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HomeMy WebLinkAbout2010-309 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2010-309 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE SERVICES AGREEMENTS WITH BUREAU VERITAS, CSG CONSULTANTS, JAS PACIFIC, AND WILLDAN ENGINEERING FOR THE PROVISION OF PROFESSIONAL PLAN REVIEW SERVICES. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. BUREAU VERITAS, CSG CONSULTANTS, JAS PACIFIC AND WILLDAN ENGINEERING are firms competent, experienced and able to perform said services and have provided the most advantageous and best responsible proposals for provision of PROFESSIONAL PLAN REVIEW SERVICES, per Specification No. F-ll-OI for purchase order amounts totaling $355,600 in aggregate, with three single year renewal options. Pursuant to this determination, the Purchasing Manager is hereby authorized and directed to issue Purchase Orders for said services to said firms; and all other proposals are hereby rejected. SECTION 2. The City Manager is hereby authorized and directed to execute Services Agreements on behalf of the City; a copy of each agreement is attached hereto and incorporated herein (Exhibits A, B, C and D). SECTION 3. The authorization to execute the above referenced agreements IS rescinded if they are not executed within sixty (60) days of the passage of this resolution. III III II I - 1 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2010-309 RESOLUTION...AUTHORIZING THE CITY MANAGER TO EXECUTE SERVICES AGREEMENTS WITH BUREAU VERITAS, CSG CONSULTANTS, JAS PACIFIC AND WILLDAN ENGINEERING FOR THE PROVISION OF PROFESSIONAL PLAN REVIEW SERVICES. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a j oint regular meeting thereof, held on the 20th day of September Council Members: AYES NAYS MARQUEZ x - DESJARDINS x BRINKER x SHORETT x KELLEY x JOHNSON x MCCAMMACK x , 20 I 0, by the following vote, to wit: ABSTAIN ABSENT Q~h.~ '- City Clerk The foregoing resolution is hereby approved this ~/ld day of ~tember ,2010. ~~~ Tobin Brinker, Mayor Pro Tern City of San Bernardino Approved as to Form: JAMES F. PENMAN, City Attorney - 2 - 2010-309 Exhibit A AGREEMENT FOR PROFESSIONAL PLAN REVIEW SERVICES THIS AGREEMENT is made and entered into this 20th day of September , 2010 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("City"), and BUREAU VERITAS NORTH AMERICA, INC., a California corporation ("Consultant"). WITNESSETH: A. WHEREAS, City proposes to have Consultant perform professional plan review services described herein; and B. 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 C. WHEREAS, City and Consultant desire to contract for professional plan review services and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and D. WHEREAS, no official or employee of City has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONSULTANT 1.1. Scope of Services. Consultant shall furnish professional plan review services to City in accordance with Specification No. F-ll-01 and Consultant's Proposal dated August 10, 2010, on file with the Director of Community Development, collectively incorporated herein. 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. C:\Documents and Settings\hempeno\My Documents\Bureau Veritas Agmt pin chk 9-16-10 STRIKEOUT. doc 1 2010-309 1.3. Warranty. 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, defend, and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable 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 Assignment. This is a personal 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 Loyaltv/Conflict of Interest: The Consultant understands and agrees that in performing plan review services for the City, Consultant shall maintain a 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. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, Consultant shall be paid for such services in accordance with the specifications contained in RFQ F-11-01 and the applicant's proposed pricing contained in their submitted proposal. C:\Documents and Settings\hempeno\My Documents\Bureau Veritas Agmt pin chk 9-16-10 STRIKEOUT.doc 2 2010-309 2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the Scope of Services specified in this Agreement unless the City, 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. 2.3. Method of Billing. Consultant may submit invoices to City's Community Development Director for approval on a progress basis, but no more often than monthly. Said invoice shall be based on the total of all of Consultant's services which have been completed to City's sole satisfaction. City shall pay Consultant's invoice within forty-five (45) days from the date City receives said invoice. Each invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of Consultant's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient 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 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 Schedule issued by the Community Development Director or his/her designee. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement. The standard turn-around time for assigned plan checks shall be 10 (ten) working days for the initial check and 5 (five) working days for rechecks. If these standard turn-around times are not met, a penalty of 10 (ten) percent of the Consultant's plan check fee will be assessed for the assigned plan check. 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. This Agreement shall commence on the Effective Date and continue for a period of one (1) year, ending one year after the Effective Date, unless previously terminated as provided herein or as otherwise agreed to in writing by the C\Documents and Settings\hempeno\My Documents\Bureau Veritas Agmt pin chk 9-16-10 STRIKEOUT. doc 3 2010-309 parties. There may be three one-year extensions of the Agreement upon mutual agreement of the parties. 4.2. Notice of Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to 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. 4.3. 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. 