HomeMy WebLinkAboutItem No. 14 - Professional Services Agreement with PlaceWorks for the Foisy Project
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Consent Calendar
City of San Bernardino
Request for Council Action
Date: April 15, 2020
To: Honorable Mayor and City Council Members
From: Teri Ledoux, City Manager
By:Michael Huntley, Community & Economic Development Director
Subject: Resolution Approving PSA with PlaceWorks to Provide Third-
Party CEQA Review for Foisy Project
Recommendation
Adopt Resolution No. 2020-64 of the Mayor and City Council of the City of San
Bernardino, California, approving the Professional Services Agree ment with
PlaceWorks to provide third-party CEQA review services for the Foisy Project;
authorizing the City Manager or designee to sign and execute the agreement; and
authorizing the Finance Director to amend the FY 2019/20 adopted budget accordingly.
Background
On February 5, 2020, the Mayor and City Council approved the new Norton Science
and Language Academy (NSLA) to be located at 230 S. Waterman Avenue in order to
relocate the current Lewis Center for Education Research (LCER) located at 503 East
Central Avenue which serves children grades Kindergarten through 8 and is a shared
facility with the County of San Bernardino, which operates the Mill Child Development
Center (Head Start/ Preschool Facility) serving children in Transitional Kindergarten. A
portion of the LCER site is also a privately-owned park, the Mill Center Park, which
would be replaced through development of the new NSLA campus.
With the relocation and development of the new NSLA and Mill Child Development
Center on S. Waterman Avenue, Waterman Land Ventures (“WLV”) proposes to
develop a warehouse/logistics facility (referred to as the “Foisy Project”) on the vacated
site located on the southeast corner of E. Central Avenue and S. Foisy Street.
Discussion
WLV has submitted a General Plan Amendment, Development Code Amendment and
Development Permit application package for the above mentioned project. Based on
the scope of the project, a Mitigated Negative Declaration is being prepared for the
project by Kimley-Horn on behalf of WLV pursuant to the requirements of the California
Environmental Quality Act (CEQA). As the Lead Agency, the City of San Bernardino is
responsible for the processing of the Mitigated Negative declaration.
Because of the complexity, level of expertise and accelerated project schedule, staff
and WLV have agreed to retain a qualified environmental consulting firm to assist the
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City with third-party CEQA review services. Through the City’s procurement process, a
Request for Proposals was released and staff received proposals from the following:
Michael Baker $31,995
PlaceWorks $18,085
T & B Planning $11,085
Although not the lowest fee proposal, PlaceWorks was mutually accepted by staff and
WLV because of their knowledge of the environs within San Bernardino bas ed upon
their past and current working experience. The cost of these services will be paid for by
the applicant and not the City of San Bernardino. Additionally, PlaceWorks is known for
their responsiveness and attention to detail as it relates to servin g local municipalities.
In fact, PlaceWorks successfully provided similar services during the City’s processing
of the Norton Science and Language Academy.
2020-2025 Key Strategic Target Goals
Retaining PlaceWorks to provide third-party CEQA review services for the WLV Foisy
Project aligns with Key Target No. 3: Improve Quality of Life: in that PlaceWorks will
provide the technical expertise to ensure that the CEQA document and process meet
the requirements of CEQA and that the information contained in the technical reports is
accurately reflected in the CEQA document.
Fiscal Impact
As a condition to the City’s processing and completion of the Mitigated Negative
Declaration for the project, WLV has agreed to reimburse the City for the reasonable
costs and expenses necessary by PlaceWorks to provide the requested related third -
party CEQA review services. Through a Reimbursement Agreement, WLV will deposit
an amount of $18,085. Approval of the Professional Services Agreement with
PlaceWorks would entail an appropriation to the Community & Economic Development -
Professional Contractual Services Account (001 -180-0029-5502) and an increase to
anticipated revenues Planning Development PR Account (001-180-0000-4714) FY
2019-20 adopted budget in the amount of $18,085.
No General Fund appropriation is required for this action.
Conclusion
Adopt Resolution No. 2020-64 of the Mayor and City Council of the City of San
Bernardino, California, approving the Professional Services Agreement with
PlaceWorks to provide third-party CEQA review services for the Foisy Project;
authorizing the City Manager or designee to sign and execute the agreement; and
authorizing the Finance Director to amend the FY 2019/20 adopted budget accordingly.
Attachments
Attachment 1 Resolution 2020-64; Exhibit A - PlaceWorks Proposal
Attachment 2 Professional Services Agreement
Ward: 1
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Synopsis of Previous Council Actions: None
Resolution No. 2020-64
RESOLUTION NO. 2020-64
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
APPROVING THE PROFESSIONAL SERVICES
AGREEMENT WITH PLACEWORKS TO PROVIDE
THIRD-PARTY CEQA REVIEW SERVICES FOR THE
FOISY PROJECT
WHEREAS, the City of San Bernardino is in need of professional third-party CEQA
review services for the Foisy Project proposed by Waterman Land Ventures, LLC; and
WHEREAS, Waterman Land Ventures, LLC, will be reimbursing the City for the cost of
this consultant; and
WHEREAS, the Consultant is duly licensed and has the necessary qualifications to
provide such services.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this
reference.
