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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
File lJo. 1.845
.
From:
ROGER G. HARDGRAVE
Subject:
Authorization to Execute Agreement
for Professional Resident Engi-
neering Services for Orange Show
Road, fro~ Arrowhead Avenue to
Tippecanoe Avenue, per Plan No.
9142 -- DAHIEL, ~lAIm, JOHUSON &
~IENDENHALL
Dept:
Public Horks
Date:
08-25-97
, a~!GbVAl
Synopsis of Previous Council action:
07-06-92 - Authorization granted for City to assu~e responsibility
for engineering design services, including selection of
Consulting Engineers.
08-17-92 - Resolution No. 92-343 adopted authorizing execution of
agreeAent with DMJM for design services.
05-01-95 - Resolution No. 95-131 adopted authorizing execution of
agree~ent with NcDaniel Engineering for plan checking
services.
08-19-96 - Resolution lJo. 96-260 adopted authorizing execution of
Progra~ Supplenent No. 84.
02-17-97 - Plans approved and authorization granted to advertise
for bids.
07-21-97 - Resolution No. 97-219 adopted authorizing exectition of
revision No. One to progran Supple~ent Ho. 84. (Cont. m
second pagel
Recommended motion:
Adopt resolution.
cc: Fred .Ulson
Jin Pennan
Const. Insp.
cJArt2jh
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Contact person:
Gene R. Klatt
Staff Report, Agreenent
& Resolution
Phone:
5125
Supporting data attached:
Ward:
1 & 3
FUNDING REQUIREMENTS:
Amount: $196,560 (Street Construction Fund)
Source: (Acct. No.) 242 -3 6 2-5 5 0 4-19 96
Acct. Descri tion Orange Show
Arrowhead Avenue to Tippecanoe Avenue Finance:
Council Notes:
Res 97- ;)77
75-0262
Agenda Item No.
9 J,;2.lq~
53
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PUBLIC WORKS
File No. 1.845
SYNOPSIS OF PREVIOUS COUNCIL ACTION (Continued)
08-18-97 - Resolution No. 97-250 adopted awarding a contract for
the low bid price of $9,133,734.00.
\
\
Y OF 'SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
75-0264
STAFF REPORT
The extension of Orange Show Road, from Arrowhead Avenue
to Tippecanoe Avenue, will include the construction of two large
structures, one over the Santa Ana River (about 600 feet in
length), and the East Twin Creek Channel (about 300 feet in
length) . A Resident Bridge Engineer will be needed to ensure
compliance with the plans and specifications, and regulation for
expenditure of Federal-Aid STP Funds.
Requests for Proposals were
Engineering firms within the City.
the following three (3) firms:
accordingly sent to all Civil
Proposals were received from
1. Inland Valley Quality Control
2. Parsons, Brinckerhoff
3. Daniel, Mann, Johnson & Mendenhall
These firms were interviewed on 8-14-97 by a panel
comprised of the following Departnent of Public Works personnel:
1. Gene Klatt, Assistant City Engineer
2. Steve Enna, Construction Engineer
3. Rick Aspril, Project Construction Inspector
After carefully reviewing the proposals, the firm of
Daniel, Mann, Johnson and Mendenhall (DMJM) was selected as the
best qualified to provide the needed services at this tine.
The proosed Agreement provides, in general, that DHJM
will supply a fully qualified and experienced Resident Bridge
Engineer at a rate of $78.00 per hour. ':'his would result in a
total compensation of $196,560.00, over the 300 working days
allowed under the contract provisions. In the event that the
Contractor completes all work in less than 300 working days, the
total conpensation will, of course, be reduced accordingly.
The total estimated project cost, based upon the actual
low bid price, contained an amount of $226,66.00 for construction
engineering, which will be used to finance the costs incurred
under this Agreement. All costs incurred to these services will
be charged to Account No. 242-362-5504-1996.
We recomnend that the Agreement be approved.
URGENCY CLAUSE
The construction contract was awarded at the Council Meeting of
8-18-97, and the Contractor has elected to COmMence work as soon
as possible. It is, therefore, essential to have the Agreement
for the Resident Engineer approved at the Council Meeting of 9-
02-97.