4.4 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, 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 Consultants, 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 C:\Documents and Settings\hempeno\My Documents\Bureau Veritas Agmt pin chk 9-16-10 STRIKEOUT. doc 4 2010-309 aggregate. (c) Workers' compensation Insurance as required by the State of California. (d) Consultant shall obtain and maintain professional errors and omissions ("E&O") liability insurance with policy limits of not less than One Million Dollars ($1,000,000.00) per claim, for the term of this Agreement and for 36 months 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: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are addition- al insureds with respect to Consultant's performance under this Agreement 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; ten (10) days notice if cancellation is due to non- payment of premium." (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. 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. C: \ Documents and Settings \ hempeno \ Local Settings \ Temporary Internet Files \ Content.Ou tlook \ 9E0H24A5\ Bureau Veritas Agmt pin chk 9-17-10 STRIKEOUT. doc 5 2010-309 6.2. Representatives. The Director of Community Development or his/her 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. 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: Stephen K. Smith, PE Bureau Veritas 1181 California Avenue, Suite 202 Corona, CA 92881 Fax: (951) 493-1061 Tel: (858) 776-9442 IF TO CITY: Valerie C. Ross Director of Community Development 300 North "D" Street San Bernardino, CA 92418 Fax: 909-384-5080 Tel: 909-384-5357 6.4. 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 costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action shall be considered as "attorneys' fees" for the purposes of this Agreement. 6.5. 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. 6.6. 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 C:\Docurnents and Settings\hernpeno\My Docurnents\Bureau Veritas Agrnt pin chk 9-16-10 STRIKEOUT.doc 6 2010-309 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. 6.7 Indemnification and Hold Harmless. Consultant shall indemnify, and hold harmless the City, its officers, employees and agents from any claims, demands, lawsuits, liabilities, judgements, or expenses, including reasonable attorney's fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims, to the extent arising out of, pertaining to, or related to the negligence, recklessness, or willful misconduct of Consultant, its employees, agents or subcontractors in the performance of this Agreement, except that such duty to defend, indemnify, and hold harmless shall not apply to the extent where injury to person or property is caused by City's negligence, recklessness or willful misconduct. The total aggregate liability of Consultant shall not exceed $50,000 or the amount of the total fees hereunder, which ever is greater, for negligent professional acts, errors or omissions. 6.8. Independent Consultant. Consultant is and shall be acting at all times as an independent Consultant and not as an employee of City. Consultant shall secure, at his 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. 6.9. 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, files audio tapes or any other Project related items as requested by City or its authorized representative, at no additional cost to the City. 6.10. 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 subcontractors, and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et. seq.). Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that C:\Documents and Settings\hempeno\My Documents\Bureau Veritas Agmt pln chk 9-16-10 STRIKEOUT. doc 7 2010-309 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. 6.11. 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 data, documents, 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. 6.12. Prohibited Employment. Consultant will not employ any regular employee of City while this Agreement is in effect. 6.13. 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. 6.14. 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. 6.15. 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. 6.16. 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. 6.17. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 6.18. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement. C\Documents and Settings\hempeno\My Documents\Bureau Veritas Agmt pin chk 9-16-10 STRIKEOUT. doc 8 2010-309 6.19. 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. 6.20. 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. 6.21. 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. 6.22. 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. III III C:\Documents and Settings\hempeno\My Documents\Bureau Veritas Agmt pIn chk 9-16-10 STRIKEOUT. doc 9 . . , 2010-309 AGREEMENT FOR PROFESSIONAL PLAN REVIEW SERVICES IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, A Municipal Corporation, CONSULTANT Bureau Veritas North America, Inc. BY~~& Stephen K. Smith, PE Director of Public Works Services Approved as to form: James F. Penman, City Attorney C\Documents and Settings\hempeno\My Documents\Bureau Veritas Agmt pin chk 9-16-10 STRIKEOUT. doc 10 2010-309 Exhibit B AGREEMENT FOR PROFESSIONAL PLAN REVIEW SERVICES THIS AGREEMENT is made and entered into this 20th day of September , 2010 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("City"), and CSG CONSULTANTS, a California corporation ("Consultant"). WITNESSETH: A. WHEREAS, City proposes to have Consultant perform professional plan review services described herein; and B. 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 C. WHEREAS, City and Consultant desire to contract for professional plan review services and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and D. WHEREAS, no official or employee of City has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, 'THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONSULTANT 1.1. Scope of Services. Consultant shall furnish professional plan review services to City in accordance with Specification No. F-11-01 and Consultant's Proposal dated August 10, 2010, on file with the Director of Community Development, collectively incorporated herein. 