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CITY OF SAN BERNCRDINO - REQUEST QR COUNCIL ACTION
File No. 1.845
Authorization to Execute Agreement
From: ROGER G. HARDGRAVE Subject: for Professional Engineering
Services with DMJM - E::tension of
Dept: Public Works Orange Show Road, from Arrovlhead
Avenue to Tippecanoe Avenue
Date: 7-28-92
Synopsis of Previous Council action:
December, 1989 - Adoption of 5-Year Capital Improvement Program,
for 1989/90 to 1993/94.
lO-07-91 Transfer of $200,000 from Unappropriated Reserve,
to Account No. 129-309-57845, Orange Show Road,
from Arrowhead Avenue to Waterman Avenue,
approved.
04-20-92 Authorization to execute Agreement tabled.
06-01-92 Authorization granted to execute Loan Guarantee
Agreement with IVDA.
07-06-92 Authorization granted to assume responsibility for
engineering design services.
Recommended motion:
Adopt resolution.
cc: Shauna Clark
J. Penman
A. Green
Supporting data attached:
Roqer G. Hardqrave
Staff Report,
Resolution & Agreement
Phone:
5025
Conta~ person:
Ward:
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FUNDING REQUIREMENTS:
Amount: $598.611 (Billable to IVDA)
Source: (Acct. No.!
129-309-57845
(Acct. DescriPtion)
Extension Of~ShOW
Finance: P
Road -
Arrowhead Avenue to Tippecanoe Avenue
Council Notes:
Aoenda Item No.
/2/
CITY OF SAN BERNCRDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
Page 1 of 2
In September of 1991, letters of interest were sent to 31
firms concerning performing professional engineering services on
seven different projects. In October of 1991, a screening com-
mittee selected between 3 and 6 firms to receive Requests for
Proposals on each of the projects.
Proposals were submitted on October 31, 1991. An evalu-
ation committee was selected, with representatives from the
Mayor's Office, Council Office, Administrator's office and
Public Works. On November 12th and 13th, oral interviews were
conducted with each of these firms. Selection of the most
qualified firm was made for each of the projects.
The firm of Daniel, Mann, Johnson & Mendenhall (DMJM) was
selected to perform the engineering services for the extension
of Orange Show Road, from Arrowhead Avenue to Waterman Avenue.
A contract was negotiated in accordance with the standard City
format.
This Agreement was presented at the Council meeting of 4-
20-92. Action was taken at this meeting to table this
Agreement, since IVDA was in the process of requesting a loan
from SANBAG to finance the cost for professional engineering
design services for the extension of Orange Show Road, from
Arrowhead Avenue to Waterman Avenue, and from Waterman Avenue to
Tippecanoe Avenue. The engineering costs for the Tippecanoe/Del
Rosa Avenue Connector, from Mill Street to Third Street, was
also included in this loan.
The loan from SANBAG to IVDA has been approved, in the
amount of $800,000. Authorization was granted at the Council
meeting of 7-6-92 for the City to assume responsibility for the
contracts for engineering design services on these street im-
provement projects.
An item to authorize the City of San Bernardino to
execute an Agreement with the selected Consulting Engineer, for
the extension of Orange Show Road, from Arrowhead Avenue to
Tippecanoe, was continued, at the IVDA meeting of 7-8-92, to 8-
l1-92. This continuation was apparently due to IVDA's desire to
have more information on these projects.
The selected Consulting Engineer for the extension of
Orange Show Road was requested to expand the scope of the pro-
posed Agreement for engineering design services to include the
entire extension, from Arrowhead Avenue to Tippecanoe Avenue.
This was done in order to take advantage of the cost savings due
to a larger scale, and minimize the City's management efforts.
7-28-92
75-0264
CITY OF SAN BERNCRDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
Page 2 of 2
The new proposed Agreement provides, in general, that the
firm of Daniel, Mann, Johnson and Mendenhall will prepare the
construction plans, specifications and estimate for the
extension of Orange Show Road, from Arrowhead Avenue to
Tippecanoe Avenue. Compensation for these services is not to
exceed the amount of $598,611. All costs incurred for these
services will be billed to IVDA, for reimbursement from the
proceeds of the loan from SANBAG.
