CC 2019-08-27_08k Agreements_On Call Building Services
MEMORANDUM
TO: CITY COUNCIL
FROM: TERESA MCCLISH, DIRECTOR OF COMMUNITY DEVELOPMENT
BY: JOHNATHAN R. HURST, BUILDING OFFICIAL
SUBJECT: CONSIDERATION OF APPROVAL OF CONSULTANT SERVICE
AGREEMENTS FOR ON-CALL BUILDING DIVISION STAFF, PLAN
REVIEW AND INSPECTION SERVICES
DATE: AUGUST 27, 2019
SUMMARY OF ACTION:
Approval of on-call Agreements to provide Building, Plan Review and Inspection Services.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
Cost will be incurred for specific project and services in compliance with the City Council
approved budget.
RECOMMENDATION:
It is recommended the City Council: 1) Approve Agreements for Consultant Services with
the following firms for specified services: Interwest Consulting Group; Bureau Veritas
North America; 4Leaf, Inc; VCA Code Group; and JAS Pacific; and 2) Authorize staff to
issue purchase orders for consultant services if the proposal cost is within the City
Council approved project or service budget.
BACKGROUND:
The use of on-call consultants has been found to be an effective tool in the delivery of
City projects and services. The Building and Life Safety Division has utilized the services
of on-call building inspectors since 2006 when budget constraints eliminated the full-time
building inspector position. Plan review services have been used on an as-needed basis
for many years for larger, more complex projects that would have taken extensive
amounts of time away from the day-to-day activities of the Building Official. The current
building plan review and inspection services consultant agreements were established in
2016.
ANALYSIS OF ISSUES:
Qualifications Received and Evaluation Process
On June 24, 2019, Requests for Proposals (“RFPs:) for Building Division Staff and Plan
Review Services were issued. On July 10, 2019 the City received proposals from the
Item 8.k. - Page 1
CITY COUNCIL
AWARD CONSULTANT SERVICE AGREEMENTS FOR BUILDING DIVISION STAFF,
PLAN REVIEW AND INSPECTION SERVICES
AUGUST 27, 2019
PAGE 2
following companies: Bureau Veritas, 4Leaf, Independent Code Consultants, Interwest
Consulting, JAS, and VCA Code. Each of the six (6) separate proposals were ranked
by five City staff based on the following publically advertised criteria:
1. Responsiveness to RFQ
2. Quantity, quality and relevance of the firm’s experience and resources
3. References
4. Cost of services
Based on staff’s review, the following table describes the consultant’s average ranking,
area of work, services available, and staff’s award recommendation.
Company Ranking Award
Recommended
INTERWEST CONSULTING 1 Yes
BUREAU VERITAS 2 Yes
4LEAF INC 3 Yes
VCA CODE 4 Yes
JAS PACIFIC 5 Yes
INDEPENDENT CODE CONSULTANTS 6 No
The intent of the award recommendations is to provide the depth and breadth of services
needed. This is a critical component of permit process improvements for the Community
Development Department, particularly as regards sustaining a two-week plan check
turnaround time. Maintaining multiple consultants for all aspects of plan check services,
as well as inspection and Building Official duties, provides the redundancy of services
required to efficiently handle varying volumes of applications. The quantity of contracts
awarded are selected to provide redundancy in available service, but at the same time
to limit the number of consultants selected to increase the likelihood that all consultants
will complete some level of work for the City.
On-Call Use and Duration
Once these agreements are in place and a need arises, staff will prepare a project
specific request for proposals from the consultants. The consultants will review the
request and provide a proposal for work activities and associated cost. Staff will evaluate
the proposed work plan, cost and then select the lowest cost proposal that meets the
City’s needs. If the proposal cost is within the City Council approved project or service
budget, the City will issue a purchase order for this work and provide direction to the
consultant to proceed with work. Once the consultant begins work, the contract period
will not expire until the consultant has completed the purchase order work.
The term length of these agreements is three (3) years.
Item 8.k. - Page 2
CITY COUNCIL
AWARD CONSULTANT SERVICE AGREEMENTS FOR BUILDING DIVISION STAFF,
PLAN REVIEW AND INSPECTION SERVICES
AUGUST 27, 2019
PAGE 3
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Approve staff’s recommendations;
2. Do not approve staff’s recommendations; or
3. Provide direction to staff.
ADVANTAGES:
Approving the agreements and process will continue to allow the City to provide high
quality services and projects within a reasonable time-period.
The on-call firms will develop over time a better understanding of the City's procedures,
practices, and expectations ultimately enhancing efficiency and product delivery.
Working with a new firm each time results in lost efficiencies.
Cost savings benefits generated because staff will not have to produce and
widely distribute requests for proposals, evaluate submitted proposals, select firms, and
prepare contracts and Council reports for multiple projects and consultant needs over
the term of the on-call services agreements.
Establishment of these on-call service agreements does not preclude the City from
obtaining consultant services through the formal Request for Proposals (RFP) process
for specific project needs, specialty work, or grant requirements.
DISADVANTAGES:
No disadvantages have been identified.
ENVIRONMENTAL REVIEW:
Environmental review is not required for these contract agreements. Each project
completed will evaluate environmental impacts on a project-by-project basis.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted in front of City Hall and on the City’s website in accordance with
Government Code Section 54954.2.
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AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT FOR CONSULTANT SERVICES (“Agreement”), is made and
effective as of August 27, 2019, between Interwest Consulting Group, Inc. (“Consultant”),
and the CITY OF ARROYO GRANDE, a Municipal Corporation (“City”). In consideration
of the mutual covenants and conditions set forth herein, the parties agree as follows:
1. TERM
This Agreement shall commence on September 1, 2019 and shall remain and
continue in effect until August 30, 2022, unless sooner terminated pursuant to the
provisions of this Agreement. This Agreement may be extended for two (2) additional
one (1) year periods after the Initial Term upon written agreement by City and Consultant.
All terms and conditions of this Agreement shall apply to any additional one (1) year terms.
2. SERVICES
Consultant shall perform the tasks described and comply with all terms and
provisions set forth in Exhibit “A”, attached hereto and incorporated herein by this
reference.
3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of his/her ability,
experience and talent, perform all tasks described herein. Consultant shall employ, at a
minimum generally accepted standards and practices utilized by persons engaged in
providing similar services as are required of Consultant hereunder in meeting its
obligations under this Agreement.
4. AGREEMENT ADMINISTRATION
City’s Building Official shall represent City in all matters pertaining to the
administration of this Agreement. Ron Beehler shall represent Consultant in all matters
pertaining to the administration of this Agreement.
5. PAYMENT
The City agrees to pay the Consultant in accordance with the payment rates and
terms set forth in Exhibit “B”, attached hereto and incorporated herein by this reference.
6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE
(a) The City may at any time, for any reason, with or without cause, suspend or
terminate this Agreement, or any portion hereof, by serving upon the Consultant at least
ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall
immediately cease all work under this Agreement, unless the notice provides otherwise.
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If the City suspends or terminates a portion of this Agreement such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
(b) In the event this Agreement is terminated pursuant to this Section, the City
shall pay to Consultant the actual value of the work performed up to the time of
termination, provided that the work performed is of value to the City. Upon termination of
the Agreement pursuant to this Section, the Consultant will submit an invoice to the City
pursuant to Section 5.
7. TERMINATION ON OCCURRENCE OF STATED EVENTS
This Agreement shall terminate automatically on the occurrence of any of the
following events:
(a) Bankruptcy or insolvency of any party;
(b) Sale of Consultant’s business; or
(c) Assignment of this Agreement by Consultant without the consent of City.
(d) End of the Agreement term specified in Section 1.
8. DEFAULT OF CONSULTANT
(a) The Consultant’s failure to comply with the provisions of this Agreement
shall constitute a default. In the event that Consultant is in default for cause under the
terms of this Agreement, City shall have no obligation or duty to continue compensating
Consultant for any work performed after the date of default and can terminate this
Agreement immediately by written notice to the Consultant. If such failure by the
Consultant to make progress in the performance of work hereunder arises out of causes
beyond the Consultant’s control, and without fault or negligence of the Consultant, it shall
not be considered a default.
(b) If the City Manager or his/her delegate determines that the Consultant is in
default in the performance of any of the terms or conditions of this Agreement, he/she
shall cause to be served upon the Consultant a written notice of the default. The
Consultant shall have ten (10) days after service upon it of said notice in which to cure
the default by rendering a satisfactory performance. In the event that the Consultant fails
to cure its default within such period of time, the City shall have the right, notwithstanding
any other provision of this Agreement to terminate this Agreement without further notice
and without prejudice to any other remedy to which it may be entitled at law, in equity or
under this Agreement.
9. LAWS TO BE OBSERVED. Consultant shall:
(a) Procure all permits and licenses, pay all charges and fees, and give all
notices which may be necessary and incidental to the due and lawful prosecution of the
services to be performed by Consultant under this Agreement;
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(b) Keep itself fully informed of all existing and proposed federal, state and local
laws, ordinances, regulations, orders, and decrees which may affect those engaged or
employed under this Agreement, any materials used in Consultant’s performance under
this Agreement, or the conduct of the services under this Agreement;
(c) At all times observe and comply with, and cause all of its employees to
observe and comply with all of said laws, ordinances, regulations, orders, and decrees
mentioned above;
(d) Immediately report to the City’s Contract Manager in writing any
discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders,
and decrees mentioned above in relation to any plans, drawings, specifications, or
provisions of this Agreement.
(e) The City, and its officers, agents and employees, shall not be liable at law
or in equity occasioned by failure of the Consultant to comply with this Section.
10. OWNERSHIP OF DOCUMENTS
(a) Consultant shall maintain complete and accurate records with respect to sales,
costs, expenses, receipts, and other such information required by City that relate to the
performance of services under this Agreement. Consultant shall maintain adequate
records of services provided in sufficient detail to permit an evaluation of services. All
such records shall be maintained in accordance with generally accepted accounting
principles and shall be clearly identified and readily accessible. Consultant shall provide
free access to the representatives of City or its designees at reasonable times to such
books and records; shall give City the right to examine and audit said books and records;
shall permit City to make transcripts therefrom as necessary; and shall allow inspection
of all work, data, documents, proceedings, and activities related to this Agreement. Such
records, together with supporting documents, shall be maintained for a period of three (3)
years after receipt of final payment.
(b) Upon completion of, or in the event of termination or suspension of this
Agreement, all original documents, designs, drawings, maps, models, computer files,
surveys, notes, and other documents prepared in the course of providing the services to
be performed pursuant to this Agreement shall become the sole property of the City and
may be used, reused, or otherwise disposed of by the City without the permission of the
Consultant. With respect to computer files, Consultant shall make available to the City, at
the Consultant’s office and upon reasonable written request by the City, the necessary
computer software and hardware for purposes of accessing, compiling, transferring, and
printing computer files.
11. INDEMNIFICATION
(a) Indemnification for Professional Liability. When the law establishes a
professional standard of care for Consultant’s Services, to the fullest extent permitted by
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law, Consultant shall indemnify, protect, defend and hold harmless City and any and all
of its officials, employees and agents (“Indemnified Parties”) from and against any and all
losses, liabilities, damages, costs and expenses, including attorney’s fees and costs to
the extent same are caused in whole or in part by any negligent or wrongful act, error or
omission of Consultant, its officers, agents, employees or subContractors or any entity or
individual that Consultant shall bear the legal liability thereof) in the performance of
professional services under this agreement.
(b) Indemnification for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant
shall indemnify, defend and hold harmless City, and any and all of its employees, officials
and agents from and against any liability (including liability for claims, suits, actions,
arbitration proceedings, administrative proceedings, regulatory proceedings, losses,
expenses or costs of any kind, whether actual, alleged or threatened, including attorneys
fees and costs, court costs, interest, defense costs, and expert witness fees), where the
same arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by Consultant or by any individual or entity for
which Consultant is legally liable, including but not limited to officers, agents, employees
or subContractors of Consultant.
(c) General Indemnification Provisions. Consultant agrees to obtain executed
indemnity agreements with provisions identical to those set forth here in this section from
each and every subContractor or any other person or entity involved by, for, with or on
behalf of Consultant in the performance of this agreement. In the event Consultant fails
to obtain such indemnity obligations from others as required here, Consultant agrees to
be fully responsible according to the terms of this section. Failure of City to monitor
compliance with these requirements imposes no additional obligations on City and will in
no way act as a waiver of any rights hereunder. This obligation to indemnify and defend
City as set forth here is binding on the successors, assigns or heirs of Consultant and
shall survive the termination of this agreement or this section.
12. INSURANCE
Consultant shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit “C” attached hereto and
incorporated herein as though set forth in full.
13. INDEPENDENT CONSULTANT
(a) Consultant is and shall at all times remain as to the City a wholly independent
Consultant. The personnel performing the services under this Agreement on behalf of
Consultant shall at all times be under Consultant’s exclusive direction and control. Neither
City nor any of its officers, employees, or agents shall have control over the conduct of
Consultant or any of Consultant’s officers, employees, or agents, except as set forth in
this Agreement. Consultant shall not at any time or in any manner represent that it or any
of its officers, employees, or agents are in any manner officers, employees, or agents of
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the City. Consultant shall not incur or have the power to incur any debt, obligation, or
liability whatever against City, or bind City in any manner.
(b) No employee benefits shall be available to Consultant in connection with
performance of this Agreement. Except for the fees paid to Consultant as provided in the
Agreement, City shall not pay salaries, wages, or other compensation to Consultant for
performing services hereunder for City. City shall not be liable for compensation or
indemnification to Consultant for injury or sickness arising out of performing services
hereunder.
14. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure was or is
used against or in concert with any officer or employee of the City of Arroyo Grande in
connection with the award, terms or implementation of this Agreement, including any
method of coercion, confidential financial arrangement, or financial inducement. No officer
or employee of the City of Arroyo Grande will receive compensation, directly or indirectly,
from Consultant, or from any officer, employee or agent of Consultant, in connection with
the award of this Agreement or any work to be conducted as a result of this Agreement.
Violation of this Section shall be a material breach of this Agreement entitling the City to
any and all remedies at law or in equity.
15. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the project
during his/her tenure or for one year thereafter, shall have any interest, direct or indirect,
in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in
connection with the project performed under this Agreement.
16. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
(a) All information gained by Consultant in performance of this Agreement shall be
considered confidential and shall not be released by Consultant without City’s prior written
authorization. Consultant, its officers, employees, agents, or subContractors, shall not
without written authorization from the City Manager or unless requested by the City
Attorney, voluntarily provide declarations, letters of support, testimony at depositions,
response to interrogatories, or other information concerning the work performed under
this Agreement or relating to any project or property located within the City. Response to
a subpoena or court order shall not be considered “voluntary” provided Consultant gives
City notice of such court order or subpoena.
(b) Consultant shall promptly notify City should Consultant, its officers, employees,
agents, or subContractors be served with any summons, complaint, subpoena, notice of
deposition, request for documents, interrogatories, request for admissions, or other
discovery request, court order, or subpoena from any person or party regarding this
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Agreement and the work performed thereunder or with respect to any project or property
located within the City. City retains the right, but has no obligation, to represent Consultant
and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to
cooperate fully with City and to provide the opportunity to review any response to
discovery requests provided by Consultant. However, City’s right to review any such
response does not imply or mean the right by City to control, direct, or rewrite said
response.
17. NOTICES
Any notice which either party may desire to give to the other party under this
Agreement must be in writing and may be given either by (i) personal service, (ii) delivery
by a reputable document delivery service, such as but not limited to, Federal Express,
which provides a receipt showing date and time of delivery, or (iii) mailing in the United
States Mail, certified mail, postage prepaid, return receipt requested, addressed to the
address of the party as set forth below or at any other address as that party may later
designate by notice:
To City: City of Arroyo Grande
Building Official
300 E. Branch Street
Arroyo Grande, CA 93420
To Consultant: Interwest Consulting Group, Inc.
Ron Beehler
1171 W. Shaw Avenue
Fresno, CA 93711
18. ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part
thereof, without the prior written consent of the City.
19. GOVERNING LAW
The City and Consultant understand and agree that the laws of the State of
California shall govern the rights, obligations, duties, and liabilities of the parties to this
Agreement and also govern the interpretation of this Agreement. Any litigation concerning
this Agreement shall take place in the superior or federal district court with jurisdiction
over the City of Arroyo Grande.
20. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to
the obligations of the parties described in this Agreement. All prior or contemporaneous
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agreements, understandings, representations, and statements, or written, are merged
into this Agreement and shall be of no further force or effect. Each party is entering into
this Agreement based solely upon the representations set forth herein and upon each
party’s own independent investigation of any and all facts such party deems material.
21. TIME
City and Consultant agree that time is of the essence in this Agreement. Time
constraints are selection factors on individual service requests. The consultant must start
work within two weeks from receipt of a written authorization to proceed unless an
alternate timeframe has been agreed upon. The City expects the work to be actively
pursued until complete.
22. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL
Consultant is bound by the contents of the City’s Request for Proposal and the
contents of the proposal submitted by the Consultant, both of which are on file in the
Community Development Department and incorporated herein by this reference. In the
event of conflict, the requirements of City’s Request for Proposals and this Agreement
shall take precedence over those contained in the Consultant’s proposals.
23. CONSTRUCTION
The parties agree that each has had an opportunity to have their counsel review
this Agreement and that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in the interpretation of this Agreement
or any amendments or exhibits thereto. The captions of the sections are for convenience
and reference only, and are not intended to be construed to define or limit the provisions
to which they relate.
24. AMENDMENTS
Amendments to this Agreement shall be in writing and shall be made only with the
mutual written consent of all of the parties to this Agreement.
25. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants
and represents that he/she has the authority to execute this Agreement on behalf of the
Consultant and has the authority to bind Consultant to the performance of its obligations
hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
CITY OF ARROYO GRANDE CONSULTANT
By:__________________________ By:____________________________
Caren Ray Russom, Mayor
Its:____________________________
Attest: (Title)
____________________________
Kelly Wetmore, City Clerk
Approved As To Form:
_____________________________
Heather K. Whitham, City Attorney
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EXHIBIT A
SCOPE OF WORK
This Agreement is a non-exclusive continuing services contract to provide on-call
Building Staff and Plan Review Services for the City of Arroyo Grande. The Consultant
will augment and support City staff and provide services at the sole direction and
discretion of the City.
The City does not guarantee that the Consultant will receive a specific volume of work or
total contract amount.
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EXHIBIT B
PAYMENT SCHEDULE
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SC:H.,EO ULE OF HOU ,RLV BI L ,I NG, R.ATIES
The ra tes displayed i n bhe Scliled ul.e of Ho url y Billing Ra t es be l ow reffed ln t,erwest'srnrroot hourly rates
for se wices prov id ed to th e City of Arroyo Grande.
CLASSIJ:ICAT ON HOURLY BILLING RAT
Certified Build in g Offi ci al ......... .., ................................................................................................................ S 135
l..ioense d Enginee r Plans Exa n,iner .............................................................................................................. 135
Civil/ Gradin g Plan ~ev iew Enginee r ... m .................................................................................... '"" ........ '"" ... 13.-5
ICC Certified Pl ans Ex:arni ner ......................................................................................................................... 95
Fire Protection Engin eer ......................................................................................................................... 135
ICC Fire Plans Exam .i ner .............................................................................................................................. 110
CASp Certifie-d Pl ans Ex.a mine r /' lnspect o r .............................................................................................. 110
Ca l Green Pilan s Exam i ne r ...................................................................................................................................... 9,5
Buildi ng In specto r .............................................................................................................................. 75 -95
Eng in eer in g !n spe-ct or ....................................................................................................................................... 135
Pe ,mit lechnici an ......................................................................................................................................... 65
Shippi ng : Ther•e is no char ge fo r co urier or shi pp in g serv ices fo r plan rev iew ,cond ucted oft-s ite.
Mlllle ai g•e: i eage ut ilized w hile providi ng in spectJi ,on services wi ll be ,ciha rged a th e current IRS veh icle
mil eage rate.
Overtl m,e: ln spectlions i n e:xcess of eigh t hours per day; ni ghts and weekends will be inv oiced at 140 %
of lhe abo ve rates .
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EXHIBIT C
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, Consultant will maintain
insurance in conformance with the requirements set forth below. Consultant will use
existing coverage to comply with these requirements. If that existing coverage does not
meet the requirements set forth here, Consultant agrees to amend, supplement or
endorse the existing coverage to do so. Consultant acknowledges that the insurance
coverage and policy limits set forth in this section constitute the minimum amount of
coverage required. Any insurance proceeds available to City in excess of the limits and
coverage required in this agreement and which is applicable to a given loss, will be
available to City.
Consultant shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office “Commercial
General Liability” policy from CG 00 01 or the exact equivalent. Defense costs must be
paid in addition to limits. There shall be no cross liability exclusion for claims or suits by
one insured against another. Limits are subject to review but in no event less than
$1,000,000 per occurrence.
Business Auto Coverage on ISO Business Auto Coverage from CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event
to be less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement
may be satisfied by a non-owned auto endorsement to the general liability policy
described above. If Consultant or Consultant’s employees will use personal autos in any
way on this project, Consultant shall provide evidence of personal auto liability coverage
for each such person.
Workers Compensation on a state-approved policy form providing statutory benefits as
required by law with employer’s liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written
on a policy form coverage specifically designated to protect against acts, errors or
omissions of the Consultant and “Covered Professional Services” as designated in the
policy must specifically include work performed under this agreement. The policy limit
shall be no less than $1,000,000 per claim and in the aggregate. The policy must “pay on
behalf of” the insured and must include a provision establishing the insurer’s duty to
defend. The policy retroactive date shall be on or before the effective date of this
agreement.
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Insurance procured pursuant to these requirements shall be written by insurer that are
admitted carriers in the state California and with an A.M. Bests rating of A- or better and
a minimum financial size VII.
General conditions pertaining to provision of insurance coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by
Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds City, its officials employees
and agents, using standard ISO endorsement No. CG 2010 with an edition prior to 1992.
Consultant also agrees to require all Consultants, and subContractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Consultant, or Consultant’s employees, or agents, from waiving the right of
subrogation prior to a loss. Consultant agrees to waive subrogation rights against City
regardless of the applicability of any insurance proceeds, and to require all Consultants
and subContractors to do likewise.
3. All insurance coverage and limits provided by Consultant and available or
applicable to this agreement are intended to apply to the full extent of the policies. Nothing
contained in this Agreement or any other agreement relating to the City or its operations
limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve
to eliminate so-called “third party action over” claims, including any exclusion for bodily
injury to an employee of the insured or of any Consultant or subcontractor.
6. All coverage types and limits required are subject to approval, modification
and additional requirements by the City, as the need arises. Consultant shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or reduction
of discovery period) that may affect City’s protection without City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all of the coverages required and an additional
insured endorsement to Consultant’s general liability policy, shall be delivered to City at
or prior to the execution of this Agreement. In the event such proof of any insurance is
not delivered as required, or in the event such insurance is canceled at any time and no
replacement coverage is provided, City has the right, but not the duty, to obtain any
insurance it deems necessary to protect its interests under this or any other agreement
and to pay the premium. Any premium so paid by City shall be charged to and promptly
paid by Consultant or deducted from sums due Consultant, at City option.
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8. Certificate(s) are to reflect that the insurer will provide 30 days notice to City
of any cancellation of coverage. Consultant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to mail
written notice of cancellation imposes no obligation, or that any party will “endeavor” (as
opposed to being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Consultant or any subContractor, is intended to apply
first and on a primary, noncontributing basis in relation to any other insurance or self
insurance available to City.
10. Consultant agrees to ensure that subContractors, and any other party
involved with the project who is brought onto or involved in the project by Consultant,
provide the same minimum insurance coverage required of Consultant. Consultant
agrees to monitor and review all such coverage and assumes all responsibility for
ensuring that such coverage is provided in conformity with the requirements of this
section. Consultant agrees that upon request, all agreements with subContractors and
others engaged in the project will be submitted to City for review.
11. Consultant agrees not to self-insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it will
not allow any Consultant, subContractor, Architect, Engineer or other entity or person in
any way involved in the performance of work on the project contemplated by this
agreement to self-insure its obligations to City. If Consultant’s existing coverage includes
a deductible or self-insured retention, the deductible or self-insured retention must be
declared to the City. At the time the City shall review options with the Consultant, which
may include reduction or elimination of the deductible or self-insured retention,
substitution of other coverage, or other solutions.
12. The City reserves the right at any time during the term of the contract to
change the amounts and types of insurance required by giving the Consultant ninety (90)
days advance written notice of such change. If such change results in substantial
additional cost to the Consultant, the City will negotiate additional compensation
proportional to the increase benefit to City.
13. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any steps that
can be deemed to be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on
the part of City to inform Consultant of non-compliance with any insurance requirements
in no way imposes any additional obligations on City nor does it waive any rights
hereunder in this or any other regard.
15. Consultant will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuant to this
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agreement. This obligation applies whether or not the agreement is canceled or
terminated for any reason. Termination of this obligation is not effective until City executes
a written statement to that effect.
16. Consultant shall provide proof that policies of insurance required herein
expiring during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has been ordered
shall be submitted prior to expiration. A coverage binder or letter from Consultant’s
insurance agent to this effect is acceptable. A certificate of insurance and/or additional
insured endorsement as required in these specifications applicable to the renewing or
new coverage must be provided to City within five days of the expiration of the coverages.
17. The provisions of any workers’ compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use
any statutory immunity defenses under such laws with respect to City, its employees,
officials and agents.
18. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference to a
given coverage feature is for purposes of clarification only as it pertains to a given issue,
and is not intended by any party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from
any other provision in this agreement and are intended by the parties here to be
interpreted as such.
20. The requirements in this Section supersede all other sections and
provisions of this Agreement to the extent that any other section or provision conflicts with
or impairs the provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by
any party involved in any way with the project reserves the right to charge City or
Consultant for the cost of additional insurance coverage required by this agreement. Any
such provisions are to be deleted with reference to City. It is not the intent of City to
reimburse any third party for the cost of complying with these requirements. There shall
be no recourse against City for payment of premiums or other amounts with respect
thereto.
22. Consultant agrees to provide immediate notice to City of any claim or loss
against Consultant arising out of the work performed under this agreement. City assumes
no obligation or liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
Item 8.k. - Page 17
Page 1
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT FOR CONSULTANT SERVICES (“Agreement”), is made and
effective as of August 27, 2019, between Bureau Veritas North America, Inc.
(“Consultant”), and the CITY OF ARROYO GRANDE, a Municipal Corporation (“City”). In
consideration of the mutual covenants and conditions set forth herein, the parties agree
as follows:
1. TERM
This Agreement shall commence on September 1, 2019 and shall remain and
continue in effect until August 30, 2022, unless sooner terminated pursuant to the
provisions of this Agreement. This Agreement may be extended for two (2) additional
one (1) year periods after the Initial Term upon written agreement by City and Consultant.
All terms and conditions of this Agreement shall apply to any additional one (1) year terms.
2. SERVICES
Consultant shall perform the tasks described and comply with all terms and
provisions set forth in Exhibit “A”, attached hereto and incorporated herein by this
reference.
3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of his/her ability,
experience and talent, perform all tasks described herein. Consultant shall employ, at a
minimum generally accepted standards and practices utilized by persons engaged in
providing similar services as are required of Consultant hereunder in meeting its
obligations under this Agreement.
4. AGREEMENT ADMINISTRATION
City’s Building Official shall represent City in all matters pertaining to the
administration of this Agreement. Bryan Spain shall represent Consultant in all matters
pertaining to the administration of this Agreement.
5. PAYMENT
The City agrees to pay the Consultant in accordance with the payment rates and
terms set forth in Exhibit “B”, attached hereto and incorporated herein by this reference.
6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE
(a) The City may at any time, for any reason, with or without cause, suspend or
terminate this Agreement, or any portion hereof, by serving upon the Consultant at least
ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall
Item 8.k. - Page 18
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immediately cease all work under this Agreement, unless the notice provides otherwise.
If the City suspends or terminates a portion of this Agreement such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
(b) In the event this Agreement is terminated pursuant to this Section, the City
shall pay to Consultant the actual value of the work performed up to the time of
termination, provided that the work performed is of value to the City. Upon termination of
the Agreement pursuant to this Section, the Consultant will submit an invoice to the City
pursuant to Section 5.
