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HomeMy WebLinkAbout05332 - ENGINEERING RESOURCES OF SOUTHERN CA INC CIVIL ENGR PLAN CHECK SVCS Kathie Hart From: Kathie Hart Sent: Monday, March 09, 2015 12:15 PM To: Tabitha Richards Cc: Carrie Rovney;Savat Khamphou; Marcus Fuller Subject: RE:A5332- Engineering Resources (Plan Check Services 3 yrs with two 1 yr extentions) Good Morning Everyone! FYI—Here's the breakdown of the two Engineering Resources Agreements. A6109 Approved 2011, and expired 2014 and there are two one-year extensions. Y A5332,.,: Aired, and has been replaced by A6109. 1 �r I will close this agreement file. I want to thank everyone for their help on this one. O Kathie Hart, MMC Chief Deputy City Clerk tlxl� R�� CAUFORwla ri L".4 px .rod..' City of Palm Springs (760) 323-8206 3200 E. Tahquitz Canyon Way f: (760)322-8332 Palm Springs,CA 92262 F. Kathie.Hart@PalmSpringsCA.gov City Hall is open 8 am to 6 pm, Monday through Thursday, and closed on Fridays. From: Tabitha Richards Sent: Sunday, March 08, 2015 2:42 PM To: Kathie Hart Cc: Carrie Rovney; Savat Khamphou; Marcus Fuller Subject: RE: A5332 - Engineering Resources (Plan Check Services 3 yrs with two 1 yr extentions) Kathie, This agreement started in 2011 and would have expired on July 1, 2014.The agreement calls for two, one year extensions. Please see the attached section 3.4 of said agreement. Is there an extension letter in your agreement file for the first year extension? Thank you, Tabitha Richards 760-323-8202 t CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT FOR CIVIL ENGINEERING PLAN CHECK SERVICES THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this W day of 6 Z bAM,&i, , 2006, by and between the CITY OF PALM SPRINGS, a municipal corporation, (herein"City") and ENGINEERING RESOURCES OF SOUTHERN CALIFORNIA, INC., (herein "Contractor"). (The term Contractor includes professionals performing in a consulting capacity.) The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,the Contractor shall provide those services specified in the"Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the"services" or"work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase"highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's proposal or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits. Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest,which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. 1.5 Familiarity,with Work. By executing this Contract, Contractor warrants that Contractor(a) has thoroughly investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and (c)fully Page 1 of 22 (DRGGINAL 3 0 _ understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer. 1.6. Care of Work. The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Additional Services. Deleted. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any,which are made a part hereof are set forth in the"Special Requirements" attached hereto as Exhibit"B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit"B" and any other provisions of this Agreement, the provisions of Exhibit "B" shall govern. 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, the Contractor shall be compensated in accordance with the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference. 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation, in any month in which Contractor wishes to receive payment, no later than the first (1 st) working day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. Except as provided in Section 7.3, City shall pay Contractorfor all expenses stated thereon which are approved by City pursuantto this Agreement no later than the last working day of the month. 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Page 2 of 22 i A Agreement. 3.2 Schedule of Performance. Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit"D", if any, and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer. 3.3 Force Maieure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and withoutthe fault or negligence of the Contractor, 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 the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer 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 the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Term. The term of this Agreement shall be retroactive, and commence on July 1, 2006- Unless earlier terminated in accordance with Section 7.8 of this Agreement, this Agreement shall continue in full force and effect for three (3) years, until July 1, 2009. At the sole discretion of the Director of Public Works/City Engineer, upon written notice to the Contractor and the City Clerk, the term of this Agreement may be extended for two (2) additional one (1) year terms. Said notice shall be delivered prior to July 1, 2009, for the initial one (1) year extension (if granted); and prior to July 1, 2010, for the final one (1) year extension (if granted). In no event shall the term of this Agreement extend beyond July 1, 2011. 4.0 COORDINATION OF WORK 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Matt Brudin, P.E. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufFicienttime to personally Page 3 of 22 • e supervise the services hereunder. For purposes of this Agreement,the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this 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. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent(25%) of the present ownership and/or control of Contractor,taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City. The City's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are available,to persons or entities with offices located in the Coachella Valley("Local Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors, If Local Subcontractors are qualified to perform the work required. In requesting for the City to consent to a subcontract with a person or entity that is not a Local Subcontractor, the Contractor shall submit evidence to the City that such good faith efforts have been made or that no Local Subcontractors are qualified to perform the work. Said good faith efforts may be evidenced by placing advertisements inviting proposals or by sending requests for proposals to selected Local Subcontractors. The City may consider Contractor's efforts in determining whether it will consent to a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies of all contracts and subcontracts hereunder for the period specified in Section 6.2. