HomeMy WebLinkAbout29- Public Works ORIGINAL
CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
From: Robert Eisenbeisz, City Engineer Subject: Resolution approving an Agreement with
University Park, LLC, a California limited liability
Dept: Public Works company, for installation of Campus Parkway Fencing
& PCC Pavement(SS08-01).
Date: September 15, 2010
File: SS08-01
MCC Date: 10-18-10
Synopsis of Previous Council Action:
06-07-10 Resolution No. 2010-129 adopted authorizing the execution of a Real Property Exchange
Agreement with the San Bernardino County Flood Control District and the execution of
a grant deed for the exchange of City owned parcels of real property generally located
northerly of Campus Parkway, between Kendall Drive and Northpark Boulevard in the
City of San Bernardino.
06-28-10 Approved Capital Improvement Program for FY 2010-2011/2014-2015.
Recommended Motion:
Adopt Resolution.
Robert G. Eisenbeisz
Contact Person: Robert Eisenbeisz, City Engineer Phone: 5203
Supporting data attached: Staff Report, Reso & Agreement Ward(s): 5
FUNDING REQUIREMENTS: Amount: $160,000
Source: (Acct. No.) 126-160-5504-7874-0025
Acct. Description: SS08-01 Campus Prky Fencing & PCC
Paving
Finance:
Council Notes: �J3L-E l�
Agenda Item No.
CITY OF SAN 13ERNARDINO REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subiect:
Resolution approving an Agreement with University Park, LLC, a California limited liability
company, for installation of Campus Parkway Fencing & PCC Pavement (SS08-01).
Background:
The widening and improvement of Campus Parkway between Kendall Drive and Northpark
Boulevard was completed in 2006. Matich Construction Company completed this work under
contract with the City of San Bernardino.
The San Bernardino County Flood Control District's Devil Creek Basin is located northwesterly
and adjacent to Campus Parkway. In order to properly construct Campus Parkway it was
necessary for the City to obtain several parcels of land from the Flood Control District. In
exchange, several City owned parcels of approximately equal area were exchanged.
The Flood Control District permitted the construction of Campus Parkway subject to the
requirements that the right-of-way exchange be completed, a fence be constructed along the new
Flood Control right-of-way, an access road be constructed to their levee, and concrete pavement
(PCC) and slope paving be installed at the Northpark Boulevard dip crossing at Devil Creek.
However, due to complications involved in the exchange of right-of-way, it was not possible to
complete these items of work during construction of the roadway.
The exchange of property was concluded in August 2010 when the County Board of Supervisors
approved the exchange finalizing the right-of-way for Campus Parkway. The completion of the
right-of-way exchange now allows staff to pursue the installation of the permanent fencing, PCC
pavement and other items of work required by the Flood Control Permit.
University Park, LLC has agreed to complete the fencing and related work subject to approval of
an Agreement to reimburse the firm its cost for the work. The estimated cost of the proposed
work is $160,000.
University Park, LLC is planning the Artist Colony, which will adjoin the northwesterly line of
Campus Parkway. University Park, LLC will construct a screening barrier as a separate project
between the Artist Colony and Devil Creek. University Park, LLC is best positioned to
efficiently construct the improvements on behalf of the City.
Financial Impact:
Sufficient funds have been budgeted in (Account No. 126-160-5504-7874-0024) "SS08-01
Campus Parkway Fencing & PCC Pavement Installation" to cover the cost of this project. There
is no impact on the General Fund.
2 10/04/2010 11:39 AM
CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
STAFF REPORT (CONTINUED)
Account Budgeted (Acct. No. 126160-5504-7874-0024): $ 160,000
Balance as of 07/01/2010: $160,000
Balance after approval of this item: $ 0
Please note this balance does not indicate available funding. It does not include non-encumbered
reoccurring expenses or expenses incurred but not yet processed.
Recommendation:
Adopt Resolution.
Attachments:
Exhibit"A" - Campus Parkway Fencing and PCC Pavement Installation (SS08-01)
Improvement Agreement
3 10/04/2010 11:39 AM
I RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL, OF THE CITY OF
3 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT WITH UNIVERSITY PARK, LLC, A CALIFORNIA LIMITED
4 LIABILITY COMPANY, FOR CAMPUS PARKWAY FENCING & PCC PAVEMENT
5 INSTALLATION (SS08-01).
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS:
7
8 SECTION 1. THAT' THE CITY MANAGER is hereby authorized to execute the
9 Agreement (see Exhibit "A" and incorporated herein) with University Park, LLC, a California
10 limited liability company, for Campus Parkway Fencing & PCC Pavement Installation (SS08-
11 01). Such Agreement shall be effective only upon being fully executed by all parties. The
12 Purchasing Manager is hereby authorized and directed to issue a Purchase Order for said work to
13 said firm which references this Resolution
14
SECTION 2. This Agreement shall not take effect or become operative until fully
15
signed and executed by the parties and no party shall be obligated hereunder until the time of
16
17 such full execution. No oral agreement, amendments, modifications or waivers are intended or
18 authorized and shall not be implied from any act or course of conduct of any party.