08-25-97
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AGREEMENT POR PROPESSIONAL SERVICES
This AGREEMENT is made and entered into this da
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of , 1997, by. and between the CITY 0
SAN BERNARDINO, California, a municipal corporation, herein-afte
referred to as the "CITY" and Daniel. Mann. Johnson. & Mendenhall,
Inc., a California corporation, hereinafter referred to a
"ENGINEER."
WIT N E SSE T H
WHEREAS, City desires to obtain professional services fo
Resident Engineer Services related to orange Show Road fro
Arrowhead Ave. to Tippecanoe Ave.
WHEREAS, in order to provide inspection services,
inspection expertise, maintain adequate files, provide
lations on false work, review submittals and administer the dail
operations of the project, it is necessary to retain
professional services of a qualified resident engineer
consulting firm; and
WHEREAS, Engineer is qualified to provide
professional services; and
WHEREAS, San Bernardino city Council has elected to engag
the services of Engineer upon the terms and conditions as here
inafter set forth.
NOW, THEREFORE, it is mutually agreed, as follows:
1. SCOPE OF SERVICES
Engineer shall perform those services specified in "Scope of
EXHIBIT 'A'
8/27/97
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Services" and as contained in the proposal dated Julv 31. 1997, a
copy of which is attached hereto as Exhibit "1" and incorporated
as though set forth in full.
2. TERM OF AGREEMENT
The services of Engineer are to commence immediately after the
Ci ty has authorized work to start by issuance of a Notice to
Proceed. The scheduled completion dates established by the
contract for construction set 300 working days and may be adjusted
by the City as determined by progress of the work. This Agreement
shall expire upon completion of the project or as directed by the
City unless extended by written agreement of the parties.
3. STANDARD OF PERFORMANCE
Engineer shall complete all work product and design in confor-
mance with Standard Specifications for Public Works Construction
(Greenbook) current edition, Caltrans Bridge Design standards and
the City of San Bernardino's Standard Drawings and project
specifications 9142.
4. CHANGES/EXTRA SERVICES
A. Performance of the work specified in the "Scope of
Services," is made an obligation of Engineer under this Agreement,
subject to any changes made subsequently upon mutual agreement of
the parties. All such changes shall be incorporated by written
amendments to this Agreement and include any increase or decrease
in the amount of compensation due Engineer for the change in scope.
Any change which has not been so incorporated shall not be binding
on either party.
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1 B. No extra services shall be rendered by Engineer under this
2 Agre_ent unless such extra services are authorized, in writing, by
3 City prior to performance of such work. Authorized extra services
4 shall be invoiced based on Engineer's proposed rates a copy of
5 which is included in the proposal and incorporated herein as though
6 set forth in full.
7 5. COMPENSATION
8 A. The city shall reimburse the Engineer for actual costs
9 (including labor costs, employee benefits, overhead, profit, other
10 direct and indirect costs) incurred by the Engineer in performance
11 of the work, at a rate of $78 per hour in an estimated amount
12 $196.560.00. Said amount being $78 x 315 x 8 = $196,560.
13 B. said compensation shall not be altered. unless there is
14 significant alteration in the scope, complexity or character of the
15 work to be performed. Any such significant alteration shall be
16 agreed upon in writing by city and Engineer before commencement of
17 performance of such significant alteration by Engineer.
18 Any adjustment of the cost of services will only be permitted when
19 the Engineer establishes and City has agreed, in writing, that
20 there has been, or is to be, a significant change in:
21 1. Scope, complexity, or character of the services to
22 be performed;
23 2. Conditions under which the work is required to be
24 performed; and
25 3. Duration of work if the change from the time period
26 specified in the Agreement for Completion of the work warrants such
27 adjustment.
28 Sn7197 -3- EXHIBIT 'A'
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8 A. The billings for all services rendered pursuant to this
9 Agreement shall be submitted monthly by Engineer to city and shall
10 be paid by City within twenty (20) days after receipt of same,
11 excepting any amounts disputed by City. Dispute over any invoiced
amount shall be noticed to the Engineer within ten (10) days of
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billing and a meet and confer meeting for purposes of resolution of
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such dispute shall be initiated by the City within ten (10) days of
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notice of such dispute. Interest of 1-1/2 percent per month (but
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not exceeding the maximum rate allowable by law) will be payable on
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any amounts not in dispute and not paid within thirty (30) days of
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the billing date, payment thereafter to be applied first to accrued
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interest and then to the principal unpaid amount. On disputed
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amounts, interest shall accrue from thirty (30) days of the invoice
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21 date if the amount in dispute is resolved in favor of the Engineer.
