HomeMy WebLinkAboutC29040A-C Bldg Pln Rvw & Inspection Svcs FY 09-10 CITY OF PALM DESERT
BUILDING AND SAFETY DEPARTMENT
STAFF REPORT
REQUEST: PLAN REVIEW CONTRACTS
SUBMITTED BY: Russell A. Grance, Director of Building and Safety
CONSULTANTS: Scott Fazekas & Associates
9 Corporate Park, Ste 200
Irvine, CA 92606
(949) 475-2901
Interwest Consulting Group
4113 Bellflower Blvd
Long Beach, CA 90808
(562) 420-7815
Willdan Engineering
2401 E. Katella Ave., Suite 300
Anaheim, CA 92806-6073
(714) 940-6300
DATE: June 11, 2009
CONTENTS: Request for Qualifications — Plan Review/Inspection Services
Agreements for Plan Review/Inspection Services
Recommendation:
By Minute Motion, 1) Award subject contracts for professional service agreement
(Contract No. C29040A) to, Scott Fazekas & Associates, (Contract No. C29040B) to,
Interwest Consulting Group, and (Contract No. C29040C) to, Willdan Engineering, for
building Pfan Review and Inspection services for the fiscal year 2009/2010; 2) authorize
the Mayor to execute the contracts with a beginning date of July 1, 2009 and ending
date of June 30, 2010, and shall not exceed a total of $60,000. Funds are available in
General Fund Account No. 110-4420-422.30-10, as set forth in the 2009/2010 budget.
W:Wgenda Items\2009-06-11\Building&Safety Department\Plan Review Staff Report\06-11-09 Plan Review Contract Staff
Report.docx
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Staff Report— PLAN REVIEW CONTRACTS
Scott Fazekas &Associates
Interwest Consulting Group
Willdan Engineering
June 11, 2009
Page 2
Executive Summary:
In order to supplement city building plan review and inspection staff, three companies
have been selected for inclusion in the contract process to ensure availability of the
highest quality building plan review and inspection services for the protection of the
citizens of Palm Desert.
Discussion:
The Department of Building and Safety prepared and advertised a Request for
Qualifications on November 21, 2008. Sealed qualifications were received from a total
of thirteen Consultants, and were opened on Monday, December 15, 2008 at 5:00 p.m.
Based on company qualifications, oral interviews were conducted on Thursday,
February 26, 2009 for the top five consultants.
Three companies were selected for inclusion in the contract process to ensure
availability of the highest quality building plan review and inspection services for the
protection of the citizens of Palm Desert.
The contract agreement amount will be applied to the Professional Services Account
No. 110-4420-422.30-10. It should be noted that the services provided are recoupable
through permit fees assessed to each project requiring these plan review and inspection
services.
It is the intention of the Building and Safety Department to provide the majority of the
plan review services with city staff, and supplement staffing levels with contract plan
review services on an as needed basis.
Therefore, it is staff's recommendation to approve and award the contracts, and funding
allocation for professional building inspection services to Scott Fazekas & Associates
Interwest Consulting Group, and Willdan Engineering.
G:\BldgSfty\Suzanne Cicchini\Word Files\Staff Reports\Plan Review Staff Report FY 09-10 06-11-09\Plan Review Contract Staff
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Staff Report- PLAN REVIEW CONTRACTS
Scott Fazekas &Associates
Interwest Consulting Group
Willdan Engineering
June 11, 2009
Page 3
Submitted By: Rev� wed a Concur:
�
Russell A. Grance, CBO Homer Croy
Director of Building and Safety ACM for Devel ent
Services
A p ve .
J hlmuth Paul Gibson
Cit Manager Finance Director
CITY COUNCIL A�ION
APPROVED DFNiED
RECCIVED OTHER____�_,,,
MEF,TI G DAT '
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NOES:
A13SENT:
A[3STAI1�1:
VERIFIED BY:
Original on File with City lerk's Office
G:�BIdgSfty\Suzanne Cicchini\Word Files\Staff Reports\Plan Review Staff Report FY 09-10 06-11-09\Plan Review Contract Staff
Report 06-11-09.docx
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CITY OF PALM DESERT
DEPARTMENT OF BUILDING AND SAFETY
REQUEST FOR QUALIFICATIONS
tRFQ)
PLAN REVIEW
&
INSPECTION SERVICES
Page 2 of 6
CITY OF PALM DESERT
DEPARTMENT OF BUILDING AND SAFETY
REQUEST FOR QUALIFICATIONS
BUILDING AND SAFETY SERVICES
The City of Palm Desert, Department of Building and Safety (City) invites all qualified
and interested persons and/or firms (Consultant) with experience and technical
qualifications related to building construction plan review, building inspection, and other
professional services for the department to submit RFQ's for providing these services
on an as-needed basis.
A. SCOPE OF SERVICES
The City of Palm Desert, Department of Building and Safety have permanent staff that
performs most of the plan review, permitting and inspections. In the occasion that the
demand is in excess of the capacity of the staff, contract services are utilized. Some
projects are out sourced entirely for the review and/or inspections, and other times the
Consultants have provided staff full or part time at an hourly rate at the option of the
City. The services required will include the review of construction drawings and
calculations to assure compliance with City adopted building codes and related
Municipal Code requirements. Any single job may require as few as one review of
submitted plans or as many as three reviews of submitted plans. Specific jobs may
include residential or non-residential projects. Type of proposed work may include new
construction, remodel, or additions. The City may also require building inspection and
other services for the department on an as needed basis.