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent Page 4 of 22 contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at anytime or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of a least$1,000,000 bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. The Commercial General Liability Policy shall name the City of Palm Springs, its officers, employees and agents as additional insured. An additional Insured endorsement is required as evidence of such coverage. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in an amount which fully complies with the statutory requirements of the State of California and which includes $1,000,000 employer's liability. (c) Business Automobile Insurance. A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of$1,000,000 bodily injury and property damage, Said policy shall include coverage for owned, non-owned, leased and hired cars- (d) Additional Insurance. Additional limits and coverages, which may include professional liability insurance, will be specified in Exhibit "B". All of the above policies of insurance shall be primary insurance. (Reference Section 5.4 regarding sufficiency.) With regard to Worker's Compensation Insurance, the insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents, and their respective insurers. In the event any of said policies of insurance are canceled, the Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Contractor has provided the City with Certificates of Insurance, endorsements or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance, endorsements, or binders are approved by the City. The contractor agrees that the provisions of this Section 5.1 shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the Page 5 of 22 d payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or person for which the Contractor is otherwise responsible. In the event the Contractor subcontracts any portion of the work in compliance with Section 4.3 of this Agreement the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same polices of insurance that the Contractor is required to maintain pursuant to this Section. 5.2 Indemnification. Contractor agrees to indemnify the City, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities")that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, but excluding such claims or liabilities arising from the sole negligence orwillful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and wile pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Contractor will promptly pay anyjudgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. 5.3 Performance Bond. Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement, in the form provided by the City Clerk, which secures the faithful performance of this Agreement, unless such requirement is waived by the Contract Officer. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. Page 6 of 22 ! ! 5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only If issued by companies qualified to do business in California, rated "B++;7" or better in the most recent edition of Best Rating Guide,The Key Rating Guide or in the Federal Register, unless such requirements are waived by the City Manager or designee of the City ("City Manager") due to unique circumstances. In the event the City Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees thatthe minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the City Manager or designee; provided that the Contractor shall have the right to appeal a determination of increased coverage by the City Manager to the City Council of City within ten (10) days of receipt of notice from the City Manager. 6.0 REPORTS AND RECORDS 6.1 Reports, Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance,technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed. 6.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right Page 7 of 22 to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings,specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the priorwritten approval of the Contract Officer. 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) 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 (ii) all amounts for which City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to per-form Contractor's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein. 7.4 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 Page 8 of 22 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 and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. ' 7.5 Riahts and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, 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. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Liguidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of (See Exhibit "B") ($See Exhibit "B") as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance (Exhibit "D"). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. 7.8 Termination Prior to Expiration Of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Agreement at anytime, with or without cause, upon thirty(30)days'written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Contractor reserves the right to terminate this Agreement at any time upon, with or without cause, upon sixty (60) days'written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2. Page 9 of 22 7.