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HomeMy WebLinkAboutC.C. 21 BLDG PLN RVW 01-06-92CONSENT CALENDAR NO. 21 1-6-92 !ww�....� �r.�...• �-�..-.�-�-www.-.�..w-�.� _._ _ � .. l ... _ - _ Y�� i ,�.��.�. J ATE : JANUARY 6f 1992 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: AUTHORIZATION FOR PROFESSIONAL BUILDING PLAN REVIEW AND INSPECTION SERVICES, GRADING AND INFRASTRUCTURE PLAN REVIEW - .E$�L,.LAI!IDSC�E:,+AN:EYLE�1SERVICES ..__.... RECOMMENDATION It is recommended that the City Council approve the agreements with the companies of BSI Consultants, Inc., Hunsaker and Associates Irvine, Inc., Melad and Associates, Pacesetter Municipal Services, Inc. and GPS and authorize the Assistant City Manager to execute said agreements subject to final approval of the contracts by the City Attorney's office. BACKGROUND AND DISCUSSION The City's -Community Development operations including development in the East Tustin Specific Plan Area requires the continued use of outside plan review and inspection consultants in order to provide Building Division service in a timely and efficient manner. Plan review services include the areas of building, grading, infrastructure and landscaping, and specialized inspection services. The Building Division of the Community Development Department operates with a small staff, sufficient in size to handle the most routine activity outside of East Tustin while maintaining our commitment to provide a high level of customer service. Consultant firms perform services necessary for the normal operation of the division by assisting staff with normal workload and during overload conditions and by providing a higher level of expertise not normally required from staff. The 1991-1992 City budget proposed consultant fees for plan check services at $325,000 annually. The Community Development Department originally sent a request for proposals (RFP) for plan review and inspection consulting service in early 1991. A request to validate and update the original proposals was sent later in the year. The proposal services included plan review for building, grading, infrastructure and landscaping, and inspection for building, _ City Council Report Plan Check Services January 6, 1992 Page 2 grading and infrastructure. In total, nine companies responded to the RFP; some to all plan review categories and some only one or two plan review categories. In reviewing each proposal, an evaluation matrix was prepared for each respondent. Review criteria included knowledge of federal, state and Tustin codes, ability to adhere to the City's plan review and inspection schedules, the scope of disciplines available and experience in each firm; the qualifications of the responsible person, and the proposed fee schedule. Where applicable, past performance with the City of Tustin was also considered. Each company's references were also checked. Based on the above criteria, the following firms were determined most qualified to perform services for each plan review category. Building Plan Review and Inspection 1. BSI 2. Melad 3. Pacesetter Landscape Plan Review 1. Melad 2. Pacesetter Grading and Infrastructure Plan Review and Inspection 1. BSI 2. Hunsaker 3. Pacesetter 4. GPS There are several reasons for entering into multiple agreements for the same type of service. It provides the flexibility necessary for the department to match a consultant's expertise to a unique project, to assign a project to a consultant to ensure plan check schedule commitments, and.to encourage competitiveness. Professional Service Contract Agreements with each of the above firms are attached. All service costs are recoverable and have been designed as a percentage of the City's collected plan check City Council Report Plan Check Services January 6, 1992 Page 3 fees leaving adequate coverage for the City's administrative cost of providing service. Christine A. Shin on Assistant City Man ger TW:CAS:kbc\ptnchk.tw T omas Whi er Building Official {` t CONSULTANT SERVICES AGREEMENT This Agreement for Contract Services (herein "Agreement"), is made and entered into by and between the CITY OF TUSTIN, a municipal corporation ("City"), and BSI CONSULTANTS, INCORPORATED, ("Consultant"). WHEREAS, Consultant is qualified to provide the necessary services and has agreed to provide such services; and WHEREAS, Consultant has submitted to City a proposal, dated Julyi9, 1991, a copy of which is attached hereto as Exhibit "A", and s by this reference incorporated herein as though set forth in full hereat ("Proposal"). NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein, City agrees to employ and does hereby employ Consultant and Consultant agrees to provide consulting services as follows:. 1. SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the "Proposal and Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, (the "services" or the "work"). Consultant warrants that all services shall be performed in a competent, professional and satisfactory manner in accordance with all standards prevalent in the industry. 1.2 Consultant's Proposal. The scope of services shall include all the terms contained in Exhibit "A". In the event of any inconsistency between the terms contained in Exhibit "A" and the terms set forth in the main body of this Agreement, the terms set forth in the main body of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all laws ordinances, resolutions, statutes, rules, and regulations of the City of Tustin and of any federal, state or local governmental agency of competent jurisdiction. 1.4 Licenses and Permits. Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. 1.5 Familiarity with Work. By executing this Contract, Consultant warrants that Consultant (a) has thoroughly -1- - investigated and considered the work to be performed, (b) has investigated the site of the work and become fully acquainted with the conditions there existing, (c) has carefully considered how the work should be performed, and (d) fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. Should the Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by the City, Consultant shall immediately inform City of such fact and shall not proceed with any work except at Consultant's risk until written instructions are received from the Contract Officer. 1.6 Care of Work. Consultant shall adopt and follow reasonable procedures and methods during the term of the Agreement to prevent loss or damage to materials, papers or other components of the work, and shall be responsible for all such damage until acceptance of the work by City, except such loss or damages as may be caused by City's own negligence. 