SECTION 2. The City Manager or designee is hereby authorized and directed to
execute the Professional Services Agreement with PlaceWorks attached hereto as Exhibit “A”, in
an amount not to exceed $18,085.00.
SECTION 3. The Finance Director is hereby authorized to amend the FY 2019-20
adopted budget accordingly, as follows: appropriation of $18,085.00 to the Community &
Economic Development - Professional Contractual Services Account (001-180-0029-5502) and
an increase to anticipated revenues Planning Development PR Account (001-180-0000-4714) FY
2019-20 adopted budget in the amount of $18,085.00.
SECTION 4. The City Council finds this Resolution is not subject to the California
Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty, as in this case, that there is no possibility that
the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
SECTION 5. Severability. If any provision of this Resolution or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 6. Effective Date. This Resolution shall become effective immediately.
Resolution No. 2020-64
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested
by the City Clerk this ___ day of __________, 2020.
John Valdivia, Mayor
City of San Bernardino
Attest:
__________________________________
Genoveva Rocha, CMC, Acting City Clerk
Approved as to form:
__________________________________
Sonia Carvalho, City Attorney
Resolution No. 2020-64
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of
Resolution No. _____, adopted at a regular meeting held at the ___ day of _______, 2020 by the
following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
NICKEL _____ _____ _______ _______
RICHARD _____ _____ _______ _______
MULVIHILL _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino t his ___ day of
____________ 2020.
_____________________________________
Genoveva Rocha, CMC, Attorney City Clerk
March 19, 2020
Oliver Mujica
Planning Division Manager
City of San Bernardino
290 North D Street
San Bernardino, CA 92401
Subject: Scope of Work and Cost Estimate to Peer Review the Foisy East San Bernardino Project IS/MND
Dear Mr. Mujica:
Thank you for inviting us to submit our proposal to prepare the peer review for the Foisy East San Bernardino
Project, Initial Study/Mitigated Negative Declaration.
The peer review will be conducted by senior CEQA and technical staff members. I will serve as Project
Manager and be responsible for reviewing the IS/MND for general CEQA compliance and defensibility. Our
in-house technical specialists will review air quality/greenhouse gas emission, noise, traffic, and civil
engineering–related topics. As needed, we will also consult our in-house CEQA attorney.
The following proposal includes our Project Understanding, proposed Scope of Work, Cost Estimate, and
anticipated schedule.
Project Understanding
The City of San Bernardino is seeking proposals from qualified consulting firms interested in providing third-
party CEQA review services for the Foisy East San Bernardino project proposed by Waterman Land Ventures,
LLC. The project site contains approximately 20.29 acres and is located on the southeast corner of S. Foisy
Street and E. Central Avenue. The Project site is currently used by the Lewis Center for Education Research
(LCER) which currently operates the Norton Science and Language Academy (NSLA}, serving approximately
800 children grades Kindergarten through 8. This is a shared facility with the County of San Bernardino, which
operates the Mill Child Development Center (Head Start/Preschool facility) at the same location, offering
services to approximately 120 children in Transitional Kindergarten (TK}, located at 503 East Central Avenue,
San Bernardino, CA 92408.
A portion of the Project site is a privately-owned park, the Mill Center Park, which would be replaced through
development of the recently approved new NSLA campus. The existing location (Project site) will be
abandoned by the NSLA and Mill Child Development Center and will relocate to its new location
approximately 1.0-mile northwest at 230 South Waterman Avenue. The new NSLA and Mill Child
Development Center was approved by the City of San Bernardino on February 5, 2020. As such, the proposed
Project would use the 503 East Central Avenue site to develop a 467,125-square foot (SF) industrial/
warehouse/distribution facility. The warehouse would include one new concrete tilt-up structure, along with
three offices totaling approximately 30,000 square feet.
Scope of Work
The following scope of work has been prepared in accordance with our understanding of the project to
provide the most cost- and time-efficient review of the IS/MND and accompanying technical studies. Our
scope of work assumes that PlaceWorks will provide peer review services, and the project applicant will be
responsible for incorporating comments and revisions.
March 19, 2020| Page 2
TASK 1. INITIAL STUDY/MITIGATED NEGATIVE DECLARATION PEER REVIEW
The draft Initial Study/Mitigated Negative Declaration (IS/MND) prepared by the project applicant team will
be peer reviewed by PlaceWorks to ensure completeness and accuracy; consistency with the City’s General
Plan and Development Code; compliance with applicable environmental laws, regulations, rules, and
requirements; and legal defensibility.