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement,the prevailing party in such action or proceeding, in addition to any other relief which may be granted,whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action,taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. ' 9.0 MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request,document, consent, approval, or communication either party desires or is required to give to the other party or any other Page 10 of 22 person shall be in writing and either served personally or sent by prepaid,first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Contractor, to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. 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. 9.3 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and 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. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority. The persons 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. (SIGNATURES ON NEXT PAGES) Page 11 of 22 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. - - _ CITY OF PALM SPRINGS -- ATTEST: a municipal corporation GC}�Clerk - - City Manager J APPROVED AS RM APPROVED BY CITY COUNCIL ey. City Attorney Page 12 of 22 o 0 CONTRACTOR: Engineering Resources of Southern California, Inc. Check one _Individual_Partnership x Corporation 3550 E. Florida Avenue, Suite B Hemet, CA 92544 Corporations re " o notarized signatures,one from A and one from S A Chairman of Board,President,or any Vice President. and . Se(ccc etary,Assistant Secretary,Treasurer,Assistant Treasurer, or Chief Financial Officer). py ` I r By �AttC 6 �� Signature(notarized) Signature(note ad) Name: John M. Brudin, P.E. Name Michael J. Stearns, P.F. Title: President Title: Vice President Address: 3550 F. Florida Ave. , Suite B Address 3550 E. Florida Ave. , Suite B Hemet CA 92544 }}emet CA 92544 Stateof California } Stateof California } countyorRiverside ss County of Riverside—}as On 8/24/Qfeforeme, Brenda Sue Visser On 8/24/06 beforeme, Brenda Sue Visser Notary Public John M. IIrudin Notar - Publi personally appeared personatfyappearerF Michael J. Stearns personally known to me personally known to mer(SgxvhttC� }§t4 xsahsfacdcm�El�dgCCC kto be the person(s)whose name(o be the persoro�whose name§¢) is/aee subscribed to the within instrument and is/ate subscribed to the within instrument and acknowledged to me that he/shuMey executed the same acknowledged to me that he/sltaOaTexecuted the same in his/WUtWZ authorized capacity, and that by in hisikteklksn authorized capacity(ma); and that by hisilmrith2csignature(oontheinstrumentthepersonft his/fte5ftRksignaturei�Wnthe instrument theperson(w, or the entity upon behalf of which the person?'&T acted, or the entity upon behalf of which the person(s) acted, executed the instrument executed the instrument. -� WITNESS my hand ffi ial seal. WITNESS m hand 2ndJ I ial seal. / Y 7 � � ,, ,r'� /�,,.., r Notary Signature. ' G c .G Notary Signature Brenda Sue Visser Brenda Sue Visser Notary Seal: Notary Seal MfN fllE VIffER M�pttwlE YMlR CantntWlan!1 UM22 Cwm**nIF156= Nallavy Pubic Ytl�Cp ftiftymm•Carpnyo Alwaabcog MYCprw�6gltrMoY1. 41MIFMoy1. Page 13 of 22 EXHIBIT "A" SCOPE OF SERVICES Contractor shall provide first class work and services for plan-checking of various development items, consisting of: improvement plans (rough grading, street, sewer, storm drain, on-site grading/paving, traffic signal, traffic strip ing/signage, and various other improvements); subdivision maps (final tract maps and parcel maps); and professional studies (hydrology/hydraulic, sewer,traffic, geotechnical,waterquality management plans, and various others studies). Contractor shall provide a thorough and complete initial plan-check using the highest professional standards. An initial plan-check shall be provided in conformance with City of Palm Springs standards, civil engineering design guidelines appropriate for the type of work (Standard Specifications for Public Works Construction "Greenbook", State of California Standards "Caltrans" Specifications, Caltrans Highway Design Manual, and various other design guidelines), as well as all relevant ordinances, resolutions, statutes, rules, and regulations of the City, and all other local, state or federal governmental agency having jurisdiction over the type and location of the development activity. Contractor shall review development items (plans, maps, or professional studies) in conformance with and in relation to the following related items: ♦ Adopted "Conditions of Approval", by City Council Resolution (relative to Planned Development Districts, Tentative Tract/Parcel Maps, Architectural Approvals, Conditional Use Permits, etc.) ♦ Approved Site Plans or Tentative Maps ♦ Planning Department comments, as relevant ♦ Title Report, Current Tax Bill or other property ownership verification ♦ Professional Studies (geotechnical, hydrology, sewer,traffic,water quality management plan, etc.) ♦ Verification of issuance of a General Construction Activity Storm Water Permit, if required ♦ Grants or Vacations of Right-of-Way, as relevant ♦ Traverse, Lot and Tract Boundary Closures for final or parcel maps ♦ Reference maps, Assessor Maps, and other information related to final or parcel maps ♦ Engineering Department Plan-Check Check Lists Contractor shall ensure that all"Conditions of Approval"are met, such as: required frontage improvements (sidewalk/bikeway widths, color and treatment); required street pavement section and street design; minimum/maximum percentage slopes; and parking lot layout and design (in conformance with the Zoning Code), as an example. The Contractor shall follow the Engineering Department's current Improvement Plan Check Sheets to ensure that minimum standards are met; and, shall ensure that the current General Notes are included on the first sheet of each plan set. Contractor shall perform a field visit of each development location to ensure that improvement plans subject to plan-check review proposed improvements that correlate with existing improvements in and around the project site. Page 14 of 22 EXHIBIT "A" SCOPE OF SERVICES In reviewing final or parcel maps; Contractor shall ensure that all "Conditions of Approval" are met, such as: required public and private right-of-way or easement dedications, right-of- way vacations, land transfers, conservation