B. ADOPTED CODES
The City of Palm Desert has adopted the 2007 California Building, Electrical, Plumbing,
& Mechanical codes, with local amendments and a copy of the adopted Municipal Code
will be provided to the successful Consultant. Future local amendments to the Building
Code and additional Municipal Code amendments are anticipated during the proposed
length of the contract. The City will provide copies of these changes to the successful
Consultant prior to their effective date. Copies of other codes shall be the responsibility
of the Consultant.
Page 3 of 6
C. REVIEW PROCESS
The City's review process for jobs is as follows:
➢ City accepts application or resubmission.
• 2 sets of complete plans are accepted at the time of application.
➢ Consultant notified of job.
• 1 set of plans and copy of application per job forwarded to Consultant.
➢ Plans reviewed are delivered back to the City within 10-15 working days on the
first submittal.
➢ Applicant is notified of approval or need for corrections to be addressed.
➢ Upon receipt of corrected plans the City will forward plans to Consultant.
➢ Corrected plans reviewed are delivered back to the City within 8-10 working days
for the second submittal.
D. REQUIRED INFORMATION AND FORMAT OF SUBMITTAL
In order to be considered for selection, the respondent Consultants(s) shall submit a
statement of qualifications using as a minimum the following criteria, the Consultant(s)
shall state why it believes it is qualified to provide the services described in this RFQ.
Each submitting Consultant shall provide as a part of the RFQ the following items,
which shall be scored by representatives from the City of Palm Desert:
1. Letter of Introduction (5 points)
a) Provide a letter of introduction signed by a Principal or Senior Officer of the
organization.
b) If submitting as a team, note which team is the prime Consultant or lead joint
venture partner (if applicable).
c) Include the name and resume of the individual leading the team.
2. Firm Information and Quali�cations (25 points)
a) Number of years the firm(s) has been in business.
b) Location of principal office that will be responsible for the implementation of this
contract, and distance from the City of Palm Desert.
c) List Company and individual team members experience in providing similar
services, including a comparison of personnel qualifications, state registrations
and/or ICC, or other certifications to the type of plan review work proposed to be
provided by that individual. A table similar to the following shall be submitted.
Page 4 of 6
Name Qualifications T e of review work
Professional registrations or certifications Building (structural),
Plumbing, Mechanical,
Electrical, T24 Energy &
Accessibilit
d) Provide a list of at least 3 references; name of organization, job title, addresses,
and phone numbers.
e) Identify any proposed Consultants and any other relevant disciplines for this
project. Include resumes and related experiences for appropriate members of
these firms.
3. Firm Resources (35 pts)
a) Provide a statement demonstrating your firm or team's ability to accomplish the
scope of services in a comprehensive and thorough manner to meet the needs of
the City.
b) Explain the firm's technical capabilities in the following plan check areas:
I. Architectural.
II. Structural.
III. Mechanical.
IV. Plumbing.
V. Electrical.
VI. T24 Energy
VII. Accessibility
c.) Provide information on the maximum proposed turnaround time for each possible
type of job assigned. A table similar to the following shall be submitted.
T e of'ob Turnaround time
Residential:
New construction Workin da s
Addition Workin da s
Remodel Workin da s
Non Residenfial:
New construction Workin da s
Addition Workin da s
Remodel Workin da s
Page 5 of 6
4. Professional Services Fees (35 points)
At the City's option the plan review may be performed in whole or in part. The maximum
fee shall not exceed 70% of the plan review fee received by the City for the whole
building review. Where a partial review is requested by the City, the maximum fee shall
not exceed 40% of the plan review fee received by the City for the structural review.
Where a partial review is requested by the City, the maximum fee shall not exceed 40%
of the plan review fee received by the City for the nonstructural review. The Consultant
shall also provide a fee schedule listing additional professional services or other direct
costs (ODC's).
The Consultant is expected to perform the plan review iterations required to obtain
approval of each project for the percentage of fee proposed. After three reviews, prior
approval by the City is required for any and all charges proposed in addition to the
percentage agreed to as stated in the above paragraph. Prior approval by the City is
required for any and all charges proposed for deferred submittals and revisions that
may occur on projects reviewed by the Consultant.
E. WORK PRODUCT
Work product shall consist of written comments and redlined plans (1 copy). Comments
and redlined plans or approval/denial letter and 1 set of plans shall be returned to the
City after each review is completed.
F. SUBMITTAL REQUIREMENTS
Five (5) copies of the proposal must be received no later than 4:00 p.m. on
Monday, December 15, 2008. Proposals shall be delivered in an envelope clearly
marked: Qualifications for Outside Plan Check Services and Field Inspection Services.
The applicant's name, the appropriate contact, addresses and telephone number shall
be included on the envelope. Consultant uses mail or courier service at their own risk.