The review will ensure that adequate analysis and documentation exist for the environmental areas that are
found to be “less than significant” or have “no impact,” and that all of the “potentially significant” impacts
have appropriate mitigation measures to reduce these impacts to less than significant levels. Our review will
include an overall assessment of the appropriateness and defensibility of processing the project with an
MND. As we have in the past with the City, we prefer to work within the Word document using track changes
and comments. We know that the applicant’s consulting team Kimley-Horn prefers this approach.
We anticipate that the applicant will respond to each comment in the track-change Word file either accepting
the change or explaining why it is unnecessary. For those changes considered unnecessary we will conduct
a conference call to discuss with the City and Kimley-Horn. This scope of work assumes no more than one
round of peer review and comment.
Deliverable(s):
− Comments in Word Document, including review of project’s eligibility to be processed as an MND
TASK 2. TECHNICAL STUDIES – PEER REVIEW
We will conduct an overview of the air quality, greenhouse gas, and traffic technical studies, as well as the
health risk assessment, Phase 1 and hazards related reports prepared for the project site. We will review
each study to determine whether it addresses the applicable CEQA checklist questions and to ensure that
conclusions are based on the appropriate level of analysis, findings are adequately substantiated, and
mitigation is sufficient and CEQA compliant. Note that this scope does not include re-running of any model
or calculation, only a review of the assumptions to ensure they meet industry standards and meet the needs
of the City. Additional fees may be requested if additional reviews are required, or if additional modeling is
needed to support the IS/MND.
Air Quality & Greenhouse Gas Emissions
Nicole Vermilion, Principal, Air Quality, GHG, & Noise Services, will conduct a review of the air quality and
GHG modeling and analysis included in the Initial Study. Nicole is current with the latest threshold
methodology and case law for GHG emissions and has completed numerous GHG emissions analyses for
CEQA projects. Nicole is a beta tester for the South Coast Air Management District (SCAQMD) on CalEEMod.
In addition, she is a member of the Association of Environmental Professional’s Climate Change Committee
and actively involved in development of GHG emissions thresholds approaches for development projects,
and most recently, participated in the development of a white paper on establishing GHG reduction targets
and thresholds for post-2020 GHG emissions analyses. The review of the GHG analysis will confirm the
appropriate use of accepted thresholds of significance in light of the Center for Biological Diversity v.
California Department of Fish and Wildlife (Newhall Ranch), and Golden Door Properties, LLC v. County of San
Diego/Sierra Club, LLC v. County of San Diego (2018) 27 Cal.App.5th 892. rulings, review that the technical
modeling assumptions for construction and operational activities were conducted in accordance with the
SCAQMD methodology, include an internal consistency evaluation of the modeling assumptions with the
project description and traffic report, and evaluate recommended measures to reduce significant impacts of
the project (if needed). PlaceWorks will summarize the findings in a memorandum.
March 19, 2020| Page 3
Health Risk Assessment
Steve Bush, PE, Senior Engineer, will conduct a third-party technical review of the health risk assessment
(HRA) and associated modeling prepared for the proposed project. The review will determine if the report
was prepared in accordance with the latest guidance from the Office of Environmental Health Hazard
Assessment (OEHHA) and the South Coast Air Quality Management District (SCAQMD); determine whether
the assumptions and parameters used in the modeling effort are appropriate and accurate; and determine
whether the modeling results are conservative.
Noise
Joshua Carman, Senior Associate – Noise and Vibration services, will conduct a third-party technical review
of the noise technical study and associated modeling prepared for the proposed project. The review will
confirm the use of accepted thresholds of significance, confirm that the technical modeling assumptions for
construction and operational activities were conducted in accordance with industry standards and best
practices, evaluate internal consistency between the modeling assumptions and the project description and
traffic report, and review recommended measures to reduce significant impacts of the project (if necessary).
PlaceWorks will summarize the findings of the third-party technical evaluation in a memorandum. The
technical analysis for noise is assumed to be complete and contain all information necessary to adequately
evaluate impacts associated with the proposed project.
Transportation
PlaceWorks has teamed with EPD to provide peer-review of the TIA for the proposed Foisy Logistics Center
project. EPD staff has experience preparing traffic impact analyses throughout San Bernardino County, as
well for high-cube warehouse distribution center projects. Using this experience, EPD will confirm that the
TIA is prepared according to applicable local guidelines and using accepted traffic engineering
methodologies. EPD’s review will include, but not be limited to, the following:
• Evaluation of the study area to ensure that it includes all facilities likely to be impacted by the
project. At a minimum, the study area should include key intersections or roadway segments within
a 1 ½ mile radius from the project site.
• Examination of the analysis worksheets to ensure that all input parameters are as specified in the
City’s Traffic Impact Analysis Preparation Guide.
• Assessment of the scenarios evaluated to ensure they meet the requirements of CEQA and the City.
