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HomeMy WebLinkAbout11- Community Development ORIGi,NAL CITY OF SAN BERNARDINO —REQUEST FOR COUNCIL ACTION From: Valerie C. Ross,Director Subject: Resolution Authorizing the City Manager to Execute Services Agreements with Dept: Community Development Bureau Veritas, CSG Consultants, JAS Pacific and Date: Sept 16, 2010 Willdan Engineering for Professional Plan Review Services. MCC Meeting Date: September 20,2010 Synopsis of Previous Council Action: September 4,2007 Adopted Resolution approving services agreements for professional plan review services. Recommended Motion: 1. Adopt Resolution, and 2. Authorize the Purchasing Manager to issue Annual Purchase Orders totaling$355,600 in aggregate,with provisions for three single year renewal optio s. M i G,i?w- Valerie C. Ross Contact person: Jose hn i.eme Ring Official Phone- 3R4-5121 Supporting data attached: Staff Report,Reso. & Serv. Agreements Ward: All FUNDING REQUIREMENTS: Amount: $355,600 Source: (Acct. No.)772-192-2306 ($340,000) 001-180-5502 ($15,600) (Acct. Description)Expeditious Plan Review Trust&Prof/Contractual Finance: Council Notes: ' G 5O --,2010 -009 Agenda Item No. �! oa-20-2oib 1'12 lop CITY OF SAN BERNARDINO -REQUEST FOR COUNCIL ACTION STAFF REPORT Subject: Resolution authorizing the City Manager to execute services agreements with Bureau Veritas, CSG Consultants,JAS Pacific and Willdan Engineering for professional plan review services. Backeround: The Community Development Department utilizes consultants to perform plan reviews to determine compliance with applicable building codes and related regulations on proposed development projects. The utilization of consultants allows the division to offer an"expeditious plan review service"to customers. This service provides for a ten day turn-around time for the first check of a proposed development project. Ordinance No. MC-949, adopted in August 1995 provides for an additional 25% fee for expeditious plan review to cover City overhead for administration and processing. In addition, occasionally it is necessary to utilize consultant services on large complex developments or during periods when service demand exceeds the capacity of in-house staff. Having services agreements with multiple vendors ensures the availability of consultant services during peak construction periods. The Department prepared specifications for professional plan review services in June 2010. The Purchasing Division sent out notices inviting bids for annual contracts for the provision of such services per Specification No. F-11-01. Notices were sent to twenty-nine(29)vendors and the San Bernardino Area Chamber of Commerce, and an advertisement was placed in the San Bernardino Sun and on the City's web page. FIRMS SENT REQUESTS FOR PROPOSALS: VENDOR NAME CITY Charles Abbot&Assoc. Apple Valley AAE Inc. Brea AECOM Orange BDS El Dorado Hills Barry Reynolds Corona BJY Inc. Phoenix Bureau Veritas Corona California Code Check Victorville CSG Consultants Santa Ana Esgil Corporation San Diego Scott Fazekas&Associates Irvine Hall &Foreman Irvine Interwest Consulting Group Elk Grove JAS Pacific, Ontario Al Johnson Consulting Redlands Kutzmann&Assoc. Fremont Melad&Associates Huntington Beach CITY OF SAN BERNARDINO —REQUEST FOR COUNCIL ACTION STAFF REPORT—continued NAFFA International Fresno Onward Engineering Anaheim Parsons Brinckerhof San Bernardino The Phillips Group Santa Rosa Plan Review Consultants Palo Alto Precision Inspection Co. Newman RBF Consulting Ontario TKE Engineering Riverside Telgian San Diego Transtech San Bernardino Willdan Associates San Bernardino Wilson&Company San Bernardino BIDS WERE RECEIVED FROM TILE FOLLOWING VENDORS: VENDOR NAME CITY AAE,Inc Orange AEI CASC Colton Bureau Veritus Corona California Code Check Newbury Park Charles Abbott Mission Viejo CSG Consultants Santa Ana Dahl, Taylor&Assoc. Santa Ana Esgil Corporation San Diego Interwest Consulting Group Long Beach JAS Pacific Upland Plan Review Consultants Palo Alto Precision Inspection Co. Newman TTG Ontario VCA Code Group Orange Willdan Associates San Bernardino 4Leaf Inc Temecula Sixteen firms submitted proposals, one of which is a local firm. Community Development staff reviewed and scored the proposals based on the following criteria: experience and qualifications, capabilities of firm, reasonableness of cost/price, and