City will not be liable or responsible for any late delivery of proposals. Proposals shall
be submitted to:
Rachelle Klassen
City Clerk
City of Palm Desert
75-310 Fred Waring Drive
Palm Desert, CA 92260
Page 6 of 6
G. CONTACT. EVALUATION & ACCEPTANCE OF THE RFQ
The City reserves the right to reject RFQ's, amend the RFQ, and to discontinue or
reopen the process at any time. Questions during the solicitation period are preferably
received by email, and may be addressed to:
Russell A. Grance, CBO
Director of Building and Safety
City of Palm Desert
75-310 Fred Waring Drive
Palm Desert, CA 92260
(760)776-6420 E� 430
rqranceCa�ci.palm-desert ca us
H. INTERVIEW PROCESS
The City of Palm Desert reserves the right and may require a formal interview of the
final Consultant(s) selected to determine the most qualified Consultant as part of the
final selection process.
By submitting a Statement of Qualifications in response to this solicitation, the
submitting Consultant(s) specifically represents that it has read this RFQ and any
future addendums.
The City intends to enter into negotiations with the recommended Consultant and
establish final terms and conditions for the Contract. Should such discussions and
negotiations be unsuccessful the City shall contact the second most qualified
Consultant and undertake negotiations and discussions with them until a contract can
be executed with the most qualified Consultant. The City is targeting to initiate the
Contract for Fiscal Year 2009-2010.
Contract No. C29040A
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
SCOTT FAZEKAS & ASSOCIATES, INC. (SFA), hereinafter referred to as
CONSULTANT. (The term contractor includes professionals perForming in a consulting
capacity.)
WITNESSETH:
WHEREAS, on <date>, CITY requested for qualifications from companies to
provide comprehensive plan review for conformance to the model codes, state and
federal laws in the following areas of Title 24: structural, architectural, electrical,
plumbing, mechanical, physically disabled laws, energy codes and all other local
ordinances, policies and procedures when applicable.
WHEREAS, pursuant to said invitation, CONSULTANT 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 July 1, 2009 through
June 30, 2010, 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
"Generat 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. Scope of Service
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Contract No.
(4) INTEGRATION.
This Agreement represents the entire understanding of City and
Consultant 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
CONSULTANT 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 CONSULTANT
A Municipal Corporation Scott Fazekas &Associates, Inc.
ROBERT SPIEGEL, MAYOR SCOTT R. FAZEKAS, PRESIDENT
(Signature must be notarized)
ATTEST:
RACHELLE D. KLASSEN, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
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Contract No.
I. GENERAL PROVISIONS
SECTION ONE: SERVICES OF CONSULTANT
1.1 Scope of Services: In compliance with all terms and conditions of this
Agreement, Consultant shall provide the goods and/or services shown on
Part II 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.
1.2Changes 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 Consultant, 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 Consultant. It is expressly understood by Consultant
that the provisions of this Section 1.2 shall not apply to services specifically
set forth in the Scope of Services or reasonably contemplated therein.
Consultant 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 Consultant anticipates and that Consultant shall not be
entitled to additional compensation therefore.
1.3Standard of Performance: Consultant 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: Consultant 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 Consultant to
review the quality of the work and resolve matters of concern; (ii) requiring
Consultant to repeat unsatisfactory work at no additional charge until it is
satisfactory; (iii) suspending the delivery of work to Consultant for an
indefinite time; (iv) withholding payment; and (v) terminating this Agreement
as hereinafter set forth.
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Contract No.
1.51nstructions from City: In the perFormance of this Agreement, Consultant
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. In all cases where staff are
provided to City to perform any part of the Scope of Services, each and every
qualified person from Consultant 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.
1.6 Familiarity with Work: By executing this Agreement, Consultant warrants
that Consultant (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, Consultant warrants that
Consultant has or will investigate the site and is or will be fully acquainted
with the conditions there existing, prior to commencement of services
hereunder. Should the Consultant discover any conditions, including any
latent or unknown conditions, which will materially affect the perFormance of
the services hereunder, Consultant shall immediately inform the City of such
fact and shall not proceed except at Consultant's risk until written instructions
are received from the City's Representative.
1.7Prohibition Against Subcontracting of Assignment: Consultant 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. In 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
Consultant of any liability hereunder without the express consent of City.
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Contract No.
1.8Compensation: Contractor shall be compensated as follows:
Scott Fazekas & Associates, Inc. plan review fee shall be 70% of the City
of Palm Desert building plan review fee for buildings checked including
CBC, CMC, CPC, CEC, and Title 24 energy and disabled access. Where
a partial review is requested by the City, the maximum fee shall not
exceed 40% of the plan review fee received by the City for the structural
review. Where a partial review is requested by the City, the maximum fee
shall not exceed 40% of the plan review fee received by the City for the
nonstructural review. (Including all rechecks)
Commercial project plan review fee shall be 60% of City's fee and 50% for
commercial projects over 30,000 square feet. Partial review/structural
only fee for commercial projects will be 34% and 29% respectively.
I. Major revisions initiated by the designer or the revisions that the City
would collect additional fees for the rechecks can be charged at a rate of
$100.00 per hour or as mutually agreed upon based on the salary rate of
the Consultant's employee.