• Review of the project trip generation to ensure that the most appropriate trip rates and truck splits
are used and that the passenger car equivalent (PCE) trips have been properly calculated.
• Evaluation of any proposed mitigation measures to ensure that they are feasible and effective.
Mitigation measures should be in conformance with the City’s Capital Improvement Program; as
well as the program of projects funded by the City’s Development Impact Fee (DIF) Program.
EPD’s peer review will be summarized in a technical memorandum. The technical memorandum will discuss
the objectives of our review, relevant CEQA and local planning consistency issues, and our recommendations
for additional analysis, if required. The memorandum will include any changes that are necessary to the TIA.
EPD staff will conduct one subsequent peer review of the revised TIA to ensure any necessary changes have
been incorporated.
March 19, 2020| Page 4
Phase I Environmental Site Assessment
Denise Clendening, PhD, Associate Principal, will conduct a third-party review of the Phase I Environmental
Site Assessment being prepared for the proposed project. Dr. Clendening has over 35 years of site
assessment experience in California and has worked extensively with environmental regulatory agencies. The
review will confirm the assessment of recognized environmental conditions and the suitability of the site for
use as a school. The review will confirm the use of accepted Phase I Environmental Site Assessment
standards, confirm that the conclusions and recommendations regarding recognized environmental
conditions were conducted in accordance with the ASTM methodology. PlaceWorks will summarize the
findings of the third-party technical evaluation in a memorandum.
Deliverable(s):
− CEQA Adequacy Peer Review: Traffic review comments to be provided within Initial Study/MND
review memorandum
− Technical and CEQA Review: Technical Memorandum to be provided for AQ/GHG/HRA, Phase 1 and
Noise
TASK 3. PROJECT MANAGEMENT
PlaceWorks will coordinate closely with the City to ensure that the IS/MND and associated technical studies
are legally defensible, accurate, and useful to decision makers when considering the approval of the project.
Project management responsibilities include: Task scheduling and assignment; management of resources;
monitoring of costs and schedule adherence; and coordination and communications with the project
applicant team (as determined appropriate by the City) to ensure compliance with policies, procedures, and
any applicable codes. This task is based on an approximate number of hours per week for the duration of the
project.
March 19, 2020| Page 5
Cost Estimate
Our cost estimate for the peer review of the Foisy East San Bernardino IS/MND and associated technical
studies is $18,085 (see Table 1). Note that this cost estimate is based on our current understanding of the
project and the hours detailed in the attached spreadsheet. Should the project be more complex or
controversial than anticipated, PlaceWorks may request and substantiate the need for additional fees. The
cost estimate is based on our billing rates, shown in the PlaceWorks - 2020 Standard Fee Schedule.
Table 1. Cost Estimate
TASK COST
PLACEWORKS
CEQA DOCUMENTATION
Task 1 – IS/MND Peer Review $5,400
1.1 Primary Review 3,600
1.2 Final Review 1,800
Task 2 – Technical Studies Peer Review 11,785
2.1 Air Quality & Greenhouse Gas Study 4,280
2.2 Noise Study 1,900
2.3 Traffic 3,850
2.4 Phase I and II Environmental Site Assessments 1,755
Task 3 Project Management $900
GRAND TOTAL $18,085
PlaceWorks labor includes 2% markup for office expenses.
PlaceWorks – 2020 Standard Fee Schedule
STAFF LEVEL HOURLY BILL RATE
Principal $215 - $335
Associate Principal $190 - $235
Senior Associate/Senior Scientist $160 - $215
Associate/Scientist $135 - $170
Project Planner/Project Scientist $105 - $145
Planner/Assistant Scientist $80 - $110
Graphics Specialist $90 - $135
Administrator $145 - $200
Clerical/Word Processing $45 - $150
Intern $75 - $95
Subconsultants are billed at cost plus 10%
Mileage reimbursement rate is the standard IRS-approved rate.
Last update: 2020-01-03
March 19, 2020| Page 6
Schedule
We will work closely with the City to achieve the desired timelines for peer review of the CEQA
documentation for the project. We will complete the first round of the Initial Study and technical studies
review within two weeks of receiving the documents and turn around the second review of the Initial Study
and respective technical studies within one week of receipt.
We look forward to working with the City again to bring about the successful completion of this project. If
you have any questions regarding the contents of this proposal, do not hesitate to call me at (858) 776-5574.
Respectfully submitted,
PLACEWORKS
Mark Teague, AICP
Associate Principal
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PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND PLACEWORKS
This Agreement is made and entered into as of __________, 2020 by and between the
City of San Bernardino, a charter city and municipal corporation organized and operating under
the laws of the State of California with its principal place of business at Vanir Tower, 290 North
D Street, San Bernardino, CA 92401 (“City”), and PlaceWorks, a corporation with its principal
place of business at 3 MacArthur Place, Suite 1100, Santa Ana, CA 92707 (hereinafter referred
to as “Consultant”). City and Consultant are hereinafter sometimes referred to individually as
“Party” and collectively as the “Parties.”