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. Warranty. Consultant warrants that it shall perform the services required C\Documents and Settings\hempeno\My Documents\CSG Agmtpln chk 9-16-10 STRIKEOUT. doc 1 2010-309 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, defend, and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of 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 Assignment. This is a personal 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 in performing plan review services for the City, Consultant shall maintain a 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. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, Consultant shall be paid for such services in accordance with the specifications contained in RFQ F -II-Oland the applicant's proposed pricing contained in their submitted proposal. 2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the Scope of Services specified in this Agreement unless the C:\Documents and Settings\hempeno\My Documents\CSG Agmt pin chk 9-16-10 STRIKEOUT. doc 2 2010-309 City, 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. 2.3. Method of Billing. Consultant may submit invoices to City's Community Development Director for approval on a progress basis, but no more often than monthly. Said invoice shall be based on the total of all of Consultant's services which have been completed to City's sole satisfaction. City shall pay Consultant's invoice within forty-five (45) days from the date City receives said invoice. Each invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of Consultant's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient 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 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 Schedule issued by the Community Development Director or hislher designee. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement. The standard turn-around time for assigned plan checks shall be 10 (ten) working days for the initial check and 5 (five) working days for rechecks. If these standard turn-around times are not met, a penalty of 10 (ten) percent of the Consultant's plan check fee will be assessed for the assigned plan check. 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. This Agreement shall commence on the Effective Date and continue for a period of one (1) year, ending one year after the Effective Date, unless previously terminated as provided herein or as otherwise agreed to in writing by the parties. There may be three one-year extensions of the Agreement upon mutual agreement of the parties. C:\Documents and Settings\hempeno\My Documents\CSG Agmt pin chk 9-16-10 STRIKEOUT.doc 3 2010-309 4.2. Notice of Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to 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. 4.3. 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. 4.4 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, 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 Consultants, 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:\Documents and Settings\hempeno\My Documents\CSG Agmt pin chk 9-16-10 STRIKEOUT. doc 4 2010-309 (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: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are addition- al insureds with respect to Consultant's performance under this Agreement 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; ten (10) days notice if cancellation is due to non- payment of premium. " (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. 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 Director of Community Development or his/her C:\Documents and Settings\hempeno\My Documents\CSG Agmtpln chk 9-16-10 STRIKEOUT. doc 5 2010-309 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. 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: Khoa Duong, PE CSG Consultants, Inc 801 Park Center Drive, Suite 230 Santa Ana, CA 92705 Fax: (714) 568-1028 Tel: (714) 568-1010 IF TO CITY: Valerie C. Ross Director of Community Development 300 North "D" Street San Bernardino, CA 92418 Fax: 909-384-5080 Tel: 909-384-5357 6.4. 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 costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action shall be considered as "attorneys' fees" for the purposes of this Agreement. 6.5. 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. 6.6. 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 C:\Documents and Settings\hempeno\My Documents\CSG Agmt pin chk 9-16-10 STRIKEOUT. doc 6 2010-309 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. 6.7 Indemnification and Hold Harmless. Consultant shall defend, indemnify, and hold harmless the City, its officers, employees and agents from any claims, demands, lawsuits, liabilities, judgements, or expenses, including attorney's fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims, to the extent arising out of, pertaining to, or related to the negligence, recklessness, or willful misconduct of Consultant, its employees, agents or subcontractors in the performance of this Agreement, except that such duty to defend, indemnify, and hold harmless shall not apply to the extent where injury to person or property is caused by City's negligence, recklessness or willful misconduct. 6.8. Independent Consultant. Consultant is and shall be acting at all times as an independent Consultant and not as an employee of City. Consultant shall secure, at his 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. 6.9. 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, files audio tapes or any other Project related items as requested by City or its authorized representative, at no additional cost to the City. 6.10. 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 subcontractors, and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et. seq.). Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which 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 C:\Documents and Settings\hempeno\My Documents\CSG Agmt pin chk 9-16-10 STRIKEOUT. doc 7 ,2010-309 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. 6.11. 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 data, documents, 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. 6.12. Prohibited Employment. Consultant will not employ any regular employee of City while this Agreement is in effect. 6.13. 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. 