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HomeMy WebLinkAboutC30940 A - C Fiscal Year 2011-2012 Plan Review Inspection ServiceCITY OF PALM DESERT BUILDING AND SAFETY DEPARTMENT STAFF REPORT REQUEST: PLAN REVIEW / INSPECTION SERVICE 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 Willdan Engineering 650 E. Hospitality Ln., Suite 400 San Bernardino, CA 92408-3317 (909) 386-0200 JAS Pacific 201 N. Euclid, Suite B Upland, CA 91786 (909) 695-7777 DATE: June 9, 2011 CONTENTS: 1. RFQ for Plan Review/Inspection Services 2. Contract Agreements for Plan Review/Inspection Services Recommendation By Minute Motion, 1) Award subject contracts for professional service agreement (Contract No.c30940A to, Scott Fazekas & Associates, (Contract NO.c30940B to, Willdan Engineering, and (Contract No. c30940c to, JAS Pacific, for building Plan Review and Inspection services for the fiscal year 2011/2012; 2) authorize the Mayor to execute the contracts with a beginning date of July 1, 2011 and ending date of June 30, 2012, and shall not exceed a cumulative total of $30,000. Funds are available in General Fund Account No. 110-4420-422.30-10, as set forth in the 2011/2012 budget. Staff Report— PLAN REVIEW/ INSPECTION SERVICE CONTRACTS Scott Fazekas & Associates Willdan Engineering JAS Pacific June 9, 2011 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 On June 10, 2010, the City Council extended Contract No. C29040A, with Scott Fazekas & Associates; Contract No. C2904013, with Interwest Consulting Group; and Contract No. C29040C, with Willdan Engineering. These agreements will expire on June 30, 2011. The Department of Building and Safety has prepared and advertised a new Request for Qualifications. The Department of Building and Safety received twelve (12) sealed bids and they were opened on Monday, March 1, 2011. Based on qualifications and review by our subcommittee, 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. It is the intention of the Department of Building and Safety to review the majority if not all of the plans submitted with city staff, and utilizes the Consultant only on the more complex projects for structural review and to supplement city services as necessary. The contract agreement amount will be applied to the Professional Services Account No. 110-4420-422.30-10. It should be noted that when contract services are utilized the cost is recoupable through plan check and permit fees collected for that project. Therefore, it is staff's recommendation to approve and award the contracts, and funding allocation for professional building plan review and inspection services to Scott Fazekas & Associates, Willdan Engineering, and JAS Pacific. Staff Report - PLAN REVIEW / INSPECTION SERVICE CONTRACTS Scott Fazekas & Associates Willdan Engineering JAS Pacific June 9, 2011 Page 3 Fiscal Analysis The cost for Contract Services is recoupable through plan check and permit fees collected for projects, and has been included in the annual Building Departments budget for FY 2011-2012 (Acct. # 110-4420-422.30-10 - $30,000). No other fiscal impact is anticipated to the City. Submitted By: -:�� a Russell A. Grance, Director of Building and Safety Approved: CITY COUNCIL CN APPROVED DENWD O Paul S. Gibson, Finance Director RECEIVED OTHER David J. Erwin, City Attorney n M. Wohlmuth, City Manager MEETING DATE AYES: UYIQLtU, H2=4g,0132 yUrIL NOES: LehFz- ABSENT- QnVl'e. ABSTAIN: VERIFIED BY: rYn Original on File with City Clerk a Office CITY OF PALM DESERT DEPARTMENT OF BUILDING AND SAFETY REQUEST FOR QUALIFICATIONS (RFQ) 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 2010 California Code of Regulations, Title 24, with local amendments and a copy of the adopted Municipal Code will be provided to the successful Consultant. Future local amendments to the California Codes 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 Qualifications (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 Type of review work Professional registrations or certifications Building (structural), Plumbing, Mechanical, Electrical, T24 Energy & Accessibility 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: Architectural II. Structural III. Mechanical IV. Plumbing V. Electrical VI. Green VII. T24 Energy VIII. 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. Type of job Turnaround time Residential. - New construction Working days Addition Working days Remodel Working days Non Residential. - New construction Working days Addition Working days Remodel Working days 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 Three (3) copies of the proposal must be received no later than 2:00 p.m. on Monday, February 28, 2011. 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 Ext 430 rgranceA-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 2011-2012. Contract No. C30940A AGREEMENT FOR PLAN REVIEW AND INSPECTION SERVICES THIS AGREEMENT for contract plan review and inspection 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 February 11, 2011, CITY requested for qualifications from companies to provide comprehensive plan review and inspection services for conformance to the model codes, state and federal laws in the following areas of Title 24: structural, architectural, electrical, plumbing, mechanical, green, 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, 2011 through June 30, 2012, 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 Contract No. C30940A (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 A Municipal Corporation JEAN BENSON, MAYOR ATTEST: RACHELLE D. KLASSEN, CITY CLERK CITY OF PALM DESERT, CALIFORNIA CONSULTANT Scott Fazekas & Associates, Inc. SCOTT R. FAZEKAS, PRESIDENT (Signature must be notarized) 2 Contract No. C30940A 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 (1) 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. 1APerformance 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: (1) 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. 3 Contract No. C30940A 1.5instructions 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. 1.6Familiarity 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. 