This Agreement shall commence on the date approved by the City Manager and continue until the structural engineering services to design replacement shoring for the Mt. Vernon Avenue Overcrossing at the BNSF Yards (Bridge No. 54C-0066) and construction services to remove the existing shoring and install replacement temporary shoring are completed, unless previously terminated as provided herein or as otherwise agreed to in writing by the 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 Contractor. The termination of this Agreement shall be deemed effective upon E receipt of the notice of termination. In the event of such termination, Contractor shall U immediately stop rendering services under this Agreement unless directed otherwise by the a City. rn 4.3. Compensation. In the event of termination, City shall pay Contractor for o reasonable costs incurred and professional and contracting services satisfactorily performed n up to and including the date of City's written notice of termination. Compensation for work o 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 > �..: and contracting 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 N services contemplated herein whether delivered to the City or in the possession of the Contractor. o N 4.4 Documents. In the event of termination of this Agreement, all documents prepared by Contractor in its performance of this Agreement including, but not limited to, 0 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 Contractor, at no cost to City. Any use of uncompleted documents U without specific written authorization from Contractor shall be at City's sole risk and without liability or legal expense to Contractor. 5.0. INSURANCE 5.1. Minimum Scope and Limits of Insurance. Contractor 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. C:\b«airent+anti S¢ttings\bemp.no\l.axnl SettinbN\Temp\Min uhirraq\satilx rnarctin tnityeatii4uvbernar.linucih w.IQi,12.cum\Work\:Attachment»\3832AT 4 Packet Pg. 454 7.J.b EXHIBIT "A" (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. Contractor 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. CL 5.2. Endorsements. The comprehensive general liability insurance policy shall � contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and n appointed boards, officers, agents, and employees are additional o 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." o N (c) Other insurance: "Any other insurance maintained by the City of San o Bernardino shall be excess and not contributing with the insurance N provided by this policy." £ rn m 5.3. Certificates of Insurance. Contractor shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a E form and content approved by City,prior to performing any services under this Agreement. a 5.4. Non-limitine. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Contractor 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. C:\L)W1mc11ts and Settin-s\hempe.no\LAw.,d S.atings\romp\Minute7mq\sanlnrnnrdirnritycatN4iib mardinaityra.IQM2.com\Work\ekttaahmenls\3N.Y2Juc 5 Packet Pg. 455 7.J.b EXHIBIT "A" �..- 6.2. Representatives. The Public Works Director 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. Contractor shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Contractor called for by this Agreement, except as otherwise expressly provided in this Agreement. 6.3. Project Managers. City shall designate a Project Manager to work directly with Contractor in the performance of this Agreement. d E Contractor shall designate a Project Manager who shall represent it and be its agent in all consultations with City during the term of this Agreement. Contractor's Project o Manager shall attend and assist in all coordination meetings called by City. of rn c 6.4. Notices. Any notices, documents, correspondence or other communications `o concerning this Agreement or the work hereunder may be provided by personal delivery, uLi facsimile or mail and shall be addressed as set forth below. Such communication shall be o 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. 0 IF TO CONTRACTOR: IF TO CITY: Jim Carter,President Jim Smith, Interim Director of Public Works o MCM Construction, Inc. City of San Bernardino 6413 32nd Street 300 North"D" Street North Highlands, CA 95660 San Bernardino,CA 92418 Tel: (916)334-1221 Tel: 909-384-5140 Fax: (916)334-0562 Fax: 909-384-5190 E L U IC 6.5. Attorneys' Fees. In the event that litigation is brought by any party in a 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. C:\Lkwumcnts a�ul5et�ings\hempenn\C.cx�al Settinyg\'Temp\14inuterraq\sanbernardimrihrasusanbenuirdio�xit}•.:a.IQA7?.eom\lYork\Attac}muKits\3IS,4'?dix 6 EXHIBIT"A" ® 6.7. Assiammnent. Contractor shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Contractor'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 Contractor of Contractor's obligation to perform all other obligations to be performed by Contractor hereunder for the term of this Agreement. 6.8 Indemnification and Hold Harmless. Contractor 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 E or in any way connected with the intentional or negligent acts, errors or omissions of p; Contractor, its employees, agents or subcontractors in the performance of this Agreement. o. v 6.9. Independent Contractor. Contractor is and shall be acting at all times as an independent contractor and not as an employee of City. Contractor shall secure, at its o expense, and be responsible for any and all payment of Income Tax, Social Security, State v Disability Insurance Compensation, Unemployment Compensation, and other payroll o deductions for Contractor and its officers, agents, and employees, and all business licenses, if v !