RECITALS
A. City is a public agency of the State of California and is in need of professional
services for the following project:
Third-party CEQA review services for the Foisy project proposed by Waterman Land
Ventures, LLC (hereinafter referred to as “the Project”).
B. Consultant is duly licensed and has the necessary qualifications to provide such
services.
C. The Parties desire by this Agreement to establish the terms for City to retain
Consultant to provide the services described herein.
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Incorporation of Recitals. The recitals above are true and correct and are hereby
incorporated herein by this reference.
2. Services. Consultant shall provide the City with the services described in the
Scope of Services attached hereto as Exhibit “A.”
3. Professional Practices. All professional services to be provided by Consultant
pursuant to this Agreement shall be provided by personnel identified in their proposal.
Consultant warrants that Consultant 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.
4. Compensation.
a. Subject to paragraph 4(b) below, the City shall pay for such services in
accordance with the Schedule of Charges set forth in Exhibit “A.”
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b. In no event shall the total amount paid for services rendered by Consultant
under this Agreement exceed the sum of $18,085.00. This amount is to cover all related costs,
and the City will not pay any additional fees for printing expenses. 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.
5. Additional Work. If changes in the work seem merited by Consultant or the City,
and informal consultations with the other party indicate that a change is warranted, it shall be
processed in the following manner: a letter outlining the changes shall be forwarded to the City
by Consultant with a statement of estimated changes in fee or time schedule. An amendment to
this Agreement shall be prepared by the City and executed by both Parties before performance of
such services, or the City will not be required to pay for the changes in the scope of work. Such
amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
6. Term. This Agreement shall commence on the Effective Date and continue
through the completion of services as set forth in Exhibit “A,” unless the Agreement is
previously terminated as provided for herein (“Term”).
7. Maintenance of Records; Audits.
a. 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 four (4)
years from the Effective Date.
b. Books, documents, papers, accounting records, and other evidence
pertaining to costs incurred shall be maintained by Consultant and made available at all
reasonable times during the contract period and for four (4) years from the date of final payment
under the contract for inspection by City.
8. Time of Performance. Consultant shall perform its services in a prompt and
timely manner and shall commence performance upon receipt of written notice from the City to
proceed. Consultant shall complete the services required hereunder within Term.
9. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this
Agreement for delays in performance caused by circumstances beyond the reasonable control of
the non-performing Party. For purposes of this Agreement, such circumstances include but are
not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and
other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances;
sabotage or judicial restraint.
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b. Should such circumstances occur, the non-performing Party shall, within a
reasonable time of being prevented from performing, give written notice to the other Party
describing the circumstances preventing continued performance and the efforts being made to
resume performance of this Agreement.
10. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state and local government, including Cal/OSHA requirements.
b. If required, Consultant shall assist the City, as requested, in obtaining and
maintaining all permits required of Consultant by federal, state and local regulatory agencies.
c. If applicable, Consultant is responsible for all costs of clean up and/ or
removal of hazardous and toxic substances spilled as a result of his or her services or operations
performed under this Agreement.
11. Standard of Care. Consultant’s services will be performed in accordance with
generally accepted professional practices and principles and in a manner consistent with the level
of care and skill ordinarily exercised by members of the profession currently practicing under
similar conditions.
12. Conflicts of Interest. During the term of this Agreement, Consultant shall at all
times maintain a duty of loyalty and a fiduciary duty to the City and shall not accept payment
from or employment with any person or entity which will constitute a conflict of interest with the
City.
13. City Business Certificate. Consultant shall, prior to execution of this Agreement,
obtain and maintain during the term of this Agreement a valid business registration certificate
from the City pursuant to Title 5 of the City’s Municipal Code and any and all other licenses,
permits, qualifications, insurance, and approvals of whatever nature that are legally required of
Consultant to practice his/her profession, skill, or business.
14. Assignment and Subconsultant. Consultant shall not assign, sublet, or transfer
this Agreement or any rights under or interest in this Agreement without the written consent of
the City, which may be withheld for any reason. Any attempt to so assign or so transfer without
such consent shall be void and without legal effect and shall constitute grounds for termination.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in
this Agreement. Nothing contained herein shall prevent Consultant from e mploying independent
associates and subconsultants as Consultant may deem appropriate to assist in the performance
of services hereunder.
15. Independent Consultant. Consultant is retained as an independent contractor and
is not an employee of City. No employee or agent of Consultant shall become an employee of
City. The work to be performed shall be in accordance with the work described in this
Agreement, subject to such directions and amendments from City as herein provided.
