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HomeMy WebLinkAbout44-City Attorney CITY OF SAN BERf \RDINO REQUEST : )R COUNCIL ACTION From: James F. Penman Subject: Resolution of the Cit~l of San Bernardino authorizing the execution of an agreement with Converse Consultants Southwest, Inc 'for inspection services. Dept: City Attorney Date: April 25, 1990 Synopsis of Previous Council action: None. Recommended motion: ~ Adopt Resolution. City Administrator's Note: This matter requires administrative review and coordination -- recom- mend it be referred to the Legislative Review Committee for further consideration. A-JtJJ~~' -' ;('~LL W. IAN City Admini rator Signature Contact person: patricia Zimmermann Phone:C7141384-'i3'i'i Supporting data attached: Ward: FUNDING REQUIREMENTS: Amount: Source: (Acct. No.1 (Acct. DescriPtion) Finance: Council Notes: 75-0262 Agenda Item No. 4'1 CITY-OF SAN BERti ,RDINO - REQUEST I )R COUNCIL ACTION STAFF REPORT After numerous complaints from new homeowners regarding a Monnig Development Project, The Estates, an investigation of the project was made by Department of Planning and Building Services, the Police Department and the City Attorney's Office. On April 20, 1990 a report was made by the City Attorney's Office to the Mayor and Common Council detailing the problems with the Project and with City Inspections. The r e p 0 r t mad e s eve r a 1 recommendations including the use of private State-Certified inspection consulting firms for new development projects. The report suggested that the City contract with several of these firms and use them on a rotating basis for inspections of new development projects. All fees would be paid to the City by the developer. The use of private consultants will provide more timely inspections for the developer and assure inspections at every phase for the City. Five firms were contacted regarding their hourly rates for UBC 305 and 306 inspections and it was determined that the average fee was $50.00 per hour. Pursuant to the recommendations of the above report, the attached is an agreement with a private inspection firm, Converse Consultants Southwest, Inc. It is anticipated that there will be several other agreements forthcoming. PZ:kq [Consult.Agd] 75-0264 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 RESOLUTION NO. RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH CONVERSE CONSULTANTS SOUTHWEST, INC. FOR INSPECTION SERVICES. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor is hereby authorized and directed to execute on behalf of said City an Agreement with Converse Consultants Southwest, Inc. for inspection services. A copy of said agreement is attached hereto, marked Exhibit "A", and incorporated herein by reference as fully as though set forth at length. SECTION 2. This Agreement shall not take affect until fully signed and executed by both parties. The City shall not be obligated hereunder unless and until the Agreement is fully executed and no oral agreement relating thereto shall be implied or authorized. SECTION 3. The authorization to execute the above 19 referenced agreement is rescinded if the parties to the agreement 20 fail to execute it within sixty (60) days of the passage of this 21 resolution. 22 III 23 III 24 III 25 III 26 III 27 III 28 III PZ:mg\agreemt.res 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH CONVERSE CONSULTANTS SOUTHWEST, INC. FOR INSPECTION SERVICES. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 1990, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ESTRADA REILL Y FLORES MAUDSLEY MINOR POPE-LUDLAM MILLER City Clerk The foregoing resolution is hereby approved this day of , 1990. W. R. Holcomb, Mayor City of San Bernardino Approved as to form and legal content: JAMES F. PENMAN, City Attorney By: L r.~ o PZ:mg\agreemt.res 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AGREEMENT (Inspection Review Services) THIS AGREEMENT is made and entered into this day of , 1990, by and between the CITY OF SAN BERNARDINO, a municipal corporation, located in the County of San Bernardino, State of California, hereinafter referred to as "City", and Converse Consultants Southwest, Inc. at 11126 "I" Avenue, Hesperia, CA 92345 hereinafter referred to as "Consultant". WIT N E SSE T H WHEREAS, Consultant represents that he has that degree of specialized expertise contemplated within the Uniform Building Code and holds all necessary licenses therefore to practice and perform the services herein contemplated; and WHEREAS, no official or employee of the City has a financial interest in the subject matter of this agreement contemplated within; and WHEREAS, Consultant declares that he shall perform the services herein contemplated in compliance with Federal and California laws, including but not limited to minimum hours and wages, fair