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HomeMy WebLinkAboutC26620A - EsGil Corp. Contract No. C26620A AGREEMENT FOR PLAN REVIEW SERVICES THIS AGREEMENT for contract plan review services is made and entered into in the City of Palm Desert on this day of , by and between the CITY OF PALM DESERT, a municipal corporation, hereinafter referred to as "CITY" and ESGIL CORPORATION, hereinafter referred to as CONTRACTOR. (The term contractor includes professionals performing in a consulting capacity.) WITNESSETH: WHEREAS, on March 26, 2007, CITY requested proposals from companies to provide comprehensive plan review for conformance to the model codes, state and federal laws in the following areas of Title 24: structura{, architectural, electrical, plumbing, mechanical, physically disabled laws, energy codes and all other local ordinances, policies and procedures when applicable. WHEREAS, pursuant to said invitation, CONTRACTOR submitted a proposal,which was accepted by CITY for said services. NOW, THEREFORE, in consideration of their mutual promises, obligations, and covenants hereinafter contained, the parties hereto agree as follows: (1) TERM. The term of this Agreement shall be from Jufy 1,2007 through June 30, 2008, or such later date as may be agreed between parties, up to a one- year maximum. (2) NOTICES. Consultant shall deliver all notices and other writings required to be delivered under the Agreement to City at the address set forth in "General Provisions". The City shall deliver all notices and other writing required to be delivered to contractor at the address set forth following consultant=s signature below. (3) ATTACHMENTS. This Agreement incorporates by reference the following attachments to this Agreement: I . General Provisions II. Special Provisions III. Scope of Service � Contract No. C26620A (4) INTEGRATION. This Agreement represents the entire understanding of City and Contractor as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with regard to those matters covered by this Agreement. This Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the parties, and none shall be used to interpret this Agreement. (5) AUTHORITY TO EXECUTE AGREEMENT. Both CITY and CONTRACTOR do covenant that each individual executing this Agreement on behalf of each party is a person duly authorized. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first hereinabove written. CITY OF PALM DESERT CONTRACTOR A Municipal Corporation EsGil Corporation RICHARD S. KELLY, MAYOR RICHARD JAMES ESGATE, PRESIDENT CITY OF PALM DESERT, CALIFORNIA (Signature must be notarized) ATTEST: RACHELLE KLASSEN, CITY CLERK CITY OF PALM DESERT, CALIFORNIA 2 Contract Vo. C26620A I.GENERAL PROVISIONS SECTION ONE: SERVICES OF CONTRACTOR 1.1 Scope of Services: In compliance with all terms and conditions of this Agreement, Contractor sha11 provide the goods and/or services shown on Part I I I hereto ("Scope of Services"), which may be referred to herein as the "services" or the "work." If this Agreement is for the provision of goods, supplies, equipment or personal property, the terms"services"and "work"shall include the provision (and, if designated in the Scope of Services, the installation) of such goods, supplies, equipment or personal property. 1.2 Changes and Additions to Scope of Services: City shall have the right at any time during the performance of the services,without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from said work. No such work shall be undertaken unless a written order is first given by City to Contractor, incorporating therein any adjustment in (I) the Budget, and/or (ii) the time to perform this Agreement,which adjustments are subject to the written approval of the Contractor. It is expressly understood by Contractor that the provisions of this Section 1.2 shall not apply to services specifically set forth in the Scope f Services or reasonably contemplated therein. Contractor hereby acknowledges that is accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore. 1.3Standard of Performance: Contractor agrees that all services shall be performed in a competent, professional, and satisfactory manner in accordance with the standards prevalent in the industry, and that all goods, materials, equipment or personal property included within the services herein shall be of good quality, fit for the purpose intended. 1.4Performance to Satisfaction of City: Contractor agrees to perform all work to the satisfaction of City within the time specified. If City reasonably determines that the work is not satisfactory, City shall have the right to take appropriate action, including but not limited to: (I) meeting with Contractor to review the quality of the work and resolve matters of concern; (ii) requiring Contractor to 3 Contract No. C26620A repeat unsatisfactory work at no additional charge until it is satisfactory; (iii) suspending the delivery of work to Contractor for an indefinite time; (iv) withholding payment; and (v)terminating this Agreement as hereinafter set forth. 1.51nstructions from City: In the performance of this Agreement, Contractor shall report and receive instructions from the City's Representative designated in this Agreement. Tasks or services other than specifically described in the Scope of Services shall not be performed without the prior written approval of the City's representative. 