SECTION TWO: INSURANCE AND INDEMNIFICATION
2.1 Insurance: Without limiting Consultant's indemnification obligations,
Consultant 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
Consultant, its agents, representatives, employees, and/or subcontractors.
In the event that Consultant subcontracts any portion of the work in
compliance with Section 1.7 of this Agreement, the contract befinreen the
Consultant and such subcontractor shall require the subcontractor to
maintain the same policies of insurance that the Consultant 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.
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Contract No.
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 Employer's Liability: Workers
Compensation Insurance (if Consultant is required to have) in an
amount required by the laws of the State of California and Employer's
Liability Insurance in the amount of One Million Dollar ($1,000,000)
per occurrence for injuries incurred in providing services under this
Agreement.
�v. Professional Liabilitv (covering errors and omissions): One Million
Dollars ($1,000,000) peroccurrence.
V. Other Insurance: Such other policies of insurance as may be required
in "Special Provisions".
2.1.2. General Requirements. All of Consultant's insurance except for
Professional Liability and Workers Compensation 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
Consultant's insurance and shall not contribute with it.
III. Shall be "occurrence" rather than "claims made" insurance; excluding
Professional Liability.
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. Shall be endorsed to state that the insurer shall 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
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Contract No.
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.
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:
Consultant 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,
Consultant 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 Consultant has no employees requiring Consultant to provide
Worker's Compensation Insurance, Consultant shall 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 Consultant to comply with this section or with the provisions
of law relating to Worker's Compensation.
2.2 Indemnification:
Consultant shall indemnify, defend, and hold City and City Personnel
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 caused by the
willful or negligent acts, errors or omissions of Consultant, its employees,
agents, representatives or subcontractors in the perFormance of any tasks
or services for or on behalf of City, whether or not there is concurrent
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Contract No.
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 Consultant shall defend any action or actions filed in connection with
any such claims or liabilities, and shall pay all costs and expenses,
including attorney's fees incurred in connection therewith.
2.2.2. Consultant 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 Consultant, Consultant 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:
Consultant 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. Consultant 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 Consultant. When applicable,
Consultant 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:
Consultant 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. Consultant 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 Consultant'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.
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Contract No.
3.3 Covenant Against Discrimination:
Consultant 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.
Consultant 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.
3.4 Independent Consultant:
Consultant 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 Consultant in its business or
otherwise, or a joint venture, or a member of any joint enterprise with
Consultant. Consultant 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.
Consultant will however, act as an agent of the Building Official when
performing ministerial enforcement duties in the application of City codes
and regulations. Neither Consultant nor any of Consultant'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 Consultant
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 Consultant's
compensation. Neither Contractor nor any of Consultant'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:
Consultant 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 Consultant under this Agreement. Consultant 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 Consultant 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
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Contract No.
Consultant'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. Consultant 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 Consultant's services under this Agreement. Consultant
further understands agrees that full disclosure of all proprietary information
developed in connection with, or resulting from, the performance of
services by Consultant under this Agreement shall be made to City, and
that Consultant shall do all things necessary and proper to perfect and
maintain ownership of such proprietary information by City.
3.7 Retention of Funds:
Consultant hereby authorizes City to deduct from any amount payable to
Consultant (whether arising out of this Agreement or otherwise) any
amounts the payment of which may be in dispute hereunder or which are
necessary to 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 Consultant's negligent acts, errors, or omissions, or
willful misconduct, in performing or failing to perform Consultant's
obligations under this Agreement. City in its sole and absolute discretion,
may withhold from any payment due Consultant, 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 Consultant's obligation to pay City any sums Consultant
owes City.
3.8 Termination by City:
Either party reserves the right to terminate this Agreement at any time,
with or without cause, upon written notice to other party. Upon receipt of
any notice of termination from City, Consultant shall immediately cease all
services hereunder except such as may be specifically approved in writing
by City. Consultant shall be entitled to compensation for all services
rendered prior to 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 Consultant 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.
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Contract No.
3.9 Right to Stop Work: Termination by Consultant:
Consultant shall have the right to stop work only if City fails to timely make
a payment required under the terms of the Budget. Consultant may
terminate this Agreement only for cause, upon thirty (30) days' prior
written notice to City. Consultant shall immediately cease all services
hereunder as of the date Consultant's notice of termination is sent to City,
except such services as may be specifically approved in writing by City.
Consultant 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. If Consultant terminates this
Agreement because of an error, omission, or a fault of Consultant, or
Consultant's willful misconduct, the terms of Section 3.8 relating to City's
right to take over and finish the work and Consultant's liability therefore
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 court with jurisdiction in such
County, and Consultant 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.
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Contract No.
3.13 Attorneys' Fees:
In any action befinreen 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
Consultant, including, but not restricted to, acts of God or of the public
enemy, unusually severe weather, fires, earthquakes, floods, epidemics,
quarantine restrictions, riots, 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
Consultant 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 Consultant be entitled to recover
damages against City for any delay in the performance of this Agreement,
however caused. Consultant'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 Consultant, or any successor in interest, in the
event of any default or breach by City, or for any amount which may
become due to Consultant or its successor, or for breach of any obligation
of the terms of this Agreement.
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Contract No.