7. TERMINATION ON OCCURRENCE OF STATED EVENTS
This Agreement shall terminate automatically on the occurrence of any of the
following events:
(a) Bankruptcy or insolvency of any party;
(b) Sale of Consultant’s business; or
(c) Assignment of this Agreement by Consultant without the consent of City.
(d) End of the Agreement term specified in Section 1.
8. DEFAULT OF CONSULTANT
(a) The Consultant’s failure to comply with the provisions of this Agreement
shall constitute a default. In the event that Consultant is in default for cause under the
terms of this Agreement, City shall have no obligation or duty to continue compensating
Consultant for any work performed after the date of default and can terminate this
Agreement immediately by written notice to the Consultant. If such failure by the
Consultant to make progress in the performance of work hereunder arises out of causes
beyond the Consultant’s control, and without fault or negligence of the Consultant, it shall
not be considered a default.
(b) If the City Manager or his/her delegate determines that the Consultant is in
default in the performance of any of the terms or conditions of this Agreement, he/she
shall cause to be served upon the Consultant a written notice of the default. The
Consultant shall have ten (10) days after service upon it of said notice in which to cure
the default by rendering a satisfactory performance. In the event that the Consultant fails
to cure its default within such period of time, the City shall have the right, notwithstanding
any other provision of this Agreement to terminate this Agreement without further notice
and without prejudice to any other remedy to which it may be entitled at law, in equity or
under this Agreement.
9. LAWS TO BE OBSERVED. Consultant shall:
(a) Procure all permits and licenses, pay all charges and fees, and give all
notices which may be necessary and incidental to the due and lawful prosecution of the
services to be performed by Consultant under this Agreement;
Item 8.k. - Page 19
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(b) Keep itself fully informed of all existing and proposed federal, state and local
laws, ordinances, regulations, orders, and decrees which may affect those engaged or
employed under this Agreement, any materials used in Consultant’s performance under
this Agreement, or the conduct of the services under this Agreement;
(c) At all times observe and comply with, and cause all of its employees to
observe and comply with all of said laws, ordinances, regulations, orders, and decrees
mentioned above;
(d) Immediately report to the City’s Contract Manager in writing any
discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders,
and decrees mentioned above in relation to any plans, drawings, specifications, or
provisions of this Agreement.
(e) The City, and its officers, agents and employees, shall not be liable at law
or in equity occasioned by failure of the Consultant to comply with this Section.
10. OWNERSHIP OF DOCUMENTS
(a) Consultant shall maintain complete and accurate records with respect to sales,
costs, expenses, receipts, and other such information required by City that relate to the
performance of services under this Agreement. Consultant shall maintain adequate
records of services provided in sufficient detail to permit an evaluation of services. All
such records shall be maintained in accordance with generally accepted accounting
principles and shall be clearly identified and readily accessible. Consultant shall provide
free access to the representatives of City or its designees at reasonable times to such
books and records; shall give City the right to examine and audit said books and records;
shall permit City to make transcripts therefrom as necessary; and shall allow inspection
of all work, data, documents, proceedings, and activities related to this Agreement. Such
records, together with supporting documents, shall be maintained for a period of three (3)
years after receipt of final payment.
(b) Upon completion of, or in the event of termination or suspension of this
Agreement, all original documents, designs, drawings, maps, models, computer files,
surveys, notes, and other documents prepared in the course of providing the services to
be performed pursuant to this Agreement shall become the sole property of the City and
may be used, reused, or otherwise disposed of by the City without the permission of the
Consultant. With respect to computer files, Consultant shall make available to the City, at
the Consultant’s office and upon reasonable written request by the City, the necessary
computer software and hardware for purposes of accessing, compiling, transferring, and
printing computer files.
11. INDEMNIFICATION
(a) Indemnification for Professional Liability. When the law establishes a
professional standard of care for Consultant’s Services, to the fullest extent permitted by
Item 8.k. - Page 20
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law, Consultant shall indemnify, protect, defend and hold harmless City and any and all
of its officials, employees and agents (“Indemnified Parties”) from and against any and all
losses, liabilities, damages, costs and expenses, including attorney’s fees and costs to
the extent same are caused in whole or in part by any negligent or wrongful act, error or
omission of Consultant, its officers, agents, employees or subContractors or any entity or
individual that Consultant shall bear the legal liability thereof) in the performance of
professional services under this agreement.
(b) Indemnification for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant
shall indemnify, defend and hold harmless City, and any and all of its employees, officials
and agents from and against any liability (including liability for claims, suits, actions,
arbitration proceedings, administrative proceedings, regulatory proceedings, losses,
expenses or costs of any kind, whether actual, alleged or threatened, including attorneys
fees and costs, court costs, interest, defense costs, and expert witness fees), where the
same arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by Consultant or by any individual or entity for
which Consultant is legally liable, including but not limited to officers, agents, employees
or subContractors of Consultant.
(c) General Indemnification Provisions. Consultant agrees to obtain executed
indemnity agreements with provisions identical to those set forth here in this section from
each and every subContractor or any other person or entity involved by, for, with or on
behalf of Consultant in the performance of this agreement. In the event Consultant fails
to obtain such indemnity obligations from others as required here, Consultant agrees to
be fully responsible according to the terms of this section. Failure of City to monitor
compliance with these requirements imposes no additional obligations on City and will in
no way act as a waiver of any rights hereunder. This obligation to indemnify and defend
City as set forth here is binding on the successors, assigns or heirs of Consultant and
shall survive the termination of this agreement or this section.
12. INSURANCE
Consultant shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit “C” attached hereto and
incorporated herein as though set forth in full.
13. INDEPENDENT CONSULTANT
(a) Consultant is and shall at all times remain as to the City a wholly independent
Consultant. The personnel performing the services under this Agreement on behalf of
Consultant shall at all times be under Consultant’s exclusive direction and control. Neither
City nor any of its officers, employees, or agents shall have control over the conduct of
Consultant or any of Consultant’s officers, employees, or agents, except as set forth in
this Agreement. Consultant shall not at any time or in any manner represent that it or any
of its officers, employees, or agents are in any manner officers, employees, or agents of
Item 8.k. - Page 21
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the City. Consultant shall not incur or have the power to incur any debt, obligation, or
liability whatever against City, or bind City in any manner.
(b) No employee benefits shall be available to Consultant in connection with
performance of this Agreement. Except for the fees paid to Consultant as provided in the
Agreement, City shall not pay salaries, wages, or other compensation to Consultant for
performing services hereunder for City. City shall not be liable for compensation or
indemnification to Consultant for injury or sickness arising out of performing services
hereunder.
14. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure was or is
used against or in concert with any officer or employee of the City of Arroyo Grande in
connection with the award, terms or implementation of this Agreement, including any
method of coercion, confidential financial arrangement, or financial inducement. No officer
or employee of the City of Arroyo Grande will receive compensation, directly or indirectly,
from Consultant, or from any officer, employee or agent of Consultant, in connection with
the award of this Agreement or any work to be conducted as a result of this Agreement.
Violation of this Section shall be a material breach of this Agreement entitling the City to
any and all remedies at law or in equity.
15. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the project
during his/her tenure or for one year thereafter, shall have any interest, direct or indirect,
in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in
connection with the project performed under this Agreement.
16. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
(a) All information gained by Consultant in performance of this Agreement shall be
considered confidential and shall not be released by Consultant without City’s prior written
authorization. Consultant, its officers, employees, agents, or subContractors, shall not
without written authorization from the City Manager or unless requested by the City
Attorney, voluntarily provide declarations, letters of support, testimony at depositions,
response to interrogatories, or other information concerning the work performed under
this Agreement or relating to any project or property located within the City. Response to
a subpoena or court order shall not be considered “voluntary” provided Consultant gives
City notice of such court order or subpoena.
(b) Consultant shall promptly notify City should Consultant, its officers, employees,
agents, or subContractors be served with any summons, complaint, subpoena, notice of
deposition, request for documents, interrogatories, request for admissions, or other
discovery request, court order, or subpoena from any person or party regarding this
Item 8.k. - Page 22
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Agreement and the work performed thereunder or with respect to any project or property
located within the City. City retains the right, but has no obligation, to represent Consultant
and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to
cooperate fully with City and to provide the opportunity to review any response to
discovery requests provided by Consultant. However, City’s right to review any such
response does not imply or mean the right by City to control, direct, or rewrite said
response.
17. NOTICES
Any notice which either party may desire to give to the other party under this
Agreement must be in writing and may be given either by (i) personal service, (ii) delivery
by a reputable document delivery service, such as but not limited to, Federal Express,
which provides a receipt showing date and time of delivery, or (iii) mailing in the United
States Mail, certified mail, postage prepaid, return receipt requested, addressed to the
address of the party as set forth below or at any other address as that party may later
designate by notice:
To City: City of Arroyo Grande
Building Official
300 E. Branch Street
Arroyo Grande, CA 93420
To Consultant: Bureau Veritas North America, Inc.
Bryan Spain
5905 Capistrano Avenue, Suite F
Atascadero, CA 93422
18. ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part
thereof, without the prior written consent of the City.
19. GOVERNING LAW
The City and Consultant understand and agree that the laws of the State of
California shall govern the rights, obligations, duties, and liabilities of the parties to this
Agreement and also govern the interpretation of this Agreement. Any litigation concerning
this Agreement shall take place in the superior or federal district court with jurisdiction
over the City of Arroyo Grande.
20. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to
the obligations of the parties described in this Agreement. All prior or contemporaneous
agreements, understandings, representations, and statements, or written, are merged
Item 8.k. - Page 23
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into this Agreement and shall be of no further force or effect. Each party is entering into
this Agreement based solely upon the representations set forth herein and upon each
party’s own independent investigation of any and all facts such party deems material.
21. TIME
City and Consultant agree that time is of the essence in this Agreement. Time
constraints are selection factors on individual service requests. The consultant must start
work within two weeks from receipt of a written authorization to proceed unless an
alternate timeframe has been agreed upon. The City expects the work to be actively
pursued until complete.
22. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL
Consultant is bound by the contents of the City’s Request for Proposal and the
contents of the proposal submitted by the Consultant, both of which are on file in the
Community Development Department and incorporated herein by this reference. In the
event of conflict, the requirements of City’s Request for Proposals and this Agreement
shall take precedence over those contained in the Consultant’s proposals.
23. CONSTRUCTION
The parties agree that each has had an opportunity to have their counsel review
this Agreement and that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in the interpretation of this Agreement
or any amendments or exhibits thereto. The captions of the sections are for convenience
and reference only, and are not intended to be construed to define or limit the provisions
to which they relate.
24. AMENDMENTS
Amendments to this Agreement shall be in writing and shall be made only with the
mutual written consent of all of the parties to this Agreement.
25. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants
and represents that he/she has the authority to execute this Agreement on behalf of the
Consultant and has the authority to bind Consultant to the performance of its obligations
hereunder.
Item 8.k. - Page 24
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
CITY OF ARROYO GRANDE CONSULTANT
By:__________________________ By:____________________________
Caren Ray Russom, Mayor
Its:____________________________
Attest: (Title)
____________________________
Kelly Wetmore, City Clerk
Approved As To Form:
_____________________________
Heather K. Whitham, City Attorney
Item 8.k. - Page 25
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EXHIBIT A
SCOPE OF WORK
This Agreement is a non-exclusive continuing services contract to provide on-call
Building Staff and Plan Review Services for the City of Arroyo Grande. The Consultant
will augment and support City staff and provide services at the sole direction and
discretion of the City.
The City does not guarantee that the Consultant will receive a specific volume of work or
total contract amount.
Item 8.k. - Page 26
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EXHIBIT B
PAYMENT SCHEDULE
Item 8.k. - Page 27
Schedule of Fees
Our pricing reflects our commibnent to the success of your project by hefping you maintain significant qual-
ity and cost saving benefits mo'Vlingi forward
These in dude:
• Reduced p4an re view turnaround tim es and quick. :respons e time
• Commi~ment to maintain a proposed rate structure for the ifu • of the initi al contract period
• Highly qualified staff
• Confidence of workiing with a well-estabtished consultant in business for 190+ years
Fees for:
• Initial plan review: 70% of all plan check foes collect-ed by the City of Arroyo Gran-de
• Plan nevfew fee for ~petiliv.e tract homes: 70% o.f a l I plan check fees co leoted by Ui.e Oify of Arroyo
Grande for each in itial mode5, and $55.00 per home for ~t re'll iews.
• Plan pidkup and d'e:Jivery Charge (if .• my): No Charge
• Other fees: Refer io hour~ :rates shown below
Professional Consulting Services
Profess iona l Classification Hou rly Rate
Certilii·ed Bu i'ldlng Official $135
Plan Check Engineer (Stn.i:c~uraf/MEP/Civ,il) 5120
Plans Exam in er $100
Sentor Bu ifd ing Inspector $95
Burlding1 Inspector 585
P,em1 it Technician $65
C.A.Sp. ,(Aocessibil ity Scopingi and Site nspeoti:ons) $140
C.A.Sp. {Jurisdictional Plan Review) $125
*Other Positions, as needed
Travel and Mileag ..._ _____________ T&M
{For dient requested meetings and permit expediting services)
After Hours Servi,.,.,_,___ ____________ 150% of Above Rates Shown
After hours services will not be charged without pr:ior au thorization by dient
Reimbursab le Expenses
Re imbursable expenses sha[I include, but not be li mit,ed to, the fo[low.ing:
Mileag..,_ ________________ --'(Per cumrent IRS ,r:ate )
Domestic Travel Per Diem ___________ at cost plus 158/o}
Page 11
EXHIBIT C
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, Consultant will maintain
insurance in conformance with the requirements set forth below. Consultant will use
existing coverage to comply with these requirements. If that existing coverage does not
meet the requirements set forth here, Consultant agrees to amend, supplement or
endorse the existing coverage to do so. Consultant acknowledges that the insurance
coverage and policy limits set forth in this section constitute the minimum amount of
coverage required. Any insurance proceeds available to City in excess of the limits and
coverage required in this agreement and which is applicable to a given loss, will be
available to City.