22 B. Section 9-1.10 of the Cal-Trans Standard Specifications is
23 hereby specifically waived and not applicable to this agreement.
24 The parties hereto otherwise agree not to be bound by any other
25 requirements for arbitration of any dispute arising hereunder.
Disputes shall be resolved by agreement of the parties, or upon the
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failure of such agreement, by direct application to the Courts.
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C. The Engineer is required to comply with all Federal, State
and Local laws and ordinances applicable to the~ork and which are
in effect as of the date of the notice to proceed. The Engineer is
required to comply with prevailing wage rates in accordance with
California Labor Code section 1770.
6. PAYMENT BY CITY
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c. Should litigation be necessary to enforce any term or provision
of this Agreement, or to collect any portion of t:he amount payable
under this Agreement, then all reasonable li~igation and collection
expenses, witness fees, and court costs, and attorney's fees shall
be paid to the prevailing party.
7. SUPERVISION AND ACCEPTANCE OF SERVICES
A. The Director of Public Works of City, or his designee;
shall have the right of general supervision over all work performed
by Engineer and shall be City's agent with respect to obtaining
Engineer's compliance hereunder. No payment for any services
rendered under this Agreement shall be made without prior approval
of the Director of Public Works or his designee.
B. The Office of the Administrator may review and inspect the
Engineer's activities during the progress of the program.
8. COMPLIANCE WITH CIVIL RIGHTS LAWS
Engineer hereby certifies that it will not discriminate against
any employee or applicant for employment because of race, color,
religion, sex, marital status or national origin. Engineer shall
promote affirmative action in its hiring practices and employee
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1 9. TERMINATION OF AGREEMENT
2 A. This agreement may be terminated by either party upon
3 thirty (30) days' written notice in the event of substantial
4 failure of the other party to perform in accordance with the terms
5 of this Agreement. Each party shall have twenty (20) days
6 following date of such notice within which to correct the
7 substantial failure, giving rise to such notice. In the event of
8 termination of this Agreement, city shall within thirty (30) days
9 pay Engineer for all the fees, charges and services performed to
10 City's satisfaction by Engineer, which finding of satisfaction
11 shall not be unreasonably withheld. Engineer hereby covenants and
12 agrees that upon termination of this Agreement for any reason,
13 Engineer will preserve and make immediately available to City, or
14 its designated representatives, maps, notes, correspondence, or
15 records related to work paid for by the City and required for its
16 timely completion, and to fully cooperate with City so that the
17 work to be accomplished under this Agreement may continue within
18 forty-five (45) days of termination. Any subsequent use of such
19 incomplete documents, other than their originally intended use,
20 shall be at the sole risk of the City, and the City agrees to hold
21 harmless and indemnify Engineer from any claims, losses, costs,
22 including attorney's fees and liability arising out of such use.
23 Engineer shall be compensated for such services in accordance with
24 the proposal.
25 B. This agreement may be terminated for the convenience of
26 the city upon thirty (30) days written notice to Engineer. Upon
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such notice, Engineer shall provide work product to city, and City
shall compensate Engineer in the manner set forth above.
C. Following the effective date o~. termination of this
Agreement pursuant to this section, the Agreement shall continue
until all obligations arising from such termination are satisfied.
10. CONTINGENCIES
In the event that, due to causes beyond the control of and
without the fault or negligence of Engineer, Engineer fails to meet
any of its obligations under this Agreement, and such failure shall
not constitute a default in performance, the City may grant to
Engineer such extensions of time and make other arrangements or
additions, excepting any increase in payment, as may be reasonable
under the circumstances. Increases in payment shall be made only
under the "changes" provision of this Agreement. Engineer shall
notify City within three (3) days in writing when it becomes aware
of any event or circumstance for which it claims or may claim an
extension.