4 Contract No. Q0940A 1.8Compensation: Contractor shall be compensated as follows: Scott Fazekas & Associates, Inc. plan review for buildings checked including CBC, CRC, CIVIC, CPC, CEC, CGBSC and Title 24 energy and disabled access fee shall be as follows: Residential projects are proposed at 70% of the City's plan check fee:, Commercial projects of 30,000 square feet or less are proposed at 60% of the City's plan check fees:, and Commercial projects over 30,000 square feet are proposed at 50% of the City's plan check fee. (Including all rechecks) For partial review of structural only; Residential is proposed for 40% of the City's plan check fee, Commercial less than 30,000 square feet is proposed at 34% of the City's plan check fee, and Commercial greater than 30,000 square feet is proposed at 29% of the City's plan check fee. (Including all rechecks) If SFA is reviewing duplicate or identical plans on a project, the proposed fee is 15% of the City's plan check fee after the initial model is checked at the prescribed rate. 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. Scott Fazekas & Associates, Inc. inspection services are proposed at an hourly rate which would vary based on individual qualifications of each inspector. The anticipated hourly rate would be between $40-$80 per hour. Each inspector would be retained based on mutual agreement with the City prior to engaging services. Mileage will be invoices at the rate currently approved for reimbursement by the federal government when incurred, currently $0.51 per mile. 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 Contract No. C30940A 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: General Liability: (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 Liability (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. iv. Professional Liability (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: 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. 6 Contract No. C30940A 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) 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 6 Contract No. C30940A 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 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, 8 Contract No. C30940A 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. 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. 9 Contract No. C30940A 3.6 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 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. 10 Contract No. C30940A 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. 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 11 Contract No. C30940A 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 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. 12 Contract No. ('30940A 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 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: 13 Contract No. C30940A 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: 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 between "Terms", "General Provisions", "Special Provisions", and/or "Scope of Services", "Special Provisions" shall take precedence and prevail. 14 Contract NO.C30940A II. SCOPE OF SERVICES Plan Check and Inspection 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. Green Building Standards / Latest Adopted Green Code Conformance 7. Physically Disabled Laws - Title 24 Conformance (State and Federal) 8. Energy — Latest City Adopted Title 24 Energy Conformance 9. City Ordinances, Policies, and Procedures Conformance 15 Contract No. C30940B AGREEMENT FOR PLAN REVIEW AND INSPECTION SERVICES THIS AGREEMENT for contract plan review and inspection 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 February 11, 2011, CITY requested for qualifications from companies to provide comprehensive plan review and inspection services for conformance to the model codes, state and federal laws in the following areas of Title 24: structural, architectural, electrical, plumbing, mechanical, green, 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, 2011 through June 30, 2012, 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 Contract No. C30940B (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 A Municipal Corporation JEAN BENSON, MAYOR ATTEST: RACHELLE D. KLASSEN, CITY CLERK CITY OF PALM DESERT, CALIFORNIA CONSULTANT WILLDAN ENGINEERING RONALD L. ESPALIN, PE DIRECTOR OF BUILDING & SAFETY (Signature must be notarized) 2 Contract No. C30940B 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 (1) 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. 1.4 Performance 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: (1) 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. 3 Contract No. C30940B 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. 1.6Familiarity 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. 4 Contract No. C30940B 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, CRC, CIVIC, CPC, CEC, CGBSC and Title 24 energy and disabled access. (Including three checks) 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 $140.00 per hour or as mutually agreed upon based on the salary rate of the Consultant's employee. Building Square Footage Full Plan Review Non -Structural Review Only Structural Review Only > 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 25,000 SF 65% 35% 40% WILLDAN inspection services are proposed at an hourly rate which would be $95.00 per hour. Each inspector would be retained based on mutual agreement with the City prior to engaging services. 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: General Liability: (including premises and operations, contractual liability, personal injury, independent contractors liability); One Million Contract No. C30940R 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 Liability (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. IV. Professional Liability (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: 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 r Contract No.C30940B 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 cancelled, without thirty (30) days prior written notice thereof given by the insurer to City by U.S. first class mail, postage prepaid, 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, 7 Contract No.C30940B 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 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 8 Contract No.C30940B 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. 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. 