Consultant shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office “Commercial
General Liability” policy from CG 00 01 or the exact equivalent. Defense costs must be
paid in addition to limits. There shall be no cross liability exclusion for claims or suits by
one insured against another. Limits are subject to review but in no event less than
$1,000,000 per occurrence.
Business Auto Coverage on ISO Business Auto Coverage from CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event
to be less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement
may be satisfied by a non-owned auto endorsement to the general liability policy
described above. If Consultant or Consultant’s employees will use personal autos in any
way on this project, Consultant shall provide evidence of personal auto liability coverage
for each such person.
Workers Compensation on a state-approved policy form providing statutory benefits as
required by law with employer’s liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written
on a policy form coverage specifically designated to protect against acts, errors or
omissions of the Consultant and “Covered Professional Services” as designated in the
policy must specifically include work performed under this agreement. The policy limit
shall be no less than $1,000,000 per claim and in the aggregate. The policy must “pay on
behalf of” the insured and must include a provision establishing the insurer’s duty to
defend. The policy retroactive date shall be on or before the effective date of this
agreement.
Item 8.k. - Page 28
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Insurance procured pursuant to these requirements shall be written by insurer that are
admitted carriers in the state California and with an A.M. Bests rating of A- or better and
a minimum financial size VII.
General conditions pertaining to provision of insurance coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by
Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds City, its officials employees
and agents, using standard ISO endorsement No. CG 2010 with an edition prior to 1992.
Consultant also agrees to require all Consultants, and subContractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Consultant, or Consultant’s employees, or agents, from waiving the right of
subrogation prior to a loss. Consultant agrees to waive subrogation rights against City
regardless of the applicability of any insurance proceeds, and to require all Consultants
and subContractors to do likewise.
3. All insurance coverage and limits provided by Consultant and available or
applicable to this agreement are intended to apply to the full extent of the policies. Nothing
contained in this Agreement or any other agreement relating to the City or its operations
limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve
to eliminate so-called “third party action over” claims, including any exclusion for bodily
injury to an employee of the insured or of any Consultant or subcontractor.
6. All coverage types and limits required are subject to approval, modification
and additional requirements by the City, as the need arises. Consultant shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or reduction
of discovery period) that may affect City’s protection without City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all of the coverages required and an additional
insured endorsement to Consultant’s general liability policy, shall be delivered to City at
or prior to the execution of this Agreement. In the event such proof of any insurance is
not delivered as required, or in the event such insurance is canceled at any time and no
replacement coverage is provided, City has the right, but not the duty, to obtain any
insurance it deems necessary to protect its interests under this or any other agreement
and to pay the premium. Any premium so paid by City shall be charged to and promptly
paid by Consultant or deducted from sums due Consultant, at City option.
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8. Certificate(s) are to reflect that the insurer will provide 30 days notice to City
of any cancellation of coverage. Consultant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to mail
written notice of cancellation imposes no obligation, or that any party will “endeavor” (as
opposed to being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Consultant or any subContractor, is intended to apply
first and on a primary, noncontributing basis in relation to any other insurance or self
insurance available to City.
10. Consultant agrees to ensure that subContractors, and any other party
involved with the project who is brought onto or involved in the project by Consultant,
provide the same minimum insurance coverage required of Consultant. Consultant
agrees to monitor and review all such coverage and assumes all responsibility for
ensuring that such coverage is provided in conformity with the requirements of this
section. Consultant agrees that upon request, all agreements with subContractors and
others engaged in the project will be submitted to City for review.
11. Consultant agrees not to self-insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it will
not allow any Consultant, subContractor, Architect, Engineer or other entity or person in
any way involved in the performance of work on the project contemplated by this
agreement to self-insure its obligations to City. If Consultant’s existing coverage includes
a deductible or self-insured retention, the deductible or self-insured retention must be
declared to the City. At the time the City shall review options with the Consultant, which
may include reduction or elimination of the deductible or self-insured retention,
substitution of other coverage, or other solutions.
12. The City reserves the right at any time during the term of the contract to
change the amounts and types of insurance required by giving the Consultant ninety (90)
days advance written notice of such change. If such change results in substantial
additional cost to the Consultant, the City will negotiate additional compensation
proportional to the increase benefit to City.
13. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any steps that
can be deemed to be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on
the part of City to inform Consultant of non-compliance with any insurance requirements
in no way imposes any additional obligations on City nor does it waive any rights
hereunder in this or any other regard.
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15. Consultant will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuant to this
agreement. This obligation applies whether or not the agreement is canceled or
terminated for any reason. Termination of this obligation is not effective until City executes
a written statement to that effect.
16. Consultant shall provide proof that policies of insurance required herein
expiring during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has been ordered
shall be submitted prior to expiration. A coverage binder or letter from Consultant’s
insurance agent to this effect is acceptable. A certificate of insurance and/or additional
insured endorsement as required in these specifications applicable to the renewing or
new coverage must be provided to City within five days of the expiration of the coverages.
17. The provisions of any workers’ compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use
any statutory immunity defenses under such laws with respect to City, its employees,
officials and agents.
18. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference to a
given coverage feature is for purposes of clarification only as it pertains to a given issue,
and is not intended by any party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from
any other provision in this agreement and are intended by the parties here to be
interpreted as such.
20. The requirements in this Section supersede all other sections and
provisions of this Agreement to the extent that any other section or provision conflicts with
or impairs the provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by
any party involved in any way with the project reserves the right to charge City or
Consultant for the cost of additional insurance coverage required by this agreement. Any
such provisions are to be deleted with reference to City. It is not the intent of City to
reimburse any third party for the cost of complying with these requirements. There shall
be no recourse against City for payment of premiums or other amounts with respect
thereto.
22. Consultant agrees to provide immediate notice to City of any claim or loss
against Consultant arising out of the work performed under this agreement. City assumes
no obligation or liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
Item 8.k. - Page 31
Page 1
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT FOR CONSULTANT SERVICES (“Agreement”), is made and
effective as of August 27, 2019, between 4LEAF, Inc. (“Consultant”), and the CITY OF
ARROYO GRANDE, a Municipal Corporation (“City”). In consideration of the mutual
covenants and conditions set forth herein, the parties agree as follows:
1. TERM
This Agreement shall commence on September 1, 2019 and shall remain and
continue in effect until August 30, 2022, unless sooner terminated pursuant to the
provisions of this Agreement. This Agreement may be extended for two (2) additional
one (1) year periods after the Initial Term upon written agreement by City and Consultant.
All terms and conditions of this Agreement shall apply to any additional one (1) year terms.
2. SERVICES
Consultant shall perform the tasks described and comply with all terms and
provisions set forth in Exhibit “A”, attached hereto and incorporated herein by this
reference.
3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of his/her ability,
experience and talent, perform all tasks described herein. Consultant shall employ, at a
minimum generally accepted standards and practices utilized by persons engaged in
providing similar services as are required of Consultant hereunder in meeting its
obligations under this Agreement.
4. AGREEMENT ADMINISTRATION
City’s Building Official shall represent City in all matters pertaining to the
administration of this Agreement. Marcus Johnson shall represent Consultant in all
matters pertaining to the administration of this Agreement.
5. PAYMENT
The City agrees to pay the Consultant in accordance with the payment rates and
terms set forth in Exhibit “B”, attached hereto and incorporated herein by this reference.
6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE
(a) The City may at any time, for any reason, with or without cause, suspend or
terminate this Agreement, or any portion hereof, by serving upon the Consultant at least
ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall
immediately cease all work under this Agreement, unless the notice provides otherwise.
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Page 2
If the City suspends or terminates a portion of this Agreement such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
(b) In the event this Agreement is terminated pursuant to this Section, the City
shall pay to Consultant the actual value of the work performed up to the time of
termination, provided that the work performed is of value to the City. Upon termination of
the Agreement pursuant to this Section, the Consultant will submit an invoice to the City
pursuant to Section 5.
7. TERMINATION ON OCCURRENCE OF STATED EVENTS
This Agreement shall terminate automatically on the occurrence of any of the
following events:
(a) Bankruptcy or insolvency of any party;
(b) Sale of Consultant’s business; or
(c) Assignment of this Agreement by Consultant without the consent of City.
(d) End of the Agreement term specified in Section 1.
8. DEFAULT OF CONSULTANT
(a) The Consultant’s failure to comply with the provisions of this Agreement
shall constitute a default. In the event that Consultant is in default for cause under the
terms of this Agreement, City shall have no obligation or duty to continue compensating
Consultant for any work performed after the date of default and can terminate this
Agreement immediately by written notice to the Consultant. If such failure by the
Consultant to make progress in the performance of work hereunder arises out of causes
beyond the Consultant’s control, and without fault or negligence of the Consultant, it shall
not be considered a default.
(b) If the City Manager or his/her delegate determines that the Consultant is in
default in the performance of any of the terms or conditions of this Agreement, he/she
shall cause to be served upon the Consultant a written notice of the default. The
Consultant shall have ten (10) days after service upon it of said notice in which to cure
the default by rendering a satisfactory performance. In the event that the Consultant fails
to cure its default within such period of time, the City shall have the right, notwithstanding
any other provision of this Agreement to terminate this Agreement without further notice
and without prejudice to any other remedy to which it may be entitled at law, in equity or
under this Agreement.
9. LAWS TO BE OBSERVED. Consultant shall:
(a) Procure all permits and licenses, pay all charges and fees, and give all
notices which may be necessary and incidental to the due and lawful prosecution of the
services to be performed by Consultant under this Agreement;
Item 8.k. - Page 33
Page 3
(b) Keep itself fully informed of all existing and proposed federal, state and local
laws, ordinances, regulations, orders, and decrees which may affect those engaged or
employed under this Agreement, any materials used in Consultant’s performance under
this Agreement, or the conduct of the services under this Agreement;
(c) At all times observe and comply with, and cause all of its employees to
observe and comply with all of said laws, ordinances, regulations, orders, and decrees
mentioned above;
(d) Immediately report to the City’s Contract Manager in writing any
discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders,
and decrees mentioned above in relation to any plans, drawings, specifications, or
provisions of this Agreement.
(e) The City, and its officers, agents and employees, shall not be liable at law
or in equity occasioned by failure of the Consultant to comply with this Section.
10. OWNERSHIP OF DOCUMENTS
(a) Consultant shall maintain complete and accurate records with respect to sales,
costs, expenses, receipts, and other such information required by City that relate to the
performance of services under this Agreement. Consultant shall maintain adequate
records of services provided in sufficient detail to permit an evaluation of services. All
such records shall be maintained in accordance with generally accepted accounting
principles and shall be clearly identified and readily accessible. Consultant shall provide
free access to the representatives of City or its designees at reasonable times to such
books and records; shall give City the right to examine and audit said books and records;
shall permit City to make transcripts therefrom as necessary; and shall allow inspection
of all work, data, documents, proceedings, and activities related to this Agreement. Such
records, together with supporting documents, shall be maintained for a period of three (3)
years after receipt of final payment.
(b) Upon completion of, or in the event of termination or suspension of this
Agreement, all original documents, designs, drawings, maps, models, computer files,
surveys, notes, and other documents prepared in the course of providing the services to
be performed pursuant to this Agreement shall become the sole property of the City and
may be used, reused, or otherwise disposed of by the City without the permission of the
Consultant. With respect to computer files, Consultant shall make available to the City, at
the Consultant’s office and upon reasonable written request by the City, the necessary
computer software and hardware for purposes of accessing, compiling, transferring, and
printing computer files.
11. INDEMNIFICATION
(a) Indemnification for Professional Liability. When the law establishes a
professional standard of care for Consultant’s Services, to the fullest extent permitted by
Item 8.k. - Page 34
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law, Consultant shall indemnify, protect, defend and hold harmless City and any and all
of its officials, employees and agents (“Indemnified Parties”) from and against any and all
losses, liabilities, damages, costs and expenses, including attorney’s fees and costs to
the extent same are caused in whole or in part by any negligent or wrongful act, error, or
omission of Consultant, its officers, agents, employees or sub-contractors, or any entity
or individual that Consultant shall bear the legal liability thereof, in the performance of
professional services under this agreement.
(b) Indemnification for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant
shall indemnify, defend and hold harmless City, and any and all of its employees, officials
and agents from and against any liability (including liability for claims, suits, actions,
arbitration proceedings, administrative proceedings, regulatory proceedings, losses,
expenses or costs of any kind, whether actual, alleged or threatened, including attorney’s
fees and costs, court costs, interest, defense costs, and expert witness fees), where the
same arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by Consultant or by any individual or entity for
which Consultant is legally liable, including but not limited to officers, agents, employees
or sub-contractors of Consultant.
(c) General Indemnification Provisions. Consultant agrees to obtain executed
indemnity agreements with provisions identical to those set forth here in this section from
each and every sub-contractor or any other person or entity involved by, for, with or on
behalf of Consultant in the performance of this agreement. In the event Consultant fails
to obtain such indemnity obligations from others as required here, Consultant agrees to
be fully responsible according to the terms of this section. Failure of City to monitor
compliance with these requirements imposes no additional obligations on City and will in
no way act as a waiver of any rights hereunder. This obligation to indemnify and defend
City as set forth here is binding on the successors, assigns or heirs of Consultant and
shall survive the termination of this agreement or this section.
12. INSURANCE
Consultant shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit “C” attached hereto and
incorporated herein as though set forth in full.
13. INDEPENDENT CONSULTANT
(a) Consultant is and shall at all times remain as to the City a wholly independent
Consultant. The personnel performing the services under this Agreement on behalf of
Consultant shall at all times be under Consultant’s exclusive direction and control. Neither
City nor any of its officers, employees, or agents shall have control over the conduct of
Consultant or any of Consultant’s officers, employees, or agents, except as set forth in
this Agreement. Consultant shall not at any time or in any manner represent that it or any
of its officers, employees, or agents are in any manner officers, employees, or agents of
Item 8.k. - Page 35
Page 5
the City. Consultant shall not incur or have the power to incur any debt, obligation, or
liability whatever against City, or bind City in any manner.
(b) No employee benefits shall be available to Consultant in connection with
performance of this Agreement. Except for the fees paid to Consultant as provided in the
Agreement, City shall not pay salaries, wages, or other compensation to Consultant for
performing services hereunder for City. City shall not be liable for compensation or
indemnification to Consultant for injury or sickness arising out of performing services
hereunder.
14. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure was or is
used against or in concert with any officer or employee of the City of Arroyo Grande in
connection with the award, terms or implementation of this Agreement, including any
method of coercion, confidential financial arrangement, or financial inducement. No officer
or employee of the City of Arroyo Grande will receive compensation, directly or indirectly,
from Consultant, or from any officer, employee or agent of Consultant, in connection with
the award of this Agreement or any work to be conducted as a result of this Agreement.
Violation of this Section shall be a material breach of this Agreement entitling the City to
any and all remedies at law or in equity.
15. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the project
during his/her tenure or for one year thereafter, shall have any interest, direct or indirect,
in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in
connection with the project performed under this Agreement.
16. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
(a) All information gained by Consultant in performance of this Agreement shall be
considered confidential and shall not be released by Consultant without City’s prior written
authorization. Consultant, its officers, employees, agents, or sub-contractors, shall not
without written authorization from the City Manager or unless requested by the City
Attorney, voluntarily provide declarations, letters of support, testimony at depositions,
response to interrogatories, or other information concerning the work performed under
this Agreement or relating to any project or property located within the City. Response to
a subpoena or court order shall not be considered “voluntary” provided Consultant gives
City notice of such court order or subpoena.
(b) Consultant shall promptly notify City should Consultant, its officers, employees,
agents, or sub-contractors be served with any summons, complaint, subpoena, notice of
deposition, request for documents, interrogatories, request for admissions, or other
discovery request, court order, or subpoena from any person or party regarding this
Item 8.k. - Page 36
Page 6
Agreement and the work performed thereunder or with respect to any project or property
located within the City. City retains the right, but has no obligation, to represent Consultant
and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to
cooperate fully with City and to provide the opportunity to review any response to
discovery requests provided by Consultant. However, City’s right to review any such
response does not imply or mean the right by City to control, direct, or rewrite said
response.
17. NOTICES
Any notice which either party may desire to give to the other party under this
Agreement must be in writing and may be given either by (i) personal service, (ii) delivery
by a reputable document delivery service, such as but not limited to, Federal Express,
which provides a receipt showing date and time of delivery, or (iii) mailing in the United
States Mail, certified mail, postage prepaid, return receipt requested, addressed to the
address of the party as set forth below or at any other address as that party may later
designate by notice:
To City: City of Arroyo Grande
Building Official
300 E. Branch Street
Arroyo Grande, CA 93420
To Consultant: 4LEAF, Inc.
Marcus Johnson
5140 Birch Street, Second Floor
Newport Beach, CA 92660
18. ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part
thereof, without the prior written consent of the City.
19. GOVERNING LAW
The City and Consultant understand and agree that the laws of the State of
California shall govern the rights, obligations, duties, and liabilities of the parties to this
Agreement and also govern the interpretation of this Agreement. Any litigation concerning
this Agreement shall take place in the superior or federal district court with jurisdiction
over the City of Arroyo Grande.
20. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to
the obligations of the parties described in this Agreement. All prior or contemporaneous
agreements, understandings, representations, and statements, or written, are merged
Item 8.k. - Page 37
Page 7
into this Agreement and shall be of no further force or effect. Each party is entering into
this Agreement based solely upon the representations set forth herein and upon each
party’s own independent investigation of any and all facts such party deems material.
21. TIME
City and Consultant agree that time is of the essence in this Agreement. Time
constraints are selection factors on individual service requests. The consultant must start
work within two weeks from receipt of a written authorization to proceed unless an
alternate timeframe has been agreed upon. The City expects the work to be actively
pursued until complete.
22. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL
Consultant is bound by the contents of the City’s Request for Proposal and the
contents of the proposal submitted by the Consultant, both of which are on file in the
Community Development Department and incorporated herein by this reference. In the
event of conflict, the requirements of City’s Request for Proposals and this Agreement
shall take precedence over those contained in the Consultant’s proposals.
23. CONSTRUCTION
The parties agree that each has had an opportunity to have their counsel review
this Agreement and that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in the interpretation of this Agreement
or any amendments or exhibits thereto. The captions of the sections are for convenience
and reference only, and are not intended to be construed to define or limit the provisions
to which they relate.
24. AMENDMENTS
Amendments to this Agreement shall be in writing and shall be made only with the
mutual written consent of all of the parties to this Agreement.
25. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants
and represents that he/she has the authority to execute this Agreement on behalf of the
Consultant and has the authority to bind Consultant to the performance of its obligations
hereunder.
Item 8.k. - Page 38
Page 8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
CITY OF ARROYO GRANDE CONSULTANT
By:__________________________ By:____________________________
Caren Ray Russom, Mayor
Its:____________________________
Attest: (Title)
____________________________
Kelly Wetmore, City Clerk
Approved As To Form:
_____________________________
Heather K. Whitham, City Attorney
Item 8.k. - Page 39
Page 9
EXHIBIT A
SCOPE OF WORK
This Agreement is a non-exclusive continuing services contract to provide on-call
Building Staff and Plan Review Services for the City of Arroyo Grande. The Consultant
will augment and support City staff and provide services at the sole direction and
discretion of the City.
The City does not guarantee that the Consultant will receive a specific volume of work or
total contract amount.
Item 8.k. - Page 40
Page 10
EXHIBIT B
PAYMENT SCHEDULE
Item 8.k. - Page 41
NAT U RE OF !BIU ll DII NG SER V IICES COST Sl"RUCT UI RE
Plan Re1,riew & CASp Servic es Pl an Revi ew Per ,centage Cost: '59%
Plan Re vi ew Hourly Cost: $98 on-Structural Rev i ew
$125 Structur al Review
CASp 1:ns:p ecti o n and/ or Rev iew: $155/hour
fire Revi ew: $155/hou r
* Fee i ncludes i n it i al re vi ew an dl two, (2) r ,ec heck:s .
Fee St ructure for Pe rsonn e l
Inte rim Chi ef Bu i ld ing Offiai al ·········································-····························· ·····-·························$125/h our
Co m bjmrtlion Build in g Ins pector (Bu ilding llns,p ector 11 11) ................................................................... $1:10/h our
Commer ci al Bu ildi ng In sp ector (Build i ng Ins pector Ill) ............................................................... $95/hour
Residential Bu~d i ng lns:p ed o:r (B,uild i ng In sp ector I) ................................................................. $83/hour
Tr ,aining Bu i l ding ln sp ect,or .........................................................•.......................•......................... $55/hour
Co de Enforce m ent.. .......................................................................................................•..................... $95/hour
Pe rm it Technici an ................................................................................................................................. $68/hour
.S en i o r ?ermi t Te chnicia n .............................................................•.................................................. $ 75/hou r
A dmi n i.strative Assista nt ..................................•.........................•................................................ $62/hour
Structu ra l Plan Rev i ew En gi neer ......................•........................................................................... $125/houir
Non-St ructJura l Pl an.s Exa m i n e1r ........................................................................................................... $98/hour
Fi re Re1,'1i ew ............................................................................................................................................... $155/ho ur
Publ ic Works l n sp ector ..........................................•..................................................................... $147 /'hour
CA.Sp Inspection .............................................................. ·••·••···••·••··-· .......................•........................ $155/hour
IPrnj ect I ns:p ed o r / tnspector of Record ............................................................................................. $1 45 /ho ur
OSHPD In sp ector .................................................................................................................................. $135/hour
Off-Sil:e Proj ect anager .............................................................•................................................... $160/hour
Prin cipal-iin -Charge ..............................................•.....•....................•................................................... $185/ho u,r
Hourly overti m e ch ar ge per i ns pector ........................................................................................ 1.5 x ho urly rate
ileage {for i ns pectJi on.s :p erformed wil:h in he City) .................................................................. IRS Rate+ 20%
*Rates wm be comm unicated wil:h the City M an age m en at tim e of request Rat es will v ary based on the
q u al ifi cations ,an d experie nee o f the :p ersonne l.
l:.arger comp/efl( pllrn reL1 j e1 b's rnn be n egotiated to achie ve the b est pos,ib!e pric in g. 4lEAF ha;; a pro·L>en , trndc record of
ivcrkin g wjt.lJ munjdpalities to provide efl(p edite d r eL>iews with sp e cial d .is cmmted· pricing 111Ji ,e n , applicable.
Page 11
EXHIBIT C
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, Consultant will maintain
insurance in conformance with the requirements set forth below. Consultant will use
existing coverage to comply with these requirements. If that existing coverage does not
meet the requirements set forth here, Consultant agrees to amend, supplement or
endorse the existing coverage to do so. Consultant acknowledges that the insurance
coverage and policy limits set forth in this section constitute the minimum amount of
coverage required. Any insurance proceeds available to City in excess of the limits and
coverage required in this agreement and which is applicable to a given loss, will be
available to City.
Consultant shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office “Commercial
General Liability” policy from CG 00 01 or the exact equivalent. Defense costs must be
paid in addition to limits. There shall be no cross liability exclusion for claims or suits by
one insured against another. Limits are subject to review but in no event less than
$1,000,000 per occurrence.
Business Auto Coverage on ISO Business Auto Coverage from CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event
to be less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement
may be satisfied by a non-owned auto endorsement to the general liability policy
described above. If Consultant or Consultant’s employees will use personal autos in any
way on this project, Consultant shall provide evidence of personal auto liability coverage
for each such person.
Workers Compensation on a state-approved policy form providing statutory benefits as
required by law with employer’s liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written
on a policy form coverage specifically designated to protect against acts, errors or
omissions of the Consultant and “Covered Professional Services” as designated in the
policy must specifically include work performed under this agreement. The policy limit
shall be no less than $1,000,000 per claim and in the aggregate. The policy must “pay on
behalf of” the insured and must include a provision establishing the insurer’s duty to
defend. The policy retroactive date shall be on or before the effective date of this
agreement.
Item 8.k. - Page 42
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Insurance procured pursuant to these requirements shall be written by insurer that are
admitted carriers in the state California and with an A.M. Bests rating of A- or better and
a minimum financial size VII.
General conditions pertaining to provision of insurance coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by
Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds City, its officials, employees
and agents, using standard ISO endorsement No. CG 2010 with an edition prior to 1992.
Consultant also agrees to require all Consultants, and sub-contractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Consultant, or Consultant’s employees, or agents, from waiving the right of
subrogation prior to a loss. Consultant agrees to waive subrogation rights against City
regardless of the applicability of any insurance proceeds, and to require all Consultants
and sub-contractors to do likewise.
3. All insurance coverage and limits provided by Consultant and available or
applicable to this agreement are intended to apply to the full extent of the policies. Nothing
contained in this Agreement or any other agreement relating to the City or its operations
limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve
to eliminate so-called “third party action over” claims, including any exclusion for bodily
injury to an employee of the insured or of any Consultant or subcontractor.
6. All coverage types and limits required are subject to approval, modification
and additional requirements by the City, as the need arises. Consultant shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or reduction
of discovery period) that may affect City’s protection without City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all of the coverages required and an additional
insured endorsement to Consultant’s general liability policy, shall be delivered to City at
or prior to the execution of this Agreement. In the event such proof of any insurance is
not delivered as required, or in the event such insurance is canceled at any time and no
replacement coverage is provided, City has the right, but not the duty, to obtain any
insurance it deems necessary to protect its interests under this or any other agreement
and to pay the premium. Any premium so paid by City shall be charged to and promptly
paid by Consultant or deducted from sums due Consultant, at City option.
Item 8.k. - Page 43
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8. Certificate(s) are to reflect that the insurer will provide 30 days notice to City
of any cancellation of coverage. Consultant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to mail
written notice of cancellation imposes no obligation, or that any party will “endeavor” (as
opposed to being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Consultant or any sub-contractor, is intended to
apply first and on a primary, noncontributing basis in relation to any other insurance or
self-insurance available to City.
10. Consultant agrees to ensure that sub-contractors, and any other party
involved with the project who is brought onto or involved in the project by Consultant,
provide the same minimum insurance coverage required of Consultant. Consultant
agrees to monitor and review all such coverage and assumes all responsibility for
ensuring that such coverage is provided in conformity with the requirements of this
section. Consultant agrees that upon request, all agreements with sub-contractors and
others engaged in the project will be submitted to City for review.
11. Consultant agrees not to self-insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it will
not allow any Consultant, sub-contractor, Architect, Engineer or other entity or person in
any way involved in the performance of work on the project contemplated by this
agreement to self-insure its obligations to City. If Consultant’s existing coverage includes
a deductible or self-insured retention, the deductible or self-insured retention must be
declared to the City. At the time the City shall review options with the Consultant, which
may include reduction or elimination of the deductible or self-insured retention,
substitution of other coverage, or other solutions.
12. The City reserves the right at any time during the term of the contract to
change the amounts and types of insurance required by giving the Consultant ninety (90)
days advance written notice of such change. If such change results in substantial
additional cost to the Consultant, the City will negotiate additional compensation
proportional to the increase benefit to City.
13. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any steps that
can be deemed to be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on
the part of City to inform Consultant of non-compliance with any insurance requirements
in no way imposes any additional obligations on City nor does it waive any rights
hereunder in this or any other regard.
15. Consultant will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuant to this
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agreement. This obligation applies whether or not the agreement is canceled or
terminated for any reason. Termination of this obligation is not effective until City executes
a written statement to that effect.
16. Consultant shall provide proof that policies of insurance required herein
expiring during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has been ordered
shall be submitted prior to expiration. A coverage binder or letter from Consultant’s
insurance agent to this effect is acceptable. A certificate of insurance and/or additional
insured endorsement as required in these specifications applicable to the renewing or
new coverage must be provided to City within five days of the expiration of the coverages.
17. The provisions of any workers’ compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use
any statutory immunity defenses under such laws with respect to City, its employees,
officials and agents.
18. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference to a
given coverage feature is for purposes of clarification only as it pertains to a given issue,
and is not intended by any party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from
any other provision in this agreement and are intended by the parties here to be
interpreted as such.
20. The requirements in this Section supersede all other sections and
provisions of this Agreement to the extent that any other section or provision conflicts with
or impairs the provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by
any party involved in any way with the project reserves the right to charge City or
Consultant for the cost of additional insurance coverage required by this agreement. Any
such provisions are to be deleted with reference to City. It is not the intent of City to
reimburse any third party for the cost of complying with these requirements. There shall
be no recourse against City for payment of premiums or other amounts with respect
thereto.