1.7 Additional Services. Consultant shall- perform services in addition to those specified in the Proposal when directed to do so by the Contract Officer, provided that Consultant shall not be required to perform any additional services without compensation. Any additional compensation not exceeding ten percent (10%) of the Contract sum must be approved in writing by the Contract Officer. Any greater increase must be approved in writing by the City Manager. 1.8 Special Requirements. Any additional terms and conditions of this Agreement, are set forth in Exhibit "B" hereto, "Special Requirements" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provision or provisions of this Agreement, the provisions of Exhibit "B" shall govern. 2. COMPENSATION 2.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, the Consultant shall be compensated and reimbursed only such amounts as are prescribed in the Proposal. 2.2 Method of Payment. In any month in which Consultant wishes to receive payment, Consultant shall no later than the first working day of such month, submit to City in the form approved by City's Director of Finance, an invoice for services rendered prior to the date of the invoice. City shall pay Consultant for all expenses stated thereon which are approved by City consistent with this Agreement, no later than the last working day of said month. 2.3 Changes. In the event any change or changes in the work is requested by City, the parties hereto shall execute an addendum to this Agreement, setting forth with particularity all terms of such addendum, including, but not limited to, any additional Consultant's fees. Addenda may be entered into: A. To provide for revisions or modifications to documents or other work product or work when documents or other work product or work is required by the enactment or revision of law subsequent to the preparation of any documents, other work product or work; B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant's profession. 2.4 Payment for Changes. Approved change orders shall be compensated at the personnel hourly rates prescribed in Exhibit "C" hereto (where applicable, rates shall apply to travel time). 2.5 Statement of Costs. Pursuant to the provisions of California Government Code Section 7550, the total amount expended by City relating to the preparation of any report or documents prescribed herein shall be set forth within the final edition thereof, in a separate section, in a statement substantially as follows: Pursuant to California Government Code Section 7550 the City of Tustin expended the total amount of $ for the preparation of this report and/or documents. 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed within any time periods prescribed in any Schedule of Performance attached hereto marked Exhibit "D". Extension of any time period specified in the Exhibit "D" must be approved in writing by the Contract Officer. 3.3 Force Majeure. Time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine agic - restrictions, riots, strikes, freight embargoes, and unusually severe weather if the Consultant shall within ten (10) days of the commencement of 'such condition notify the Contract Officer who shall thereupon ascertain the facts and the extent of any necessary delay, and extend the time for performing the services for the period of the enforced delay when and if in the Contract Officer's judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. 3.4 Term. Unless earlier terminated in accordance with Section 7.7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1).year from date hereof. 4. COORDINATION OF WORK 4.1 Representative of Consultant. The following Principal of the Consultant is hereby designated as being the principal and representative of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Scott R. Fazekas. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. The foregoing Principal may not be changed by Consultant without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be the Director of Community Development of City unless otherwise designated in writing by the City Manager of City. It shall be the Consultant's responsibility to keep the Contract Officer fully informed of the progress of the performance of the services and Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City.. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. -4- 4.4 Independent Consultant. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent consultant of City and shall remain at all times as to City a wholly independent consultant with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. 5. INSURANCE, INDEMNIFICATION AND BONDS .5.1 Insurance. Consultant shall procure and maintain, at its cost, and submit concurrently with its execution of this Agreement, public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Consultant's performance under this Agreement. Consultant shall also carry workers' compensation insurance in accordance with California worker's compensation laws. Such insurance _ shall be kept in of fect during the term of this Agreement and shall not be, cancelable without thirty ( 3 0 ) days written notice to City of any proposed cancellation. A certificate evidencing the foregoing and designating City as an additional named insured shall be delivered to and approved by the City prior to commencement of the services hereunder. The procuring of such insurance and the delivery of policies or certificates evidencing the same shall not be construed as a limitation of Consultant's obligation to indemnify the City, its consultants, officers, and employees. The amount of insurance required hereunder shall include comprehensive general liability, personal injury and automobile liability with limits of at least One Million Dollars ($1,000,000) combined single limit per occurrence and professional liability coverage with limits of at least Five Hundred Thousand Dollars ($500,000). 5.2 Indemnification. The Consultant shall defend, indemnify and hold harmless the City, its officers and employees, from and against any and all actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorneys' fees, for injury to or death of person or persons, for damage to property, including property owned by City, and for errors and omissions committed by Consultant, its officers, employees and agents, arising out of or related to Consultant's performance under this Agreement, except for such loss as may be caused by City's own negligence or that of its officers or employees. 