employment, and occupational safety and health, to the extent same are applicable herein; and WHEREAS, the parties hereto intend to set forth all their rights, duties, obligations and liabilities with respect to the work, project or activity contemplated herein and services to be performed by Consultant thereunder. III PZ:mg\inspec.agr 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOW THEREFORE, in consideration of the mutual promises of the parties, and other good and sufficient consideration, the parties agree to the following terms, conditions and covenants. City does hereby appoint Consultant in a contractual capacity to perform the following services in accordance with the terms and conditions hereinafter set forth: 1. INSPECTION SERVICES. Consultant shall, upon request of the City Building Official, make inspection of construction projects as needed for ascertaining compliance with different stages of development pursuant to Sections 305 and 306 of the Uniform Building Code. City may, at its sole unrestricted option, use its own employees and/or other independent contractors to perform work, including work for which Consultant is herein appointed. Pertinent City pOlicies and regulations will be provided by the City. The City shall provide direction as to which policies, regulations and procedures are to be used by Consultant. Consultant shall prepare inspection reports on each project for the Building Official. 2. COLLECTION OF FEES. All fees to be collected from any applicant in connection with the carrying out of the functions as set forth in this agreement shall be collected by City. 3. COMPENSATION OF CONSULTANT. A. Consultant shall be compensated in an amount equal to FIFTY DOLLARS ($50.00l per hour for time spent inspecting PZ:mg\inspec.agr 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 projects and preparing inspection reports. B. Consultant shall invoice City monthly for services rendered on a per project basis and City shall pay Consultant upon determining adequate deposit of monies with City for such inspections by the contractor. 4. TERMINATION The City or Consultant may terminate this Agreement for any reason at any time by mailing by certified mail thirty (30) days prior written notice of termination to the other party. In this event, the Consultant shall be paid the reasonable value of services rendered to the date of termination. In the event of any such termination, Consultant shall provide to City, without charge, all documents, notes, maps, reports and data accumulated to the date of such termination. Consultant further covenants to give its good-faith cooperation in the transfer of the work to the City or to any other consultant designated by City following such termination, and to attend and participate in any meetings at no cost to the City as shall be deemed necessary by the Building Official to effectively accomplish such transfer. 5. WARRANTY . Consultant expressly warrants that its work will be performed with care, skill, reasonable expedience, and faithfulness and that work performed shall be fit and proper for its intended use. III III PZ:mg\inspec.agr 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. INDEMNIFICATION. Consultant agrees to indemnify, defend, and hold harmless City, its agents, officers and employees from and against any and all liability, expense and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, or property damages arising from or connected with Consultant's operations, or its performance under this Agreement. 7. INSURANCE Without limiting Consultant's indemnification of City as stated in Paragraph 6, above, Consultant shall provide and maintain at its own expense during the term of this Agreement, the following policy or pOlicies of insurance covering its performance under. this Agreement: a. General Liability and Professional Liability: Such insurance shall include, but not be limited to, comprehensive general liability and professional liability coverage with a combined single limit of not less than FIVE HUNDRED THOUSAND DOLLARS ($500,000) per occurrence. Such insurance shall name the City of San Bernardino as an additional insured. b. Workers' Compensation: Consultant shall cover its employees with Workers' Compensation insurance in an amount and form to meet all applicable requirements of the Labor Code of the State of California. III PZ:mg\inspec.agr 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. PROHIBITION AGAINST TRANSFERS. a. Consultant shall not assign, sublease, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of the City. Any attempt to do so without said consent shall be null and void, and no assignee, sublessee, or transferee shall acquire any right or interest by reason of such attempted assignment, lease or transfer. b. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or co-tenant of Consultant which is an action resulting in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation. 9. ANTI-DISCRIMINATION. Consultant certifies and agrees that all persons employed by Consultant, its affiliates, subsidiaries or holding companies are and will be treated equally by Consultant without regard to or because of race, religion, ancestry, national origin, or sex and in compliance with state and Federal Anti-Discrimination laws. Consultant further certifies and agrees that it will deal with its Subcontractors, Bidders and Vendors without regard to or because of race, religion, ancestry, national origin or sex. III PZ:mg\inspec.agr 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. RELATIONSHIP OF PARTIES. Consultant is acting as an independent contractor, and not as an employee of the City. In the performance of personal services pursuant to the provisions of this Agreement, Consultant shall not be supervised, directed, or under the control or authority of any City officer or employee, except and to the extent as may be expressly or implicitly required by the terms and provisions of this Agreement. Any direction or control so required under this Agreement shall be limited to broad objectives or goals of the project or program to be accomplished and not to the details and procedures to accomplish such objectives and goals. Consultant shall not be obligated to conform to the supervision or direction of City officers or employees which are not authorized herein. Changes or modi~ications of said objectives and goals may be made by written recommendations of either party subject to the concurrence of the other party in writing. 11. CONFLICT OF INTEREST. a. The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the Act), which (1) requires such persons to disclose financial interests that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will foreseeable financially affect such interests. III PZ:mg\inspec.agr 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this agreement by the City. c. Consultant agrees that during the term of this agreement, he shall not enter into any contract for work to be performed within the City of San Bernardino with private parties who may foreseeably be materially affected by the work to be performed under this agreement. d. Consultant agrees that he shall comply with all other applicable conflict of interest laws, including local, state, federal and common law. 12. AUDIT The City, in reference to any request for payment submitted by the Consultant for services under this Agreement, shall have the right to examine and audit the records of the Consultant pertaining to this Agreement, to verify such payment. 13. AUTHORITY. Each of the parties to this Agreement represents that the person signing on behalf of such party has authority to do so. 14. CONSULTANT TO ABIDE BY LAWS. Consultant is required to abide by all Federal, State and Local law applicable to the SCOPE OF WORK. III III III III PZ:mg\inspec.agr 7 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 15. NOTICES. Any notice required or desired to be given pursuant to this 4 5 6 Agreement shall be given in writing, and sent by certified mail, return receipt requested, addressed as follows: ~ Consultant Director of Planning & Building Services City of San Bernardino 300 North "0" Street Third Floor San Bernardino, CA 92418 Converse Consultants Southwest, Inc. 11126 "I" Avenue Hesperia, Ca 92345 Any notice so given shall be considered served on the other party five days after date of mailing. The address for notice may be chang'ed by giving notice pursuant to this paragraph. 16. ENTIRE AGREEMENT. This contract constitutes the entire Agreement between City and Consultant and may be modified only by further written agreement between the parties. 17. IMPLEMENTATION. The City shall provide Consultant with written notice in advance of the date at which these services are to be implemented. 18. ATTORNEY'S FEES. In the event that an action is filed by either party to enforce rights under this agreement, the prevailing party shall be entitled to recover reasonable attorney's fees in addition to any other relief granted by the court. III PZ:mg\inspec.agr 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN WITNESS WHEREOF, the City Council of the City of San Bernardino has caused this Agreement to be subscribed by the Mayor, and seal of said Council to be hereto affixed and attested by the Clerk thereof, and Consultant has executed this Agreement, the day, month and year first above written. ATTEST: CITY OF SAN BERNARDINO City Clerk W. R. HOLCOMB, Mayor CONVERSE CONSULTANTS SOUTHWEST, INC. By: $~~k @ult-y~ Approved as to form Algirdas G. Leskys, President and legal content: JAMES F. PENMAN City Attorney By: L ?fJ~ o PZ:mg\inspec.agr 9