19 SECTION 3. This resolution is rescinded if the parties to the Agreement fail to
20 execute it within sixty (60) days of the passage of the resolution.
21
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1
1 RESOLUTION OF THE MAYOR AND'COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT WITH UNIVERSITY PARK, LLC, A CALIFORNIA LIMITED
3 LIABILITY COMPANY, FOR CAMPUS PARKWAY FENCING & PCC PAVEMENT
INSTALLATION (SS08-01).
4
5 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a meeting thereof, held
7 on the day of , 2010, by the following vote, to wit:
8 Council Members: AYES NAYS ABSTAIN ABSENT
9 MARQUEZ
10 DESJARDINS
11
BRINKER
12
13 SHORETT
14 KELLEY
15 JOHNSON
16 MC CAMMACK
17
18
City Clerk
19
20 The foregoing resolution is hereby approved this day of , 2010.
21
22 Patrick J. Morris, Mayor
City of San Bernardino
23 Approved as to Form:
24 JAMES F. PENMAN,
25 City Attorney
26
27 By:
28
2
EXHIBIT "A"
CAMPUS PARKWAY FENCING AND PCC PAVEMENT INSTALLATION (SS08-0.1)
IMPROVEMENT AGREEMENT
This Campus Parkway Fencing and PCC Pavement Installation (SS08-01) Improvement
Agreement ("Agreement") is entered into effective , 2010 ("Effective
Date") between the City of San Bernardino, a Municipal Corporation and Charter City ("City")
and University Park, LLC, a California limited liability company ("Consultant").
RECITALS
A. WHEREAS, as a condition of approval for Tract No. 16509, Consultant was responsible
for design of Campus Parkway between Kendall Drive and Northpark Boulevard, grading for the
roadbed, and installation of drainage structures, including a requirement to obtain a permit from
the San Bernardino County Flood District ("District") ; and
B. WHEREAS, the City, in exchange, included the construction of Campus Parkway in its
Capital Improvement Budget; and
C. WHEREAS, on February 17, 2004, a Grading Agreement was approved between
Consultant and City for the grading and drainage work required for Campus Parkway between
Kendall Drive and Northpark Boulevard; and
D. WHEREAS, the majority of work on Campus Parkway between Kendall Drive and
Northpark Boulevard was completed and the new roadway opened to traffic on August 1, 2006;
and
E. WHEREAS, a portion of the work within District right-of-way was subject to conditions
of a Permit from the District; and
F. WHEREAS, certain work in the District's right-of-way, as described in Sections 1.1.1.
through 1.1.7 hereinafter, could not be completed as part of the original Campus Parkway
construction due to circumstances beyond the control of the City or the Consultant; and
j
F. WHEREAS, the work in District right-of-way was a requirement of the permit for
Campus Parkway construction and its completion remains an obligation of the City; and
G. WHEREAS, said work in the District's right-of-way has been authorized under District's
Permit#P-22004058 as approved by the District per Sheet 7 of 59 sheets of Drawing #10952
entitled Street Improvement Plan—Campus Parkway, and;
H. WHEREAS, Consultant has submitted the most responsive and cost effective proposal
for construction of Campus Parkway Fencing and PCC Pavement Installation (SS08-01); and
I. 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
00628.006/17212.1 1
EXHIBIT "A"
J. WHEREAS, City and Consultant desire to contract for specific services in connection
with the project and desire to set forth their rights, duties and liabilities in connection with the
services to be performed; and
K. 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
1.0. RESPONSIBILITIES OF THE PARTIES
1.1. The responsibilities of each party are described in general below; however, it is
understood and agreed that all work shall conform to the requirements of
District's Permit No. P-22004058 as approved by the District per Sheet 7 of 59
sheets of Drawing#10952 entitled Street Improvement Plan—Campus Parkway:
CONSULTANT SHALL:
1.1.1 Install approximately 2,760 linear feet of 6-foot high chain link fence and
related work along the new District right-of-way adjacent to the street;
1.1.2 Protect in place the access gate near Kendall Drive which is to remain;
1.1.3 Install approximately 5,672 square feet of reinforced PCC pavement and
related work at the Devil Creek dip on Northpark Boulevard;
1
1.1.4 Install a reinforced PCC paved access road with grouted rip-rap slopes to
provide District access to the Devil Creek levee at the southwesterly
corner of Campus Parkway and Northpark Boulevard; and
1.1.5 Complete the exchange of right-of-way with the District to accommodate
the Campus Parkway right-of-way; and
1.1.6 Install a new access gate at the top of the PCC access road per paragraph
1.1.4 above; and
1.1.7 Provide professional management service during construction which shall
include surveying and material testing during construction; and
CITY SHALL:
1.1.8 Issue excavation, encroachment and/or lane closure permits to Consultant
or its contractor at no charge to Consultant or contractor, and
1.1.9 Provide timely inspection of work within City street right-of-way at no
charge to the Consultant or its contractor; and
00628.006/17212.1 2
EXHIBIT "A"
1.1.10 Upon completion and acceptance of the work and upon reQeipt of a valid
invoice from Consultant, promptly reimburse Consultant as specified
herein, and
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. Warrantv. 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
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 Assi nment. This is a professional services 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 a Contractor working on behalf of the City, Consultant shall maintain 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.