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
Consultant 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, Consultant shall prepare and submit to City and
reports concerning Consultant's perFormance of the services rendered
under this Agreement. City shall have access, upon reasonable notice, to
the books and records of Consultant related to Consultants performance
of this Agreement in the event any audit is required. All drawings,
documents, and other materials prepared by Consultant 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. Consultant
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 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
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Contract No.
Notices to Contractor shall be delivered to the address set forth below:
Scott Fazekas &Associates
9 Corporate Park, Suite 200
Irvine, CA 92606-5173
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 shall 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 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 befinreen "Terms", "General Provisions",
"Special Provisions", and/or "Scope of Services", "Special Provisions" shall
take precedence and prevail.
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Contract No.
II. 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
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Contract No. C29040B
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
INTERWEST CONSULTING GROUP, hereinafter referred to as CONSULTANT. (The
term contractor includes professionals performing in a consulting capacity.)
WITNESSETH:
WHEREAS, on <date>, CITY requested for qualifications from companies to
provide comprehensive plan review for conformance to the model codes, state and
federal laws in the following areas of Title 24: structural, architectural, electrical,
plumbing, mechanical, physically disabled laws, energy codes and all other local
ordinances, policies and procedures when applicable.
WHEREAS, pursuant to said invitation, CONSULTANT 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 July 1, 2009 through
June 30, 2010, 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. Scope of Service
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Contract No.
(4) INTEGRATION.
This Agreement represents the entire understanding of City and
Consultant 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, befinreen the parties, and none shall be used to
interpret this Agreement.
(5) AUTHORITY TO EXECUTE AGREEMENT. Both CITY and
CONSULTANT 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 CONSULTANT
A Municipal Corporation INTERWEST CONSULTING GROUP
ROBERT SPIEGEL, MAYOR PAUL ARMSTRONG, PE
PROJECT MANAGER
(Signature must be notarized)
ATTEST:
RACHELLE D. KLASSEN, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
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Contract No.
I. GENERAL PROVISIONS
SECTION ONE: SERVICES OF CONSULTANT
1.1 Scope of Services: In compliance with all terms and conditions of this
Agreement, Consultant shall provide the goods and/or services shown on
Part II 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.
1.2Changes 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 Consultant, 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 Consultant. It is expressly understood by Consultant
that the provisions of this Section 1.2 shall not apply to services specifically
set forth in the Scope of Services or reasonably contemplated therein.
Consultant 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 Consultant anticipates and that Consultant shall not be
entitled to additional compensation therefore.
1.3Standard of Performance: Consultant 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: Consultant 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 Consultant to
review the quality of the work and resolve matters of concern; (ii) requiring
Consultant to repeat unsatisfactory work at no additional charge until it is
satisfactory; (iii) suspending the delivery of work to Consultant for an
indefinite time; (iv) withholding payment; and (v) terminating this Agreement
as hereinafter set forth.
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Contract No.
1.51nstructions from City: In the perFormance of this Agreement, Consultant
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. In all cases where staff are
provided to City to perform any part of the Scope of Services, each and every
qualified person from Consultant 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.
1.6 Familiarity with Work: By executing this Agreement, Consultant warrants
that Consultant (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, Consultant warrants that
Consultant has or will investigate the site and is or will be fully acquainted
with the conditions there existing, prior to commencement of services
hereunder. Should the Consultant discover any conditions, including any
latent or unknown conditions, which will materially affect the performance of
the services hereunder, Consultant shall immediately inform the City of such
fact and shall not proceed except at Consultant's risk until written instructions
are received from the City's Representative.
1.7Prohibition Against Subcontracting of Assignment: Consultant 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. In 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
Consultant of any liability hereunder without the express consent of City.
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Contract No.
1.8Compensation: Contractor shall be compensated as follows:
Interwest Consulting Group, plan review fee shall be 70% of the City of
Palm Desert building plan review fee for buildings checked including CBC,
CMC, CPC, CEC, and Title 24 energy and disabled access. Where a
partial review is requested by the City, the maximum fee shall not exceed
40% of the plan review fee received by the City for the structural review.
Where a partial review is requested by the City, the maximum fee shall not
exceed 40% of the plan review fee received by the City for the
nonstructural review. (Including all rechecks, maximum of three)
I. Major revisions initiated by the designer or the revisions that the City
would collect additional fees for the rechecks will be billed at an hourly
rate listed within the General Hourly Billing Rate schedule attached as
Exhibit "A".
SECTION TWO: INSURANCE AND INDEMNIFICATION
2.1 Insurance: Without limiting Consultant's indemnification obligations,
Consultant 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
Consultant, its agents, representatives, employees, and/or subcontractors.
In the event that Consultant subcontracts any portion of the work in
compliance with Section 1.7 of this Agreement, the contract befinreen the
Consultant and such subcontractor shall require the subcontractor to
maintain the same policies of insurance that the Consultant 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.
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Contract No.
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III. Workers Com ensation and Em lo er's Liabilit : Workers
Compensation Insurance (if Consultant is required to have) in an
amount required by the laws of the State of California and Employer's
Liability Insurance in the amount of One Million Dollar ($1,000,000)
per occurrence for injuries incurred in providing services under this
Agreement.
�v. Professional Liabilit (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 Consultant's insurance except for
Professional Liability and Workers Compensation 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
Consultant's insurance and shall not contribute with it.