6. RECORDS AND REPORTS 6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the -5- performance of the services required by this Agreement as the Contract Officer shall require. 6.2 Records. Consultant shall keep such books and records as shall be necessary to properly perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit and make records and transcripts from such records. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. hereunder. Consultant may retain copies of such documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. 6.4 Release of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7. ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed. and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in -writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party cures any default within ninety (90) days after service of the notice., or if the cure of the default is commenced within thirty (30) days. after service of said notice and is cured within a reasonable time after commencement; provided that if the default is an immediate danger to the health, safety and general welfare, the City may take immediate action under Section 7.5 of this Agreement. Compliance with the provisions of this Section shall be a condition precedent to any legal action, and such compliance shall not be a waiver of any party' s right to take legal action in the event that the dispute is not cured. 7.3 Waiver. No delay or omission in the exercise of any right or remedy of a non -defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or. remedies for the same default or any other default by the other party. 7.5 Legal Action. In addition to any other rights or remedies, either party -may take legal action, in law or in equity, to cure, correct or remedy any default,.to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment or any other remedy consistent with the purposes of this Agreement. 7.6 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Consultant and its sureties shall be liable for and shall pay to City the' sum of Dollars ($ ) as liquidated damages for each working day of delay in the performance of any service required hereunder. The City may withhold from any monies payable on account of services performed by the Consultant any accrued liquidated damages. 7.7 ' Termination Prior to Expiration of Term. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant, except that where termination is due to the fault of the Consultant and constitutes an immediate danger to health, safety and general. welfare, the period of notice shall be such shorter time as may be appropriate. Upon receipt of the notice of termination., Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter. -7- 7.8 Termination for Default of Consultant. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated, provided that the City shall use reasonable efforts to mitigate damages, and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed to City. 7.9 Attorneys Fees. If either party commences an action against the other party arising out of or in connection with this Agreement or it subject matter, the prevailing party shall be entitled to recover reasonable .attorneys' fees and costs of suit from the losing party. 8. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION 8.1 Non -Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Consultant, or any successor -in -interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or its successor, or for .breach of any obligation of the terms of this Agreement. 8.2 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group .of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry. Consultant shall take affirmative action to insure that applicants and employees are treated without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. -8- 9. MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre -paid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if mailed as provided in this Section. To City• CITY OF TUSTIN 15222 Del Amo Avenue Tustin, CA 92680 Attention: Director (Contract To Consultant: of Community Development Officer) BSI CONSULTANTS, Incorporated 16880 West Bernardo Drive San Diego, CA 92127 Attention: Scott R. Fazekas 9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 9.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent - jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. r 11 City it Dated: APPROVED AS TO FORM: James G. Rourke City Attorney CITY OF TUSTIN, a municipal corporation By. Christine Shingleton Director of Community Development "Consultant" BSI CONSULTANTS, Incorporated By. Scott R. Fazekas, Senior Vice President -10- EXHIBIT "A" PROPOSAL and SCOPE OF SERVICES Attached hereto are: 1) Consultant's Proposal; and 2) Scope of Services -11- Scope of Services The following is the itemized scope of services which the Consultant is expected to perform as a part of this Agreement. Building Plan Review 1. Review plans, calculations and specifications for compliance with the most recently enacted rules and regulations of federal, state and local governing authorities. Included are: a. Tustin City Code Building Regulations Fire Protection Regulations b. California State Building Code (Title 24, parts 1-9, 12) 2. Provide two copies of the plan check correction list for each project reviewed. The list shall indicate all items needed'to be changed for the plans to be in compliance with all rules and regulations. Provide necessary communication with the applicant to assure understanding of all correction items. Provide necessary rechecks until the construction documents are in compliance. The Consultant's plan review manager shall sign a statement that plans approved by the Consultant comply with all requirements and standard engineering practice. 3. Attend meetings related to plan review at City Hall. 4. Pick-up and deliver plans for review. 5. Provide a monthly plan check status report to the City of all assigned plans. 6. Upon completion of a building plan review, the Consultant shall send a questionnaire to the applicant requesting comments on the performance of the Consultant. Copies of all questionnaires returned shall be given to the City on a monthly basis. The text of the questionnaire shall be approved by the City within thirty (30) days of the execution of this Agreement. 