HomeMy WebLinkAbout2012-03-27 City Council Agenda Item No. 07
REPORT To CITY COUNCIL
To: HONORABLE MAYOR
AND MEMBERS OF THE CITY COUNCIL
FROM: PAT KILROY
INTTRIM CITY MANAGER
DATE: MARCH 27, 2012
SUBJECT: ANNUAL REVIEW OF THE AGREEMENT WITH BUREAU VERITAS
TO PROVIDE ON-CALL PROFESSIONAL TNGINEERING
SERVICES
.Back~c round
The Engineering Division of the City of Lake Elsinore, as a part of the development
services, is required to review private development projects for compliance with City
regulations, City Standards and the Subdivision Map Act. As a function of construction
compliance, the Division also performs inspection services to ensure compliance with
the approved plans. In order to maintain a high level of responsiveness, these services
are contracted to engineering firms that have the flexibility to provide a professional staff
for a dynamic work load.
Discussion
Bureau Veritas is an established engineering firm with the ability to provide staff for a
variety of tasks. The City has contracted with this firm for: Engineering plan check for
development plans, grading plans. and final map projects; engineering design services;
and inspection services. Bureau Veritas has the ability to provide services and
supplemental staffing as the workload changes. Providing plan check services since
2003, Bureau Veritas has the local knowledge and experience to provide a high level of
service to the Division as well as the development community.
AGENDA ITEM NO.7
Page 1 of 10
Contract Agreement-Bureau Veritas
March 27, 2012
Page 2
Fiscal Impact
There is no direct financial impact to the General Fund as the services being provided
by Bureau Veritas are either funded through developer's plan check fees, inspection
deposits or provided through the design budget of the Capital Improvement Program
depending on the service being provided.
Recommendation
Approve the use of Bureau Veritas for the third year of a three year contract per the
agreement dated March 17, 2010, to provide plan checking services.
Prepared by: Dina Purvis
Engineering Technician
Ken Seumalo
Director of Public Works
Approved by: Pat Kilroy
Interim City Manager
Attachments: Agreement
Page 2 of 10
i ~
This Agreement for Professional Service the "Agr~~nent"), dated for identification
purposes only as of January 12, 241 by and between the City of fake Elsinore, a municipal
corporation ~"City"} and Bureau Veritas Qrth America, Inc. {"Consultant"}.
RECITALS
A. Consultant is specify trained, experienced and competent to perform the special services
which will be rewired by this Agreement.
B. Consultant possesses the shill, experience, ability, background, ce~ti~ication and knowledge
to provide the services described in this Agreement on the terms and conditions described herein.
C. City desires to retain Con~~.ltant to render professional consulting services and related work
as set forth in this Agreement.
A~RE~NiENT
1. Scope of Services. Consultant shall perform the services described an Exhibit A which is
attached hereto and incorporated herein by reference. Consultant shall provide said services at the
time, place, and in the manner specified in Exhibit A, sub jest to the direction ofthe City through its
staff that it nay provide beam. time to time.
2. Time of Performance. The services of Consultant are to commence upon execution of this
Agreement and. shall continue far a period of three years, subject to anpual review by the City
Council.
3. Compensation. Compensation to be, paid to Consultant shall be in accordance with the
Schedule of Charges sit forth in Exhibit B, which is attached hereto and incorporated herein by
reference. In no event shall Cansultar~t's compensation exceed $15(1,444 without additional
authori~atian from the City 1Vlanager. Payment by City under this Agreement shall not be deemed a
waiver of defects, even if such defects were known to the City at the time of payment.
~4. N~etad of Payment. Consultant shall submit monthly billings to City describing the work
p~rfanned during the prying month. Consultant's bills shall include a brief description of the
services performed, the date the services were perfarm~l, the number of hours spent and by whom,
and a description of any rein~.bursable expendt~~res. City shall pay Consultant nd later than 3 o days
after approval of the monthly invoice by City staff.
5. Extra work. At any tune during the term of this Agreement, City requests that Consultant
perfarn~ Extra work. As used herein, "Extra work" means any work which is dete~:~nined by City to
be necessary far the proper completion of the Project, but which the parties did not re~~sonably
anticipate would be necsa~y at the execution afthis Agreement. Consultant shall not perform, nor
be compensated for, Extra hark without written authorization from City. Extra work will be
invoiced separately from services perfar~ned in accordance with the Scope of Services.