� 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 N prepared by Contractor or any of its subcontractors in the course of performance of this Agreement,shall be and remain the sole property of City. Contractor agrees that any such o 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 E contemplated by this Agreement, and any use of incomplete documents,shall be at the sole 6 risk of City and without liability or legal exposure to Contractor. City shall indemnify and hold harmless Contractor from all claims, damages, losses, and expenses, including s 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 a Contractor. Contractor 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. Contractor 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 Contractor, 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 Contractor informs City of such C:WI unwrdsand SA0ngs\hempenu\r.exa1 S3tings\Tamp\4linuteTraq\sanLx�rnardin�xityca¢i:sanlvnmrdiii cityca.IQ412.cam\Work\A1tachnwx*,\3812.d,,c 7 Packet Pg.457 EXHIBIT "A" 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. Contractor shall be responsible for its work and results under this Agreement. Contractor, 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 Contractor occurs, then Contractor shall, at no cost to City, provide all necessary design drawings, estimates and other professional of contracting 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. c d E 6.13. Prohibited Employment. Contractor will not employ any regular employee of City while this Agreement is in effect. a d 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 o Agreement shall prevail. C 0 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 N sole benefit of City and Contractor 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 o Agreement. N E 6.17. Headings. Paragraphs and subparagraph headings contained in this 9 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 E meaning or interpretation of this Agreement. R a 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 C:\Ua:umcnts mid Settings\lrempeun\Lckal ktti ngs\Teutp\�linukTmq\smtxrnanlinoci tyca,s'+ankxmurdiiucity:n.IQ�72.ecun\4vark\At tTCtimen is\33.7^_Juc 8 Packet Pg. 458 7.J.b EXHIBIT "A" way be deemed a waiver of those 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 with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with 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, 5 each of which shall be deemed an original. All counterparts shall be construed together and E shall constitute one agreement. a 6.23. Comorate Authority. The persons executing this Agreement on behalf of the W parties hereto warrant that they are duly authorized to execute this Agreement on behalf of c said parties and that by doing so, the parties hereto are formally bound to the provisions of `0 this Agreement. w c 0 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 in contracts or in law or in equity. ao 0 W O E rn m C m E s U t0 Q C:\Uaunicnts and Settings\hempono\L.rral S<�ttings\romp\�luiuteTray\smd+xniardirxrihea4 s iib:roar iinurityca.IQ,%I2com\Work\Attnehnu:nts\38'.i2.dae 9 EXHIBIT "A" AGREEMENT FOR PROFESSIONAL AND CONTRACTING SERVICES FOR A DESIGN AND BUILD PROJECT TO REMOVE EXISTING SHORING AND INSTALL REPLACEMENT TEMPORARY SHORING FOR MOUNT VERNON AVENUE OVERCROSSING AT THE BNSF YARDS (BRIDGE NO. 54C-0066) 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, CONTRACTOR A Municipal Corporation O By m Andrea Travis-Miller Signature Acting City Manager a d a, s= 0 O Name and Title t(n C 0 0 Approved as to form: 0 James F. Penman, City Attorney c N E By ¢� E U A Q C:\Dk UMants and S:ttings\hempeixi\i.cx il Setanbs\Temp\Minutcrrnq\Sankt•nrardi�xx:ih ca'ehanb:mnrdinocitya.[Q!v12.com\41'nrk\At lidimuils\3R32d�r 10 7.J.b ATTACHMENT"1" Main Office P.O. BOX 620/6413 32nd Street/North Highlands/CA 95660 (916) 334-1221 Estimating/Engineering FAX(916) 334.0562 Accounting FAX (916)334-8355 Southern California Regional Office MCM CONSTRUCTION, INC. P.O. BOX 867119010 SloverAve./Bloomington/CA 92316 (909) 875-0533 Engineering/Accounting FAX(909) 875.2243 SENEGAL ENGINEERING CONTRACTOMM SACRAMENTO,CA February 14,2012 Ladies/Gentlemen MCM Construction,Inc. hereby submits the following information in regard to the City of San Bernardino's Request for Proposals for a Design Build project to remove existing shoring and install Replacement Temporary Shoring for the Mount Vernon Avenue Overcrossing at the E BNSP Yards,Bridge No. 54C-0066. a MCM Construction,Inc,was founded in 1973. We are a general engineering contractor specializing in Cast-In-Place-Concrete Box Girder Bridges. To date,we have constructed over O1 C 500 bridges in the state of California and, among other projects,presently are working on the o 2101215 Interchange in Rialto. The temporary shoring replacement work proposed by the City is very similar to conventional box girder bridge falsework. We have familiarity with this type of 0 work and several crews with multiple years of experience. v It is