or public space easements, and drainage/public utility easement dedications, as an example. Contractor shall ensure that all final or parcel maps are technically correct and meet current local and state regulations. Contractor shall review the title report for subdivision guarantee and determine that the final or parcel map boundary is consistent with the description given in the title report; as well as ensure that the appropriate signatories and executors of the final or parcel map are consistent with the current vesting ownership indicated in the title report. Upon completion of the first (initial) plan-check, Contractor shall provide a complete and thorough itemized written list of plan-check comments for use by the developer's consultant in revising the initial plans, map or professional study. Contractor shall provide first plan- check comments of such detail and completeness so new plan-check comments on subsequent plan-check submittals are avoided, if at all possible, except when as a result of changes or modifications to the initial plans. Contractor shall maintain its own plan-check files with copies of initial and subsequent drafts of plans or maps, plan-check comments from the initial and subsequent reviews, and relevant documentation and data. Throughout the plan-check process, Contractor shall be available to meet, as necessary, with the Engineering Department and/or the developer's consultant to discuss plan-check review comments. All plan-check services shall be performed by or under the responsible charge of a California licensed professional eligible to prepare and sign the type of map, plan, or professional study being reviewed. For improvement plans, Contractor shall sign and stamp original, signed mylar plans when ready for approval by the City Engineer; and, shall submit an approval letter to the City Engineer stating that the subject improvement plans has been reviewed and approved by the Contractor. For maps, Contractor shall submit an approval letter to the City Engineer stating that the subject map has been reviewed and approved by the Contractor. For professional studies, Contractor shall submit an approval letter to the City Engineer stating that the subject professional study has been reviewed and approved by the Contractor. Contractor shall review revisions to previously approved improvement plans, when requested. Contractor shall provide expedited or "fast track" plan-checking, when requested. Contractor shall provide development entitlement review, and prepare Engineering "Conditions of Approval" for development applications, when requested. Page 15 of 22 EXHIBIT "B" SPECIAL REQUIREMENTS Section 2.1, "Contract Sum", is hereby amended to read: 2.1 Contract Sum. City and Contractor hereby acknowledge and agree that the scope of services required by this Agreement is subject to fluctuation due to factors controlling the pace of development within the City of Palm Springs beyond City's control; and no guarantee of the volume of plan-check services required by Contractor under the terms of this Agreement is made by the City. The annual level of plan-check activity required by this Agreement is unknown, and may significantly increase or decrease from year to year. In acknowledgement of the unknown volume of plan-check services required hereunder, City and Contractor hereby acknowledge and agree that there shall be no specific "Contract Sum", as the term maybe used herein this Agreement. For the services rendered pursuant to this Agreement, the Contractor shall be compensated in accordance with the"Schedule of Compensation"attached hereto as Exhibit"C"and incorporated herein by this reference. The method of compensation may include: (i) a lump sum payment upon completion, (ii) payment in accordance with the percentage of completion of the services, (iii) payment for time and materials based upon the Contractor's Schedule of Hourly Billing Rates as shown on Exhibit "C-1", or (iv) such other methods as may be specified in the Schedule of Compensation. Compensation shall include reimbursement for actual and necessary expenditures for reproduction costs, telephone expense, transportation expense, and all other necessary expenditures required to perform the professional services under this Agreement. Compensation shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates, that Contractor shall not be entitled to additional compensation therefore. It is expressly agreed that the maximum contract amount of this Agreement is undefined, subject to the volume of plan-check services required throughout the duration of the term of this Agreement. It is further expressly agreed that this Agreement shall operate on a"pass- through" basis, with plan check fees collected by the City from a developer in accordance with the currently adopted City of Palm Springs Comprehensive Fee Schedule, and/or on the basis of the Schedule of Hourly Billing Rates attached hereto as Exhibit"C-1" (as may be increased pursuant to the terms of this Agreement) for professional services rendered on the basis of time and materials. In no case shall Contractor be entitled to compensation unless or until the City has received payment from the developer for the required services or costs. The term "developer" used herein shall be considered to include the owner, lessee, authorized agent or other designated party proposing development of private or public property within the City of Palm Springs, and may consist of a private individual, company, corporation, or other legally recognized entity; and further, may include a professional consultant hired by the developer to perform design services on their behalf associated with the proposed development. Section 5.1 (d), "Additional Insurance", is hereby amended to read: Page 16 of 22 0 EXHIBIT "B" SPECIAL REQUIREMENTS (d) Additional Insurance. A policy of Professional Liability Insurance with limits of at least one million dollars ($1,000,000) per occurrence is required. If Contractor provides claims made