1.6 Familiarity with Work: By executing this Agreement, Contractor warrants that Contractor(i}has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the services under the Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, priorto commencement of services hereunder. Should the Contractor discover any conditions, including any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shail not proceed except at Contractor's risk until written instructions are received from the City's Representative. 1.7Prohibition Against Subcontracting of Assignment: Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of City. In addition, neither the Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law,whether for the benefit of creditors or otherwise,without the prior written approval of City. I n the event of any unapproved transfer, including any bankruptcy proceeding, City may void the Agreement at City's option in its sole and absolute discretion. No approved transfer shall release any surety of Contractor of any liability hereunder without the express consent of City. 1.8 Compensation: Contractor shall be compensated as follows: i. EsGil Corporation's plan review fee shall be 75% of the City of Palm Desert building plan review fee for each commercial building checked including UBC, UMC, UPC, NEC, and Title 24 energy and disabled access. (Including all rechecks). 4 Contract No. C26620A ii. EsGil Corporation's plan review fee shall be 85% of the City of Palm Desert plan review fee for each residential building checked. Tract repeats shall be reduced to 20% (Including all rechecks). iii. Structural-only reviews will be reduced to 50% of the City's Building plan review fee. (Includes all rechecks). iv. Major revisions initiated by the designer after completion of the plan review is reviewed at our preferred hourly rate when requested by the City, as defined in EsGil Corporation Hourly Rates as submitted with proposal dated April 5, 2007. v. Expedited reviews are avaifable for a 50% fee surcharge. SECTION TWO: INSURANCE AND INDEMNIFICATI4N 2.11nsurance: Without limiting Contractor's indemnification obligations, Contractor shall procure and maintain, at its sole cost and for the duration of this Agreement, insurance coverage as provided below, against all claims for injuries against persons or damages to property which may arise from or in connection with the performance of this work hereunder by Contractor, its agents, representatives, employees, and/or subcontractors. In the event that Contractor subcontracts any portion of the work in compliance with Section 1.7 of this Agreement, the contract befinreen the Contractor and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the contractor is required to maintain pursuant to this Section 2.1. 2.1.1 Insurance Coverage Required: The policies and amounts of insurance required hereunder shall be as follows: i. General Liabilitv: (including premises and operations, contractual liability, personal injury, independent contractors liability); One Million Dollars ($1,000,000) single limit, per occurrence. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate shall apply separately to this project, or the general aggregate limit shall be three times the occurrence limit. ii. Automobile Liabilitv (including owned, non-owned, leased, and hired autos): One Million Dollars ($1,000,000) single limit, per occurrence for bodily injury and property damage. iii. Workers Compensation and Emplover's Liabilitv: Workers 5 Contract No.C26620A Compensation Insurance (if Contractor is required to have) in an amount required by the laws of the State of California and Empfoyer's Liability Insurance in the amount of One Million Dollar ($1,OOO,Q00) per occurrence for injuries incurred in providing services under this Agreement. iv. Professional Liabilitv (covering errors and omissions):One Million Dollars ($1,000,000) per occurrence. v. Other Insurance: Such other policies of insurance as may be required in "Special Provisions". 2.1.2. General Requirements. All of Contractor's insurance: i. Shall name the City, and its officers, officials, employees, agents, representatives and volunteers (collectively hereinafter "City and City Personnel") as additional insured and contain no special limitations on the scope of protection afforded to City and City Personnel; ii. Shall be primary insurance and any insurance or self-insurance maintained by City or City Personnel shall be in excess of Contractor's insurance and shall not contribute with it. iii. Shall be "occurrence" rather than "claims made" insurance; iv. Shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. v. Shalf be endorsed to state that the insurer shalf waive all rights of subrogation against City and City Personnel; vi. Shall be written by good and solvent insurer(s) admitted to do business in the State of California and approved in writing by City; and vii. Shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non-renewed, or materially changed for any reason, without thirty (30) days prior written notice thereof given by the insurer to City by U.S. mail, certified, or by personal delivery. 6 Contract No.C26620A 2.1.3. Deductibles: Any deductibles of self-insured retentions must be declared to and approved by City prior to the execution of this Agreement by City. 2.1.4. Evidence of Coverage: Contractor shall furnish City with certificates of insurance demonstrating the coverage required by this Agreement, which shall be received and approved by City not less than five (5) working days before work commences. 