HomeMy WebLinkAbout1987-267
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RESOLUTION NO. 87-7.67
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH ENVICOM CORPORATION FOR CONSULTING
3 SERVICES FOR THE CITY'S GENERAL PLAN REQUIREMENTS.
4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
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6 SECTION 1. The Mayor of the City of San Bernardino is
7 hereby authorized and directed to execute on behalf of said City
8 an agreement with the Envicom Corporation for consulting services
9 for the City's General Plan requirements, a copy of which is
10 attached hereto, marked Exhibit "A" and incorporated herein by
11 reference as fully as though set forth at length.
12 I HEREBY CERTIFY that the foregoing resolution was duly
13 adopted by the Mayor and Common Council of the City of San
14 Bernardino at a n
L.1C~. -; ournec. re oul C1 r
meeting thereof, held
, 1987, by the following
15 on the 7tl.! day of
16 vote, to wit:
l\UCjust
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AYES:
Council Members Estrada, Rcillv. Flores
Mc.~dsley, Hinor, POPC-L'ldlam, HilJc:r
None
NAY S :
None
ABSENT:
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/ City Clerk
The foregoing resolution is hereby approved this //t':I[ day
24 of
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Mayb~ of th~ City ~-f Sa~- Bernardino
August
8-6-87
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1 Approved as to form
an~ legal content:
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i1iy Attorney
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A G R E E MEN T
(Consultant Services)
THIS AGREEMENT, made and entered into this ~~~~ day of
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{ltltlil.vt- , 1987, by and between CITY OF SAN
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BERNARDINO, a body corporate and politic, hereinafter referred to
as "City", and ENVICOM CORPORATION, a California corporation,
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hereinafter referred to as "Consultant".
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WHEREAS, City is under court order to complete a Community
General Plan; and
WHEREAS, City has no available employees with the technical
expertise to perform the service of preparing such General Plan,
and it is impossible to recruit personnel to perform the work
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within the period of time in which such General Plan must be
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completed; and
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WHEREAS, in order to prepare such General Plan it is
necessary to retain the professional services of a qualified
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General Plan Consulting firm; and
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WHEREAS, the Consultant represents it is qualified to
provide such professional services for the preparation of such
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General Plan; and
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WHEREAS, the City Council has elected to engage the
services of Consultant upon the terms and conditions as
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hereinafter set forth.
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NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the parties agree as follows:
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1. Consultant's Services
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(a) The scope and execution of work shall be as outlined
2 in Exhibits A through F which are as follows:
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Title
Attachment
Pages
A
B
C
D
E
Work Program 69
Budget 4
Meetings to be Attended I
General Plan Study Products 2
General Plan Revision
Program (chart) I
List of Subconsultants I
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F
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9 These attachments are attached hereto and by this reference
10 made a part hereof and incorporated herein as if set out at
11 length.
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(b) City, with the express written consent of Consultant,
13 may modify the scope of work to be performed under this
14 agreement; notwithstanding, however, City may, in its sole
15 discretion, reduce the work to be performed under this Agreement
16 with a commensurate reduction in compensatio~ to be paid.
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(c) Anything not included in Exhibit A shall constitute
18 extra work. Price to be paid by City for any work performed
19 pursuant to a modification of this Agreement or for extra work,
20 shall be as agreed upon by City and Consultant, in writing, at
21 the time of such modification. No work shall be performed by
22 Consultant as a modification or extra work until an agreement for
23 same, including the price, has been executed by Consultant and
24 Planning Director. The Planning Director is hereby specifically
25 authorized by the Mayor and Common Council to execute
26 modifications or agreements for extra work where such does not
27 increase the amount to be paid under this Agreement by more than
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1 Two Thousand Five Hundred Dollars ($2,500). Any expenditure of a
2 sum greater than Two Thousand Five Hundred Dollars ($2,500) must
3 be approved by the Mayor and Common Council.