6.14. 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. 6.15. 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. 6.16. 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. 6.17. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 6.18. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement. 6.19. 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 C:\Documents and Settings\hempeno\My Documents\CSG Agmtpln chk 9-16-10 STRIKEOUT. doc 8 2010-309 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. 6.20. 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. 6.21. 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. 6.22. 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. III III C:\Documents and Setmlgs\hempeno\My Documents\ CSG Agmt pin chk 9-16-10 STRIKEOUT.doc 9 2010-309 AGREEMENT FOR PROFESSIONAL PLAN REVIEW SERVICES IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, A Municipal Corporation, CONSULTANT CSG Consultants, Inc. By ~ Khoa Duong, PE \ Vice President, Building and Fire Life Safety Approved as to form: James F. Penman, City Attorney 1,f~ C:\Documents and Settings\hempeno\My Documents\CSG Agmtpln chk 9-16-10 STRIKEOUT. doc 10 2010-309 Exhibit C AGREEMENT FOR PROFESSIONAL PLAN REVIEW SERVICES THIS AGREEMENT is made and entered into this 20th day of September, 2010 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("City"), and JASON ADDISON SMITH CONSULTING SERVICES, INe.; DBA JAS PACIFIC, a California corporation ("Consultant"). WITNESSETH: A.. WHEREAS, City proposes to have Consultant perform professional plan review serylces described herein; and B. 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 e. WHEREAS, City and Consultant desire to contract for professional plan review services and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and D. WHEREAS, no official or employee of City has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONSULTANT 1.1. Scope of Services. Consultant shall furnish professional plan review services to City in accordance with Specification No. F-11-01 and Consultant's Proposal dated August 10, 2010, on file with the Director of Community Development, collectively incorporated herein. 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. Warranty. Consultant warrants that it shall perform the services required C:\Documents and Settings\hempeno\My Documents\JAS Pacific Agmt pin chk 9-16-10 STRIKEOUT. doc 1 2010-309 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, defend, and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of 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 Assignment. This is a personal 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 in performing plan review services for the City, Consultant shall maintain a 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. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, Consultant shall be paid for such services in accordance with the specifications contained in RFQ F -II-Oland the applicant's proposed pricing contained in their submitted proposal. 2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the Scope of Services specified in this Agreement unless the C:\Documents and Settings\hempeno\My Documents\JAS Pacific Agmt pin chk 9-16-10 STRIKEOUT. doc 2 2010-309 City, 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. 2.3. Method of Billing. Consultant may submit invoices to City's Community Development Director for approval on a pr.ogress basis, but no more often than monthly. Said invoice shall be based on the total of all of Consultant's services which have been completed to City's sole satisfaction. City shall pay Consultant's invoice within forty-five (45) days from the date City receives said invoice. Each invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of Consultant's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient 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 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 Schedule issued by the Community Development Director or his/her designee. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement. The standard turn-around time for assigned plan checks shall be 10 (ten) working days for the initial check and 5 (five) working days for rechecks. If these standard turn-around times are not met, a penalty of 10 (ten) percent of the Consultant's plan check fee will be assessed for the assigned plan check. 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. This Agreement shall commence on the Effective Date and continue for a period of one (1) year, ending one year after the Effective Date, unless previously terminated as provided herein or as otherwise agreed to in writing by the parties. There may be three one-year extensions of the Agreement upon mutual agreement of the parties. C:\Documents and Settings\hempeno\My Documents\JAS Pacific Agmt pin chk 9-16-10 STRIKEOUT. doc 3 2010-309 4.2. Notice of Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to 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. 4.3. 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. 4.4 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, 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 Consultants, 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\Documents and Settings\hempeno\My Documents\JAS Pacific Agmt pin chk 9-16-10 STRIKEOUT. doc 4 2010-309 (c) Workers' compensation msurance 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: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are addition- al insureds with respect to Consultant's performance under this Agreement 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; ten (10) days notice if cancellation is due to non- payment of premium. " ( 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. 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 Director of Community Development or his/her C\Documents and Settings\hempeno\My Documents\JAS Pacific Agmt pin chk 9-16-10 STRIKEOUT. doc 5 2010-309 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. 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: Paul Armstrong, PE, CBO Jason Addison Smith Consulting Services, Inc; DBA JAS Pacific 201 N. Euclid Avenue, Suite B Upland, CA 91786 Fax: (909) 605-7777 Tel: (909) 605-0319 IF TO CITY: Valerie C. Ross Director of Community Development 300 North "D" Street San Bernardino, CA 92418 Fax: 909 384-5080 Tel: 909-384-5357 6.4. 