2.1.5. Workers Compensation Insurance: If Contractor is required to provide Worker's Compensation Insurance, Contractor shall file with City the following signed certification: "I am aware of, and will comply with, Divisions 4 and 5 of the California Labor Code by securing, paying for, and maintaining in full force and effect for the duration of the contract, complete "Worker's Compensation Insurance, and shall furnish a Certificate of Insurance to City before execution of the Agreement." In the event Contractor has no employees requiring Contractor to provide Worker's Compensation Insurance, Contractor shalf so certify to City in writing prior to City's execution of this Agreement. City and City Personnel shall not be responsible for any claims in law or equity occasioned by failure of the Contractor to comply with this section or with the provisions of law relating to Worker's Compensation. 2.2 Indemnification: Contractor shall indemnify, defend, and hold City and City Personnef harmless from and against any and all actions, suits, claims, demands, judgments, attorney's fees, costs, damages to persons or property, losses, penalties, obligations, expenses or liabilities (herein "claims" or "liabilities") that may be asserted or claimed by any person or entity arising out of the willful or negligent acts, errors or omissions of Contractor, its employees, agents, representatives or subcontractors in the performance of any tasks or services for ar on behalf of City, whether or not there is concurrent active or passive negligence on the part of City and/or City Personnel, but excluding such claims or liabilities arising from the sole active negligence or willful misconduct of City or City Personnel. In connection therewith: 2.2.1 Contractor shall defend any action or actions filed in connection with any such claims or liabilities, and shall pay a11 costs and expenses, inciuding attorney's fees incurred in connection therewith. 7 Contract No. C26620A 2.2.2. Contractor shall promptly pay any judgment rendered against City or any City Personnel for any such claims or liabilities. 2.2.3 In the event City and/or any City Personnel is made a party to any action or proceeding filed or prosecuted for any such damages or other claims arising out of or in connection with the negligent performance or a failure to perform the work or activities of Contractor, Contractor shall pay to City any and all costs and expenses incurred by City or City Personnel in such action or proceeding, together with reasonable attorney's fees and expert witness fees. SECTION THREE: LEGAL RELATIONS AND RESPONSIBILITIES 3.1 Compliance with Laws: Contractor shall keep itself fully informed of all existing and future state and federal laws and all county and city ordinances and regulations which in any manner affect those employed by or it or in any way affect the performance of services pursuant to this Agreement. Contractor shall at all times observe and comply with all such laws, ordinances, and regulations and shall be responsible for the compliance of all work and services performed by or on behalf of Contractor. W hen applicable, Contractor shall not pay less than the prevailing wage, which rate is determined by the Director of Industrial Relations of the State of California. 3.2 Licenses, Permits, Fees, and Assessments: Contractor shall obtain at its sole cost and expenses all licenses, permits, and approvals that may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Contractor's perFormance of the services required by this Agreement, and shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes, penalties, or interest levied, assessed, or imposed against City thereunder. 3.3 Covenant Against Discrimination: Contractor covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it,that there shall be no discrimination against any person on account or race, color, creed, religion, sex, marital status, national origin, or ancestry, in the performance of this Agreement. Contractor further covenants and agrees to comply with the terms of the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et. seq.) as the same may be amended from time to time. 8 Contract ho.C26620A 3.4 Independent Contractor: Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise, or a joint venture, or a member of any joint enterprise with Contractor. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Neither Contractor nor any of Contractor's employees shall, at any time, or in any way, be entitled to any sick leave, vacation, retirement, or other fringe benefits from the City; and neither Contractor nor any of its employees shall be paid by City time and one-half for working in excess of forth (40) hours in any one week. City is under no obligation to withhold State and Federal tax deductions from Contractor's compensation. Neither Contractor nor any of Contractor's employees shall be included in the competitive service, have any property right to any position, or any of the rights an employee may have in the event of termination of this Agreement. 3.5 Use of Patented Materials: Contractor shall assume all costs arising from the use of patented or copyrighted materials, including but not limited to equipment, devices, processes, and software programs, used or incorporated in the services or work perFormed by Contractor under this Agreement. Contractor shall indemnify, defend, and save the City harmless from any and all suits, actions or proceedings of every nature for or on account of the use of any patented or copyrighted materials. 