22. Consultant agrees to provide immediate notice to City of any claim or loss
against Consultant arising out of the work performed under this agreement. City assumes
no obligation or liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
Item 8.k. - Page 45
Page 1
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT FOR CONSULTANT SERVICES (“Agreement”), is made and
effective as of August 27, 2019, between VCA Code (“Consultant”), and the CITY OF
ARROYO GRANDE, a Municipal Corporation (“City”). In consideration of the mutual
covenants and conditions set forth herein, the parties agree as follows:
1. TERM
This Agreement shall commence on September 1, 2019 and shall remain and
continue in effect until August 30, 2022, unless sooner terminated pursuant to the
provisions of this Agreement. This Agreement may be extended for two (2) additional
one (1) year periods after the Initial Term upon written agreement by City and Consultant.
All terms and conditions of this Agreement shall apply to any additional one (1) year terms.
2. SERVICES
Consultant shall perform the tasks described and comply with all terms and
provisions set forth in Exhibit “A”, attached hereto and incorporated herein by this
reference.
3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of his/her ability,
experience and talent, perform all tasks described herein. Consultant shall employ, at a
minimum generally accepted standards and practices utilized by persons engaged in
providing similar services as are required of Consultant hereunder in meeting its
obligations under this Agreement.
4. AGREEMENT ADMINISTRATION
City’s Building Official shall represent City in all matters pertaining to the
administration of this Agreement. Tom VanDorpe shall represent Consultant in all matters
pertaining to the administration of this Agreement.
5. PAYMENT
The City agrees to pay the Consultant in accordance with the payment rates and
terms set forth in Exhibit “B”, attached hereto and incorporated herein by this reference.
6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE
(a) The City may at any time, for any reason, with or without cause, suspend or
terminate this Agreement, or any portion hereof, by serving upon the Consultant at least
ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall
immediately cease all work under this Agreement, unless the notice provides otherwise.
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If the City suspends or terminates a portion of this Agreement such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
(b) In the event this Agreement is terminated pursuant to this Section, the City
shall pay to Consultant the actual value of the work performed up to the time of
termination, provided that the work performed is of value to the City. Upon termination of
the Agreement pursuant to this Section, the Consultant will submit an invoice to the City
pursuant to Section 5.
7. TERMINATION ON OCCURRENCE OF STATED EVENTS
This Agreement shall terminate automatically on the occurrence of any of the
following events:
(a) Bankruptcy or insolvency of any party;
(b) Sale of Consultant’s business; or
(c) Assignment of this Agreement by Consultant without the consent of City.
(d) End of the Agreement term specified in Section 1.
8. DEFAULT OF CONSULTANT
(a) The Consultant’s failure to comply with the provisions of this Agreement
shall constitute a default. In the event that Consultant is in default for cause under the
terms of this Agreement, City shall have no obligation or duty to continue compensating
Consultant for any work performed after the date of default and can terminate this
Agreement immediately by written notice to the Consultant. If such failure by the
Consultant to make progress in the performance of work hereunder arises out of causes
beyond the Consultant’s control, and without fault or negligence of the Consultant, it shall
not be considered a default.
(b) If the City Manager or his/her delegate determines that the Consultant is in
default in the performance of any of the terms or conditions of this Agreement, he/she
shall cause to be served upon the Consultant a written notice of the default. The
Consultant shall have ten (10) days after service upon it of said notice in which to cure
the default by rendering a satisfactory performance. In the event that the Consultant fails
to cure its default within such period of time, the City shall have the right, notwithstanding
any other provision of this Agreement to terminate this Agreement without further notice
and without prejudice to any other remedy to which it may be entitled at law, in equity or
under this Agreement.
9. LAWS TO BE OBSERVED. Consultant shall:
(a) Procure all permits and licenses, pay all charges and fees, and give all
notices which may be necessary and incidental to the due and lawful prosecution of the
services to be performed by Consultant under this Agreement;
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(b) Keep itself fully informed of all existing and proposed federal, state and local
laws, ordinances, regulations, orders, and decrees which may affect those engaged or
employed under this Agreement, any materials used in Consultant’s performance under
this Agreement, or the conduct of the services under this Agreement;
(c) At all times observe and comply with, and cause all of its employees to
observe and comply with all of said laws, ordinances, regulations, orders, and decrees
mentioned above;
(d) Immediately report to the City’s Contract Manager in writing any
discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders,
and decrees mentioned above in relation to any plans, drawings, specifications, or
provisions of this Agreement.
(e) The City, and its officers, agents and employees, shall not be liable at law
or in equity occasioned by failure of the Consultant to comply with this Section.
10. OWNERSHIP OF DOCUMENTS
(a) Consultant shall maintain complete and accurate records with respect to sales,
costs, expenses, receipts, and other such information required by City that relate to the
performance of services under this Agreement. Consultant shall maintain adequate
records of services provided in sufficient detail to permit an evaluation of services. All
such records shall be maintained in accordance with generally accepted accounting
principles and shall be clearly identified and readily accessible. Consultant shall provide
free access to the representatives of City or its designees at reasonable times to such
books and records; shall give City the right to examine and audit said books and records;
shall permit City to make transcripts therefrom as necessary; and shall allow inspection
of all work, data, documents, proceedings, and activities related to this Agreement. Such
records, together with supporting documents, shall be maintained for a period of three (3)
years after receipt of final payment.
(b) Upon completion of, or in the event of termination or suspension of this
Agreement, all original documents, designs, drawings, maps, models, computer files,
surveys, notes, and other documents prepared in the course of providing the services to
be performed pursuant to this Agreement shall become the sole property of the City and
may be used, reused, or otherwise disposed of by the City without the permission of the
Consultant. With respect to computer files, Consultant shall make available to the City, at
the Consultant’s office and upon reasonable written request by the City, the necessary
computer software and hardware for purposes of accessing, compiling, transferring, and
printing computer files.
11. INDEMNIFICATION
(a) Indemnification for Professional Liability. When the law establishes a
professional standard of care for Consultant’s Services, to the fullest extent permitted by
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law, Consultant shall indemnify, protect, defend and hold harmless City and any and all
of its officials, employees and agents (“Indemnified Parties”) from and against any and all
losses, liabilities, damages, costs and expenses, including attorney’s fees and costs to
the extent same are caused in whole or in part by any negligent or wrongful act, error or
omission of Consultant, its officers, agents, employees or subContractors or any entity or
individual that Consultant shall bear the legal liability thereof) in the performance of
professional services under this agreement.
(b) Indemnification for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant
shall indemnify, defend and hold harmless City, and any and all of its employees, officials
and agents from and against any liability (including liability for claims, suits, actions,
arbitration proceedings, administrative proceedings, regulatory proceedings, losses,
expenses or costs of any kind, whether actual, alleged or threatened, including attorneys
fees and costs, court costs, interest, defense costs, and expert witness fees), where the
same arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by Consultant or by any individual or entity for
which Consultant is legally liable, including but not limited to officers, agents, employees
or subContractors of Consultant.
(c) General Indemnification Provisions. Consultant agrees to obtain executed
indemnity agreements with provisions identical to those set forth here in this section from
each and every subContractor or any other person or entity involved by, for, with or on
behalf of Consultant in the performance of this agreement. In the event Consultant fails
to obtain such indemnity obligations from others as required here, Consultant agrees to
be fully responsible according to the terms of this section. Failure of City to monitor
compliance with these requirements imposes no additional obligations on City and will in
no way act as a waiver of any rights hereunder. This obligation to indemnify and defend
City as set forth here is binding on the successors, assigns or heirs of Consultant and
shall survive the termination of this agreement or this section.
12. INSURANCE
Consultant shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit “C” attached hereto and
incorporated herein as though set forth in full.
13. INDEPENDENT CONSULTANT
(a) Consultant is and shall at all times remain as to the City a wholly independent
Consultant. The personnel performing the services under this Agreement on behalf of
Consultant shall at all times be under Consultant’s exclusive direction and control. Neither
City nor any of its officers, employees, or agents shall have control over the conduct of
Consultant or any of Consultant’s officers, employees, or agents, except as set forth in
this Agreement. Consultant shall not at any time or in any manner represent that it or any
of its officers, employees, or agents are in any manner officers, employees, or agents of
Item 8.k. - Page 49
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the City. Consultant shall not incur or have the power to incur any debt, obligation, or
liability whatever against City, or bind City in any manner.
(b) No employee benefits shall be available to Consultant in connection with
performance of this Agreement. Except for the fees paid to Consultant as provided in the
Agreement, City shall not pay salaries, wages, or other compensation to Consultant for
performing services hereunder for City. City shall not be liable for compensation or
indemnification to Consultant for injury or sickness arising out of performing services
hereunder.
14. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure was or is
used against or in concert with any officer or employee of the City of Arroyo Grande in
connection with the award, terms or implementation of this Agreement, including any
method of coercion, confidential financial arrangement, or financial inducement. No officer
or employee of the City of Arroyo Grande will receive compensation, directly or indirectly,
from Consultant, or from any officer, employee or agent of Consultant, in connection with
the award of this Agreement or any work to be conducted as a result of this Agreement.
Violation of this Section shall be a material breach of this Agreement entitling the City to
any and all remedies at law or in equity.
15. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the project
during his/her tenure or for one year thereafter, shall have any interest, direct or indirect,
in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in
connection with the project performed under this Agreement.
16. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
(a) All information gained by Consultant in performance of this Agreement shall be
considered confidential and shall not be released by Consultant without City’s prior written
authorization. Consultant, its officers, employees, agents, or subContractors, shall not
without written authorization from the City Manager or unless requested by the City
Attorney, voluntarily provide declarations, letters of support, testimony at depositions,
response to interrogatories, or other information concerning the work performed under
this Agreement or relating to any project or property located within the City. Response to
a subpoena or court order shall not be considered “voluntary” provided Consultant gives
City notice of such court order or subpoena.
(b) Consultant shall promptly notify City should Consultant, its officers, employees,
agents, or subContractors be served with any summons, complaint, subpoena, notice of
deposition, request for documents, interrogatories, request for admissions, or other
discovery request, court order, or subpoena from any person or party regarding this
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Agreement and the work performed thereunder or with respect to any project or property
located within the City. City retains the right, but has no obligation, to represent Consultant
and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to
cooperate fully with City and to provide the opportunity to review any response to
discovery requests provided by Consultant. However, City’s right to review any such
response does not imply or mean the right by City to control, direct, or rewrite said
response.
17. NOTICES
Any notice which either party may desire to give to the other party under this
Agreement must be in writing and may be given either by (i) personal service, (ii) delivery
by a reputable document delivery service, such as but not limited to, Federal Express,
which provides a receipt showing date and time of delivery, or (iii) mailing in the United
States Mail, certified mail, postage prepaid, return receipt requested, addressed to the
address of the party as set forth below or at any other address as that party may later
designate by notice:
To City: City of Arroyo Grande
Building Official
300 E. Branch Street
Arroyo Grande, CA 93420
To Consultant: VCA Code
Tom VanDorpe
1845 W. Orangewood Ave #210
Orange, CA 92868
18. ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part
thereof, without the prior written consent of the City.
19. GOVERNING LAW
The City and Consultant understand and agree that the laws of the State of
California shall govern the rights, obligations, duties, and liabilities of the parties to this
Agreement and also govern the interpretation of this Agreement. Any litigation concerning
this Agreement shall take place in the superior or federal district court with jurisdiction
over the City of Arroyo Grande.
20. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to
the obligations of the parties described in this Agreement. All prior or contemporaneous
agreements, understandings, representations, and statements, or written, are merged
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into this Agreement and shall be of no further force or effect. Each party is entering into
this Agreement based solely upon the representations set forth herein and upon each
party’s own independent investigation of any and all facts such party deems material.
21. TIME
City and Consultant agree that time is of the essence in this Agreement. Time
constraints are selection factors on individual service requests. The consultant must start
work within two weeks from receipt of a written authorization to proceed unless an
alternate timeframe has been agreed upon. The City expects the work to be actively
pursued until complete.
22. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL
Consultant is bound by the contents of the City’s Request for Proposal and the
contents of the proposal submitted by the Consultant, both of which are on file in the
Community Development Department and incorporated herein by this reference. In the
event of conflict, the requirements of City’s Request for Proposals and this Agreement
shall take precedence over those contained in the Consultant’s proposals.
23. CONSTRUCTION
The parties agree that each has had an opportunity to have their counsel review
this Agreement and that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in the interpretation of this Agreement
or any amendments or exhibits thereto. The captions of the sections are for convenience
and reference only, and are not intended to be construed to define or limit the provisions
to which they relate.
24. AMENDMENTS
Amendments to this Agreement shall be in writing and shall be made only with the
mutual written consent of all of the parties to this Agreement.
25. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants
and represents that he/she has the authority to execute this Agreement on behalf of the
Consultant and has the authority to bind Consultant to the performance of its obligations
hereunder.
Item 8.k. - Page 52
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
CITY OF ARROYO GRANDE CONSULTANT
By:__________________________ By:____________________________
Caren Ray Russom, Mayor
Its:____________________________
Attest: (Title)
____________________________
Kelly Wetmore, City Clerk
Approved As To Form:
_____________________________
Heather K. Whitham, City Attorney
Item 8.k. - Page 53
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EXHIBIT A
SCOPE OF WORK
This Agreement is a non-exclusive continuing services contract to provide on-call
Building Staff and Plan Review Services for the City of Arroyo Grande. The Consultant
will augment and support City staff and provide services at the sole direction and
discretion of the City.
The City does not guarantee that the Consultant will receive a specific volume of work or
total contract amount.
Item 8.k. - Page 54
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EXHIBIT B
PAYMENT SCHEDULE
Item 8.k. - Page 55
I. Standard Billing Rates :
VGA is flexible and proposes a compensation struct ure tha t is m utua ll y beneficial to the
City and VCA Code. VGA proposes two scenarios : 1) Hourly Rates a nd 2) Outsourced
Plan Review at a percentage of the Plan Check Fees co ll ected by the City:
1 . Outsourced Plan Review -any plans sent to VGA would be based on a
oercen ta ae of plan check fees collected bv t he Citv .