III. Shall be "occurrence" rather than "claims made" insurance; excluding
Professional Liability.
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. Shall be endorsed to state that the insurer shall 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 da s
written notice thereof given by the insurer to City by U.S. maor
certified, or by personal delivery.
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Contract No.
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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:
Consultant 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,
Consultant 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 Consultant has no employees requiring Consultant to provide
Worker's Compensation Insurance, Consultant shall 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 Consultant to comply with this section or with the provisions
of law relating to Worker's Compensation.
2.2 Indemnification:
Consultant shall indemnify, defend, and hold City and City Personnel
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 Consultant, its employees,
agents, representatives or subcontractors in the performance of any tasks
or services for or 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 Consultant shall defend any action or actions filed in connection with
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Contract No.
any such claims or liabilities, and shall
including attorney's fees incurred in connect onytherewiths and expenses,
2•2.2. Consultant 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 pertormance or a
failure to perform the work or activities of Consultant, Consultant shall pay
to City any and all costs and expenses incurred by City or City Personnel
m 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:
Consultant 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. Consultant 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 pertormed by or on behalf of Consultant. When applicable,
Consultant 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:
Consultant 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. Consultant 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 Consultant's pertormance 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.
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Contract No.�_
3.3 Covenant Against Discrimination:
Consultant covenants for itself, its heirs, executors, assigns, and ail
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.
Consultant further covenants and agrees to comply with the terms of the
Americans with Disabilities Act of 199p (42 U.S.C. §12101 et. seq.) as the
same may be amended from time to time.
3.4 Independent Consultant:
Consultant 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 Consultant in its business or
otherwise, or a joint venture, or a member of any joint enterprise with
Consultant. Consultant 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 Consultant nor any of Consultant'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 Consultant 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 Consultant's compensation.
Neither Contractor nor any of Consultant's employees shall be included in
the competitive service, have any property right to an
the rights an employee may have in the event of terminlationrof h sf
Agreement.
3.5 Use of Patented Materials:
Consultant 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 Consultant under this Agreement. Consultant 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 Consultant 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
Consultant's underlying materials, software, or know-how, shall be the
sole and exclusive property of City, and are confidential and shall not be
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Contract No.
made available to an
y person or entity without the prior written approval of
City. Consultant 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 Consultant's services under this Agreement. Consultant
further understands agrees that full disclosure of all proprietary information
developed in connection with, or resulting from, the pertormance of
services by Consultant under this Agreement shall be made to City, and
that Consultant shall do all things necessary and proper to pertect and
maintain ownership of such proprietary information by City.
3•7 Retention of Funds:
Consultant hereby authorizes City to deduct from any amount payable to
Consultant (whether arising out of this Agreement or otherwise) any
amounts the payment of which may be in dispute hereunder or which are
necessary to 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 Consultant's negligent acts, errors, or omissions, or
willful misconduct, in performing or failing to perForm Consultant's
obligations under this Agreement. City in its sole and absolute discretion,
may withhold from any payment due Consultant, 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 Consultant's obligation to pay City any sums Consultant
owes City.
3•8 Termination by City:
Either party reserves the right to terminate this Agreement at any time,
with or without cause, upon written notice to other party. Upon receipt of
any notice of termination from City, Consultant shall immediately cease all
services hereunder except such as may be specifically approved in writing
by City. Consultant shall be entitled to compensation for all services
rendered prior to 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 Consultant 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.
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Contract No.
3.9 Right to Stop Work: Termination by Consultant:
Consultant shall have the right to stop work only if City fails to timely make
a payment required under the terms of the Budget. Consultant may
terminate this Agreement only for cause, upon thirty (30) days' prior
written notice to City. Consultant shall immediately cease all services
hereunder as of the date Consultant's notice of termination is sent to City,
except such services as may be specifically approved in writing by City.
Consultant 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. If Consultant terminates this
Agreement because of an error, omission, or a fault of Consultant, or
Consultant's willful misconduct, the terms of Section 3.8 relating to City's
right to take over and finish the work and Consultant's liability therefore
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 court with jurisdiction in such
County, and Consultant 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.
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Contract No.
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 part
judgment in such action or proceeding, in addition to ny Iolt erl elief wh ch
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
Consultant, including, but not restricted to, acts of God or of the public
enemy, unusually severe weather, fires, earthquakes, floods, epidemics,
quarantine restrictions, riots, 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
Consultant is the delaying party, City shall ascertain the facts and the
extent of delay, and extend the time for pertorming 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 Consultant be entitled to recover
damages against City for any delay in the perFormance of this Agreement,
however caused. Consultant'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 Consultant, or any successor in interest, in the
event of any default or breach by City, or for any amount which may
become due to Consultant or its successor, or for breach of any obligation
of the terms of this Agreement.
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Contract No.
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
Consultant 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, Consultant shall prepare and submit to City and
reports concerning Consultant's performance of the services rendered
under this Agreement. City shall have access, upon reasonable notice, to
the books and records of Consultant related to Consultants performance
of this Agreement in the event any audit is required. All drawings,
documents, and other materials prepared by Consultant in the
pertormance 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. Consultant
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 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
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Contract No.