4 2. City's Responsibilities
5 The City will furnish to Consultant a general plan mylar
6 base map which depicts City boundaries and shall make available
7 all reports, maps, records, statistics, plans and other materials
8 within City's possession, as shall be determined by Consultant to
9 be required for preparation of a Community General Plan. City
10 further agrees to provide all such materials in a timely manner
11 so as not to cause delays in Consultant's work schedule.
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3. City's Representative
13 The Planning Director or his/her authorized representative,
14 shall represent the City in all matters pertaining to the
15 services to be rendered pursuant to this Agreement.
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4.
Consideration
(a) In consideration of the performance by the Consultant
18 in a manner satisfactory to the Planning Director and the Mayor
19 and Common Council of the services described in paragraph 1
20 above, City agrees to pay Consultant a firm fixed price not to
21 exceed Five Hundred Ninety-Eight Thousand Eight Hundred and Ten
22 Dollars ($598,810.00) for all work to be performed under this
23 Agreement. City shall not be required to pay any amounts in
24 excess of this sum, whether for copying costs, incidental, direct
25 or indirect costs or any type incurred by Consultant. This
26 section shall not limit the ability of the parties to amend this
27 agreement to provide for extra work in the manner set forth in
28 paragraphs l(b) and l(c).
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1 (b) Consultant shall submit invoices monthly for work
2 completed in the preceding month. Payments will be made within
3 twenty (20) working days of receipt of Consultant's invoices.
4 (c) Consultant shall submit all invoices directly to the
5 Planning Director, who shall review same and thereafter make
6 timely submission of such invoices to the Finance Department for
7 payment to Consultant as provided herein.
8 (d) City agrees that monthly invoices from Consultant are
9 correct, conclusive and binding on City unless Planning Director
10 within ten (10) days from the date of receipt of such invoices
11 notifies Consultant, in writing, of alleged inaccuracies,
12 discrepancies or errors in invoices.
13 (e) If City fails to pay Consultant within twenty (20)
14 working days after the invoices are submitted, City agrees
15 Consultant shall have the right, after written notice to City, to
16 consider such default in payment a material breach of this entire
17 agreement. City shall have ten (10) days following date of such
18 written notice within which to correct such breach. If City
19 continues to fail to make payment, the duties, obligations and
20 responsi~ilities of Consultant under this Agreement are
21 terminated.
22 (f) City may withhold payment of any disputed sums until
23 satisfaction of the dispute with respect to such payment. Such
24 withholding shall not be deemed to constitute a failure to pay as
25 that term is used in subparagraph 4(e). Consultant shall not
26 discontinue its work for a period of 30 days from the date of
27 withholding, as a result of such withholding. Consultant shall
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have immediate right of appeal to the Mayor and Common Council
2 with respect to such disputed sums. The determination of the
3 Mayor and Common Council with respect to such matter shall be
4 final. Consultant shall be entitled to receive interest on any
5 withheld sums at the rate of seven percent (7%) per annum from
6 date of withholding of any amounts found to have been improperly
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withheld.
8 (g) Consultant shall be paid a retainer equal to 5% of
9 contract total within ten (10) days after this agreement is
10 executed by City. If this agreement is terminated prior to
11 completion of 5% of the work to be performed hereunder, as
12 determined by the Planning Director, Consultant shall rebate to
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City an amount of such retainer equivalent to the difference
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between 5% and the percentage of work actually completed.
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(h) City shall withhold an amount equivalent to 10% of the
16 total compensation provided herein. This amount shall be paid at
17 the end of the contract period in the manner as follows:
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(1) An amount equal to 5% of the total compensation
19 shall be released to Consultant on the approval of the General
20 Plan by the State Office of Planning and Research (OPR) ,
or upon
21 30 days following date of submission of the Plan to OPR,
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whichever comes first.
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(2) The remaining 5% of the total compensation shall
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be released to Consultant upon final adoption of the General Plan
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by the Mayor and Common Council.