3.6 Proprietary Information: All proprietary information developed specifically for City by Contractor in connection with, or resulting from,this Agreement, including but not limited to inventions, discoveries, improvements, copyrights, patents, maps, reports, textual material, or software programs, but not including Contractor's underlying materials, software, or know-how, shall be the sole and exclusive property of City, and are confidential and shall not be made available to any person or entity without the prior written approval of City. Contractor agrees that the compensation to be paid pursuant to this Agreement includes adequate and sufficient compensation for any proprietary information developed in connection with or resulting from the performance of Contractor's services under this Agreement. Contractor further understands agrees that full disclosure of all proprietary information developed in connection with, or resulting from, the performance of services by Contractor 9 Contract?�o.C26620A under this Agreement shall be made to City, and that Contractor shall do all things necessary and proper to perfect and maintain ownership of such proprietary information by City. 3.7 Retention of Funds: Contractor hereby authorizes City to deduct from any amount payable to Contractor(whether arising out of this Agreement or otherwise)any amounts the payment of which may be in dispute hereunderorwhich are necessaryto compensate City for any losses, costs, liabilities, or damages suffered by City, and all amounts for which City may be liable to third parties, by reason of Contractor's negligent acts, errors, or omissions, or willful misconduct, in performing or failing to perform Contractor's obligations under this Agreement. City in its sole and absolute discretion, may withhold from any payment due Contractor, without liability for interest, an amount sufficient to cover such claim or any resulting lien. The failure of City to exercise such right to deduct or withhold shall not act as a waiver of Contractor's obligation to pay City any sums Contractor owes City. 3.8 Termination by City: City reserves the right to terminate this Agreement at any time, with or without cause, upon written notice to Contractor. Upon receipt of any notice of termination from City, Contractor shall immediately cease all services hereunder except such as may be specifically approved in writing by City. Contractor shall be entitled to compensation for all services rendered priorto receipt of City's notice of termination and for any services authorized in writing by City thereafter. If termination is due to the failure of Contractor to fulfill its obligations under this Agreement, City may take over the work and prosecute the same to completion by contract or otherwise, and Contract shall be liable to the extent that the total cost for completion of the services required hereunder, including costs incurred by City in retaining a replacement contractor and similar expenses, exceeds the Budget. 3.9 Right to Stop Work: Termination by Contractor: Contractor shall have the right to stop work only if City fails to timely make a payment required under the terms of the Budget. Contractor may terminate this Agreement only for cause, upon thirty (30) days' prior written notice to City. Contractor shall immediately cease all services hereunder as of the date Contractor's notice of termination is sent to City, except such services as may be specifically approved in writing by City. Contractor shall be entitled to compensation for all services rendered prior to the date notice of termination is sent to City and for any services authorized in writing by City thereafter. !f Contractor terminates this Agreement because of an error, 10 Contract No. C26620A omission, or a fault of Contractor, or Contractor's willful misconduct, the terms of Section 3.8 relating to City's right to take over and finish the work and Contractor's liability therefor shall apply. 3.10 Waiver: No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing. 3.11 Legal Actions: Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted an maintained in the Municipal and Superior Courts of the State of California in the County of Riverside, or in any other appropriate courtwith jurisdiction in such County, and Contractor agrees to submit to the personal jurisdiction of such court. 3.12 Rights and Remedies are Cumulative: The rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 3.13 Attorneys' Fees: In any action between the parties hereto seeking enforcement of any of the terms or provisions of this Agreement or in connection with the performance of the work hereunder, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to have an recover from the other party its reasonable costs and expenses, including, but not limited to, reasonable attorney's fees, expert witness fees, and courts costs. If either party to this Agreement is required to initiate or defend litigation with a third party because of the violation of any term of provision of this Agreement by the other party, then the party so litigating shall be entitled to its reasonable attorney's fees and costs from the other party to this Agreement. 3.14 Force Majeure: The time period specified in this Agreement for performance of services shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of City or Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes,floods, epidemics, quarantine restrictions, riots> 11 Contract'�io.C26620A strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if the delaying party shall within ten (10} days of the commencement of such delay notify the other party in writing of the causes of the delay. If Contractor is the delaying party, City shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of such delay is justified. City's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in the performance of this Agreement, however caused. Contractor's sole remedy shall be extension of this Agreement pursuant to this Section 3.14. 