We will be taking action in the near future to select a
Consulting Engineer for the construction of the Tippecanoe/Del
Rosa Avenue Connector. This project is not considered as urgent
as the extension of Orange Show Road, since construction
probably will not be commenced until the Air Force vacates the
base in March, 1994.
We recommend that the Agreement be approved, subject to
authorization by IVDA at their meeting of 8-11-92.
7-28-92
75.0264
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RESOLUTION NO.
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH DANIEL, MANN, JOHNSON & MENDENHALL
(DMJM) RELATING TO THE PROVISION OF PROFESSIONAL ENGINEERING
DESIGN SERVICES FOR THE EXTENSION OF ORANGE SHOW ROAD, FROM
ARROWHEAD AVENUE TO TIPPECANOE AVENUE.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTtON 1. The Mayor of the City of San Bernardino is
hereby authorized and directed to execute, on behalf of said
City, an agreement with Daniel, Mann, Johnson & Mendenhall (DMJM)
relating to the provision of professional engineering design
services for the extension of Orange Show Road, from Arrowhead
Avenue to Tippecanoe Avenue, a copy of which agreement is
attached hereto, marked Exhibit "A" and incorporated herein by
reference as fully as though set forth at length.
SECTION 2.
The agreement shall not take effect until
fully signed and executed by both parties. The City shall not be
obligated hereunder unless and until the agreement is fully
executed and no oral agreement relating thereto shall be implied
or authorized.
SECTION 3. This resolution is rescinded if the parties
to the agreement fail to execute it within sixty (60) days of the
passage of this resolution.
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7-28-92
K.t;bU:
AUTliUK.l.".l.Nli .t;X.t;CU'l'.l.UN ur'
PROVI~T,ON OF ENGINEERING
SHOW I..,AD, FROM ARROWHEAD
AGREEMENT WITH DMJM RELATING TO
DESIGNt-"""OR EXTENSION OF ORANGE
AVENUE "...J TIPPECANOE AVENUE.
1 I HEREBY CERTIFY that the foregoing resolution was duly
2 adopted by the Mayor and Common Council of the City of San
3 Bernardino at a
meeting thereof, held on the
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day of
, 1992, by the following vote, to-wit:
5 Council Members:
6 ESTRADA
7 REILLY
8 HERNANDEZ
AYES
NAYS
ABSTAIN
ABSENT
9 MAUDSLEY
10 MINOR
11 POPE-LUDLAM
12 MILLER
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Rachel Krasney, City Clerk
The foregoing resolution is hereby approved this
day of
, 1992.
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W. R. HolCOmb, Mayor
City of San Bernardino
Approved as to form
and legal content:
James F. Penman
City Attorney
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EXHIBIT wAw
AGREEMENT FOR PROFESSIONAL SERVICES
This AGREEMENT is made and entered into this day of
, 1992, by and between the
CITY OF SAN BERNARDINO, California, a municipal corporation,
hereinafter referred to as the "CITY" and Daniel, Mann, Johnson,
& Mendenhall, Inc., a California corporation, hereinafter re-
ferred to as "ENGINEER".
WIT N E SSE T H
WHEREAS, city desires to obtain professional services to pre-
pare plans, specifications, estimates and construction documents
for the extension of Orange Show Road from Arrowhead Avenue to
Tippecanoe Avenue including crossing of the flood control chan-
nel, the railroad, Gage Canal and the Santa Ana River.
WHEREAS, in order to develop, plans, specifications, esti-
mates and construction documents, it is necessary to retain the
professional services of a qualified engineering and consulting
firm; and
WHEREAS, Engineer is qualified to provide said professional
services; and
WHEREAS, San Bernardino city Council has elected to engage
the services of Engineer upon the terms and conditions as herein-
after set forth.
NOW, THEREFORE, it is mutually agreed, as follows:
1. SCOPE OF SERVICES
Engineer shall perform those services specified in "Scope of
services" a copy of which is attached hereto as Exhibit "1" and
incorporated as though set forth in full.