our understanding that the structural value of the existing shoring has come into question 2 and that the City requests designs capable of resisting rot and insect attack. MCM proposes to minimize the likelihood of rot and insect attack by utilizing steel pipe posts in place of the 0 existing 12x12 timber posts and pressure treated timber corbels and pads where untreated corbels and pads are currently installed. The existing top and bottom caps will be reused In order to N reuse the top and bottom caps,it will be necessary to remove the existing shoring resulting in a temporary condition of the existing bridge being unsupported by external means. It is unclear `aI R whether this temporary condition will be acceptable to the City or the Railroad entities. If this temporarily unsupported condition is unacceptable to the City,MCM offers that the City may consider closing the bridge to traffic or making it more obvious that there is sufficient room to install the now shoring before the existing shoring is removed. MCM has worked with/for the Railroad in many instances and has a general understanding of what the coordination with the Railroad entities would entail. As required in the Request for Proposal,MCM has read the draft Standard form of Agreement and is prepared to execute the Agreement,if requested to do so. If you have any questions regarding the above,please contact Ron Burch at 916 334-1221. MCM ONSTRUCTI0N,INC J A sE en AN EQUAL OPPORTUNITY EMPLOYER ! STATE CONTRACTORS LIC, NO. 286430 PacketPg..461 7.J.b ATTACHMENT "2" PRICE PROPOSAL MCM Construction,Inc.hereby submits the following information in regard to the City of San E Bernardino's Request for Proposals for a Design Build project to remove existing shoring and install Replacement Temporary Shoring for the Mount Vernon Avenue Overcrossing at the d BNSF Yards,Bridge No. 54C-0066. of rn MCM Construction,Inc. will perform the above Design-Build work for the total price of 0 c 0 C L $340, 104.00 Total Fixed. Price > 0 N W O N E L C 01 E U U M Q PacketPg. 462 ATTACHMENT "I" Main Office P.O. BOX 620 16413 32nd Street/ North Highlands/CA 95660 (916) 334-1221 Estimating/Engineering FAX(916) 334-056: Accounting FAX (916) 334-835: Southern California Regional Office INClN CONSTRUCTION, P.O. BOX 867/ 19010 SloverAve./Bloomington/CA 92316 SENERAt ENGINERU CONni N, INC.I (909) 875-0533 Engineering/Accounting FAX (909) 875-224; SACRAMENTO,CA February 14,2012 Ladies/Gentlemen: MCM Construction,Inc. hereby submits the following information in regard to the City of San Bernardino's Request for Proposals for a Design Build project to remove existing shoring and E install Replacement Temporary Shoring for the Mount Vernon Avenue Overcrossing at the R a BNSF Yards,Bridge No. 54C-0066. 0 MCM Construction,Inc, was founded in 1973. We are a general engineering contractor c specializing in Cast-In-Place-Concrete Box Girder Bridges. To date,we have constructed over 0 0 rn 500 bridges in the state of California and, among other projects,presently are working on the 0 210/215 Interchange in Rialto. The temporary shoring replacement work proposed by the City is v very similar to conventional box girder bridge falsework. We have familiarity with this type of > work and several crews with multiple years of experience. It is our understanding that the structural value of the existing shoring has come into question co and that the City requests designs capable of resisting rot and insect attack. MCM proposes to minimize the likelihood of rot and insect attack by utilizing steel pipe posts in place of the o existing 12x12 timber posts and pressure treated timber corbels and pads where untreated corbels o and pads are currently installed. The existing top and bottom caps will be reused. In order to a reuse the top and bottom caps,it will be necessary to remove the existing shoring resulting in a U temporary condition of the existing bridge being unsupported by external means. It is unclear whether this temporary condition will be acceptable to the City or the Railroad entities. If this temporarily unsupported condition is unacceptable to the City,MCM offers that the City may a consider closing the bridge to traffic or making it more obvious that there is sufficient room to install the new shoring before the existing shoring is removed. w E r U MCM has worked with/for the Railroad in many instances and has a general understanding of what the coordination with the Railroad entities would entail. a As required in the Request for Proposal,MCM has read the draft Standard form of Agreement and is prepared to execute the Agreement, if requested to do so. If you have any questions regarding the above,please contact Ron Burch at 916 334-1221. MNSTRUCTION, INC st en -_ AN EQUAL OPPORTUNITY EMPLOYER / STATE CONTRACTORS LIC. NO. 288430 . I Packet Pg.463 ATTACHMEENT"2" PRICE PROPOSAL d E M MCM Construction,Inc.hereby submits the following information in regard to the City of San d Bernardino's Request for Proposals for a Design Build project to remove existing shoring and m install Replacement Temporary Shoring for the Mount Vernon Avenue Overcrossing at the c BNSF Yards,Bridge No. 54C-0066. y r MCM Construction,Inc. will perform the above Design-Build work for the total price of: c C d 7 $340,104.00 Total Fixed Price N 0 O O. O IL LLm m U N t U R Q C E E z U R