9 Contract No. C30940B 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 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 10 Contract No. C30940B otherwise, and Contract shall be liable to the extent that the total cost for completion of the services required hereunder, including costs incurred by City in retaining a replacement contractor and similar expenses, exceeds the Budget. 3.9 Right to Stop Work: Termination by 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. 11 Contract No. C30940B 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 parry 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 parry 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 12 Contract No. C30940B 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 Notices to Contractor shall be delivered to the address set forth below: WILLDAN ENGINEERING 650 Hospitality Lane, Suite 400 San Bernardino, CA 92408 13 Contract No. C30940B 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 between "Terms", "General Provisions", "Special Provisions", and/or "Scope of Services", "Special Provisions" shall take precedence and prevail. 1EI Contract No. Mnc)40R II. SCOPE OF SERVICES Plan Check and Inspection 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. Green Building Standards / Latest City Adopted Green Code Conformance 7. Physically Disabled Laws - Title 24 Conformance (State and Federal) 8. Energy / Latest City Adopted Title 24 Energy Conformance 9. City Ordinances, Policies, and Procedures Conformance 15 Contract No. C30940C AGREEMENT FOR PLAN REVIEW AND INSPECTION SERVICES THIS AGREEMENT for contract plan review and inspection 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 JASON ADDISON SMITH CONSULTING SERVICES INC. dba. JAS PACIFIC, hereinafter referred to as CONSULTANT. (The term contractor includes professionals performing in a consulting capacity.) WITNESSETH: WHEREAS, on February 11, 2011, CITY requested for qualifications from companies to provide comprehensive plan review and inspection services for conformance to the model codes, state and federal laws in the following areas of Title 24: structural, architectural, electrical, plumbing, mechanical, green, 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, 2011 through June 30, 2012, 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 11. Scope of Service Contract No. C30940C (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 A Municipal Corporation JEAN BENSON, MAYOR ATTEST: RACHELLE D. KLASSEN, CITY CLERK CITY OF PALM DESERT, CALIFORNIA CONSULTANT JAS PACIFIC J. ADDISON SMITH PRESIDENT (Signature must be notarized) 2 Contract No. C30940C 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 (1) 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. UStandard 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. 1.412erformance 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: (1) 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. 3 Contract No. C30940C 1.5instructions 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. 1.6Familiarity 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. 4 Contract No.C30940C 1.8Compensation: Contractor shall be compensated as follows: JAS Pacific, plan review fee shall be 65% of the City of Palm Desert building plan review fee for buildings checked including CBC, CRC, CIVIC, CPC, CEC, CGBSC, and Title 24 energy and disabled access. Where a partial review is requested by the City, the maximum fee shall not exceed 35% 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 35% of the plan review fee received by the City for the nonstructural review. (Including all rechecks) 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 not to exceed $85.00 per hour. JAS Pacific inspection services are proposed at an hourly rate which would be $58 per hour. Each inspector would be retained based on mutual agreement with the City prior to engaging services. Mileage will be invoices at the rate currently approved for reimbursement by the federal government when incurred, currently $0.51 per mile. 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: General Liability: (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 5 Contract No. C1094or project, or the general aggregate limit shall be three times the occurrence limit. II. Automobile Liability (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. iv. Professional Liability (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: 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; 6 Contract No. C30940C 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 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 the coverage required approved by City not commences. City with certificates of insurance demonstrating by this Agreement, which shall be received and less than five (5) working days before work 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 7 Contract No. C30940C arising out of the willful misconduct 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 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 8 Contract No. C30940C Agreement, and shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes, penalties, or interest levied, assessed, or imposed against City thereunder. 3.3 Covenant Against Discrimination: 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 0 Contract No. C30940C 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 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 10 Contract No. C30940C the Budget. 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 11 Contract No. C 3 0 9 4 0 C 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. 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 12 Contract No. C30940C 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 Notices to Contractor shall be delivered to the address set forth below: JAS PACIFIC 201 N. Euclid, Suite B Upland, CA 91786 13 Contract No. C30940C 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. 4.6 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. 14 Contract No.C30940C II. SCOPE OF SERVICES Plan Check and Inspection 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 I Latest City Adopted Plumbing Code Conformance 5. Mechanical / Latest City Adopted Mechanical Code Conformance 6. Green Building Standards / Latest City Adopted Green Code Conformance 7. Physically Disabled Laws - Title 24 Conformance (State and Federal) 8. Energy / Latest City Adopted Title 24 Energy Conformance 9. City Ordinances, Policies, and Procedures Conformance 15