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 costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action shall be considered as "attorneys' fees" for the purposes of this Agreement. 6.5. 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. 6.6. 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 C:\Documents and Settings\hempeno\My Documents\JAS Pacific Agmt pin chk 9-16-10 STRIKEOUT. doc 6 2010-309 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. 6.7 Indemnification and Hold Harmless. Consultant shall defend, indemnify, and hold harmless the City, its officers, employees and agents from any claims, demands, lawsuits, liabilities, judgements, or expenses, including attorney's fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims, to the extent arising out of, pertaining to, or related to the negligence, recklessness, or willful misconduct of Consultant, its employees, agents or subcontractors in the performance of this Agreement, except that such duty to defend, indemnify, and hold harmless shall not apply to the extent where injury to person or property is caused by City's negligence, recklessness or willful misconduct. 6.8. Independent Consultant. Consultant is and shall be acting at all times as an independent Consultant and not as an employee of City. Consultant shall secure, at his 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. 6.9. 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, files audio tapes or any other Project related items as requested by City or its authorized representative, at no additional cost to the City. 6.10. 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 subcontractors, and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et. seq.). Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Consultant informs City of such trade secret. The City will endeavor to maintain as C:\Documents and Settings\hempeno\My Documents\JAS Pacific Agmt pin chk 9-16-10 STRIKEOUT. doc 7 2010-309 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. 6.11. 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 data, documents, 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. 6.12. Prohibited Emplovment. Consultant will not employ any regular employee of City while this Agreement is in effect. 6.13. 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. 6.14. 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. 6.15. 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. 6.16. 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. 6.17. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 6.18. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement. 6.19. Waiver. The delay or failure of either party at any time to reqUIre C:\Documents and Settings\hempeno\My Documents\JAS Pacific Agmt pin chk 9-16-10 STRIKEOUT. doc 8 2010-309 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. 6.20. 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. 6.21. 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. 6.22. 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. III III C:\Documents and Settings\hempeno\My Documents\JAS Pacific Agmt pin chk 9-16-10 STRIKEOUT. doc 9 2010-309 AGREEMENT FOR PROFESSIONAL PLAN REVIEW SERVICES IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, A Municipal Corporation, CONSULTANT Jason Addison Smith Consulting. Services, Inc; DBA JAS Pacific By ger By _\ ~ J. Addison Smith, President Approved as to form: James F. Penman, City Attorney 7.f~ C:\Documents and Settings\hempeno\My Documents\JAS Pacific Agmt pin chk 9-16-10 STRIKEOUT. doc 10 2010-309 Exhibit D AGREEMENT FOR PROFESSIONAL PLAN REVIEW SERVICES THIS AGREEMENT is made and entered into this 20th day of September , 2010 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("City"), and WILLDAN ENGINEERING, a California corporation ("Consultant"). WITNESSETH: A. WHEREAS, City proposes to have Consultant perform professional plan review services described herein; and B. 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 C. WHEREAS, City and Consultant desire to contract for professional plan review services and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and D. WHEREAS, no official or employee of City has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONSULTANT 1.1. Scope of Services. Consultant shall furnish professional plan review services to City in accordance with Specification No. F-II-01 and Consultant's Proposal dated August 10, 2010, on file with the Director of Community Development, collectively incorporated herein. 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. Warranty. Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment C\Documents and Settings\hempeno\My Documents\ Wildan Agmt pln chk 9-16-10 STRIKEOUT. doc 1 2010-309 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, defend, and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of 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 Assignment. This is a personal 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 in performing plan review services for the City, Consultant shall maintain a 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. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, Consultant shall be paid for such services in accordance with the specifications contained in RFQ F-11-01 and the applicant's proposed pricing contained in their submitted proposal. 2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the Scope of Services specified in this Agreement unless the City, prior to Consultant performing the additional services, approves such additional C:\Documents and Settings\hempeno\My Documents\ Wildan Agmt pin chk 9-16-10 STRIKEOUT doc 2 2010-309 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. 