7. A copy of all plan check correction sheets used in the performance of services shall be submitted to the City within five ( 5 ) working days of the execution. of this Agreement for comparison to state regulations and Tustin City Code. Consultant shall amend their correction sheet(s) as necessary to be consistent with City codes. -12- Building Inspection 1. Provide ICBO Certified Building Inspectors to inspect buildings and associated structures under construction for compliance with approved plans and specifications. Inspectors are responsible for checking all phases of construction including: a. Building b. Mechanical C. PliAmbing d. Electrical e. Energy Conservation f. Handicapped Accessibility 2. Provide accurate daily inspection sheets. Note all discrepancies, cite code violations, and issue correction or stop -work notices. Grading and Infrastructure Plan Review 1. Review plans, specifications and calculations for compliance with the most recently enacted rules and regulations of federal, state and local governing authorities. Included are: a. Tustin City Code,including 1. Construction Standards for Private Streets, Storm Drains and On-site Private Improvements 2. Grading and Excavation Ordinance 3. Floodplain Management Ordinance b. Orange County Environmental Management Agency C. Federal Environmental Management Agency (FEMA) Floodplain Management 2. Grading plan review shall include on-site grading, hydrology and hydraulic calculations, drainage plans and erosion control plans. 3. Provide two copies of the plan check correction list for each project reviewed. The list shall indicate all items needed to be changed for the plans to be in compliance with all rules and regulations. Provide necessary communication with the applicant to assure understanding of all corrections items. Provide necessary rechecks until the plans are in compliance. The Consultant's plan review manager shall sign a statement that plans approved by the Consultant comply with all requirements and standard engineering practice. 4. Attend meetings related to plan review at City Hall. 5. Pick-up and deliver plans for review. 6. Provide a monthly plan check status report to the City of all assigned plans. -13- 7. Upon completion of a grading or infrastructure plan review, the Consultant shall send a questionnaire to the applicant requesting comments on the performance of the Consultant. Copies of all questionnaires returned shall be given to the City on a monthly basis. The text of the questionnaire shall be approved by the City within thirty (30) days of the execution of this Agreement. 8. A copy of all plan check correction sheets used in the performance of services shall be submitted to the City within five (5) working days of the execution of this Agreement for comparison to state regulations and Tustin City Code. Consultant shall amend their correction sheet(s) as necessary to be consistent with City codes. Grading and Infrastructure Inspection 1. Provide inspectors qualified in grading. and infrastructure inspections. 2. Provide accurate daily inspection sheets. Note all discrepancies, cite code violations, and issue correction or stop -work notices. -14- EXHIBIT "B" SPECIAL REQUIREMENTS 1. That Section 1.9 shall be added to read: 1.9 Conflict of Interest. In order to assure City that Consultant is not subject to any conflict of interest, Consultant affirms that while Agreement is in effect, neither Consultant nor any of its officers or employees will accept private work from or provide services for any company whose project Consultant is plan checking or inspecting for City. Consultant also affirms that while Agreement •is in effect, Consultant shall not accept a project from City if the project owner or applicant is a client of Consultant or its officers or employees. If either City of Consultant thinks there may be a conflict of interest involving any project, Consultant shall immediately return plans or remove inspector from project. In the event of uncertainty about whether a potential conflict of interest exists, Consultant shall advise Contract Officer whose decision shall be final. 2. That Section 2.1 shall be revised to read: 2.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, Consultant shall be compensated in accordance with the Schedule of Compensation attached hereto as Exhibit "C". 3. That Section 2.3(B) shall be revised to read: 2.3(B) To provide for services not included in this Agreement which are within the expertise of.the Consultant's profession. 4. That Section 2.4 shall be revised to read: 2.4 Payment for Chancres. Approved change orders shall be compensated at an agreed upon rate and based on the Schedule of Compensation or Consultant's Personnel Hourly Rates, attached hereto as Exhibit "C". 5. That Section 7.6 Liquidated Damages, shall be deleted. -15- EXHIBIT "C" SCHEDULE OF COMPENSATION and PERSONNEL HOURLY RATES Attached hereto are: 1) Schedule of Compensation; and 2) Personnel Hourly Rates -16- SCHEDULE OF COMPENSATION The following is the itemized schedule of compensation which the Consultant shall be compensated for the scope of services as a part of this Agreement. The Building Division Fee Schedule, as adopted by City Council Resolution No. 87-138, is the basis for determining the plan check fee collected by City. Building Plan Review For standard plan review: 75% of the plan check fee collected by City (minimum $200.00) . For repetitive plan review, such as on tracts, 25% of the plan check fee collected by the City for each building that is a duplicate. Included in the repetitive plan review is construction observation of models units by Consultant, to assist City inspectors in discovering and eliminating deficiencies prior to the start of production units. Included in the above fees are pick-up and delivery of plans; a weekly one-hour meeting with City; and, consultation on related matters. Building Inspection For an ICBG Certified Combination Building Inspector: $55.00 per hour (4 hour minimum), plus on-the-job mileage of $0.30 per mile. Grading and Infrastructure Plan Review For standard review of grading, drainage and erosion control projects: 75% of the plan check fee collected by City. For standard review of infrastructure projects: 50% of the plan check fee collected by City. Grading and Infrastructure Inspection For a qualified grading or infrastructure inspector: $55.00 per hour (4 hour minimum), plus on-the-job mileage of $0.30 per mile. 01WM PERSONNEL HOURLY RATES The Consultant's personnel hourly rates shall not change from the attached schedule without approval from City. -18- EXHIBIT "D" SCHEDULE OF PERFORMANCE 1. Plan check services shall be performed within seven (7) working days maximum to within fourteen (14) working days maximum, depending on the complexity of the project. The actual project due date will be established by City for each project before it is released to the Consultant. The time for performance shall begin the same day a request for plan pick- up is made by City. Projects shall be picked -up within one (1) working day of the request. Reviewed projects and their correction sheets shall be returned to City for release to the applicant within one (1) working day of completion, but o later than the project due date. Rechecks. shall be completed within seven (7) working days maximum. 