�—
Notices to Contractor shall be delivered to the address set forth below:
INTERWEST CONSULTING GROUP
4113 Bellflower Boulevard
Long Beach, CA 90808
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 shall 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 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").
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Contract No.
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.
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Contract No.
_—
II. SCOPE OF SERVICES
Plan Check Services for the City to include:
�. 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
$. City Ordinances, Policies, and Procedures Conformance
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Contract No.C29040C
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
WILLDAN ENGINEERING, hereinafter referred to as CONSULTANT. (The term
contractor includes professionals performing in a consulting capacity.)
WITNESSETH:
WHEREAS, on <date>, CITY requested for qualifications from companies to
provide comprehensive plan review for conformance to the model codes, state and
federal laws in the following areas of Title 24: structural, architectural, electrical,
plumbing, mechanical, physically disabled laws, energy codes and all other local
ordinances, policies and procedures when applicable.
WHEREAS, pursuant to said invitation, CONSULTANT 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 July 1, 2009 through
June 30, 2010, 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
"Generat 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. Scope of Service
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Contract No.
(4) INTEGRATION.
This Agreement represents the entire understanding of City and
Consultant 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, befinreen the parties, and none shall be used to
interpret this Agreement.
(5) AUTHORITY TO EXECUTE AGREEMENT. Both CITY and
CONSULTANT 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 CONSULTANT
A Municipal Corporation WILLDAN ENGINEERING
ROBERT SPIEGEL, MAYOR RONALD L. ESPALIN, PE
SR. VICE PRESIDENT
(Signature must be notarized)
ATTEST:
RACHELLE D. KLASSEN, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
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Contract No.
I. GENERAL PROVISIONS
SECTION ONE: SERVICES OF CONSULTANT
1.1 Scope of Services: In compliance with all terms and conditions of this
Agreement, Consultant shall provide the goods and/or services shown on
Part II hereto (Scope of Services), which may be referred to herein as the
"s�rvices" 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.
1.2Changes 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 Consultant, 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 Consultant. It is expressly understood by Consultant
that the provisions of this Section 1.2 shall not apply to services specifically
set forth in the Scope of Services or reasonably contemplated therein.
Consultant 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 Consultant anticipates and that Consultant shall not be
entitled to additional compensation therefore.
1.3Standard of Performance: Consultant 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: Consultant 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 Consultant to
review the quality of the work and resolve matters of concern; (ii) requiring
Consultant to repeat unsatisfactory work at no additional charge until it is
satisfactory; (iii) suspending the delivery of work to Consultant for an
indefinite time; (iv) withholding payment; and (v) terminating this Agreement
as hereinafter set forth.
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Contract No.
1.51nstructions from City: In the performance of this Agreement, Consultant
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. In all cases where staff are
provided to City to perform any part of the Scope of Services, each and every
qualified person from Consultant 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.
1.6 Familiarity with Work: By executing this Agreement, Consultant warrants
that Consultant (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, Consultant warrants that
Consultant has or will investigate the site and is or will be fully acquainted
with the conditions there existing, prior to commencement of services
hereunder. Should the Consultant discover any conditions, including any
latent or unknown conditions, which will materially affect the perFormance of
the services hereunder, Consultant shall immediately inform the City of such
fact and shall not proceed except at Consultant's risk until written instructions
are received from the City's Representative.
1.7Prohibition Against Subcontracting of Assignment: Consultant 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. In 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
Consultant of any liability hereunder without the express consent of City.
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Contract No.
1.8Compensation: Contractor shall be compensated as follows:
WILLDAN plan review fee shall be a percentage of the City of Palm Desert
building plan review fee as outlined in the table below for buildings
checked including CBC, CMC, CPC, CEC, and Title 24 energy and
disabled access.
Building Square Full Plan Non-Structural Structural
Foota e Review Review Onl Review Onl
>than 500,000 SF 35% 20% 20%
> than 100,000 SF 45% 20% 25%
>than 50,000 SF 50% 25% 30%
>than 25,000 SF 60% 35% 40%
>than 1,000 SF 70% 35% 40%
Plan review for buildings less than 1,000 square feet will be provided for a time and material rate as per our
Schedule of Hourly Rates dated July 2006 attached.
I. Major revisions initiated by the designer or the revisions that the City
would collect additional fees for the rechecks can be charged at a rate of
$125.00 per hour or as mutually agreed upon based on the salary rate of
the Consultant's employee.
SECTION TWO: INSURANCE AND INDEMNIFICATION
2.1 Insurance: Without limiting Consultant's indemnification obligations,
Consultant 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
Consultant, its agents, representatives, employees, and/or subcontractors.
In the event that Consultant subcontracts any portion of the work in
compliance with Section 1.7 of this Agreement, the contract between the
Consultant and such subcontractor shall require the subcontractor to
maintain the same policies of insurance that the Consultant 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.
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Contract No.
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 Liability: Workers
Compensation Insurance (if Consultant is required to have) in an
amount required by the laws of the State of California and Employer's
Liability Insurance in the amount of One Million Dollar ($1,000,000)
per occurrence for injuries incurred in providing services under this
Agreement.