2. TERM OF AGREEMENT
The services of Engineer are to commence within thirty (30)
days after the City has authorized work to start by issuance of
a Notice to Proceed. The scheduled completion dates specifically
set forth in Exhibit "2" attached hereto and incorporated herein
as though set forth in full, will be adjusted by Engineer as the
City authorizes the work. Such adjustments shall require City
approval prior to commencement of performance of each phase.
This Agreement shall expire as specified by the Exhibit "2"
schedule unless extended by written agreement of the parties.
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J . STANDARD OF PERFORMANCE
Engineer shall complete all work product and design in con-
formance with standard Specifications for Public Works Construc-
tion (Greenbook) and the city of San Bernardino's Standard Draw-
ings.
4. CHANGES/EXTRA SERVICES
A. Performance of the work specified in the "Scope of
Services", is made an obligation of Engineer under this Agree-
ment, subject to any changes made subsequently upon mutual agree-
ment 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.
B. No extra services shall be rendered by Engineer under
this Agreement unless such extra services are authorized, in
writing, by city prior to performance of such work. Authorized
extra services shall be invoiced based on Engineer's "Schedule of
Hourly Rates" dated (undated) , a copy of which
is attached hereto as Exhibit "4" and incorporated herein as
though set forth in full.
5. COMPENSATION
A. The City shall compensate the Engineer in accordance
with Exhibit J attached hereto and incorporated herein as though
set forth in full for performance of the work, in an amount not
to exceed $598,6ll.00.
B. Said compensation shall not be altered unless there is
significant alteration in the scope, complexity or character of
the work to be performed. Any such significant alteration shall
be agreed upon in writing by city and Engineer before commence-
ment of performance of such significant alteration by Engineer.
Any adjustment of the total cost of services will only be
permitted when the Engineer establishes and City has agreed, in
writing, that there has been, or is to be, a significant change
in:
1. Scope, complexity, or character of the services to be
performed;
2. Conditions under which the work is required to be per-
formed; and
J. Duration of work if the change from the time period
specified in the Agreement for Completion of the work
warrants such adjustment.
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C. The Engineer is required to comply with all Federal,
state and local laws and ordinances applicable to the work. The
Engineer is required to comply with prevailing wage rates in
accordance with California Labor Code section l775 in effect as
of the date of issuance of the Notice to Proceed.
6. PAYMENT BY CITY
A. The billings for all services rendered pursuant to this
Agreement shall be submitted monthly by Engineer to City and
shall be paid by city within twenty (20) days after receipt of
same, excepting any amounts disputed by City. Dispute over any
invoiced amount shall be noticed to the Engineer within ten (10)
days of billing and a meet and confer meeting for purposes of
resolution of such dispute shall be initiated by the City within
ten (10) days of notice of such dispute. Interest of l-l/2
percent per month (but not exceeding the maximum rate allowable
by law) will be payable on any amounts not in dispute and not
paid within thirty (30) days of the billing date, payment there-
after to be applied first to accrued interest and then to the
principal unpaid amount. On disputed amounts, interest shall
accrue from thirty (30) days of the invoice date if the amount in
dispute is resolved in favor of the Engineer. All tasks as
specified in Exhibit "1" shall be completed prior to final pay-
ment.
B. Section 9-l0 of the Cal-Trans Standard Specifications is
hereby specifically waived and not applicable to this agreement.
The parties hereto otherwise agree not to be bound by any other
requirements for arbitration of any dispute arising hereunder.
Disputes shall be resolved by agreement of the parties, or upon
the failure of such agreement, by direct application to the
Courts.
C. Should litigation be necessary to enforce any term or
provision of this Agreement, or to collect any portion of the
amount payable under this Agreement, then all litigation and
collection expenses, witness fees, and court costs, and attor-
ney'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 per-
formed 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.
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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. Engin-
eer shall promote affirmative action in its hiring practices and
employee policies for minorities and other designated classes in
accordance with federal, state and local laws. Such action shall
include, but not be limited to, the following: recruitment and
recruitment advertising, employment, upgrading, and promotion.