11. INDEPENDENT CONTRACTOR
Engineer shall act as an independent contractor in the perfor-
mance of the services provided for under this Agreement. Engineer
shall furnish such services as directed by the City.
12. ASSIGNMENT OR SUBCONTRACTING
Neither this Agreement, nor any portion thereof, may be
assigned by Engineer without the written consent of City. Any
attempt by Engineer to assign or subcontract any performance of
this Agreement without the written consent of the City shall be
null and void and shall constitute a breach of this Agreement. All
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ubcontracts exceeding $10,000, shall contain all provisions of
is contract.
3. NOTICES
All official notices relative to this 'Agreement shall be in
iting and addressed to the following representatives of Engineer
nd city:
ENGINEER
~
Mr. Roger Hardgrave
Director of Public Works
City Engineer
300 North "0" Street
San Bernardino, CA 92418
M.1M
75 West Hospitality Lane
uite 314
an Bernardino, CA 92408
4. RESPONSIBILITIES OF PARTIES
A. The Engineer may reasonably rely upon the accuracy of data
rovided through the City or its agents without independent
valuation.
B.
The City shall pay all costs of inspection and permit
Charges not specifically covered by the terms of this
fees.
greement shall be paid as agreed by the parties hereto at the time
uch costs arise; but in no event shall the work to be performed
ereunder cease as a consequence of any unforeseen charges unless
y mutual written agreement of City and Engineer.
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C.
All files, survey notes, correspondence, notes and other
riginal documents are instruments of service and shall remain the
roperty of City except where by law, precedent, or agreement these
ocuments become private property.
All such documents or records
Engineer shall maintain all
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hall be made accessible to City.
ecords for inspection by the City, state, or their duly authorized
epresentatives for delivery to city Hall upon completion of the
/27/97
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21 violation of this warranty, City shall have the right to terminate
22 this Agreement in accordance with the clause permitting termination
23 for cause and, at its sole discretion, to deduct from the Agreement
24 price or consideration, or otherwise recover, the full amount of
25 such commission, percentage, brokerage or contingent fee.
26 17. HOLD HARMLESS CLAUSE
27 A. Engineer hereby agrees to hold City, its elective, and
28 appointive boards, officers, and employees, harmless from any
project. Engineer shall stamp and sign all submittals, estimates,
plans and engineering data furnished, when appropriate and in
accordance with normal practice and, where" appropriate, indicate
registration number.
15. CONSTRUCTION COST ESTIMATES
A. Any progress estimates of the construction cost prepared
by Engineer represents his judgment as a design professional and is
supplied for the general guidance of the City. Engineer does
guarantee the accuracy of such opinions as compared to contractor
submittals or actual cost to the City in so far as they represent
his professional opinion as the true amount and nature of the work
so far performed and represented to be completed by the contractor.
16. COVENANT AGAINST CONTINGENT FEE
Engineer warrants that no person or selling agency has been
employed or retained to solicit or secure this Agreement upon an
agreement or understanding for a commission, percentage, brokerage,
or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the
Engineer for the purpose of securing business. For breach or
8/27/97
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2 liability tor damage or claims tor damage tor personal injury
3 including death, as well as from claims for property damage, to the
4 extent such are proximately caused by Engineer's negligent acts,
5 errors or omissions under this Agreement.
6 B. Engineer shall indemnify, defend and hold free and
7 harmless the City, its officers, and its employees from all claims,
8 damages, costs, expenses, and liability, including, but not limited
9 to, attorney's fees imposed upon them for any alleged infringement
10 of patent rights or copyrights of any person or persons in
11 consequence of the use by City, its officers, employees, agents,
12 and other duly authorized representatives, of programs or processes
13 supplied to city by Engineer under this Agreement.
14 C. The prevailing party in any legal action to enforce or
15 interpret any provisions of this Agreement will be entitled to
16 recover from the losing party all reasonable attorneys' fees, court
17 costs, and necessary disbursements in connection with that action.
18 The costs, salary, and expense of the City Attorney, and members of
19 his office, in connection with that action shall be considered as
20 attorneys' fees for the purposes of this Agreement.