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5. Personnel
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1 The Consultant represents that it possesses the
2 professional and technical personnel required to perform the
3 services required by this Agreement. Consultant will subcontract
4 for any additional personnel. All such subcontractors are set
5 forth in Exhibit F. Consultant shall not make any change in the
6 subcontractors listed in Exhibit F except upon written approval
7 of the Planning Director. Consultant makes the same
8 representations with respect to the competency and conduct of
9 subcontractors as it makes with respect to Consultant. The
10 Consultant shall assign Elwood C. Tescher as Project Manager.
11 Any change in Project Manager shall be made only with the prior
12 written approval of the Planning Director.
13 6. Time of Performance
14 Time is of the essence for execution under this Agreement.
15 The tasks to be performed by Consultant under and pursuant
16 to this Agreement shall be completed within~he time periods set
17 forth in the schedule attached hereto as Exhibit E. Consultant
18 shall receive no additional compensation if completion of its
19 obligation under this Agreement requires a time greater than as
20 set forth herein, unless such extension is caused by the conduct
21 of City or citizens' review process. Each party hereby agrees
22 to provide timely notice to the other of any violation occurring
23 under this section and the cause thereof.
24 7. Term and Termination
25 (a) The term of this Agreement shall commence on the date
26 this Agreement is executed by all parties, unless otherwise
27 agreed in writing by the parties. This Agreement shall proceed
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1 until all work to be performed hereunder, as described in Exhibit
2 nAn, is completed or the Agreement is otherwise terminated as
3 provided herein.
4 (b) Both parties agree that anyone of the parties to this
5 Agreement may, for any reason, terminate this Agreement by
6 mailing 30 days prior written notice of termination to the other
7 party. In this event, the Consultant shall be paid the
8 reasonable value of the services rendered to date of termination.
9 In the event of any such termination, Consultant shall provide to
10 City, without charge, all notes, maps, reports and data
11 accumulated to the date of such termination. Consultant further
12 covenants to give its good-faith cooperation in the transfer of
13 the work to any other consultant employed by City following
14 termination hereunder by Consultant and, to participate in such
15 meetings at no cost to City as shall be deemed necessary by
16 Planning Directors to effectively accomplish. such transfer.
17 8. Warranty
18 Consultant makes no warranty, either expressed or implied,
19 as to his findings, recommendations, plans, reports or
20 professional advice except that the work was performed pursuant
21 to generally accepted standards of practice in effect at the time
22 of performance.
23 In the event that changes are made in the plans and maps by
24 City or by any person other than Consultant, which may change or
25 affect Consultant's work, any and all liability arising out of or
26 resulting from such changes is waived by City against Consultant,
27 and City assumes full responsibility and liability for such
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changes unless City gives Consultant prior written notice of such
2 changes and Consultant consents in writing to such changes. City
3 agrees to indemnify Consultant against any and all liability,
4 loss, costs, damages, fees of attorneys and other expenses which
5 Consultant may incur as a result of such unconsented changes.
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9. Indemnification
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Consultant agrees to indemnify, defend, save and hold
8 harmless City, its agents, officers and employees from and
9 against any and all liability, expense and claims for damages of
10 any nature whatsoever, including, but not limited to, bodily
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injury, death, personal injury, or property damages directly
12 arising from or connected with Consultant's operations, or its
13 services hereunder. In no event shall Consultant be responsible
14 for any claim for damages of any nature whatsoever as a result of
15 actions by the City, its agents, officers or employees.
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10. Insurance
Without limiting Consultant's indemnification of City,
18 Consultant shall provide and maintain at its own expense during
19 the term of this Agreement the following policy or policies of
20 insurance covering its operations hereunder.
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(a) General Liability: Such insurance shall include, but
22 not be limited to, comprehensive general liability with a
23 combined single limit of not less than $500,000 per occurrence.
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Such insurance shall be primary to any other similar insurance
25 and shall name the City of San Bernardino as an additional
26 insured.