00628.006/17212.1 3
EXHIBIT "A"
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.
2.0. COMPENSATION AND BILLING
2.1. Reimbursement. In exchange for the design, installation, construction, and
completion of the Improvements, the Consultant shall be reimbursed in the not-to exceed amount
of$160,000 provided the Consultant has completed the Improvements to the satisfaction of the
City Engineer and in compliance with the terms of this Agreement. In the event that Consultant
does not comply with the terms of this Agreement then the City shall not have the obligation to
reimburse Consultant. The City shall make payment of reimbursements to the Consultant within
Sixty (60) days after receipt of an invoice requesting reimbursement for the work or the date of
City's acceptance of the Improvements, whichever is later.
2.2 Term of Reimbursement Obligation: The City's obligation, under this Agreement,
to reimburse Consultant for the completion of the Improvements shall continue for a period of
five (5)' years from the Effective Date of this Agreement After such five-year period or
reimbursement in full, whichever occurs first, the City's obligation to reimburse the Consultant
shall terminate. In the event that Consultant elects not to proceed with the Improvements, then it
shall not be entitled to the reimbursement described in this Agreement.
2.3 Bids and Contracts: Consultant shall be solely responsible for securing
appropriate bids and awarding the contract(s) for construction and installation of Improvements
in compliance with all applicable federal, state and local laws.
2.4 Inspection: The City shall have the right at all times to inspect the construction of
the Improvements to measure compliance with approved City plans and specifications, and
standards of the City Engineer.
2.5 Additional Services. Consultant shall not receive compensation for any services
provided outside the scope of services specified herein, unless the City Engineer, 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.
2.6 Method of Billing. Upon completion of the work, Consultant shall submit a final
invoice to the City for the actual amount of the cost of the improvements, except that the total
amount shall not exceed $160,000. The 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.
2.7 Records and Audits. Records of Consultant's services relating to this Agreement
00628.006/17212.1 4
`1 EXHIBIT "A"
shall be maintained in accordance with generally recognized accounting principles and shall be
made available to City or its Project Manager for inspection and/or audit at mutually convenient
l 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 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.
4.0. TERM AND TERMINATION
4.1. Term. The City hereby fixes the time for the completion of said work to be within
24 months from the effective date of this Agreement.
4.2 Time Extension. In the event good cause is shown therefor, the City Engineer of
City may extend the time for completion of the improvements hereunder up to a maximum of 24
additional months. The City Engineer of City shall be the sole and final judge as to whether or
g not good cause has been shown to entitle Consultant to an extension of time.
4.3. 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.
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.
4.4. 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.
4.5 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,
00628.006/17212.1 5
EXHIBIT "A"
-3
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:
1
1
(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.
00628.006/17212.1 6
EXHIBIT "A"
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. Project Managers. City shall designate a Project Manager to work directly with
Consultant in the performance of this Agreement.
Consultant shall designate a Project Manager who shall represent it and be its
agent in all consultations with City during the term of this Agreement. Consultant's Project
Manager shall attend and assist in all coordination meetings called by City.
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.
IF TO CONSULTANT: IF TO CITY:
University Park, LLC Robert Eisenbeisz
101 North Main Street, Suite A City Engineer
Seal Beach, CA 90740 300 North "D" Street
San Bernardino, Ca 92418
Tel: (562) 430-0503 Tel: 909-384-5203
.Fax: (562) 493-5860 Fax: 909-384-5573
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
00628.006/17212.1 7
EXHIBIT "A"
costs artd 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
i 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
independent contractor and not as an employee of City. Consultant shall secure, at its 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,
00628.006/17212.1 8
EXHIBIT "A"
tiles, audio tapes or. any other Project rel4ted 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 subconsultants, 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 shall 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
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 City 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
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EXHIBIT "A"
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 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, 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.
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.
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EXHIBIT"A"
CAMPUS PARKWAY FENCING AND PCC PAVEMENT INSTALLATION (SS08-01)
IMPROVEMENT AGREEMENT
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 CONSULTANT
CITY OF SAN BERNARDINO, UNIVERSITY PARK, LLC,
A Municipal Corporation a California limited liability company
By: University Park Management, LLC
Its: Manager
Charles E. McNeely, City Manager By: University Park Operations, LLC
Its: Manager
By: James R. Watson
Its: Manager
Approved as to form:
James F. Penman,
City Attorney
By
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