HomeMy WebLinkAbout05.G- Community Development 5.G
RESOLUTION(ID#3542) DOC ID: 3542 A
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
.: Agreement/Contract
From: Mark Persico M/CC Meeting Date: 10/20/2014
Prepared by: Lisa Sherrick, (909) 384-5057
Dept: Community Development Ward(s): All
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the
Execution of an Amended Consultant Services Agreement with Willdan Engineering for Plan
Review, Inspection, Stormwater Management, Fire and Life Safety Plan Review, Building
Official, and Counter Services. (#3542)
Current Business Registration Certificate: Yes
Financial Impact:
There is no Finanical Impact
Motion: Adopt the Resolution.
Svnopsis of Previous Council Action:
ff September 2,2014 Council adopted Resolution 2014-327 approving an agreement with
it J Willdan Engineering and CSG Consultants for Plan Review, Inspection,
Stormwater Management, Fire and Life Safety Plan Review,Building
Official, and Counter Services.
Background:
On September 2, 2014,the Mayor and Council approved Resolution 2014 authorizing the
execution of an agreement and issuance of a Service Agreement to provide Plan Review,
Inspection, Stormwater Management, Fire and Life Safety Plan Review, Building Official, and
Counter Services.
In processing the agreement to obtain the necessary signature, the vendor notified the
Community Development that they are requesting changes to the terms and conditions of the
City's service agreement. Therefore, staff refered the issue to the City Attorney's Office for
resolution. The vendor has requested that the terms and conditions reflect the previous agreement
that was signed in 2010 and in effect until early 2014. The changes are noted below:
• Willdan has been changed to reflect Willdan Engineering.
• Section 4.2(b)has been changed from:
`Notice: "Said policy shall not terminate, nor shall it be materially changes or
cancelled, nor the coverage reduced, until thirty(30)days after written notice is
given to CITY."
Updated: 10/16/2014 by Jolena E.Grider A Packet Pg. 156
3542
to:
"Notice: "Said policy shall not terminate, nor shall it be
cancelled, , until thirty(30)days after written notice is
given to CITY ten (10) days notice if cancellation is due to nonpayment of
premium.
• Section 5.6 has been changed from:
"Indemnification and Hold Harmless. CONSULTANT shall protect, defend,
indemnify and hold harmless CITY and its elected and appointed officials, boards,
commissions, officers, attorneys, agents and employees from any and all claims,
losses, demands, suits, administrative actions,penalties, liabilities and expenses,
including reasonable attorney 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 arising from or in any way related
to CONSULTANT's performance under this Agreement, except when caused
solely by the CITY's negligence.
to:
"Indemnif cation and Hold Harmless. CONSULTANT shall protect, defend,
indemnify and hold harmless CITY and its elected and appointed officials, boards,
commissions, officers, attorneys, agents and employees from any and all claims,
losses, demands, suits, administrative actions,penalties, liabilities and expenses,
including reasonable attorney 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 arising from or in any way related
to CONSULTANT's negligence, recklessness or willful misconduct in its
performance under this Agreement, except when caused solely by the CITY's
negligence. "
Staff recommends that the council accept the contract changes and adopt the resolution.
City Attorney Review:
Supporting Documents:
Willdan Resolution to Amend Services Agreement (DOC)
agrmt 3542 (PDF)
Attachment"A" Consultant Services Agreement (DOCX)
Updated: 10/16/2014 by Jolena E.Crider A Packet Pg. 157
5.G.a -
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF AN AMENDED
3 CONSULTANT SERVICES AGREEMENT WITH WILLDAN ENGINEERING FOR
4 PLAN REVIEW, INSPECTION, STORMWATER MANAGEMENT, FIRE AND LIFE
SAFETY PLAN REVIEW, BUILDING OFFICIAL,AND COUNTER SERVICES. r
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE c,
6 CITY OF SAN BERNARDINO AS FOLLOWS: c
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SECTION 1. The City Manager is hereby authorized and directed to execute an w
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9 amended Consultant Services Agreement with Willdan Engineering for plan review, inspection,
10 stormwater management, fire and life safety plan review, building official, and counter services; d
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11 a copy of which is attached hereto as Attachment"A" and incorporated herein. N
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12 SECTION 2. All provisions of Resolution 2014-327 shall remain in effect.
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13 SECTION 3. The authorization to execute the above-referenced agreements is E
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14 rescinded if the agreements are not executed and returned to the Office of the City Clerk within a
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15 sixty(60) days following the effective date of this Resolution.
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Packet Pg. 158
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF AN AMENDED
2 CONSULTANT SERVICES AGREEMENT WITH WILLDAN ENGINEERING FOR
PLAN REVIEW, INSPECTION, STORMWATER MANAGEMENT, FIRE AND LIFE
3 SAFETY PLAN REVIEW,BUILDING OFFICIAL,AND COUNTER SERVICES.
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5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and cc
6 Common Council of the City of San Bernardino at a meeting thereof, held
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7 on the day of , 2014,by the following vote, to wit:
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8 Council Members: AYES NAYS ABSTAIN ABSENT
9 MARQUEZ
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10 BARRIOS E
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VALDIVIA �
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SHORETT c
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NICKEL
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JOHNSON d
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16 MULVIHILL
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Georgeann Hanna, City Clerk Q
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19 The foregoing resolution is hereby approved this day of , 2014. c
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21 R. Carey Davis, Mayor
City of San Bernardino
22 Approved as to form:
Gary D. Saenz, City Attorney E
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24 By. Q
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CONSULTANT SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this day of , 2014
("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city("CITY"),
and Willdan Engineering ("CONSULTANT").