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(b) Workers' Compensation: Consultant shall cover its
2 employees with Workers' Compensation insurance in an amount and
3 form to meet all applicable requirements of the Labor Code of the
4 State of California.
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11. Prohibition Against Transfers
(a) Consultant shall not assign, sublease, hypothecate, or
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transfer this Agreement or any interest therein directly or
8 indirectly, by operation of law or otherwise without the prior
9 written consent of the City. Any attempt to do so without said
10 consent shall be null and void, and any assignee, sublessee,
11 hypothecate or transferee shall acquire no right or interest by
12 reason of such attempted assignment, hypothecation or transfer.
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(b) The sale, assignment, transfer or other disposition of
14 any of the issued and outstanding capital stock of Consultant, or
15 of the interest of any general partner or joint venturer or
16 syndicate member or co-tenant of Consultant ~s a partnership or
17 joint venturer or syndicate or co-tenancy, which shall result in
18 changing the control of Consultant, shall be construed as an
19 assignment of this Agreement. Control means fifty (50%) percent
20 or more of the voting power of the corporation.
21 12. Anti-Discrimination
22 Consultant certifies and agrees that all persons employed
23 by Consultant, its affiliates, subsidiaries or holding companies
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are and will be treated equally by Consultant without regard to
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or because of race, religion, ancestry, national origin, or sex
26 and in compliance with State and Federal Anti-Discrimination
27 laws. Consultant further certifies and agrees that it will deal
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1 with its Subcontractors, Bidders and Vendors without regard to or
2 because of race, religion, ancestry, national origin or sex.
3 13. Independent Contractor
4 The Consultant will be acting as an independent contractor.
5 This Agreement is by and between the City of San Bernardino and
6 Consultant and is not intended, and shall not be construed, to
7 create the relationship of agent, servant, employee, partnership,
8 joint venture, or association, as between City and Consultant.
9 14. Conflict of Interest
10 (a) The Consultant or its employees may be subject to the
11 provisions of the California Political Reform Act of 1974 (the
12 "Act), which (1) requires such persons to disclose financial
13 interests that may foreseeably be materially affected by the work
14 performed under this Agreement, and (2) prohibits such persons
15 from making or participating in making decisions that will
16 foreseeably financially affect such interests.
17 (b) Consultant shall conform to all requirements of the
18 Act. Failure to do so constitutes a material breach and is
19 grounds for termination of this agreement by the City.
20 (c) Consultant agrees that neither it nor any of its sub-
21 consultants listed in Exhibit F shall enter into any contract for
22 work to be performed within the City of San Bernardino with
23 private parties during the term of this agreement or for one year
24 following date of approval of the general plan by OPR.
25 15. Officials Not to Benefit
26 No member or delegate to Congress or resident Federal
27 Commissioners shall be admitted to any share or part of this
28 Agreement or to any benefit that may arise therefrom.
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16. Notices
Any notice required or desired to be given pursuant to this
3 Agreement shall be given in writing, and sent by certified mail,
4 return receipt requested, addressed as follows:
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City
Consultant
6 Director of Planning
City of San Bernardino
7 300 North "D" Street
Third Floor
8 San Bernardino, CA 92418
714/384-5057
Joseph G. Johns, President
Envicom Corporation
4764 Park Granada
Calabasas Park, CA 91302
818/340-9400
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10 Any notice so given shall be considered served on the other
11 party three days after date of mailing.
12 The address for notice may be changed by giving notice
13 pursuant to this paragraph.
14 17. Entire Agreement
15 This contract constitutes the entire Agreement between City
16 and Consultant and may be modified only by f~rther written
17 agreement between the parties.
18 IN WITNESS WHEREOF, the City Council of the City of San
19 Bernardino has caused this Agreement to be subscribed by the
20 Mayor, and the seal of said Council to be hereto affixed and
21 attested by the Clerk thereof, and Consultant has executed this
22 Agreement, the day, month and year first above written.
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/ City Clerk
CITY OF S~N,/B~~NARDINO
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ATTEST:
By
~~
ns, President
ENVICOM CORPO
a California
9 Approved as to form
an~ legal content:
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