the completeness of the response. Average weighted scores were calculated and a local vendor preference of five(5)percent was added to the score of the local firm that maintains an office within the City of San Bernardino. After the scores were totaled the firms with the four highest scores were selected, one of which is a local firm. References were checked for the four firms selected,Bureau Veritas, CSG Consultants, JAS Pacific, and Willdan Engineering, and interviews were conducted. Each firm's references from other municipalities were very favorable, and each firm was determined to be acceptable. CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION STAFF REPORT—continued Four firms were chosen so that the Department will have a greater degree of accessibility and availability when services are needed. The total point ratings and pricing for the top four firms are as follows: Firm Name Rating Pricing CSG Consultants 79.84 60% of Plan Check Fee $90 Hourly JAS Pacific 79.26 50%of Plan Check Fee $83 Hourly Bureau Veritas 79.10 65%of Plan Check Fee $90 Hourly Willdan Engineering 77.36 65%of Plan Check Fee $128 Hourly Services Agreements with each firm will be for one year. There may be three one-year extensions upon mutual agreement of the parties. Financial Impact: Funds for professional plan review services are available through plan check fees collected from applicants upon submittal of development projects. When an applicant requests expeditious review, a portion of the plan check fees collected, in an amount equal to the consultant charges, is deposited in a trust account and the balance of the fee is deposited in a general fund revenue account. Payment to the consultant is drawn from the trust account once the work is completed. A 25%surcharge for expeditious plan check services is also collected from the applicant to cover administration costs and is deposited in a General Fund revenue account. Recommendation: Adopt Resolution, and Authorize the Purchasing Manager to issue Annual Purchase Orders to Bureau Veritas, CSG Consultants,JAS Pacific, and Willdan Engineering totaling$355,600 in aggregate, with provisions for three single year renewal options. Account: 001-180-5502 Budgeted Amount: $15,600 Balance as of Sept. 13, 2010: $15,600 Balance after approval of this item: $-0- Please note that balance does not indicate available funding. It does not include non- encumbered reoccurring expenses or expenses incurred by not yet processed. COPY2 RESOLUTION NO. `�.. 3 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE 4 CITY MANAGER TO EXECUTE SERVICES AGREEMENTS WITH BUREAU VERITAS, CSG CONSULTANTS, JAS PACIFIC, AND WILLDAN ENGINEERING 5 FOR THE PROVISION OF PROFESSIONAL PLAN REVIEW SERVICES. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 7 CITY OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. BUREAU VERITAS, CSG CONSULTANTS, JAS PACIFIC AND 9 WILLDAN ENGINEERING are firms competent, experienced and able to perform said 10 services and have provided the most advantageous and best responsible proposals for 11 provision of PROFESSIONAL PLAN REVIEW SERVICES, per Specification No. F-I1-01 12 13 for purchase order amounts totaling $355,600 in aggregate, with three single year renewal 14 options. Pursuant to this determination, the Purchasing Manager is hereby authorized and 15 directed to issue Purchase Orders for said services to said firms; and all other proposals are 16 hereby rejected. 17 SECTION 2. The City Manager is hereby authorized and directed to execute Services 18 Agreements on behalf of the City; a copy of each agreement is attached hereto and 19 incorporated herein(Exhibits A, B, C and D). 20 21 SECTION 3. The authorization to execute the above referenced agreements is 22 rescinded if they are not executed within sixty(60)days of the passage of this resolution. 23 24 25 26 €.- 27 28 1 RESOLUTION...AUTHORIZING THE CITY MANAGER TO EXECUTE ,r 2 SERVICES AGREEMENTS WITH BUREAU VERITAS, CSG CONSULTANTS, JAS PACIFIC AND WH.LDAN ENGINEERING FOR THE PROVISION OF 3 PROFESSIONAL PLAN REVIEW SERVICES. 4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor 5 and Common Council of the City of San Bernardino at a meeting 6 thereof, held on the day of ,2010, by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 MARQUEZ 9 10 DESJARDINS 11 BRINKER 12 SHORETT 13 KELLEY 14 JOHNSON 15 MC CAMMACK 16 17 18 City Clerk 19 The foregoing resolution is hereby approved this day of , 2010. 