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16. Insurance. Consultant shall not commence work for the City until it has provided
evidence satisfactory to the City it has secured all insurance required under this section. In
addition, Consultant shall not allow any subcontractor to commence work on any subcontract
until it has secured all insurance required under this section.
a. Additional Insured
The City of San Bernardino, its officials, officers, employees, agents, and
volunteers shall be named as additional insureds on Consultant’s and its subconsultants’ policies
of commercial general liability and automobile liability insurance using the endorsements and
forms specified herein or exact equivalents.
b. Commercial General Liability
(i) The Consultant shall take out and maintain, during the
performance of all work under this Agreement, in amounts not less than specified herein,
Commercial General Liability Insurance, in a form and with insurance companies acceptable to
the City.
(ii) Coverage for Commercial General Liability insurance shall be at
least as broad as the following:
Insurance Services Office Commercial General Liability coverage
(Occurrence Form CG 00 01) or exact equivalent.
(iii) Commercial General Liability Insurance must include coverage
for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclusion
deleted
(7) Contractual Liability with respect to this Contract
(8) Broad Form Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting
coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one
insured against another; (3) products/completed operations liability; or (4) contain any other
exclusion contrary to the Agreement.
(v) The policy shall give City, its elected and appointed officials,
officers, employees, agents, and City-designated volunteers additional insured status using ISO
endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same
coverage.
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(vi) The general liability program may utilize either deductibles or
provide coverage excess of a self-insured retention, subject to written approval by the City, and
provided that such deductibles shall not apply to the City as an additional insured.
c. Automobile Liability
(i) At all times during the performance of the work under this
Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and
property damage including coverage for owned, non-owned and hired vehicles, in a form and
with insurance companies acceptable to the City.
(ii) Coverage for automobile liability insurance shall be at least as
broad as Insurance Services Office Form Number CA 00 01 covering automobile liability
(Coverage Symbol 1, any auto).
(iii) The policy shall give City, its elected and appointed officials,
officers, employees, agents and City designated volunteers additional insured status.
(iv) Subject to written approval by the City, the automobile liability
program may utilize deductibles, provided that such deductibles shall not apply to the City as an
additional insured, but not a self-insured retention.
d. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of the provisions of
Section 3700 of the California Labor Code which requires every employer to be insured against
liability for workers’ compensation or to undertake self-insurance in accordance with the
provisions of that code, and he/she will comply with such provisions before commencing work
under this Agreement.
(ii) To the extent Consultant has employees at any time during the
term of this Agreement, at all times during the performance of the work under this Agreem ent,
the Consultant shall maintain full compensation insurance for all persons employed directly by
him/her to carry out the work contemplated under this Agreement, all in accordance with the
“Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of
California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts
indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the
period required by this Agreement, workers’ compensation coverage of the same type and limits
as specified in this section.
e. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant
shall maintain professional liability or Errors and Omissions insurance appropriate to its
profession, in a form and with insurance companies acceptable to the City and in an amount
indicated herein. This insurance shall be endorsed to include contractual liability applicable to
this Agreement and shall be written on a policy form coverage specifically designed to protect
against acts, errors or omissions of the Consultant. “Covered Professional Services” as
designated in the policy must specifically include work performed under this Agreement. The
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policy must “pay on behalf of” the insured and must include a provision establishing the insurer's
duty to defend.
f. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate
for bodily injury, personal injury, and property
damage
Automobile Liability $1,000,000 per occurrence for bodily injury and
property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and
omissions)
(ii) Defense costs shall be payable in addition to the limits.
(iii) Requirements of specific coverage or limits contained in this
section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of
any coverage normally provided by any insurance. Any available coverage shall be provided to
the parties required to be named as Additional Insured pursuant to this Agreement.
g. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City
evidence of insurance from an insurer or insurers certifying to the coverage of all insurance
required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s
equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-
S or equivalent), together with required endorsements. All evidence of insurance shall be
signed by a properly authorized officer, agent, or qualified representative of the insurer and
shall certify the names of the insured, any additional insureds, where appropriate, the type and
amount of the insurance, the location and operations to which the insurance applies, and the
expiration date of such insurance.
h. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior
written notice of cancellation of any policy required by this Agreement, except that the
Consultant shall provide at least ten (10) days prior written notice of cancellation of any such
policy due to non-payment of the premium. If any of the required coverage is cancelled or
expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s)
including the General Liability Additional Insured Endorsement to the City at least ten (10)
days prior to the effective date of cancellation or expiration.
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(ii) The Commercial General Liability Policy and Automobile Policy
shall each contain a provision stating that Consultant’s policy is primary insurance and that any
insurance, self-insurance or other coverage maintained by the City or any named insureds s hall
not be called upon to contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than the
effective date of this Agreement. Consultant shall maintain such coverage continuously for a
period of at least three years after the completion of the work under this Agreement. Consultant
shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced
past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) i f
the policy is replaced by another claims-made policy with a retroactive date subsequent to the
effective date of this Agreement.