2 . VCA Staff working at the City -each pe rson would wo rk on an hourly rate
based on the ir parlicula r funct ion, sk ills, education, certifications , and with
aoorova l from the Cit v.
The following Fee/Rate Structure details the Plan review percentage, plan check turn-
around times, and the hourly rates for various functions.
VCA % of Plan
1 . Plan Check Fees Co llect ed by t he C i ty : Che ck F ee.s
Collected
OUTSOURCED PLAN REVIEW 65%
PLAN R EVIEW TURN-AROUND TIMES (WORK ING DAYS)
Tvoe of P la n Check: 1" Re vi e'II 2"" Rev iew 3'0 Rev iew +
New Buildings -Commercia l & 14 days 10 days 5 days
Tenant Improvements 10 days 7 days 5 d ays
Rev isions to aoproved plans 7 days 5 days 5 days
Electrica l, Mechanical , & Plumbing 7 days 5 days 5 days
Residential Improvements (add itions, 10 days 5 days 5 days
Non -structural 10 days 7 days 5 days
VCA will pick up and deliver plans to the City at no additional cost.
The minimum fee for outsourced plan review is 2 hours@
$110.00=$220.00
2. Building Department Staffing Services: VCA Hourly
Rates
ICC Pl ans Examiner I Licensed Plan Check Engineer $110 .00/$120 .0
0
ICC Certified Bu il din!l Inspecto r $ 85.00
ICC Certified Permit Technician $ 60 .00
ICC Certi fi ed Bu ild ing Official $ 135.00
••vcA Is open to discussing this fee Schedule to ensure it works for the City.
B EYOND SCOPE· VCA HOURLY RATES FOR STAFFING
Funct ion Hourly Rate
Pl an Check E ng ineer at City $120.00
ICC Certified Plans Exam iner $110.00
Sr. Build ing/Combination Ins pecto r (DOE/Certs) $80 .00 to $90.00
Bui lding Inspector $75.00 t o $85.00
Grading Inspector $85.00 to $105.00
CASp Services $135.00 to $150.00
Code Enfo rcemen t Officer $60.00 to $75.00
CA LGreen Inspector/Manager $95.00/$115.00
Planner, Sr. Planner, AICP (DOE) $95 .00 to $195.00
Permit Techn ician $60.00 to $65.00
Client Consultation at City Hal l (CBO/Sr . $140 .00
Manaoemenl\
Page 11
EXHIBIT C
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, Consultant will maintain
insurance in conformance with the requirements set forth below. Consultant will use
existing coverage to comply with these requirements. If that existing coverage does not
meet the requirements set forth here, Consultant agrees to amend, supplement or
endorse the existing coverage to do so. Consultant acknowledges that the insurance
coverage and policy limits set forth in this section constitute the minimum amount of
coverage required. Any insurance proceeds available to City in excess of the limits and
coverage required in this agreement and which is applicable to a given loss, will be
available to City.
Consultant shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office “Commercial
General Liability” policy from CG 00 01 or the exact equivalent. Defense costs must be
paid in addition to limits. There shall be no cross liability exclusion for claims or suits by
one insured against another. Limits are subject to review but in no event less than
$1,000,000 per occurrence.
Business Auto Coverage on ISO Business Auto Coverage from CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event
to be less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement
may be satisfied by a non-owned auto endorsement to the general liability policy
described above. If Consultant or Consultant’s employees will use personal autos in any
way on this project, Consultant shall provide evidence of personal auto liability coverage
for each such person.
Workers Compensation on a state-approved policy form providing statutory benefits as
required by law with employer’s liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written
on a policy form coverage specifically designated to protect against acts, errors or
omissions of the Consultant and “Covered Professional Services” as designated in the
policy must specifically include work performed under this agreement. The policy limit
shall be no less than $1,000,000 per claim and in the aggregate. The policy must “pay on
behalf of” the insured and must include a provision establishing the insurer’s duty to
defend. The policy retroactive date shall be on or before the effective date of this
agreement.
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Insurance procured pursuant to these requirements shall be written by insurer that are
admitted carriers in the state California and with an A.M. Bests rating of A- or better and
a minimum financial size VII.
General conditions pertaining to provision of insurance coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by
Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds City, its officials employees
and agents, using standard ISO endorsement No. CG 2010 with an edition prior to 1992.
Consultant also agrees to require all Consultants, and subContractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Consultant, or Consultant’s employees, or agents, from waiving the right of
subrogation prior to a loss. Consultant agrees to waive subrogation rights against City
regardless of the applicability of any insurance proceeds, and to require all Consultants
and subContractors to do likewise.
3. All insurance coverage and limits provided by Consultant and available or
applicable to this agreement are intended to apply to the full extent of the policies. Nothing
contained in this Agreement or any other agreement relating to the City or its operations
limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve
to eliminate so-called “third party action over” claims, including any exclusion for bodily
injury to an employee of the insured or of any Consultant or subcontractor.
6. All coverage types and limits required are subject to approval, modification
and additional requirements by the City, as the need arises. Consultant shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or reduction
of discovery period) that may affect City’s protection without City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all of the coverages required and an additional
insured endorsement to Consultant’s general liability policy, shall be delivered to City at
or prior to the execution of this Agreement. In the event such proof of any insurance is
not delivered as required, or in the event such insurance is canceled at any time and no
replacement coverage is provided, City has the right, but not the duty, to obtain any
insurance it deems necessary to protect its interests under this or any other agreement
and to pay the premium. Any premium so paid by City shall be charged to and promptly
paid by Consultant or deducted from sums due Consultant, at City option.
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8. Certificate(s) are to reflect that the insurer will provide 30 days notice to City
of any cancellation of coverage. Consultant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to mail
written notice of cancellation imposes no obligation, or that any party will “endeavor” (as
opposed to being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Consultant or any subContractor, is intended to apply
first and on a primary, noncontributing basis in relation to any other insurance or self
insurance available to City.
10. Consultant agrees to ensure that subContractors, and any other party
involved with the project who is brought onto or involved in the project by Consultant,
provide the same minimum insurance coverage required of Consultant. Consultant
agrees to monitor and review all such coverage and assumes all responsibility for
ensuring that such coverage is provided in conformity with the requirements of this
section. Consultant agrees that upon request, all agreements with subContractors and
others engaged in the project will be submitted to City for review.
11. Consultant agrees not to self-insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it will
not allow any Consultant, subContractor, Architect, Engineer or other entity or person in
any way involved in the performance of work on the project contemplated by this
agreement to self-insure its obligations to City. If Consultant’s existing coverage includes
a deductible or self-insured retention, the deductible or self-insured retention must be
declared to the City. At the time the City shall review options with the Consultant, which
may include reduction or elimination of the deductible or self-insured retention,
substitution of other coverage, or other solutions.
12. The City reserves the right at any time during the term of the contract to
change the amounts and types of insurance required by giving the Consultant ninety (90)
days advance written notice of such change. If such change results in substantial
additional cost to the Consultant, the City will negotiate additional compensation
proportional to the increase benefit to City.
13. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any steps that
can be deemed to be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on
the part of City to inform Consultant of non-compliance with any insurance requirements
in no way imposes any additional obligations on City nor does it waive any rights
hereunder in this or any other regard.
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15. Consultant will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuant to this
agreement. This obligation applies whether or not the agreement is canceled or
terminated for any reason. Termination of this obligation is not effective until City executes
a written statement to that effect.
16. Consultant shall provide proof that policies of insurance required herein
expiring during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has been ordered
shall be submitted prior to expiration. A coverage binder or letter from Consultant’s
insurance agent to this effect is acceptable. A certificate of insurance and/or additional
insured endorsement as required in these specifications applicable to the renewing or
new coverage must be provided to City within five days of the expiration of the coverages.
17. The provisions of any workers’ compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use
any statutory immunity defenses under such laws with respect to City, its employees,
officials and agents.
18. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference to a
given coverage feature is for purposes of clarification only as it pertains to a given issue,
and is not intended by any party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from
any other provision in this agreement and are intended by the parties here to be
interpreted as such.
20. The requirements in this Section supersede all other sections and
provisions of this Agreement to the extent that any other section or provision conflicts with
or impairs the provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by
any party involved in any way with the project reserves the right to charge City or
Consultant for the cost of additional insurance coverage required by this agreement. Any
such provisions are to be deleted with reference to City. It is not the intent of City to
reimburse any third party for the cost of complying with these requirements. There shall
be no recourse against City for payment of premiums or other amounts with respect
thereto.
22. Consultant agrees to provide immediate notice to City of any claim or loss
against Consultant arising out of the work performed under this agreement. City assumes
no obligation or liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
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AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT FOR CONSULTANT SERVICES (“Agreement”), is made and
effective as of August 27, 2019, between JAS Pacific (“Consultant”), and the CITY OF
ARROYO GRANDE, a Municipal Corporation (“City”). In consideration of the mutual
covenants and conditions set forth herein, the parties agree as follows:
1. TERM
This Agreement shall commence on September 1, 2019 and shall remain and
continue in effect until August 30, 2022, unless sooner terminated pursuant to the
provisions of this Agreement. This Agreement may be extended for two (2) additional
one (1) year periods after the Initial Term upon written agreement by City and Consultant.
All terms and conditions of this Agreement shall apply to any additional one (1) year terms.
2. SERVICES
Consultant shall perform the tasks described and comply with all terms and
provisions set forth in Exhibit “A”, attached hereto and incorporated herein by this
reference.
3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of his/her ability,
experience and talent, perform all tasks described herein. Consultant shall employ, at a
minimum generally accepted standards and practices utilized by persons engaged in
providing similar services as are required of Consultant hereunder in meeting its
obligations under this Agreement.
4. AGREEMENT ADMINISTRATION
City’s Building Official shall represent City in all matters pertaining to the
administration of this Agreement. Stuart Tom shall represent Consultant in all matters
pertaining to the administration of this Agreement.
5. PAYMENT
The City agrees to pay the Consultant in accordance with the payment rates and
terms set forth in Exhibit “B”, attached hereto and incorporated herein by this reference.
6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE
(a) The City may at any time, for any reason, with or without cause, suspend or
terminate this Agreement, or any portion hereof, by serving upon the Consultant at least
ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall
immediately cease all work under this Agreement, unless the notice provides otherwise.
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If the City suspends or terminates a portion of this Agreement such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
(b) In the event this Agreement is terminated pursuant to this Section, the City
shall pay to Consultant the actual value of the work performed up to the time of
termination, provided that the work performed is of value to the City. Upon termination of
the Agreement pursuant to this Section, the Consultant will submit an invoice to the City
pursuant to Section 5.
7. TERMINATION ON OCCURRENCE OF STATED EVENTS
This Agreement shall terminate automatically on the occurrence of any of the
following events:
(a) Bankruptcy or insolvency of any party;
(b) Sale of Consultant’s business; or
(c) Assignment of this Agreement by Consultant without the consent of City.
(d) End of the Agreement term specified in Section 1.
8. DEFAULT OF CONSULTANT
(a) The Consultant’s failure to comply with the provisions of this Agreement
shall constitute a default. In the event that Consultant is in default for cause under the
terms of this Agreement, City shall have no obligation or duty to continue compensating
Consultant for any work performed after the date of default and can terminate this
Agreement immediately by written notice to the Consultant. If such failure by the
Consultant to make progress in the performance of work hereunder arises out of causes
beyond the Consultant’s control, and without fault or negligence of the Consultant, it shall
not be considered a default.
(b) If the City Manager or his/her delegate determines that the Consultant is in
default in the performance of any of the terms or conditions of this Agreement, he/she
shall cause to be served upon the Consultant a written notice of the default. The
Consultant shall have ten (10) days after service upon it of said notice in which to cure
the default by rendering a satisfactory performance. In the event that the Consultant fails
to cure its default within such period of time, the City shall have the right, notwithstanding
any other provision of this Agreement to terminate this Agreement without further notice
and without prejudice to any other remedy to which it may be entitled at law, in equity or
under this Agreement.
9. LAWS TO BE OBSERVED. Consultant shall:
(a) Procure all permits and licenses, pay all charges and fees, and give all
notices which may be necessary and incidental to the due and lawful prosecution of the
services to be performed by Consultant under this Agreement;
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(b) Keep itself fully informed of all existing and proposed federal, state and local
laws, ordinances, regulations, orders, and decrees which may affect those engaged or
employed under this Agreement, any materials used in Consultant’s performance under
this Agreement, or the conduct of the services under this Agreement;
(c) At all times observe and comply with, and cause all of its employees to
observe and comply with all of said laws, ordinances, regulations, orders, and decrees
mentioned above;
(d) Immediately report to the City’s Contract Manager in writing any
discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders,
and decrees mentioned above in relation to any plans, drawings, specifications, or
provisions of this Agreement.
(e) The City, and its officers, agents and employees, shall not be liable at law
or in equity occasioned by failure of the Consultant to comply with this Section.
10. OWNERSHIP OF DOCUMENTS
(a) Consultant shall maintain complete and accurate records with respect to sales,
costs, expenses, receipts, and other such information required by City that relate to the
performance of services under this Agreement. Consultant shall maintain adequate
records of services provided in sufficient detail to permit an evaluation of services. All
such records shall be maintained in accordance with generally accepted accounting
principles and shall be clearly identified and readily accessible. Consultant shall provide
free access to the representatives of City or its designees at reasonable times to such
books and records; shall give City the right to examine and audit said books and records;
shall permit City to make transcripts therefrom as necessary; and shall allow inspection
of all work, data, documents, proceedings, and activities related to this Agreement. Such
records, together with supporting documents, shall be maintained for a period of three (3)
years after receipt of final payment.
(b) Upon completion of, or in the event of termination or suspension of this
Agreement, all original documents, designs, drawings, maps, models, computer files,
surveys, notes, and other documents prepared in the course of providing the services to
be performed pursuant to this Agreement shall become the sole property of the City and
may be used, reused, or otherwise disposed of by the City without the permission of the
Consultant. With respect to computer files, Consultant shall make available to the City, at
the Consultant’s office and upon reasonable written request by the City, the necessary
computer software and hardware for purposes of accessing, compiling, transferring, and
printing computer files.