2. The pick-up and delivery of projects from and to City shall be at no additional expense to City. 3. If an applicant requests plan check issues be resolved in person, an appointment shall be arranged for by the Consultant within one (1) working day, shall include the applicant, Consultant and City, and shall be held at City Hall. The meeting shall be at no additional expense to the applicant nor -- City. 4. Contract Officer reserves the right to request "f ast tracking" of a project. The project shall be reviewed by Consultant. at a faster than normal plan review schedule. 5. Inspection services shall be performed within one (1) working day of notice, unless otherwise agreed to by Contract Officer. 6. For special service projects and reports, a Schedule of Performance shall be agreed to by Consultant and City, and shall be incorporated into this Agreement upon execution. -19- CONSULTANT SERVICES AGREEMENT This Agreement for Contract Services (herein "Agreement"), is made and entered into by and between the CITY OF TUSTIN, a municipal corporation ("City"), and HUNSAKER AND ASSOCIATES IRVINE, INCORPORATED, ("Consultant"). WHEREAS, Consultant is qualified to provide the necessary services and has agreed to provide such services; and WHEREAS, Consultant has submitted to City a proposal, dated November 15, 1991, a copy of which is attached hereto as Exhibit "A", and is by this reference incorporated herein as though set forth in full hereat (the "Proposal"). NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein, City agrees to employ and does hereby employ Consultant and Consultant agrees to provide consulting services as follows: 1. SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in. the "Proposal and Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, (the "services" or the "work"). Consultant warrants that all services shall be performed in a competent, professional and satisfactory manner in accordance with all standards prevalent in the industry. 1.2 Consultant's Proposal. The scope of services shall include all the terms contained in Exhibit "A". In the event of any inconsistency between the terms contained in Exhibit ".A" and the terms set forth in the main body of this Agreement, the terms set forth in the main body of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with. all laws, ordinances, resolutions, statutes, rules, and regulations of the City of Tustin and of any federal, state or local governmental agency of competent jurisdiction. 1.4 Licenses and Permits. Consultant shall obtain at its sole cost and expense such licenses, -permits and approvals as may be required by law for the performance of the services required by this Agreement. 1.5 Familiarity with Work. By executing this Contract, Consultant warrants that Consultant (a) has thoroughly -1- investigated and considered the work to be performed, (b) has investigated the site of the work and become fully acquainted with the conditions there existing, (c) has carefully considered how the work should be performed, and (d) fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. Should the Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by the City, Consultant shall immediately inform City of such fact and shall not proceed with any work except at Consultant's risk until written instructions are received from the Contract officer. 1.6 Care of Work. Consultant shall adopt and follow reasonable procedures and methods during the term of the Agreement to prevent loss or damage to materials, papers or other components of the work, and shall be responsible for all such damage until acceptance of the work by City, except such loss or damages as may be caused by City's own negligence. 1.7 Additional Services. Consultant shall perform services in addition to those specified in the Proposal when directed to do so by the Contract officer, provided that Consultant shall not be required to perform any additional services without compensation. Any additional compensation not exceeding ten percent (10%) of the Contract sum must be approved in writing by the Contract officer.. Any greater increase must be approved in writing by the City Manager. .1.8 Special Requirements. Any additional terms and conditions of this Agreement, are set forth in Exhibit "B" hereto, "Special Requirements" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provision or provisions of this Agreement, the provisions of Exhibit "B" shall govern. 2. COMPENSATION 2.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, the Consultant shall be compensated and reimbursed only such amounts as are prescribed in the Proposal. 2.2 Method of Payment. In any month in which Consultant wishes to receive payment, Consultant shall no later than the first working day of such month, submit to City in the form approved by City's Director of Finance, an invoice for services rendered prior to the date of the invoice. City shall pay Consultant for all expenses stated thereon which are approved by City consistent with this Agreement, no later than the last working day of said month. -2- 2.3 Changes. In the event any change or changes in the work is requested by City, the parties hereto shall execute an addendum to this Agreement, setting forth with particularity all terms of such addendum, including, but not limited to,, any additional Consultant's fees. Addenda may be entered into: { A. To provide for revisions or modifications to documents or other work product or work when documents or other work product or work is required by the enactment or revision of law subsequent to the preparation of any documents, other work product or work; B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant's profession. 2.4 Payment for Changes. Approved change orders shall be compensated at the personnel hourly rates prescribed in Exhibit "C" hereto (where applicable, rates shall apply to travel time).. 2.5 Statement of Costs. PursuAnt to the provisions of California Government Code Section 7550, the total amount expended by City relating to the preparation of any report or documents prescribed herein shall be set forth within the final edition thereof, in a separate section, in a statement substantially as follows: Pursuant to California Government Code Section 7550 the City of Tustin expended the total amount of $ for the preparation of this report and/or documents. 