1
Page 3 of 10
Termination. ~s Agreement Inay be terminated by the City ir~nediately far cause ar by
either party without cause upon thi~~y ~3~} days' written notice of termination. Upon termination,
Consultant shall be entitled to compensation for services performed up to the effective date of
termination.
7. {ownership afDocuents. All plans, studies, documents and other writings prepared by and
for Consultant, its officers, employs and agents and subcontractors in the course of i~.plelnenting
this Agreement, except working notepad internal documents, shall biome the property of the City
upon payment to Consultant for such work, and the City shall have the sole right to use such
materials in its discretion without Sher compensation to Consultant or to any other party.
Consultant shall, at Consultant's expense, provide such reports, plans, studies, documents and other
writings to City upon written request. City acknowledges that any use of such materials in a manner
beyond the intended puu~ase a~s set forth herein shall be at the sole risk of the City. City hoer
agrees to defend, indemnify and hold harmless Consultant, its officers, ofbcials, agents, employees
and volunteers from any claims, demands, actions, losses, damages, injuries, and liability, director
indirect including any and all casts and expenses in connection therein}, arising out of the City=s
use of such materials in a Iuanner beyond the intended purpose as set forth herein.
a. Licensing of Intellectual Property. ~'l~s Agreement creates a nonexclusive and
perpetual license for City to copy, use, modify, reuse, or sublice~~se any and all copyrights, designs,
and other Intellectual property e~nbadled In plans, speclficatlans, studies, drawings, estimates, and
other documents or works of authorship fixed in any tangible medium of expression, including but
not lilnit~l to, physical drawings ar data magnetically ar otherwise recorded on computer diskettes,
which are prepared or caused to be prepared by Consultant under this Agre~elnent ~"Documents &
Data"}. Consultant shall require that all subcontractors agree in writing that City is grantl. a
nonexclusive and perpe~~.l license for any Documents & Data the subcontractor prepares under this
Agreement. Consultant represents and warrants that Consultant has the legal right to license any and
all Documents c~ Data. Consultant lnakes no such representation and warranty 111 regard to
Dacu~cnents & Data which were prepared by design professionals other than Con~~ultant or prodded
to Consultant by the City. City shall not be lilnited in any way in its use of the Documents & Data at
any dame, provided that any such use not within the purposes intended by this Agreement shall be at
City's sale risk.
b. Confidentiality. All ideas, memoranda, specif~catians, pla~~s, procedures, drawings,
descriptions, computer program. data, input record data, written information, and ether Documents
Data either created by or provided to Consultant in connection with the performance of this
Agreement shall be held confidential by Consultant. Such materials shall not, without the prior
written consent of City, be used by Consultant for any purposes other than the performance of the
services under this Agreement. ~1ar shall such materials be disclosed to any person or entity not
connected with the pe~rforn~ance of the services under this Agreement, clothing furnish~l. to
Consultant which is otherwise known to Consultant or is generally known, ar has became known, to
the related industry shall be deemed confidential. Consultant~shall not use City's name or insignia,
phatog~~aphs relating to project for which Consultant's services are rendered, or any publicity
pertaining to the Consultant's services under this Agreement i11 any magazine, trade paper,
nev~spaper, television or radio production or other similar medium without the prior written consent
ofCity.
2
Page 4 of 10
8. Consultant's Books and Records.
a. Consultant shall maintain any and all le.gers, books of account, invoices, vouchers,
canceled checks, and other records or documents evidencing or relating to charges for services, or
e~pendi~es and disbursements charged to City for a minimum period ofthre~ ~3} years, or far any
longer period required by law, from the date of final payment to Consultant to this Agree~x~ent.
b. Consultant shall maintain all docu~rnents and records which demonstrate performance
under tlds Agreement for a ~ninirnurn period ofthree ~3} years, or for any longer period. rwired by
law, from the date of terrninatian ar completion of this Agreement.
c. Any records or documents rewired to be maintained pursuant to this Agreement shall
be made available far inspection ar audit, at any time during regular business hours, upon written
request by the City Manager, City Attorney, City Auditor or a designate represer~#ative of these
af~icers. Copies of such documents shall be provided to the City far inspection at City Fall when it is
practical to do so. Otherwise, unless an alternative is mutually agree upon, the records shall be
available at Consultant's address indicated for receipt of notices in this Agreement.
d. There City has reason to believe that such records or documents may be lost or
discarded due to dissolution, disbandment ar te~~nination of Consultant's business, City may, by
written request by any of the above-named a~icers, require that custody of the records be given to
the City and that the records and documents be maintained in City Fall. A+~~ess to such records and
docu~~aents shall be granted to any party authorized by Consultant, Consultant's representatives, or
Consultant's successor-in-interest.