�v. Professional Liabilitv (covering errors and omissions): One Million
Dollars ($1,000,000) per claim and Two Million Dollars annual
aggregate.
V. Other Insurance: Such other policies of insurance as may be required
in "Special Provisions".
2.1.2. General Requirements. All of Consultant's insurance except for
Professional Liability and Workers Compensation 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
Consultant's insurance and shall not contribute with it.
III. Shall be "occurrence" rather than "claims made" insurance; excluding
Professional Liability.
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. Shall be endorsed to state that the insurer shall 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;
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Contract No.
and
VII. Shall be endorsed to state that coverage shall not be cancelled,
without thirty (30) days prior written notice thereof given by the
insurer to City by U.S. mail, certified, or by personal delivery, ten (10)
days notice if cancellation is due to nonpayment of premium.
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:
Consultant 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,
Consultant 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 Consultant has no employees requiring Consultant to provide
Worker's Compensation Insurance, Consultant shall 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 Consultant to comply with this section or with the provisions
of law relating to Worker's Compensation.
2.2 Indemnification:
Consultant shall indemnify, defend, and hold City and City Personnel
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 to the extent
arising out of the willful misconduct or negligent acts, errors or omissions
of Consultant, its employees, agents, representatives or subcontractors in
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Contract No.
the performance of any tasks or services for or 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 active negligence or willful misconduct of City or City Personnel. In
connection therewith:
2.2.1 Consultant shall defend any action or actions filed in connection with
any such claims or liabilities, and shall pay all costs and expenses,
including attorney's fees incurred in connection therewith.
2.2.2. Consultant 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 Consultant, Consultant 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:
Consultant 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. Consultant 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 Consultant. When applicable,
Consultant 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:
Consultant 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. Consultant 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 Consultant'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,
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Contract No.
assessed, or imposed against City thereunder.
3.3 Covenant Against Discrimination:
Consultant 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.
Consultant 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.
3.4 Independent Consultant:
Consultant 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 Consultant in its business or
otherwise, or a joint venture, or a member of any joint enterprise with
Consultant. Consultant 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 Consultant nor any of Consultant'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 Consultant 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 Consultant's compensation.
Neither Contractor nor any of Consultant'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:
Consultant 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 Consultant under this Agreement. Consultant 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 Consultant 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
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Contract No.
Consultant'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. Consultant 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 ConsultanYs services under this Agreement. Consultant
further understands agrees that full disclosure of all proprietary information
developed in connection with, or resulting from, the performance of
services by Consultant under this Agreement shall be made to City, and
that Consultant shall do all things necessary and proper to perFect and
maintain ownership of such proprietary information by City.
3.7 Retention of Funds:
Consultant hereby authorizes City to deduct from any amount payable to
Consultant (whether arising out of this Agreement or otherwise) any
amounts the payment of which may be in dispute hereunder or which are
necessary to 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 Consultant's negligent acts, errors, or omissions, or
willful misconduct, in perForming or failing to perform Consultant's
obligations under this Agreement. City in its sole and absolute discretion,
may withhold from any payment due Consultant, 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 Consultant's obligation to pay City any sums Consultant
owes City.
3.8 Termination by City:
Either party reserves the right to terminate this Agreement at any time,
with or without cause, upon written notice to other party. Upon receipt of
any notice of termination from City, Consultant shall immediately cease all
services hereunder except such as may be specifically approved in writing
by City. Consultant shall be entitled to compensation for all services
rendered prior to 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 Consultant 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.
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Contract No.
3.9 Right to Stop Work: Termination by Consultant:
Consultant shall have the right to stop work only if City fails to timely make
a payment required under the terms of the Budget. Consultant may
terminate this Agreement only for cause, upon thirty (30) days' prior
written notice to City. Consultant shall immediately cease all services
hereunder as of the date Consultant's notice of termination is sent to City,
except such services as may be specifically approved in writing by City.
Consultant 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. If Consultant terminates this
Agreement because of an error, omission, or a fault of Consultant, or
Consultant's willful misconduct, the terms of Section 3.8 relating to City's
right to take over and finish the work and Consultant's liability therefore
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 court with jurisdiction in such
County, and Consultant 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
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Contract No.
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
Consultant, including, but not restricted to, acts of God or of the public
enemy, unusually severe weather, fires, earthquakes, floods, epidemics,
quarantine restrictions, riots, 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
Consultant 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 Consultant be entitled to recover
damages against City for any delay in the performance of this Agreement,
however caused. Consultant'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 Consultant, or any successor in interest, in the
event of any default or breach by City, or for any amount which may
become due to Consultant 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
Consultant shall not employ any such person while this Agreement is in
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effect.
SECTION FOUR: MISCELLANEOUS PROVISION
4.1 Records and Reports:
Upon request by City, Consultant shall prepare and submit to City and
reports concerning Consultant's performance of the services rendered
under this Agreement. City shall have access, upon reasonable notice, to
the books and records of Consultant related to Consultants perFormance
of this Agreement in the event any audit is required. All drawings,
documents, and other materials prepared by Consultant 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. Consultant
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 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:
WILLDAN ENGINEERING
650 Hospitality Lane, Suite 400
San Bernardino, CA 92408
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
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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 shall 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 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.
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II. 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
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