WITNESSETH :
A. WHEREAS, CITY proposes to have CONSULTANT perform the services
described herein below; 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 r
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C. WHEREAS, CITY and CONSULTANT desire to contract for plan review, 0
inspection, stormwater management, fire and life safety plan review, building official, and L
counter services; and
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D. WHEREAS, no official or employee of CITY has a financial interest, within the w
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: E
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IA. SERVICES PROVIDED BY CONSULTANT N
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1.1. Scope of Services. For the remuneration stipulated, CONSULTANT shall
provide plan review, inspection, stormwater management, fire and life safety plan review, M
building official, and counter services described in RFP F-14-41 and the Scope of Services E
attached hereto as Exhibit "1" and incorporated herein by this reference. If a conflict arises
between the Scope of Services and this Professional. Services Agreement (hereinafter ;
"Agreement"),the terms of the Agreement shall govern.
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1.2. Professional Practices. All professional services to be provided by w
CONSULTANT pursuant to this Agreement shall be provided by skilled personnel and in a Q
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. CONSULTANT further represents
that no CITY employee will provide any services under this Agreement.
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1.3. Warranty. CONSULTANT warrants that it shall perform the services required by
this Agreement in compliance with all applicable Federal and California employment laws
including, but not limited to, those laws related to minimum hours and wages; occupational
health and safety; fair employment and employment practices; workers' compensation insurance
and safety in employment; and all other Federal, State and local laws and ordinances applicable
to the services required under this Agreement. CONSULTANT shall indemnify and hold
harmless CITY from and against all claims, demands, payments, suits, actions, proceedings, and
judgments of every nature and description including reasonable attorneys' fees and costs,
presented, brought, or recovered against CITY for, or on account of any liability under any of the
above-mentioned laws, arising from or related to CONSULTANT's performance under this
' Agreement.
1.4. Non-discrimination. In performing this Agreement, CONSULTANT shall not
engage in, nor permit its officers, employees or agents to engage in, discrimination in
employment of persons because of their race, religion, color, national origin, ancestry, age, 0
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mental or physical disability, medical condition, marital status, sexual gender or sexual 0)
orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of U_
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 w
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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.
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1.6. Delegation and Assignment. This is a personal service contract, and the duties set E
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forth herein shall not be delegated or assigned to any person or entity without the prior written
consent of CITY. CONSULTANT may engage g e a subc
ontractor(s) as permitted by law and may LO employ other personnel to perform services contemplated by this Agreement at
CONSULTANT's sole cost and expense. N
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1.7 Conflicts of Interest. During the term of this Agreement, CONSULTANT shall at E
all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept 0
payment from or employment with any person or entity which will constitute a conflict of
interest with the CITY. d
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1.8 CITY Business Certificate. CONSULTANT shall obtain and maintain during the 2
term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the Q
City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications,
insurance and approvals of whatever nature that are legally required of CONSULTANT to
practice its profession, skill or business.
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 RFP F-14-41 and the
CONSULTANT's Cost/Price Form contained in Exhibit"I".
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2.2. Additional Services. CONSULTANT shall not receive compensation for any
services provided outside the Scope of Services 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 for approval.
Said invoice shall be based on the total of all 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. The 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.
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2.4. Records and Audits. Records of CONSULTANT's services relating to this o
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. TERM AND NOTIFICATION. w
3.1. Term. This Agreement shall commence on the Effective Date and continue
through September 30, 2017, unless the Agreement is previously terminated as provided for
herein. There may be two (2) one-year extensions upon mutual agreement of the parties not to c
exceed maximum compensation stated in Section 2.1. E
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3.2 Termination. CITY or CONSULTANT may terminate this Agreement for any �
reason upon thirty (30) days written notice to the other party. In the event of termination,
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CONSULTANT shall be paid the reasonable value of services rendered to the date of
termination. M
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3.3 Documents. In the event of termination of this Agreement, all documents
prepared by CONSULTANT in its performance of this Agreement shall be delivered to the
CITY within ten (10) days of delivery of termination notice to CONSULTANT, at no cost to d
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 a
CONSULTANT. Q
4.0.INSURANCE
4.1. Minimum Scope and Limits of Insurance. CONSULTANT shall obtain and
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maintain during the term of this Agreement all of the following insurance coverages:
(a) Commercial general liability, including premises-operations, products/completed
operations, broad form property damage, blanket contractual liability,
independent contractors, 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 California.