Independent Contractor. It is understood tha#Consultant, in the performance afthe work and
services agreed to be performed, shall act as and be an independent contractor and shall not act as an
agent ar employee of the City. Consultant shall obtain no rights to re#ix~ent benefits ar other
benefits which accrue to City's employees, and Consultant hereby expressly waives any claim it may
have to any such rights.
10, Interests of Consultant. Consultant ~includ~ng principals, associates and professional
employees} covenants and represents that it does not now have any investment or interes# in real
property and shall not acquire any interest, direct or indirect, in the area. covered by this Agreement
or any other source of income, interest in real property or investment which would be a~'e~t~. in any
manner or degree by the performance of Consultant's services hereunder. Consultant f~~ther
covenants and represents that in the pe~-fornaance of its duties hereunder no person having any such
interest shall perform any services under this Agreement.
Consultant is not a designsted employee within the meaning of the Political Reform Act
because Consultant.
a, will conduct research and arrive at conclusions v~ith respect to his~her rendition of
information, advice, recon~mendatian or ca~u:~el independent ofthe con~ol and direction of the City
ar of any City o~cial, other than normal agreement monitoring; and
3
Page 5 of 14
b. possesses no authority with respect to any City decision beyond rendition of
inforrr~ation, advice, recommendation ar counsel, {~PPC Reg. fi ~fi~{~~a}(2}.}
11. Professional Ability of Consultant. City has relied upon the professional training and ability
a£ Consultant to pe~:~or the services hereunder as a material inducement tQ enter into this
Agreement. Consultant shall therefore provide properly skilled professional and te~hi~.ca1 p~~sannel
to perform all se~~vices under this Agreement. All work perfar~n by Consultant under this
Agreement shall be in accordance with applic~~ble legal require~~nents and shall meet the standard of
quality ordinarily to be expected of competent professionals in Consultant's field of expertise.
I2. C~,mpliance with Laws. Consultant shall use the standard of care in its profession to comply
with all applicable federal, state and local laws, codes, ordinances and regulations.
13. Licenses. Consultant represents and warrants to City that it has the licenses, permits,
qualifications, insurance and approvals of whatsoever nature which are legally rewired afConsultant
to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole
cost and expense, beep in effecfi or obtain at all Mmes during the term of this Agreement, any
licenses, permits, insurance and approvals which are legally required of Consultant to practice its
profession.
14. Indemnity. Consultant agrees to defend, xnde~mnify and hold haa:~mless the City, its officers,
affiicials, agent, erployees and volunteers from and against any and all claims, demands, actions,
losses, damages, injuries, and liability, direct or indirect including any and all costs and expenses in
connection therein}, arising out ofthe performance of this ,Agreement or its failure to comply with
any of its obligations contained in this Agreement, except for any such claim arising out of the sole
negligence or willful rnisconduct of the City, its afters, agents, employees or volunteers.
l Insurance Requirements.
a. hsurance. Consultant, at Consultant's own cast and expense, shall procure anal
maintain, far the duration of the contract, the fallowing insurance policies.
i. workers' Com ensation Coverage. Consultant shall malntaln ~torkers'
Campe~~satian Insurance and Employer's Liability In~rance for his/her e~~nplaye~s in
accord~~nce with the laws of the Mate of California. In addition, Cansulta~nt shall
require each subcontractor to similarly maintain 'porkers' Compensation Insurance
and Employer's Liability Ins~~rance in accordance with the laws of the State of
California for all of the subcontractor's employee. Any notice of cancellation ar
non-renewal of all workers' Compensation policies must be received by the City at
le~~st thirty {3 (1}days prior to such change. The ~r~surer shall agree to waive all rights
of subrogation against City, its ocers, agents, employees and volunteers far losses
arising from work pe~~formed by Consultant for City,
ii, ~ene_ r L~ia~b~~~t~ Co~ve~~a~e. Consultant shall maintain commercial general
liability insurance in an amount not less khan one million dollars x$1,000,11}per
occurrence far bodily injury, personal in ju~~y and property da~:nage, If a cornn~ercial
general liability ir.~surance form ar other form with a general aggregate limit is us~i,
4
Page 6 of 10
either the general aggregate limit shall apply separately to the work to be performed
under this Agreement or the general aggregate limit shall be at le~ist twice the
rewired occurrence limit,
iii. Automobile lrlability Coverage. Consultant shall maintain automobile
liability insurance covering bodily in~u~:y and property damage for all activities of the
Consultant arising out of or ~ connection with the work to be performed under this
Agreement including coverage for owns, hired and non~owned vehicles, in an
amount of not less than one million dollars l,o~o,~o{l} combined single limit for
each occurrence.