2.3. Method of Billing. Consultant may submit invoices to City's Community Development Director for approval on a progress basis, but no more often than monthly. Said invoice shall be based on the total of all of Consultant's services which have been completed to City's sole satisfaction. City shall pay Consultant's invoice within forty-five (45) days from the date City receives said invoice. Each invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of Consultant's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient 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 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 Schedule issued by the Community Development Director or his/her designee. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement. The standard turn-around time for assigned plan checks shall be 10 (ten) working days for the initial check and 5 (five) working days for rechecks. If these standard turn-around times are not met, a penalty of 10 (ten) percent of the Consultant's plan check fee will be assessed for the assigned plan check. 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. This Agreement shall commence on the Effective Date and continue for a period of one (1) year, ending one year after the Effective Date, unless previously terminated as provided herein or as otherwise agreed to in writing by the parties. There may be three one-year extensions of the Agreement upon mutual agreement of the parties. C\Documents and Settings\hempeno\My Documents\ Wildan Agmt pin chk 9-16-10 STRIKEOUT.doc 3 2010-309 4.2. Notice of Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to 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. 4.3. 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. 4.4 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, 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 Consultants, 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 C:\Documents and Settings\hempeno\My Documents\ Wildan Agmt pln chk 9-16-10 STRIKEOUT.doc 4 2010-309 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: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are addition- al insureds with respect to Consultant's performance under this Agreement 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; ten (10) days notice if cancellation is due to non- payment of premium. " (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. 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 Director of Community Development or hislher designee shall be the representative of City for purposes of this Agreement and may issue C:\Documents and Settings\hempeno\My Documents\ Wildan Agmt pin chk 9-16-10 STRIKEOUT. doc 5 2010-309 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. 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: Ronald L. Espalin, PE Willdan Engineering 650 E. Hospitality Lane, Suite 400 San Bernardino, CA 92408 Fax: (909) 888-5107 Tel: (909) 386-0204 IF TO CITY: Valerie C. Ross Director of Community Development 300 North "D" Street San Bernardino, CA 92418 Fax: 909-384-5080 Tel: 909-384-5357 6.4. 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 costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action shall be considered as "attorneys' fees" for the purposes of this Agreement. 6.5. 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. 6.6. 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 C:\Documents and Settings\hempeno\My Documents\ Wildan Agmt pin chk 9-16-10 STRIKEOUT.doc 6 2010-309 obligations to be performed by Consultant hereunder for the term of this Agreement. 6.7 Indemnification and Hold Harmless. Consultant shall defend, indemnify, and hold harmless the City, its officers, employees and agents from any claims, demands, lawsuits, liabilities, judgements, or expenses, including attorney's fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims, to the extent arising out of, pertaining to, or related to the negligence, recklessness, or willful misconduct of Consultant, its employees, agents or subcontractors in the performance of this Agreement, except that such duty to defend, indemnify, and hold harmless shall not apply to the extent where injury to person or property is caused by City's active negligence, recklessness or willful misconduct. 6.8. Independent Consultant. Consultant is and shall be acting at all times as an independent Consultant and not as an employee of City. Consultant shall secure, at his 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. 6.9. 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, files audio tapes or any other Project related items as requested by City or its authorized representative, at no additional cost to the City. 6.10. 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 subcontractors, and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et. seq.). Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which 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 C:\Documents and Settings\hempeno\My Documents\ Wildan Agmt pin chk 9-16-10 STRIKEOUT.doc 7 2010-309 including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court. 6.11. 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 data, documents, 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. 6.12. Prohibited Emplovment. Consultant will not employ any regular employee of City while this Agreement is in effect. 6.13. 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. 6.14. 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. 6.15. 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. 6.16. 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. 6.17. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 6.18. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement. 6.19. 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. C:\Documents and Settings\hempeno\My Documents\ Wildan Agmt pin chk 9-16-10 STRIKEOUT.doc 8 2010-309 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. 6.20. 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. 6.21. 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. 6.22. 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. III III C:\Documents and Settings\hempeno\My Documents\ Wildan Agmt pin chk 9-16-10 STRIKEOUT. doc 9 2010-309 AGREEMENT FOR PROFESSIONAL PLAN REVIEW SERVICES IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, A Municipal Corporation, CONSULTANT Willdan Engineering Approved as to form: James F. Penman, City Attorney ~ C:\Documents and Settings\hempeno\My Documents\ Wildan Agmt pln chk 9-16-10 STRIKEOUT.doc 10 ~