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4.2. Endorsements. The commercial general liability insurance policy shall contain or o
be endorsed to contain the following provisions: v
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(a) Additional insureds: "The City of San Bernardino and its elected and appointed
boards, officers, agents, and employees are additional insureds with respect to c
CONSULTANT'S performance under this contract." w
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(b) Notice: "Said policy shall not terminate, nor shall it be cancelled, until thirty (30)
days after written notice is given to CITY, ten (10) days notice if cancellation is
due to nonpayment of premium."
(c) Other insurance: "Any other insurance maintained by the City of San Bernardino Q
shall be excess and not contributing with the insurance provided by this policy." N
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4.3. Certificates of Insurance. CONSULTANT shall provide to CITY certificates of
insurance showing the insurance coverages and required endorsements described above, in a
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form and content approved by CITY,prior to performing any services under this Agreement. M
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4.4. 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.
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5.0. GENERAL PROVISIONS
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5.1. 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.
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5.2. 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:
Willdan Engineering City Manager
650 Hospitality Lane Suite 250 300 North"D" Street
San Bernardino, CA 92408 San Bernardino, CA 92418
Telephone: (909) 386-0204 Telephone: (909) 384-5122 L
Facsimile: (909) 888-5107 Facsimile: (909) 384-5138 0
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5.3. 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 w
exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, r-
conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and
members of his office in enforcing this contract on behalf of the CITY shall be considered as
"attorneys' fees" for the purposes of this Agreement.
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5.4. Governing Law. This Agreement shall be governed by and construed under the Q
laws of the State of California without giving effect to that body of laws pertaining to conflict of
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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 v
Bernardino County, California. M
5.5. Assignment. CONSULTANT shall not voluntarily or by operation of law assign, E,
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 C
encumbrance shall be void and shall constitute a breach of this Agreement and cause for E
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 Q
performed by CONSULTANT hereunder for the term of this Agreement.
5.6. Indemnification and Hold Harmless. CONSULTANT shall protect, defend,
indemnify and hold harmless CITY and its elected and appointed officials,boards, commissions,
officers, attorneys, agents and employees from any and all claims, losses, demands, suits,
administrative actions, penalties, liabilities and expenses, including reasonable attorney 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 arising from or in
any way related to CONSULTANT's negligence, recklessness or willful misconduct in its
performance under this Agreement, except when caused solely by the CITY's negligence.
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5.G.b
5.7. Independent Contractor. CONSULTANT, at all times while performing under
this Agreement, is and shall be acting at all times as an independent contractor and not as an
agent or employee of CITY. CONSULTANT shall secure, at its expense, and be responsible for
any and all payment of wages, benefits and taxes including, but not limited to, 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.
Neither CONSULTANT nor its officers, agents and employees shall be entitled to receive any
benefits which employees of CITY are entitled to receive and shall not be entitled to workers'
compensation insurance, unemployment compensation, medical insurance, life insurance, paid
vacations,paid holidays, pension, profit sharing or social security on account of CONSULTANT
and its officers', agents' and employees' work for the CITY. This Agreement does not create the
relationship of agent, servant, employee partnership or joint venture between the CITY and
CONSULTANT.
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5.8 Conflict of Interest Disclosure. CONSULTANT or its employees may be subject v
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to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires L
such persons to disclose financial interests that may be materially affected by the work
performed under this Agreement, and (2) prohibits such persons from making or participating in
making decisions that will have a foreseeable financial effect on such interest. w
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CONSULTANT shall conform to all requirements of the Act. Failure to do so
constitutes a material breach and is grounds for termination of the Agreement by CITY.
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5.9. Responsibility for Errors. CONSULTANT shall be responsible for its work and E
results under this Agreement. CONSULTANT, when requested, shall furnish clarification and/or Q
explanation as may be required by the CITY's representative, regarding any services rendered
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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 v
all other CONSULTANT professional services necessary to rectify and correct the matter to the M
sole satisfaction of CITY and to participate in any meeting required with regard to the correction.
5.10. Prohibited Employment. CONSULTANT shall not employ any current employee
of CITY to perform the work under this Agreement while this Agreement is in effect.
5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and r
negotiation of this Agreement and in the performance of its obligations hereunder except as a
expressly provided herein.
5.12. 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.
5.13. 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
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5.G.b
accurate description of the content thereof and shall not in any way affect the meaning or
interpretation of this Agreement.
5.14. Amendments. Only a writing executed by all of the parties hereto or their
respective successors and assigns may amend this Agreement.
5.15. 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.
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5.16. Severability. If any provision of this Agreement is determined by a court of o
competent jurisdiction to be invalid or unenforceable for any reason, 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, and the remaining provisions of this Agreement
shall remain in full force and effect. ,
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5.17. Counterparts. This Agreement may be executed in one or more counterparts,each C
of which shall be deemed an original. All counterparts shall be construed together and shall
constitute one agreement.
5.18. Corporate Authority. The persons executing this Agreement on behalf of the d
parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said a
parties and that by doing so, the parties hereto are formally bound to the provisions of this
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Agreement.
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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, WILLDAN ENGINEERING,
A Municipal Corporation CONSULTANT
Allen Parker, City Manager Signature
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Name and Title o
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ATTEST:
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Georgeann Hanna, City Clerk
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APPROVED AS TO FORM:
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Gary D. Saenz,
City Attorney
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