In addition, Engineer shall not exclude from participation under
this Agreement any employee or applicant for employment on the
basis of age, handicap or religion in compliance with State and
Federal laws.
9. TERMINATION OF AGREEMENT
A. This agreement may be terminated by either party upon
thirty (30) days' written notice in the event of substantial
failure of the other party to perform in accordance with the
terms of this Agreement. Each party shall have twenty (20) days
following date of such notice within which to correct the sub-
stantial failure giving rise to such notice. In the event of
termination of this Agreement, City shall within thirty (30) days
pay Engineer for all the fees, charges and services performed to
City's satisfaction by Engineer, which finding of satisfaction
shall not be unreasonably withheld. Engineer hereby covenants
and agrees that upon termination of this Agreement for any rea-
son, Engineer will preserve and make immediately available to
City, or its designated representatives, maps, notes, correspon-
dence, or records related to work paid for by the City and re-
quired for its timely completion, and to fully cooperate with
City so that the work to be accomplished under this Agreement may
continue within forty-five (45) days of termination. Any subse-
quent use of such incomplete documents shall be at the sole risk
of the city and the City agrees to hold harmless and indemnify
Engineer from any claims, losses, costs, including Attorney's
fees, and liability arising out of such use. Engineer shall be
compensated for such services in accordance with Exhibit "4".
B. This agreement may be terminated for the convenience of
the city upon thirty (30) days written notice to Engineer. Upon
such notice, Engineer shall provide work product to City and City
shall compensate Engineer in the manner set forth above.
C. Following the effective date of termination of this
Agreement pursuant to this section, the Agreement shall continue
until all obligations arising from such termination are satis-
fied.
10. CONTINGENCIES
In the event that, due to causes beyond the control of and
without the fault or negligence of Engineer, Engineer fails to
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meet any of its obligations under this Agreement, and such fail-
ure shall not constitute a default in performance, and the City
may grant to Engineer such extensions of time and make other
arrangements or additions, excepting any increase in payment, as
may be reasonable under the circumstances. Increases in payment
shall be made only under the "changes" provision of this Agree-
ment. Engineer shall notify City within three (3) days in writ-
ing 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 per-
formance of the services provided for under this Agreement.
Engineer shall furnish such services in its own manner and in no
respect shall it be considered an agent or employee of city.
12. ASSIGNMENT OR SUBCONTRACTING
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 subcontracts exceeding $10,000, shall contain all provisions
of this contract.
13. NOTICES
All official notices
writing and addressed to
neer and City:
relative to this Agreement shall be in
the following representatives of Engi-
ENGINEER
CITY
DMJM & Assoc.
275 W. Hospitality
San Bernardino, CA
Lane, Suite 314
92408
Mr. Roger Hardgrave
Director of Public Works/
City Engineer
300 North "D" Street
San Bernardino, CA 92418
l4. RESPONSIBILITIES OF PARTIES
A. The Engineer may reasonably rely upon the accuracy of
data provided through the City or its agents without independent
evaluation.
B. The City shall pay all costs of inspection and permit
fees. Charges not specifically covered by the terms of this
Agreement shall be paid as agreed by the parties hereto at the
time such costs arise; but in no event shall the work to be
performed hereunder cease as a consequence of any unforeseen
charges unless by mutual written agreement of City and Engineer.
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c. All tracings, survey notes, and other original documents
are instruments of service and shall remain the property of
Engineer except where by law, precedent, or agreement these
documents become public property. All such documents or records
shall be made accessible to city. Engineer shall maintain all
records for inspection by the City, state, or their duly autho-
rized representatives for a period of three (3) years after final
payment. Engineer shall stamp and sign all specifications,
estimates, plans and engineering data furnished, and, where
appropriate, indicate registration number.