professional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Contractor's services underthis Agreement, or(2)to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor's services under this Agreement. The Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy. Section 5.3, "Performance Bond", is hereby waived. Section 62, "Records", is hereby amended to require Contractor to deliver an original, or copy thereof, of all records used in the performance of professional services hereunder. Section 7.7, "Liquidated Damages", is hereby waived. Page 17 of 22 EXHIBIT "C" SCHEDULE OF COMPENSATION Professional services required herein above shall be compensated on a lump sum per sheet basis, for development items (plans and/or maps) reviewed and approved up to and including the third plan check submittal, as follows: Plan Check Item lump Sum Fee (Per Sheet) Grading Plan* (< 15,000 SF) $535,00 Grading Plan* (15,001 SF to 4 acres) $821.25 Grading Plan* (> 4 acres) $1,444,50 Street Plans $535.00 Sewer Plans $438.00 Storm Drain Plans $535.00 Signing & Striping Plans $438.00 Traffic Signal & Lighting Plans $535,00 Parcel Maps $631.00 Tract (Final) Maps $835.00 *The term "Grading Plan" includes Precise Grading Plans and/or Grading and Paving (Plans, and the like. Invoices for payment of professional services required herein above for development items (plans and/or maps) reviewed and approved up to an including the third plan check submittal shall be submitted concurrently with or subsequent to the Contractor's approval of the development item. Professional services required herein above for review and approval of development items (plans and/or maps) reviewed up to and including the second plan check submittal, but not completed to approval, shall be compensated on a lump sum per sheet basis equal to 50% of the fees listed above. Invoices for payment therefore shall be submitted only after a period of 90 days has passed from the date the development item was returned to the developer or the developer's consultant for correction. Professional services required herein above for review and approval of professional studies and technical reports, or for review and approval of revisions to previously approved improvement plans, shall be compensated on a time and materials basis, in accordance with the Schedule of Hourly Billing Rates indicated on Exhibit "CA", attached hereto and made a part hereof. Expedited or "Fast Track" services shall be compensated at a rate equal to 150% of the fees listed above. Professional services required herein above for providing development entitlement review, and preparation of Engineering "Conditions of Approval"for development applications, shall be compensated on a time and materials basis, in accordance with the Schedule of Hourly Billing Rates indicated on Exhibit"C-1", attached hereto and made a part hereof. However, Page 18 of 22 EXHIBIT "C" SCHEDULE OF COMPENSATION prior to commencement of development entitlement review services and payment therefore, Contractor shall submit to the City Engineer an estimated cost of time and materials, in accordance with the Schedule of Hourly Billing Rates indicated on Exhibit"C- V for providing the requested development entitlement review services. Upon receipt of a deposit from the developer for the requested development entitlement review services, Contractor shall be entitled to compensation for services rendered therefore. In the event the Contractor's initial estimate for providing development entitlement review services based on time and materials is exceeded,the Contractor shall submit to the City Engineer a final estimate for completion of the required development entitlement review services. Upon receipt of a deposit from the developer of the final estimate for completion of the required development entitlement review services, the Contractor shall be entitled to compensation for services rendered therefore. Compensation for requested development entitlement review services shall be based on actual time and materials, in accordance with the initial and/or final estimate submitted by Contractor, and shall be made on a monthly basis based upon receipt of acceptable invoices. Any unspent funds collected by the City from the developer, in accordance with the initial and/or final estimate submitted by Contractor, shall be returned to the developer, and no additional compensation will be allowed to the Contractor. Page 19 of 22 EXHIBIT "C-1° SCHEDULE OF HOURLY BILLING RATES Effective July 1, 2006, the following schedule of hourly billing rates shall be applicable to services rendered herein above on the basis of time and materials: Classification Billing Rate Principal/President ............... .............. ............. ............... ................ $175.00 Principal/Vice President .................................................................. .................. $165.00 Senior Principal Engineer....................... .............. .......................................... $160.00 PrincipalEngineer......................................................... ................................... $135.00 Principal Planner............... ................................ .......................................... $125.00 EngineerV .................................................................... ................................... $120.00 EngineerIV ......... ............ .............. .............. ............... .......................... $105-00 SeniorPlanner ..................................................................................................... $105.00 Senior Engineering Technician............................................................................. $105.00 EngineerIII..................................................... ..................................................... $95.00 Engineering Technician II............................................................. ................ .... $85.00 EngineerII.............................................................................................................. $80.00 Administrative Services Manager........................................................................... $75.00 EngineerI......................................................................................... ................... $70.00 Engineering Technician I......................................................... ............... ....... $70.00 ExecutiveSecretary ............................................................................ ................ $60.00 Engineering Technician............ .......................................................................... $50.00 Secretary.......................................................................... ............... ................ $50.00 EngineeringAide II .................... ............................. ................................. .... $40.00 Engineering Aide I .......................... ............. ............... ................................ $30.00 Effective July 1, 2007, and each July 1 thereafter, the schedule of hourly billing rates shall be adjusted based on the Consumer Price Index — All Urban Consumers for the Los Angeles-Riverside-Orange County, CA area as determined by the U.S. Department of Labor, Bureau of Labor Statistics, for the previous year using the most recent monthly index(i.e.April to April). Adjusted hourly rates shall be rounded to the nearest whole dollar. Reimbursement for material expenses associated with services rendered on a time and material basis shall be made at a rate equal to 115% of the actual cast(i.e. Cost+ 15%). A copy of receipts for material expenses paid shall be submitted with invoices requesting reimbursement for material expenses, subject to the approval of the City Engineer. ! Page 20 of 22 EXHIBIT "D" SCHEDULE OF PERFORMANCE The Contractor shall comply with the following "normal" plan-check schedule of performance: • Initial draft (first submittal) shall be picked up at the Engineering Department within 2 working days of notification • First submittal shall be reviewed, checked for accuracy, and returned to the City within 2 working days plus 1 working day per sheet following pick-up from the Engineering Department • Second and subsequent drafts shall be picked up at the Engineering Department within 2 working days of notification • Second and subsequent drafts shall be reviewed, checked for correction of plan-check comments and returned to the City within 2 working days plus 1 working day per sheet following pick-up from the Engineering Department • Working days are Monday through Friday, not counting City Holidays Example of a 3-sheet plan-check performance: • Notified on Day 1 (i.e. Monday) • Pick-up by Day 3 (Le. Wednesday) • Return by Day 8 (i.e. following Wednesday) The Contractor shall comply with the following expedited or"fasttrack"plan-check schedule of performance: • Initial draft (first submittal) shall be picked up at the Engineering Department within 1 working day of notification • First submittal shall be reviewed, checked for accuracy, and returned to the City within 1 working day plus '/2 working day per sheet following pick-up from the Engineering Department • Second and subsequent drafts shall be picked up at the Engineering Department within 1 working day of notification • Second and subsequent drafts shall be reviewed, checked for correction of plan-check comments, and returned to the City within 1 working day plus Yz working day per sheet following pick-up from the Engineering Department Example of a 3-sheet plan-check performance: • Notified on Day 1 (i.e. Monday) • Pick-up by Day 2 (i.e. Tuesday) • Return by mid-Day 4 (i.e. noon Friday) The plan-check schedule of performance above shall apply to each individual plan-check item submitted for review and approval. In the event multiple plan-check items are submitted for review at one time for one project (i.e. rough grading plans, sewer improvement plans, and street improvement plans), the plan-check schedule of performance shall be determined individually for each plan-check item, and not determined Page 21 of 22 EXHIBIT "D" SCHEDULE OF PERFORMANCE collectively for the total sum of all sheets of the improvement plans that may be submitted at one time. The Contractor shall comply with the above schedule of performance for review and approval of revisions to previously approved improvement plans. The Contractor shall comply with the following professional study/technical report review schedule of performance: • Initial draft (first submittal) shall be picked up at the Engineering Department within 2 working days of notification • First submittal shall be reviewed, checked for accuracy, and returned to the City within 5*working days following pick-up from the Engineering Department • Second and subsequent drafts shall be picked up at the Engineering Department within 2 working days of notification • Second and subsequent drafts shall be reviewed, checked for correction of plan-check comments, and returned to the City within 5*working days following pick-up from the Engineering Department -`For extensive professional studies/technical reports whose scope encompasses master- planned areas, the City Engineer may authorize additional time as appropriate to provide adequate time to review and comment, on a case by case basis. For development entitlement review services, the Contractor shall submit with its initial estimated cost of time and materials, an initial schedule of performance for providing the requested development entitlement review services for review and approval by the City Engineer. The Contractor shall be required to conform to the initial schedule of performance, as may be revised and approved by the City Engineer. In accepting requests to provide development entitlement review services, the Contractor agrees to revising or otherwise abbreviating the initial schedule of performance as may be necessary to meet unanticipated changes to development entitlement schedules, such as Planning Commission and/or City Council hearing dates. Page 22 of 22