11. INDEMNIFICATION
(a) Indemnification for Professional Liability. When the law establishes a
professional standard of care for Consultant’s Services, to the fullest extent permitted by
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law, Consultant shall indemnify, protect, defend and hold harmless City and any and all
of its officials, employees and agents (“Indemnified Parties”) from and against any and all
losses, liabilities, damages, costs and expenses, including attorney’s fees and costs to
the extent same are caused in whole or in part by any negligent or wrongful act, error or
omission of Consultant, its officers, agents, employees or subContractors or any entity or
individual that Consultant shall bear the legal liability thereof) in the performance of
professional services under this agreement.
(b) Indemnification for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant
shall indemnify, defend and hold harmless City, and any and all of its employees, officials
and agents from and against any liability (including liability for claims, suits, actions,
arbitration proceedings, administrative proceedings, regulatory proceedings, losses,
expenses or costs of any kind, whether actual, alleged or threatened, including attorneys
fees and costs, court costs, interest, defense costs, and expert witness fees), where the
same arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by Consultant or by any individual or entity for
which Consultant is legally liable, including but not limited to officers, agents, employees
or subContractors of Consultant.
(c) General Indemnification Provisions. Consultant agrees to obtain executed
indemnity agreements with provisions identical to those set forth here in this section from
each and every subContractor or any other person or entity involved by, for, with or on
behalf of Consultant in the performance of this agreement. In the event Consultant fails
to obtain such indemnity obligations from others as required here, Consultant agrees to
be fully responsible according to the terms of this section. Failure of City to monitor
compliance with these requirements imposes no additional obligations on City and will in
no way act as a waiver of any rights hereunder. This obligation to indemnify and defend
City as set forth here is binding on the successors, assigns or heirs of Consultant and
shall survive the termination of this agreement or this section.
12. INSURANCE
Consultant shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit “C” attached hereto and
incorporated herein as though set forth in full.
13. INDEPENDENT CONSULTANT
(a) Consultant is and shall at all times remain as to the City a wholly independent
Consultant. The personnel performing the services under this Agreement on behalf of
Consultant shall at all times be under Consultant’s exclusive direction and control. Neither
City nor any of its officers, employees, or agents shall have control over the conduct of
Consultant or any of Consultant’s officers, employees, or agents, except as set forth in
this Agreement. Consultant shall not at any time or in any manner represent that it or any
of its officers, employees, or agents are in any manner officers, employees, or agents of
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the City. Consultant shall not incur or have the power to incur any debt, obligation, or
liability whatever against City, or bind City in any manner.
(b) No employee benefits shall be available to Consultant in connection with
performance of this Agreement. Except for the fees paid to Consultant as provided in the
Agreement, City shall not pay salaries, wages, or other compensation to Consultant for
performing services hereunder for City. City shall not be liable for compensation or
indemnification to Consultant for injury or sickness arising out of performing services
hereunder.
14. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure was or is
used against or in concert with any officer or employee of the City of Arroyo Grande in
connection with the award, terms or implementation of this Agreement, including any
method of coercion, confidential financial arrangement, or financial inducement. No officer
or employee of the City of Arroyo Grande will receive compensation, directly or indirectly,
from Consultant, or from any officer, employee or agent of Consultant, in connection with
the award of this Agreement or any work to be conducted as a result of this Agreement.
Violation of this Section shall be a material breach of this Agreement entitling the City to
any and all remedies at law or in equity.
15. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the project
during his/her tenure or for one year thereafter, shall have any interest, direct or indirect,
in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in
connection with the project performed under this Agreement.
16. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
(a) All information gained by Consultant in performance of this Agreement shall be
considered confidential and shall not be released by Consultant without City’s prior written
authorization. Consultant, its officers, employees, agents, or subContractors, shall not
without written authorization from the City Manager or unless requested by the City
Attorney, voluntarily provide declarations, letters of support, testimony at depositions,
response to interrogatories, or other information concerning the work performed under
this Agreement or relating to any project or property located within the City. Response to
a subpoena or court order shall not be considered “voluntary” provided Consultant gives
City notice of such court order or subpoena.
(b) Consultant shall promptly notify City should Consultant, its officers, employees,
agents, or subContractors be served with any summons, complaint, subpoena, notice of
deposition, request for documents, interrogatories, request for admissions, or other
discovery request, court order, or subpoena from any person or party regarding this
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Agreement and the work performed thereunder or with respect to any project or property
located within the City. City retains the right, but has no obligation, to represent Consultant
and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to
cooperate fully with City and to provide the opportunity to review any response to
discovery requests provided by Consultant. However, City’s right to review any such
response does not imply or mean the right by City to control, direct, or rewrite said
response.
17. NOTICES
Any notice which either party may desire to give to the other party under this
Agreement must be in writing and may be given either by (i) personal service, (ii) delivery
by a reputable document delivery service, such as but not limited to, Federal Express,
which provides a receipt showing date and time of delivery, or (iii) mailing in the United
States Mail, certified mail, postage prepaid, return receipt requested, addressed to the
address of the party as set forth below or at any other address as that party may later
designate by notice:
To City: City of Arroyo Grande
Building Official
300 E. Branch Street
Arroyo Grande, CA 93420
To Consultant: JAS Pacific
Stuart Tom
201 N. Euclid Ave, Suite A
Upland, CA 91786
18. ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part
thereof, without the prior written consent of the City.
19. GOVERNING LAW
The City and Consultant understand and agree that the laws of the State of
California shall govern the rights, obligations, duties, and liabilities of the parties to this
Agreement and also govern the interpretation of this Agreement. Any litigation concerning
this Agreement shall take place in the superior or federal district court with jurisdiction
over the City of Arroyo Grande.
20. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to
the obligations of the parties described in this Agreement. All prior or contemporaneous
agreements, understandings, representations, and statements, or written, are merged
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into this Agreement and shall be of no further force or effect. Each party is entering into
this Agreement based solely upon the representations set forth herein and upon each
party’s own independent investigation of any and all facts such party deems material.
21. TIME
City and Consultant agree that time is of the essence in this Agreement. Time
constraints are selection factors on individual service requests. The consultant must start
work within two weeks from receipt of a written authorization to proceed unless an
alternate timeframe has been agreed upon. The City expects the work to be actively
pursued until complete.
22. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL
Consultant is bound by the contents of the City’s Request for Proposal and the
contents of the proposal submitted by the Consultant, both of which are on file in the
Community Development Department and incorporated herein by this reference. In the
event of conflict, the requirements of City’s Request for Proposals and this Agreement
shall take precedence over those contained in the Consultant’s proposals.
23. CONSTRUCTION
The parties agree that each has had an opportunity to have their counsel review
this Agreement and that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in the interpretation of this Agreement
or any amendments or exhibits thereto. The captions of the sections are for convenience
and reference only, and are not intended to be construed to define or limit the provisions
to which they relate.
24. AMENDMENTS
Amendments to this Agreement shall be in writing and shall be made only with the
mutual written consent of all of the parties to this Agreement.
25. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants
and represents that he/she has the authority to execute this Agreement on behalf of the
Consultant and has the authority to bind Consultant to the performance of its obligations
hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
CITY OF ARROYO GRANDE CONSULTANT
By:__________________________ By:____________________________
Caren Ray Russom, Mayor
Its:____________________________
Attest: (Title)
____________________________
Kelly Wetmore, City Clerk
Approved As To Form:
_____________________________
Heather K. Whitham, City Attorney
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EXHIBIT A
SCOPE OF WORK
This Agreement is a non-exclusive continuing services contract to provide on-call
Building Staff and Plan Review Services for the City of Arroyo Grande. The Consultant
will augment and support City staff and provide services at the sole direction and
discretion of the City.
The City does not guarantee that the Consultant will receive a specific volume of work or
total contract amount.
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EXHIBIT B
PAYMENT SCHEDULE
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Bi Hing Rates
IBu ildlilflg :inspector
Pub lic Worlks Insp ector
1Bu ildi111g Offiiciail
IPlan Review
IPlermit Tedu1ician
$65 .. 00 -$85 .00
$65 .. 00 -$85 .00
$9 5 .00 -$,115.00
$95 ... 00 -$U5.0O
$55 .. 00 -$75.00
Page 11
EXHIBIT C
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, Consultant will maintain
insurance in conformance with the requirements set forth below. Consultant will use
existing coverage to comply with these requirements. If that existing coverage does not
meet the requirements set forth here, Consultant agrees to amend, supplement or
endorse the existing coverage to do so. Consultant acknowledges that the insurance
coverage and policy limits set forth in this section constitute the minimum amount of
coverage required. Any insurance proceeds available to City in excess of the limits and
coverage required in this agreement and which is applicable to a given loss, will be
available to City.
Consultant shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office “Commercial
General Liability” policy from CG 00 01 or the exact equivalent. Defense costs must be
paid in addition to limits. There shall be no cross liability exclusion for claims or suits by
one insured against another. Limits are subject to review but in no event less than
$1,000,000 per occurrence.
Business Auto Coverage on ISO Business Auto Coverage from CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event
to be less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement
may be satisfied by a non-owned auto endorsement to the general liability policy
described above. If Consultant or Consultant’s employees will use personal autos in any
way on this project, Consultant shall provide evidence of personal auto liability coverage
for each such person.
Workers Compensation on a state-approved policy form providing statutory benefits as
required by law with employer’s liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written
on a policy form coverage specifically designated to protect against acts, errors or
omissions of the Consultant and “Covered Professional Services” as designated in the
policy must specifically include work performed under this agreement. The policy limit
shall be no less than $1,000,000 per claim and in the aggregate. The policy must “pay on
behalf of” the insured and must include a provision establishing the insurer’s duty to
defend. The policy retroactive date shall be on or before the effective date of this
agreement.
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Insurance procured pursuant to these requirements shall be written by insurer that are
admitted carriers in the state California and with an A.M. Bests rating of A- or better and
a minimum financial size VII.
General conditions pertaining to provision of insurance coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by
Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds City, its officials employees
and agents, using standard ISO endorsement No. CG 2010 with an edition prior to 1992.
Consultant also agrees to require all Consultants, and subContractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Consultant, or Consultant’s employees, or agents, from waiving the right of
subrogation prior to a loss. Consultant agrees to waive subrogation rights against City
regardless of the applicability of any insurance proceeds, and to require all Consultants
and subContractors to do likewise.
3. All insurance coverage and limits provided by Consultant and available or
applicable to this agreement are intended to apply to the full extent of the policies. Nothing
contained in this Agreement or any other agreement relating to the City or its operations
limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve
to eliminate so-called “third party action over” claims, including any exclusion for bodily
injury to an employee of the insured or of any Consultant or subcontractor.
6. All coverage types and limits required are subject to approval, modification
and additional requirements by the City, as the need arises. Consultant shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or reduction
of discovery period) that may affect City’s protection without City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all of the coverages required and an additional
insured endorsement to Consultant’s general liability policy, shall be delivered to City at
or prior to the execution of this Agreement. In the event such proof of any insurance is
not delivered as required, or in the event such insurance is canceled at any time and no
replacement coverage is provided, City has the right, but not the duty, to obtain any
insurance it deems necessary to protect its interests under this or any other agreement
and to pay the premium. Any premium so paid by City shall be charged to and promptly
paid by Consultant or deducted from sums due Consultant, at City option.
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8. Certificate(s) are to reflect that the insurer will provide 30 days notice to City
of any cancellation of coverage. Consultant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to mail
written notice of cancellation imposes no obligation, or that any party will “endeavor” (as
opposed to being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Consultant or any subContractor, is intended to apply
first and on a primary, noncontributing basis in relation to any other insurance or self
insurance available to City.
10. Consultant agrees to ensure that subContractors, and any other party
involved with the project who is brought onto or involved in the project by Consultant,
provide the same minimum insurance coverage required of Consultant. Consultant
agrees to monitor and review all such coverage and assumes all responsibility for
ensuring that such coverage is provided in conformity with the requirements of this
section. Consultant agrees that upon request, all agreements with subContractors and
others engaged in the project will be submitted to City for review.
11. Consultant agrees not to self-insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it will
not allow any Consultant, subContractor, Architect, Engineer or other entity or person in
any way involved in the performance of work on the project contemplated by this
agreement to self-insure its obligations to City. If Consultant’s existing coverage includes
a deductible or self-insured retention, the deductible or self-insured retention must be
declared to the City. At the time the City shall review options with the Consultant, which
may include reduction or elimination of the deductible or self-insured retention,
substitution of other coverage, or other solutions.
12. The City reserves the right at any time during the term of the contract to
change the amounts and types of insurance required by giving the Consultant ninety (90)
days advance written notice of such change. If such change results in substantial
additional cost to the Consultant, the City will negotiate additional compensation
proportional to the increase benefit to City.
13. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any steps that
can be deemed to be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on
the part of City to inform Consultant of non-compliance with any insurance requirements
in no way imposes any additional obligations on City nor does it waive any rights
hereunder in this or any other regard.
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15. Consultant will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuant to this
agreement. This obligation applies whether or not the agreement is canceled or
terminated for any reason. Termination of this obligation is not effective until City executes
a written statement to that effect.
16. Consultant shall provide proof that policies of insurance required herein
expiring during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has been ordered
shall be submitted prior to expiration. A coverage binder or letter from Consultant’s
insurance agent to this effect is acceptable. A certificate of insurance and/or additional
insured endorsement as required in these specifications applicable to the renewing or
new coverage must be provided to City within five days of the expiration of the coverages.
17. The provisions of any workers’ compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use
any statutory immunity defenses under such laws with respect to City, its employees,
officials and agents.
18. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference to a
given coverage feature is for purposes of clarification only as it pertains to a given issue,
and is not intended by any party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from
any other provision in this agreement and are intended by the parties here to be
interpreted as such.
20. The requirements in this Section supersede all other sections and
provisions of this Agreement to the extent that any other section or provision conflicts with
or impairs the provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by
any party involved in any way with the project reserves the right to charge City or
Consultant for the cost of additional insurance coverage required by this agreement. Any
such provisions are to be deleted with reference to City. It is not the intent of City to
reimburse any third party for the cost of complying with these requirements. There shall
be no recourse against City for payment of premiums or other amounts with respect
thereto.
22. Consultant agrees to provide immediate notice to City of any claim or loss
against Consultant arising out of the work performed under this agreement. City assumes
no obligation or liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
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