iv. Professional Liability Coverage. Consultant shall maintain professional
errors and omissions liability insurance for protection against claims alle~g
negligent acts, errors or omissions which may arise from Consultant's operations
under this Agreement, whether such operations by the Consultant or by its
employees, subcontractors, or subconsultants.The amount ofthis insurance shall not
be less than two hundred and fiy thousand dollars {$.2SO,ooo} on a claimsMmade
annual aggregate basis, or a combined single limit per occurrence basis.
b. Endorsements. Each general liability and automobile liability insurance policy shall
be with insurers possessing aBest=s rating of no less than A:~~I and shall be endorsed. with the
following specific language:
i The City, its elected or appointed officers, officials, employees, agents and
volunteers are to be covered a.s additional insureds with resp~t to liability arising out
of work performed by or on behalf of the Consultant, including materials, parts or
equipment furnished in connection with such work or operations.
ii. This policy shall be considered primary insurance as respects the City, its
elected or appointed officers, o#~ vials, employees, agents and volunteers. Any
insurance maintained by the City, including any self-insure retention the City may
have, shall be considered excess insurance only and shall not contribute with it.
111. This insurance shall act for each insured and additional insured as though a
separate policy had been written for each, except with respect to the limits of liability
ofthe insuring company.
iv. The 1ns~~rer valves all rights of subrogation against the City, its elected or
appointed officers, officials, employees or agents.
v. Any failure to complywith reporting provisions of the policies shall not affect
coverage provided to the City, its elected or appointed o~cers, officials, employees,
agents, or volunteers.
vi. The insurance provided by this Policy shall not be suspended, voided,
canceled, or reduced in coverage or in limits exc~~at after thirty {3 days written
notice has been received by the City.
5
Page 7 Of 70
c. deductibles and Self-Insured Retentions, Any ductib~es orself-insured retentions
must be declared to and approved by the City. At the City's option, Consultant shall demonstrate
financial capability far payment of such deductibles orself-insured retentions.
d. Certificates of Insurance. Consultant shall provide c~+rtif~cates of insurance with
original endorsements to City as evidence of the insurance coverage ruined herein. Certificates of
such insurance shall be bled with the City an or before ca~nrnencement of performance of this
Agreement. Current certif cation of insur~~nce shall be kept on file with the City at all times during
the tern of this Agre~~rrent.
16. Notice. Any notice ruined to be given under this Agreement shall be in writing and eider
served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other
party at the address set Earth below. Notice shall be deemed. ca►mmunicated within 48 hours ~ron~ the
tune of mailing if mailed as provided in this section.
If to City: City of I~~ke Elsinore
Attn: City Manager
13{1 South fain Street
I~~ke Elsinore, CA 92530
If to Consultant: Bureau Veritas, North America, Inc.
Attn: Bill Bixby
1159I1 test Bernardo Court, Suite 1t~4
San Diego, CA 92127
17. Enure Agreement. This Agreement constitutes the complete and exclusive statement of
Agreement between the City and Consultant. All prior written and oral communications, including
correspondence, drabs, memoranda, and representations, are superseded in total by this Agreement.
18. Amendments. This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to farm by the City Attorney.
19. Asi~nment and Subcontracting. The parties recognise that a substantial inducement tv City
for entering into this ,Agr+~~nent is the professional reputation, experience and competence of
Consult~~t and the subcontractors listed in Bxlibit T~. Can~~ultant shall be fully res ansible to Ci p tY
for all~acl~s or omissions afany subcontractors. Assig~rnnnents of anyor all rights, duties ar obligations
afthe Consultant under this Agreement will be permitted only with the express consent ofthe City.
Cansult~~nt shall not subcontract any pardon of the work to be performed under this Agr+~~ment
except as provided in Exhibit l~ without the written author~at~an of the City. If City consents to
such subnt~ract, Consultant shall be hilly responsible to City for all acts ar omissions of those
subcontractors. Nothing in this Agreement sha11 create any contraci:ual relationship between City and
any subcontractor nor shall it create any obligation an the part of the City to pay or to sce to the
payment of any monies due to any such sub~ntractar other than as otherwise is required by lain.