21 18. INDEMNITY
.22 A. Engineer shall indemnify, defend and hold harmless City
23 from and against any and all claims, demands, suits, actions,
24 proceedings, judgments, losses, damages, injuries, penalties,
25 costs, expenses (including reasonable attorney's fees), and
26 liabilities, of, by, or with respect to third parties, which arise
27 solely from Engineer'S negligent performance of services under this
28 Agreement. Engineer shall not be responsible for, and City shall
8/27/97 -10-
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2 indemnify, defend, and hold harmless Engineer from and against, any
3 and all claims, demands, suits, actions, proceedings, jUdgments,
4 losses, damages, injuries, penalties, costs, expenses (including
5 reasonable attorney's fees) and liabilities of, by, or with respect
6 to third parties, which arise solely from the City's negligence.
7 with respect to any and all claims, demands, suits, actions,
8 proceedings, judgments, losses, damages, injuries, penalties,
9 costs, expenses (including reasonable attorney's fees) and
10 liabilities of, by or with respect to third parties, which arise
11 from the joint or concurrent negligence of Engineer and City, each
12 party shall assume responsibility in proportion to the degree of
13 its respective fault.
14 B. Neither party hereto shall be responsible for special,
15 incidental, or consequential damages, except to the extent that
16 such damages are awarded in an action by a third party, other than
17 the Contractor on the Project, against the CITY and arise out of
18 ENGINEER's negligent acts, errors, or omissions.
19 19. LIABILITY/INSURANCE
20 A. Engineer's liability insurance for injury or damage to
21 persons or property arising out of work for which legal liability
22 may be found to rest upon Engineer other than for professional
23 errors and omissions, shall be a minimum of $1,000,000. For any
24 damage on account of any error, omission, or other professional
25 negligence, Engineer's insurance shall be limited in a sum not to
26 exceed $50,000 or Engineer'S fee, whichever is greater.
27 B. The city will require the Engineer to provide Workers
28 Compensation and comprehensive general liability insurance,
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including completed operations and contractual liability, with
coverage sufficient to insure the Engineer's indemnity, as above
required; and, such insurance will include ,the City, the Engineer,
their consultants, and each of their officers, agents and employees
as additional insureds.
C. Engineer shall provide evidence of insurance in the form
of a pOlicYlcertification of insurance or other acceptable
evidence, in which the City is named as an additional named insured
(except on Worker's Comp) to the extent of the coverage required by
this Agreement.
D. Notwithstanding anything to the contrary herein, the
Engineer and its subconsultants and specialty consultants shall
have no responsibility for the discovery, presence, handling,
removal, disposal of or exposure of persons to hazardous materials
in any form at the different sites of the Project including, but
not limited to asbestos, asbestos products, polychlorinated
18 biphenyl (pcb) or other toxic substances except for any such
19 substances brought to the site by the Engineer or subconsultants or
20 used by same in the performance of their work.
21 20. VALIDITY
22 Should any provision herein be found or deemed to be invalid,
23 this Agreement shall be construed as not containing such provision,
24 and all other provisions which are otherwise lawful shall remain in
25 full force and affect, and to this end the provisions of this
26 Agreement are declared to be severable.
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2 21. ENTIRE AGREEMENT
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This Agreement represents the entire and integrated agreement
between the parties hereto and supe:.sedes all prior and
contemporaneous negotiations, representations, understandings, and
agreements, whether written or oral, with respect to the subject
matter thereof. This Agreement may be amended only by written
instrument signed by both parties.
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2 AGRBBHBIlT J'OR:
3
PROJ'BSSXOBAL RBSXDBBT BBGXRBBRXBG SBRVXCBS
OJUUfGB SHOW ROAD BBTWBD ARROWBBAD AVIIIIUIS
TXPPBCAlIOB AVBIl1JB ."
J'OR
&lID
4 IN WITNESS WHEREOF, the parties hereto have caused this
5 Agreement to be executed on the date written above by their duly
6 authorized officers on their behalf.
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12 ATTEST:
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14 Bv:
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Rachel Clark, City Clerk
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Approved as to form
22 and legal content:
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JAMES F. PENMAN
City Attorney
By:
8/27/97
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CITY OF SAN BERNARDINO
BY:
Tom Minor," Mayor
Daniel, Mann, Johnson,
& Mendenhall
By:
President