(iv) All required insurance coverages, except for the professional
liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the
City, its officials, officers, employees, agents, and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance with these specifications to
waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery
against City, and shall require similar written express waivers and insurance clauses from each
of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured
against whom claims are made or suits are brought, except with respect to the limits of liability.
Further the limits set forth herein shall not be construed to relieve the Consultant from liability
in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the
City and shall not preclude the City from taking such other actions available to the City under
other provisions of the Agreement or law.
i. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance
companies, as determined by the City, which satisfy the following minimum
requirements:
(1) Each such policy shall be from a company or companies
with a current A.M. Best's rating of no less than A:VII and admitted to transact in the
business of insurance in the State of California, or otherwise allowed to place insurance
through surplus line brokers under applicable provisions of the California Insurance Code
or any federal law.
j. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Consultant, and any approval of said insurance by the City, is not
intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise
assumed by the Consultant pursuant to this Agreement, including, but not limited to, the
provisions concerning indemnification.
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(ii) If at any time during the life of the Agreement, any policy of
insurance required under this Agreement does not comply with these specifications or is
canceled and not replaced, City has the right but not the duty to obtain the insurance it deems
necessary and any premium paid by City will be promptly reimbursed by Consultant or City
will withhold amounts sufficient to pay premium from Consultant payments. In the alternative,
City may cancel this Agreement.
(iii) The City may require the Consultant to provide complete copies of
all insurance policies in effect for the duration of the Project.
(iv) Neither the City nor the City Council, nor any member of the City
Council, nor any of the officials, officers, employees, agents or volunteers shall be personally
responsible for any liability arising under or by virtue of this Agreement.
k. Subconsultant Insurance Requirements. Consultant shall not allow any
subcontractors or subconsultants to commence work on any subcontract until they have
provided evidence satisfactory to the City that they have secured all insurance required under
this section. Policies of commercial general liability insurance provided by such subcontractors
or subconsultants shall be endorsed to name the City as an additional insured using ISO form
CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by
Consultant, City may approve different scopes or minimum limits of insurance for particular
subcontractors or subconsultants.
17. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with
counsel reasonably approved by the City), indemnify and hold the City, its elected and appointed
officials, officers, employees, agents, and authorized volunteers free and harmless from any and
all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability,
judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to
property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out
of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of
Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection
with the performance of the Consultant’s services, the Project, or this Agreement, including
without limitation the payment of all consequential damages, expert witness fees and attorneys’
fees and other related costs and expenses. Notwithstanding the foregoing, to the extent
Consultant’s services are subject to Civil Code Section 2782.8, the above indemnity shall be
limited, to the extent required by Civil Code Section 2782.8, to Claims that arise out of, pertain
to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any,
received by the City, the City Council, members of the City Council, its employees, or
authorized volunteers.
b. Additional Indemnity Obligations. Consultant shall defend, with counsel
of City’s choosing and at Consultant’s own cost, expense and risk, any and all Claims covered by
this section that may be brought or instituted against the City, its elected and appointed officials,
employees, agents, or authorized volunteers. Consultant shall pay and satisfy any judgment,
award or decree that may be rendered against the City, its elected and appointed officials,
employees, agents, or authorized volunteers as part of any such claim, suit, action or other
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proceeding. Consultant shall also reimburse City for the cost of any settlement paid by the City,
its elected and appointed officials, employees, agents, or authorized volunteers as part of any
such claim, suit, action or other proceeding. Such reimbursement shall include payment for the
City’s attorney's fees and costs, including expert witness fees. Consultant shall reimburse the
City, its elected and appointed officials, employees, agents, or authorized volunteers, for any and
all legal expenses and costs incurred by each of them in connection therewith or in enforcing the
indemnity herein provided. Consultant’s obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the City, its elected and appointed officials, employees,
agents, or authorized volunteers.
18. California Labor Code Requirements. Consultant is aware of the requirements of
California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of
Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the
payment of prevailing wage rates and the performance of other requirements on certain “public
works” and “maintenance” projects. If the Services are being performed as part of an applicable
“public works” or “maintenance” project, as defined by the Prevailing Wage Laws, Consultant
agrees to fully comply with such Prevailing Wage Laws, if applicable. Consultant shall defend,
indemnify and hold the City, its elected officials, officers, employees and agents free and
harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or
alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the
Consultant and all subconsultants to comply with all California Labor Code provisi ons, which
include but are not limited to prevailing wages, employment of apprentices, hours of labor and
debarment of contractors and subcontractors.
19. Verification of Employment Eligibility. By executing this Agreement, Consultant
verifies that it fully complies with all requirements and restrictions of state and federal law
respecting the employment of undocumented aliens, including, but not limited to, the
Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall
require all subconsultants and sub-subconsultants to comply with the same.
20. Laws and Venue. This Agreement shall be interpreted in accordance with the
laws of the State of California. If any action is brought to interpret or enforce any term of this
Agreement, the action shall be brought in a state or federal court situated in the County of San
Bernardino, State of California.
21. Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work
under this Agreement by giving ten (10) calendar days’ written notice to Consultant. In such
event, City shall be immediately given title and possession to all original field notes, drawings
and specifications, written reports and other documents produced or developed for that portion of
the work completed and/or being abandoned. City shall pay Consultant the reasonable value of
services rendered for any portion of the work completed prior to termination. If said termination
occurs prior to completion of any task for the Project for which a payment request has not been
received, the charge for services performed during such task shall be the reasonable value of
such services, based on an amount mutually agreed to by City and Consultant of the portion of
such task completed but not paid prior to said termination. City shall not be liable for any costs
other than the charges or portions thereof which are specified herein. Consultant shall not be
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entitled to payment for unperformed services, and shall not be entitled to dam ages or
compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under
this Agreement upon thirty (30) calendar days’ written notice to City only in the event of
substantial failure by City to perform in accordance with the terms of this Agreement through no
fault of Consultant.
22. 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’s Office in
enforcing this Agreement on behalf of the City shall be considered as “attorneys’ fees” for the
purposes of this Agreement.
23. 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’s professional services occurs, Consultant shall, at no cost to City, provide all other
services necessary to rectify and correct the matter to the sole satisfaction of the City and to
participate in any meeting required with regard to the correction.
24. Prohibited Employment. Consultant shall not employ any current employee of
City to perform the work under this Agreement while this Agreement is in effect.
25. 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.
26. Documents. Except as otherwise provided in “Termination or Abandonment,”
above, all original field notes, written reports, Drawings and Specifications and other documents,
produced or developed for the Project shall, upon payment in full for the services described in
this Agreement, be furnished to and become the property of the City.
27. Organization. Consultant shall assign Mark Teague, AICP as Project Manager.
The Project Manager shall not be removed from the Project or reassigned without the prior
written consent of the City.
28. Limitation of Agreement. This Agreement is limited to and includes only the
work included in the Project described above.
29. Notice. Any notice or instrument required to be given or delivered by this
Agreement may be given or delivered by depositing the same in any United States Post Office,
certified mail, return receipt requested, postage prepaid, addressed to the following addresses and
shall be effective upon receipt thereof:
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CITY:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Michael Huntley,
Community & Economic Development
Director
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
CONSULTANT:
PlaceWorks
3 MacArthur Place, Suite 1100
Santa Ana, CA 92707
Attn: Kara Kosel, Contracts Manager
30. Third Party Rights. Nothing in this Agreement shall be construed to give any
rights or benefits to anyone other than the City and the Consultant.
31. Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and that it shall not discriminate against any employee or applicant for
employment because of race, religion, color, national origin, ancestry, sex, age or other interests
protected by the State or Federal Constitutions. Such non-discrimination shall include, but not
be limited to, all activities related to initial employment, upgrading, demotion, transfer,
recruitment or recruitment advertising, layoff or termination.
32. Entire Agreement. This Agreement, including Exhibit “A,” represents the entire
understanding of City and Consultant as to those matters contained herein, and supersedes and
cancels any prior or contemporaneous oral or written understanding, promises or representations
with respect to those matters covered hereunder. Each Party acknowledges that no
representations, inducements, promises, or agreements have been made by any person which is
not incorporated herein, and that any other agreements shall be void. This is an integrated
Agreement.
33. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal, 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.
34. Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of the successors in interest, executors, administrators and assigns of each Party to
this Agreement. However, Consultant shall not assign or transfer by operation of law or
otherwise any or all of its rights, burdens, duties or obligations without the prior written consent
of City. Any attempted assignment without such consent shall be invalid and void.
35. Non-Waiver. The delay or failure of either Party at any time to require
performance or compliance by the other Party 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
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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.
36. Time of Essence. Time is of the essence for each and every provision of this
Agreement.
37. 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.
38. Amendments. Only a written executed by all of the Parties hereto or their
respective successors and assigns may amend this Agreement.
39. City’s Right to Employ Other Consultants. City reserves its right to employ other
consultants, including engineers, in connection with this Project or other projects.
40. Prohibited Interests. Consultant maintains and warrants that it has neither
employed nor retained any company or person, other than a bona fide employee working solely
for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide employee working
solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. For breach or
violation of this warranty, City shall have the right to rescind this Agreement without liability.
For the term of this Agreement, no official, officer or employee of City, during the term o f his or
her service with City, shall have any direct interest in this Agreement, or obtain any present or
anticipated material benefit arising therefrom.
41. 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 single Agreement.
42. 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.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND PLACEWORKS
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
CITY OF SAN BERNARDINO
Approved By:
Teri Ledoux
City Manager
Approved as to Form:
****Approved Form****
Gary D. Saenz
City Attorney
Attested By:
Georgeann Hanna, MMC
City Clerk
CONSULTANT
Signature
Name
Title
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EXHIBIT A