20 21 Patrick J. Moms, Mayor City of San Bernardino 22 Approved as to Form: 23 JAMES F. PENMAN, 24 City Attorney 25 26 By: 27 28 Exhibit A AGREEMENT FOR PROFESSIONAL PLAN REVIEW SERVICES THIS AGREEMENT is made and entered into this day of , 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 OD. 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 I.I. Scone 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. C:\Documents and Settings\hempeno\My Documents\Bureau Ve itas Agmt pin chk 9-1610 STRIKEOUr.dm 1 © 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' 5 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 j 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 tern of this Agreement. 1.8. Duty of Loyalty/Conflict of Interest: The Consultant understands and agrees that in performing p lan 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 C:\Documents and Settings\hempeno\My Documents\Bureau Vmd Agmt pin chk 9-1610 SMKEOUT.dm 2 i 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 SIRIKEOUTAm 3 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, it 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 i 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\bempeno\My Documents\Bureau Veritas Agmt pin chk 9-1610 SrRIKEOUr.doc 4 aggregate. (c) Workers' compensation insurance as required by the State of California. (d) Consultant shall obtain professional errors and omissions (`B&O") liability insurance with policy limits of not less than One Million Dollars ($1,000,000.00) per claim. Consultant Shall obtain an Extended Reporting Period Endorsement 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\My Dacumaits\Bureau Veritas Agmt pin ddc 9-1610 SMKEOUr.dm 5 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: IF TO CITY: Stephen K. Smith, PE Valerie C. Ross Bureau Veritas Director of Community Development 1181 California Avenue, Suite 202 300 North"D" Street CCorona, CA 92881 San Bernardino,CA 92418 Fax: (951)493-1061 Fax: 909-384-5080 Tel: (858) 776-9442 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\Docmnmts and Settings\hempmo\My Documents\Bureau Veritas Agmt pin chk 9-1610 SrRnKEOUT.doc 6 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. Ownershin 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 famished 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 /1 disclosure may be those documents or information that qualify as trade secrets, as that C:\Do mts and settings\hempmo\My Documents\Bureau veritas Agmt pin chk 9-1610 SMKEOUT.doc 7 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 fiunish 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. Q6.14. 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 Thud 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. 0\13ocuments and settings\hempeno\My Documents\Bureau Veritas Agmt pin chk 9-1610 SMKEOUr.dm 8 i i 1 I © 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. Severabilitv. 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. 1 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. C:\Documents and Settings\hempmo\My Documents\Bureau Vent Agmt pin chk 9-1610S PIKEOUT.doc 9 a 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, CONSULTANT A Municipal Corporation, Bureau Veritas North America, Inc. By Charles McNeely, City Manager Stephen K. Smith, PE Director of Public Works Services Approved as to form: James F. Penman, © City Attorney BY C\Documents and Settings\hempen\My Documents\Bureau Ventas Agmt phi chk 9-1610 SfRIIE.OUT.doc 10 © Exhibit B AGREEMENT FOR PROFESSIONAL PLAN REVIEW SERVICES THIS AGREEMENT is made and entered into this day of 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 i 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. Scone of Services. Consultant shall famish 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. f'1 1.3. Waranty. Consultant warrants that it shall perform the services required v C\Documents and Settings\hempmo\My Documents\CSG Agmt pin chk 9-1610 SMKEOUT.dm 1 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. Deleeation and Assigno) . 