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence ' in the performance of this Agreement. 3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed within any time periods prescribed in any Schedule of Performance attached hereto marked Exhibit "D". Extension of any time period specified in the Exhibit "D" must be approved in writing by the Contract Officer. 3.3 . Force Majeure. Time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine :Wj: restrictions, riots, strikes, freight embargoes, and unusually severe weather if the Consultant shall within ten (10) days of the commencement of such condition notify the Contract Officer who shall thereupon ascertain the facts and the extent of any necessary delay, and extend the time for performing the services for the period of the enforced delay when and if in the Contract Officer's judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. 3.4 Term. Unless earlier terminated in accordance with Section 7.7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year from date hereof. 4. COORDINATION OF WORK 4.1 Representative of Consultant. The following Principal of the Consultant is hereby designated as being the principal and representative of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Neil D. Morrison. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. The foregoing Principal may not be changed by Consultant without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be the Director of Community Development of City unless otherwise designated in writing by the City Manager of City. It shall be the Consultant's responsibility to keep the Contract Officer fully informed of the progress of the performance of the services and Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the. services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. QC 4.4 Independent Consultant. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent consultant of City and shall remain at all times as to City a wholly independent consultant with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. 5. INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. Consultant shall procure and maintain, at its cost, and submit concurrently with its execution of this Agreement, public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Consultant's performance under this Agreement. Consultant shall also carry workers' compensation insurance in accordance with California worker's compensation laws. Such insurance shall be kept in effect during the term of this Agreement and shall not be cancelable without thirty (30) days written notice to City of any proposed cancellation. A certificate evidencing the foregoing and designating City as an additional named insured shall be delivered to and approved by the City prior to commencement of the services hereunder. The procuring of such insurance and the delivery of policies or certificates evidencing the same shall not be construed as a limitation of Consultant's obligation to indemnify the City, its consultants, officers, and employees. The amount of insurance required hereunder shall include comprehensive general liability, personal injury and automobile liability with limits of at least One Million Dollars ($1,000,000) combined single limit per occurrence and professional liability coverage with limits of at least Five Hundred Thousand Dollars ($500,000). 5.2 Indemnification. The Consultant shall defend, indemnify and hold harmless the City, its officers and employees, from and against any and all actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorneys' fees, for injury to or death of person or persons, for damage to property, including property_ owned by City, and for errors and omissions committed by Consultant, its officers, employees and agents, arising out of or related to Consultant's performance under this Agreement, except for such loss as may be caused by City's own negligence or that of its officers or employees. 6. RECORDS AND REPORTS 6.1 Reports. Consultant shall periodically prepare and submit to the Contract officer such reports concerning the -5- performance of the services required by this Agreement as the Contract Officer shall require. 6.2 Records. Consultant shall keep such books and records as shall be necessary to properly perform the services required by this Agreement and enable the Contract officer to evaluate the performance of such services. The Contract officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit and make records and transcripts from such records. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials hereunder. Consultant may retain copies of such documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. 6.4 Release of Documents. All drawings, specifications, reports, records, documents and other materials` prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the'prior written approval of the Contract Officer. 7. ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in- writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party cures any default within ninety (90) days after service of the notice,,. or if the cure of the default is commenced within thirty (30) days after service of. said notice and is cured within a reasonable time after commencement; provided that if the default is an immediate danger to the health, safety and general welfare, the City may take immediate action under Section 7.5 of this Agreement. Compliance with the Q:� provisions of this Section shall be a condition precedent to any legal action, and such compliance shall not be a waiver of any party' s right to take legal action in the event that the dispute is not cured. 7.3 Waiver. No delay or omission in the exercise of any right or remedy of a non -defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.4 Rights and Remedies.are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.5 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment or any other remedy consistent with the purposes of this Agreement. 7.6 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Consultant and its sureties shall be liable for and shall pay to City the sum of Dollars ($ ) as liquidated damages for each working day of delay in the performance of any service required hereunder. The City may withhold from any monies payable on account of services performed by the Consultant any accrued liquidated damages. 7.7 Termination Prior to Expiration of Term. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant, except that where termination is due to the fault of the Consultant and constitutes an immediate danger to health, safety and general welfare, the period of notice shall be such shorter time as may be appropriate. Upon receipt of the notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter. -7- 7.8 Termination for Default of Consultant. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated, provided that the City shall use reasonable efforts to mitigate damages, and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed to City. 7.9 Attorneys Fees. If either party commences an action against the other party arising out of or in connection with this Agreement or it subject matter, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of suit from the losing party. 8. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION 8.1 Non -Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Consultant,- or any successor -in -interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry. Consultant shall take affirmative action to insure that applicants and employees are treated without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. -8- 9. MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre -paid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if mailed as provided in this Section. To City: CITY OF TUSTIN 15222 Del Amo Avenue Tustin, CA 92680 Attention: Director (Contract To Consultant: of Community Development Officer) HUNSAKER AND ASSOCIATES IRVINE, INCORPORATED 3 Hughes Irvine, CA 92718 Attention: Neil D. Morrison 9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 9.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. cm IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. Dated: APPROVED AS TO FORM: "City" CITY OF TUSTIN, a municipal corporation By• Christine Shingleton Director of Community Development James G. Rourke City Attorney "Consultant" HUNSAKER AND ASSOCIATES IRVINE, INCORPORATED By. • Richard Hunsaker President -10- EXHIBIT "A" PROPOSAL and SCOPE OF SERVICES Attached hereto are: 1) Consultant's Proposal; and 2) Scope of Services -11- Scope of Services The following is the itemized scope of services which the Consultant is expected to perform as a part of this Agreement. Grading and Infrastructure Plan Review 1. Review plans, specifications and calculations for compliance with the most recently enacted rules and regulations of federal, state and local governing authorities. Included are: a. Tustin City Code,including 1. Construction Standards for Private Streets, Storm_ Drains and On-site Private Improvements 2. Grading and Excavation Ordinance 3. Floodplain Management Ordinance b. Orange County Environmental Management Agency C. Federal Environmental Management Agency (FEMA) Floodplain Management 2. Grading plan review shall include on-site grading, hydrology and hydraulic calculations, drainage plans and erosion control plans. 3. Provide two copies of the plan check correction list for each project reviewed. The list shall indicate all items needed to be changed for the plans to be in compliance with all rules and regulations. Provide necessary communication with the applicant to assure understanding of all corrections items. Provide necessary rechecks until the plans are. in compliance. The Consultant's plan review manager shall sign a statement that plans approved by the Consultant comply with all requirements and standard engineering practice. 4. Attend meetings related to plan review at City Hall. 5. Pick-up and deliver plans for review. 6. Provide a monthly plan check status report to the City of all assigned plans. 7. Upon completion of a grading or infrastructure plan review, the Consultant shall send a questionnaire to the applicant requesting comments on the performance of the Consultant. Copies of all questionnaires returned shall be given to the City on a monthly basis. The text of the questionnaire shall be approved by the City within thirty (30) days of the execution of this Agreement. 8. A copy of all plan check correction sheets used in the performance of services shall be submitted to the City within five (5) working days of the execution of this Agreement for -12- comparison to state regulations and Tustin City Code. Consultant shall amend their correction sheets) as necessary to be consistent with City codes. Grading and Infrastructure Inspection 1. Provide inspectors qualified in grading and infrastructure inspections. 2. Provide accurate daily inspection sheets. Note all discrepancies, cite code violations, and issue correction or stop -work notices. -13- EXHIBIT "B" SPECIAL REQUIREMENTS 1. That Section 1.9 shall be added to read: 1.9 Conflict of Interest. In order to assure City that Consultant is not subject to any conflict of interest, Consultant affirms that while Agreement is in effect, neither Consultant nor any of its officers or employees will accept work from or provide services for any company whose project Consultant is plan checking or inspecting for City. Consultant also affirms that while Agreement is in effect, Consultant shall not accept a project from City if the project owner or applicant is a client of Consultant or its officers or employees. If either City or Consultant thinks there may be a conflict of interest involving any project, Consultant shall immediately return plans or remove inspector from project. In the event of uncertainty about whether a potential conflict of interest exists, Consultant shall advise Contract officer whose decision shall be final. 2. That Section 2.1 shall be revised to read: 2.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, Consultant shall be compensated in accordance with the Schedule of Compensation attached hereto as Exhibit "C". 3. That Section 2.3(B) shall be revised to read: 2.3(B) To provide for services not included in this Agreement which are within the expertise of the Consultant's profession. 4. That Section 2.4 shall be revised to read: 2.4 Payment for Changes. Approved change orders shall be compensated at an agreed upon rate and based on the Schedule of Compensation or Consultant's Personnel Hourly Rates, attached hereto as Exhibit "C". 