15. CONSTRUCTION COST ESTIMATES
A. Any opinion of the Construction Cost prepared by Engi-
neer represents his judgment as a design professional and is
supplied for the general guidance of the city. since Engineer
has no control over the cost of labor and material, or over
competitive bidding or market conditions, Engineer does not
guarantee the accuracy of such opinions as compared to contractor
bids or actual cost to the City.
l6. 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, broker-
age, 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
violation of this warranty, City shall have the right to termi-
nate this Agreement in accordance with the clause permitting
termination for cause and, at its sole discretion, to deduct from
the Agreement price or consideration, or otherwise recover, the
full amount of such commission, percentage, brokerage or contin-
gent fee.
l7. HOLD HARMLESS CAUSE
A. Engineer hereby agrees to hold City, its elective and
appointive boards, officers, and employees, harmless from any
liability for damage or claims for damage for personal injury
including death, as well as from claims for property damage,
which may arise from Engineer's negligent acts, errors or omis-
sions under this Agreement.
B. Engineer shall indemnify, defend and hold free and
harmless the city, its officers and its employees from all
claims, damages, costs, expenses, and liability, including, but
not limited to attorney's fees imposed upon them for any alleged
infringement of patent rights or copyrights of any person or
persons in consequence of the use by City, its officers, employ-
ees, agents and other duly authorized representatives, of pro-
grams or processes supplied to City by Engineer under this Agree-
ment.
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18. INDEMNITY
Engineer shall indemnify, defend and hold harmless City from
and against any and all claims, demands, suits, actions, proceed-
ings, judgments, losses, damages, injuries, penalties, costs,
expenses (including attorney's fees) and liabilities, of, by, or
with respect to third parties, which arise solely from Engineer's
negligent performance of services under this Agreement. Engineer
shall not be responsible for, and City shall indemnify, defend
and hold harmless Engineer from and against, any and all claims,
demands, suits, actions, proceedings, judgments, losses, damages,
injuries, penalties, costs, expenses (including attorney's fees)
and liabilities of, by or with respect to third parties, which
arise solely from the City's negligence. with respect to any and
all claims, demands, suits, actions, proceedings, judgments,
losses, damages, injuries, penalties, costs, expenses (including
attorney's fees) and liabilities of, by or with respect to third
parties, which arise from the joint or concurrent negligence of
Engineer and city, each party shall assume responsibility in
proportion to the degree of its respective fault.
19. LIABILITY/INSURANCE
A. Engineer's liability insurance for injury or damage to
persons or property arising out of work for which legal liabil-
ity may be found to rest upon Engineer other than for profes-
sional errors and omissions, shall be a minimum of $l,OOO,Ooo.
For any damage on account of any error, omission or other profes-
sional negligence, Engineer's insurance shall be limited in a sum
not to exceed $50,000 or Engineer's fee, whichever is greater.
B. The City will require the Engineer to provide Workers
Compensation and comprehensive general liability insurance,
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 Engi-
neer, 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 policy 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 materi-
als in any form at the different sites of the Project including,
but not limited to asbestos, asbestos products, polychlorinated
biphenyl (pcb) or other toxic substances except for any such
substances brought to the site by the Engineer or subconsultants
or used by same in the performance of their work.
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AGREEMENT: EXTENSION OF ORANGE SHOW ROAD FROM ARROWHEAD AVENUE
TO TIPPECANOE AVENUE
20. VALIDITY
Should any provision herein be found or deemed to be invalid,
this Agreement shall be construed as not containing such provi-
sion, and all other provisions which are otherwise lawful shall
remain in full force and affect, and to this end the provisions
of this Agreement are declared to be severable.
2l. ENTIRE AGREEMENT
This Agreement represents the entire and integrated agreement
between the parties hereto and supersedes all prior and contempo-
raneous negotiations, representations, under-standings and agree-
ments, whether written or oral, with respect to the subject mat-
ter thereof. This Agreement may be amended only by written
instrument signed by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the date written above by their duly
authorized officers on their behalf.
ATTEST:
DMJM, INC.
RACHEL KRASNEY, City Clerk
BY:
President
CITY OF SAN BERNARDINO,
a municipal corporation
By:
W. R. Holcomb, Mayor
Approved as to form
and legal content:
JAMES F. PENMAN
city Attorney
By: (1,..." f ,t~v-.-
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