20.x. '~aiver of a breach or default under this Agr~ent shall not constitute a continuing
waiver of a s~~bsequent breach of the same or any other provision under this Agreement.
Page 8 of 10
21. Severabilit. If ar~y term or portion of this Agreement is held to be invalid, illegal, ar
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full farce and effect.
2~. Controlling I~<aw Venue. 'this Agreement and all matters relating to it shall be governed by
the laws of the Mate of California and any action brou,~t relating to this Agreement shall be held
exclusively in a state court in the County of Riverside.
.Z 3 , Litiatian Exue~es and Attorneys' pees. If either party to this Agreement commences any rwi i n ~ r ~ ~ r N. ■
legal action against the other party arising out of this Agreement, the prevailing party shall be
entitled to recover its reasonable litigation expenses, including court costs, expert witness fees,
discovery expenses, and attorneys' fees.
24. 1Vlediaton. The parties agree to make a ,goad faith attempt to resolve any disputes arising out
of this Agreement through mediation prior to carnmencing litigation. The parties shall mutually
agree upon the mediator and share the costs of mediation equally. It the parties are unable to agree
upon a mediator, the dispute shall be submittal to JA11~SlENI~ISPUTE ~"JAMS"~ ants succ~~sar in
interest. JAMS shall provide the panes with the names of eve qualified mediators. Mach party shall
have the option to strike two of the five mediators selected by JAIViS and therea~er the mediator
remaining shall he~~ the dispute. Ifthe dispute remains u~~resolved a~ermediatian, either partymay
commence litigation.
25. Execution. This Agreement may be executed in several counterparts, each of which shall
constitute one and the same instrument and shall became binding upon the parties when at le~~st one
copy hereof shall have been sign. by both parties hereto. ~ approving this Agreement, it shall not
be necessary to produce or account for more than one such counterpart.
2 Authority to Enter Agreement, Consultant has all r~site power and authority to conduct its
business and to execute, deliver, and perform the Agreement. Each party warrants that the
individuals who have signed this Agreement have the legal mower, right, and authority to make this
Agreement and to bind each respective party.
27. Prohibited Interests. Consultant maintains and waxrants that it has not ens lays nor retained p
any cam~pany ar person, other than a bans ode employee working solely for Consultant, to solicit ar
secure this Agre~~rnent, Further, Consultant warrants that it has not paid nor has it agreed to pay any
company or person, other than a bans fide e~nplayee working solely for Consultant, any fee,
commission, percentage, brokerage fee,. gi#~ or other consid~.~~an contingent upon ar resulting from
the award ar rn~ of this Agreement. For breach or violation of this warranty, City shall have the
right to rescind this ,Agreement without lability. For the term afthis Agreement, no member, o~i.cer
ar employee of City, during the term of his ar her sexvice with City, shall have any direct interest in
this Agreement, ar attain any present or anticipated material benefit arising, there foam.
~S. Equal C~pportunit~~E~plaent. Consultant represents that it is an dual opportunity
employer and it shall not discriminate against any subcontractor, employee ar applicant for
e~~nployment because of rake, religion, color, national origin, handicap, ancestry, sex or age. such
non-discrimination shall include, but not be l~~ited to, all` activities related to initial e~nploy~~nent,
upgrading, demotion, transfer, recruitx~nent or rec~utznent advertising, lava' or terrrdnation.
7
Page 9 of 10
Consult shall also comply with all relevant provisions of City}s 11~inorty business Enterprise
program, ~.ffrmative Action Ply oz other related programs or guidelines currently in effect or
hereinaer enacted.
III wIT~IESS i~iEREC3F, the parties hereto have executed this Agreement on the dates set
forth below.
~rC~'I'`~~~
CI'~Y CAF LA~.~ ELSII~(~RE,
a municipal corporation
Dated: ~ 201 o B y
obert A. Brady, ty Manager
A~'~'EST:
~+r pity Clerk
APP~o~~ ~.s F~~~:
Leibold, McClendon & Mann, P.C.
B rbara Leibold, City Attorney
•
Dated: 3 , ~y:
Stephen S ith, Directo Public works
Services
~.ttachments: Ex~~ibit - Scope of Services
Exhibit B ~ F~ Schedule
Exhibit C -List ofSub-Contractors
8
Page 10 of 1 ~