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 C:\Documents and Settings\hempeno\My Documents\CSG Agmt pin chk 9-1610 SrRDMOUr.doc 2 a 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. I 3.0. TIME OF PERFORMANCE © 3.1. Commencement and Comnletion 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\hempen\My Documents\CSG Agmt phi chic 9-1610 SHUKEOUT.doc 3 I Q 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. i 4.3. Compensation. In the event of termination, City shall pay Consultant for j 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 Oaggregate. C:\Docummts and Settings\hempmo\My Documents\CSG Agmt pin chk 9-16-10 SMKEOUT.dw 4 (c) Workers' compensation insurance as required by the State of California. (d) Professional errors and omissions (`B&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." Q (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 forth 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\hempmo\My Do mts\CSG Agmt pin chk 9-1610 SMKEOUT.doc Jr 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: IF TO CITY: Khoa Duong, PE Valerie C. Ross CSG Consultants, Inc Director of Community Development 801 Park Center Drive, Suite 230 300 North"D" Street C Santa Ana, CA 92705 San Bernardino, CA 92418 Fax: (714) 568-1028 Fax: 909-384-5080 Tel: (714) 568-1010 Tel: 909-384-5357 6.4. Attomeys' 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 j 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\hempmo\My Documents\CSG Agmt pin chk 9-1610 SMKEOUT.doc 6 i i i 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 i 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 j 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 oconfidential all information obtained by it that is designated as a trade secret. The City C:\Documents and Settings\hempen\My Documents\CSG Agmt pin chk 9-i630SIR1IQmUf.dm 7 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. i 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 draffing 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:\DO mtsand Settings\hempmo\My Documents\CSGAgmtpinchk 9-1610MIKEOUTAm 8 © 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. Severabilitv. 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. C:\Da mts and Settings\hempeno\My Documents\CSG Agmt pin chk 9-16-10 S F1KEOUT.dw 9 © 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, CONSULTANT A Municipal Corporation, CSG Consultants, Inc. By Charles McNeely, City Manager Khoa Duong, PE Vice President, Building and Fire Life Safety Approved as to form: James F. Penman, City Attorney By C:\Do mints and Settings\hempmo\My Do mts\CSG Agmt pin chk 9-1610 STRIKEOUT.dm 10 © Exhibit C AGREEMENT FOR PROFESSIONAL PLAN REVIEW SERVICES THIS AGREEMENT is made and entered into this day of 2010("Effective Date"),by and between the CITY OF SAN BERNARDINO, a charter city("City"), and JASON ADDISON SMITH CONSULTING SERVICES, INC.; DBA JAS PACIFIC, 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 3 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 oD. 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 v C:\Documents and Settings\hmpeno\My roc mts\JAS Pacific Agmt pin chl,9-1610 STRnKEQUT.doc 1 © 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 Aareement. 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 i 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 C:\Do mts and Settings\h=pmo\My Do mts\JAS Pacific Agmt pin chk 9-1610 SLRIKEOUT.,im 2 © 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 t 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 tum-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 tum-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. I 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 pagreement of the parties. C:\Documents and Settings\hempe \My Documents\JAS Pacific Agmtpin ddc 9-1610 SMKEOUT.dm 3 Q 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. O C:\Documents and Settings\hempeno\My Documents\JAS Pacific Agmt pin dik 9-1610 SnUKEOUT.dm 4 (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 terns 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 9-1610 STRIKEOUTAm 5 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. I j IF TO CONSULTANT: IF TO CITY: Paul Armstrong, PE, CBO Valerie C. Ross Jason Addison Smith Consulting Director of Community Development Services, Inc; DBA JAS Pacific 300 North"D" Street O 201 N. Euclid Avenue, Suite B San Bernardino, CA 92418 Upland, CA 91786 Fax: 909 384-50$0 Fax: (909) 605-7777 Tel: 909-384-5357 Tel: (909) 605-0319 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:\Do mts and Settings\hempmo\My Documents\JAS Pacific Agmt pin chk 9-16-10 STRIKEOUTAcc 6 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 famished 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 famished 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\hempe \My Documents\JAS Padix Agmt pin chk 9-1610 STRIKEOUr.dM 7 © 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. i 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 C:\D«uments and Settin9s\hempm0\My Do mts\JAS Padfic Agmt pin chk 9-16x10 SMKEOUr.dm 8 AML 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. Severabilitv. 