3.15 Non-Liability of City Officers and Employees: No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Contractor, or any successor in interest, in the event of any default or breach by City, or for any amount which may become due to Contractor or its successor, or for breach of any obligation of the terms of this Agreement. 3.16 Conflict of Interest. No officer, official, employee, agent, representative , or volunteer of City shall have any financial interest, direct or indirect, in this Agreement, or participate in any decision relating to this Agreement which affects his or her financial interest or the financial interest of any corporation, partnership, or association in which he or she is interested, in violation of any Federal, State, or City statue, ordinance, or regulation. The Contractor shall not employ any such person while this Agreement is in effect. SECTION FOUR: MISCELLANEOUS PROVISION 4.1 Records and Reports: Upon request by City, Contractor shall prepare and submit to City and reports concerning Contractor's performance of the services rendered under this Agreement. City shall have access, upon reasonable notice, to the books and records of Contractor related to Contractor's performance of this Agreement in the event any audit is required. All drawings, documents, and other materials prepared by Contractor in the performance of this Agreement (i) shall be the property of City and shall be delivered at no cost to City upon request of City or upon the termination of this Agreement, and (ii) are confidential and shall not be made available to any individual or entity without prior written approval of City. Contractor shall keep and maintain all records and reports related to this Agreement for a period of three (3) years following termination of this Agreement, and City shall have 12 Contract?�o. C26620A access to such records in the event any audit is required. 4.2 Notices: Unless otherwise provided herein, all notices required to be delivered under this Agreement or under applicable law shall be personally delivered, or delivered by United States mail, prepaid, certified, return receipt requested, or by reputable document delivery service that provides showing date and time of delivery. Notices personally delivered or delivered by a document delivery service shall be effective Upon receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the second calendar day following dispatch. Notices to the City shall be delivered to the following address: OFFICE OF THE CITY CLERK City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Notices to Contractor shall be delivered to the address set forth below: ESGIL CORPORATION 9320 Chesapeake Drive, Suite 208 San Diego, California 92123 4.3 Construction and Amendments: The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The headings of sections and paragraphs of this Agreement are for convenience or reference only, and shall not be construed to limit or extend the meaning of the terms, covenants and conditions of this Agreement. This Agreement may only be amended by the mutual consent of the parties by an instrument in writing. 4.4 Severability: Each provision of this Agreement shall be severable from the whole. If any provision of this Agreement shall be found contrary to law, the remainder of this Agreement shal� continue in full force. 4.5 Authority: The person(s) executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv)the entering into this Agreement does 13 Contract No.C26620A not violate any provision of any other Agreement to which said party is bound. 4.6 Special Provisions: Any additional or supplementary provisions or modifications or alterations of these General Provisions shall be set forth in this Agreement ("Special Provisions"). 4.7 Precedence: In the event of any discrepancy between "Terms", "General Provisions", "Special Provisions", and/or "Scope of Services", "Special Provisions" shall take precedence and prevail. 14 Contract tio. C26620A II. SPECIAL PROVISIONS 1. Replace "Contractor" with "Consultant" throughout the Agreement. 2. Add the following Section 1.5: In all cases where staff are provided to City to perform any part of the Scope of Services, each and every qualified person from Contractor providing such services will be required to be reviewed and certified for such service in writing by the City's representative prior to beginning service. 3. Replace, Section 2.1.2. with the following: (1) Shall be "occurrence" rather than "claims made" insurance, excluding Professional Liability; 15 Contract?�To. C26620A III.SCOPE OF SERVICES Plan Check Services for the City to include: 1. Structural / latest City Adopted Building Code Conformance 2. Architectural / Latest City Adopted Building Code Conformance 3. Electrical / Latest City Adopted Electrical Code Conformance 4. Plumbing / Latest City Adopted Plumbing Code Conformance 5. Mechanical / Latest City Adopted Mechanical Code Conformance 6. Physically Disabled Laws - Title 24 Conformance (State and Federal) 7. Energy— City's Energy Ordinance and Title 24 Energy Conformance 8. City Ordinances, Policies, and Procedures Conformance 16