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 Authori ty. 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. 0 C:\Documents and Settings\hempeno\My Documents\JAS Pacific Agmt pin chk 9-1610 SCRUMUT.dm 9 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, CONSULTANT A Municipal Corporation, Jason Addison Smith Consulting. Services, Inc; DBA JAS Pacific By Charles McNeely, City Manager Paul Armstrong, PE CBO Vice President of Code Development By J. Addison Smith, President Approved as to form: OJames F. Penman, City Attorney 7 By. r C\Documents and Settings\hempeno\My Documents\JAS Pacific Agmt pin chk 9-1610 SrRIKEOUT.doc 10 QExhibit D AGREEMENT FOR PROFESSIONAL PLAN REVIEW SERVICES THIS AGREEMENT is made and entered into this day of 2010("Effective Date"),by and between the CITY OF SAN BERNARDINO,a charter city("City"), and WILLDAN ENGINEERING, a California corporation("Consultant"), WITNESSETII : 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 fumish 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 © by this Agreement in compliance with all applicable Federal and California employment C:\Documents and Settings\hempeno\My Documents\Wildan Agmt phi chk 9-1610 SrruKEOUr.do 1 i I 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. Compensati on. 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 QCity, prior to Consultant performing the additional services, approves such additional C\Documents and Settings\hempeno\My Documents\Wildm Agmt pin chk 9-1610 SrPlJaOUTAd 2 a © 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 tum-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:\Documentsand Settings\hempeno\My Documents\WOdan Agmtpinchk 9-16-105rRIIC.0UT.doc 3 Q4.2. 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 perforated 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, Qdrawings,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\hempwo\My Documents\Wildm Agmt pin chk 9-1610 STRIICEOUT.dac 4 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 CSan 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-limitm . 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 © designee shall be the representative of City for purposes of this Agreement and may issue C:\Documents and Settings\hempe \My Documents\Wildm Agmt pin chk 9-1610 SnUKEOUT.dw 5 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: IF TO CITY: Ronald L. Espalin,PE Valerie C. Ross Willdan Engineering Director of Community Development 650 E. Hospitality Lane, Suite 400 300 North"D" Street San Bernardino,CA 92408 San Bernardino, CA 92418 © Fax: (909) 888-5107 Fax: 909-384-5080 Tel: (909) 386-0204 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 Ir' or assignment shall release Consultant of Consultant's obligation to perform all other C\Documents and Settings\hempeno\My Documents\Wildan Agmt pin dhk 9-1610 grRnCEOUT.doc 6 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. Ownershin 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 phi chk 9-16-10 STRMEOUTAd 7 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 Qno way be deemed a waiver of those rights to require such performance or compliance. C:\Doc mtsmdSettings\hempeno\My Documents\Wildan Agmtpinchk 9-16-10SMKEOUT.doc 8 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. Severabilitv. 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 Authori ty. 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. C:\Documents and Settings\hempmo\My Docummts\Wildan Agmt pin chk 9-1610 SrRIKEOUT.dm 9 0 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, CONSULTANT A Municipal Corporation, Willdan Engineering By Charles McNeely, City Manager Ronald L. Espalin,PE Director of Building and Safety Approved as to form: James F. Penman, City Attorney Q By lle + . C:\Documents and Settings\hempen\My Documents\Wads Agmt pin chk 9-16-105TRIREOUT.doc 10