5. That Section 7.6 Liquidated Damages shall be deleted. -14- EXHIBIT "C" SCHEDULE OF COMPENSATION and PERSONNEL HOURLY RATES Attached hereto are: 1) Schedule of Compensation; and 2) Personnel Hourly Rates -15- SCHEDULE OF COMPENSATION The following is the itemized schedule of compensation which the Consultant shall be compensated for the scope of services as a part of this Agreement. The Building Division Fee Schedule, as adopted by City Council Resolution No. 87-138, is the basis for determining the plan check fee collected by City. Grading and Infrastructure Plan Review For standard review of grading, drainage and erosion control projects: 75% of the plan check fee collected by City for projects less than 5 acres on size. 65% of the plan check fee collected by City for projects of 5 to 25 acres in size. for projects larger than 25 acres, the plan check fee will be agreed upon by City and Consultant prior to start of work. For standard review of infrastructure projects: 75% of the plan check fee collected by City. Grading and Infrastructure Inspection For a.qualified grading or infrastructure inspector: $64.00 per hour (4 hour minimum), plus on-the-job mileage of $0.30 per mile. -16- PERSONNEL HOURLY RATES The Consultant's personnel hourly rates shall not change from the attached schedule without approval from City. -17- EXHIBIT "D" SCHEDULE OF PERFORMANCE 1. Plan check services shall be performed within seven (7) _working days maximum to within fourteen (14) working days maximum, depending on the complexity of the project. The actual project due date will be established by City for each project before it is released to the Consultant. The time for performance shall begin the same day a request for plan pick- up is made by City. Projects shall be picked -up within one (1) working day of the request. Reviewed projects and their correction sheets shall be returned to City for release to the applicant within one (1) working day of completion, but o later than the project due date. Rechecks shall be completed within seven (7) working days maximum. 2. The pick-up and delivery of projects from and to City shall be at no additional expense to City. 3. If an applicant requests plan check issues be resolved in person, an appointment shall be arranged for by the Consultant within one (1) working day, shall include the applicant, Consultant and City, and shall be held at City Hall. The meeting shall be at no additional expense to the applicant nor City. 4. Contract Officer reserves the right to request "fast tracking" of a project. The project shall be reviewed by Consultant at a faster than normal plan review schedule. 5. Inspection services shall be performed within one (1) working day of notice, unless otherwise agreed to by Contract Officer. 6. For special service projects and reports, a Schedule of Performance shall be agreed to by Consultant and City, and shall be incorporated into this Agreement upon execution. -18- CONSULTANT SERVICES AGREEMENT This Agreement for Contract Services (herein "Agreement"), is made and entered into by and between the CITY OF TUSTIN, a municipal corporation ("City"), and MELAD AND ASSOCIATES ("Consultant"). WHEREAS, Consultant is qualified to provide the necessary services and has agreed to provide such services; and WHEREAS, Consultant has submitted to City a proposal, dated July 8, 1991, a copy of which is attached hereto as Exhibit "A", and is by this reference incorporated herein as though set forth in full hereat ("Proposal"). NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein, City agrees to employ and does hereby employ Consultant and Consultant agrees to provide consulting services as follows: 1. SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the "Proposal and Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, (the "services" or the "work"). Consultant warrants that all services shall be performed in a competent, professional and satisfactory manner in accordance with all standards prevalent in the industry. 1.2 Consultant's Proposal. The scope of services shall include all the terms contained in Exhibit "A". In the event of any inconsistency between the terms contained in Exhibit "A" and the terms set forth in the main body of this Agreement, the terms set forth in the main body of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all laws, ordinances, resolutions, statutes, rules, and regulations of the City of Tustin and of any federal, state or local governmental agency of competent jurisdiction. 1.4 Licenses and Permits. Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. 1.5 Familiarity with Work. By executing this Contract, Consultant warrants that Consultant (a) has thoroughly -1- investigated and considered the work to be performed, (b) has investigated the site of the work and become fully acquainted with the conditions there existing, (c) has carefully considered how the work should be performed, and (d) fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. Should the Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by the City, Consultant shall immediately inform City of such fact and shall not proceed with any work except at Consultant's risk until written instructions are received from the Contract Officer. 1.6 Care of Work. Consultant shall adopt and follow reasonable procedures and methods during the term of the Agreement to prevent loss or damage to materials, papers or other components of the work, and shall be responsible for all such damage until acceptance of the work by City, except such loss or damages as may be caused by City's own negligence. 1.7 Additional Services. Consultant shall perform services in addition to those specified in the Proposal when directed to do so by the Contract officer, provided that Consultant shall not be required to perform any additional services without compensation. Any additional compensation not exceeding ten percent (10%) of the Contract sum must be approved in writing by the Contract Officer. Any greater increase must be approved in writing by the City Manager. 1.8 Special Requirements. Any additional terms and conditions of this Agreement, are set forth in Exhibit "B" hereto, "Special Requirements" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provision or provisions of this Agreement, the provisions of Exhibit "B" shall govern. 2. COMPENSATION 2.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, the Consultant shall be compensated and reimbursed only such amounts as are prescribed in the Proposal. 2.2 Method of Payment. In any month in which Consultant wishes to receive payment, Consultant shall no later than the first working day of such month, submit to City in the form approved by City's Director of Finance, an invoice for services rendered prior to the date of the invoice. City shall pay Consultant for all expenses stated thereon which are approved by City consistent with this Agreement, no later than the last working day of said month. -2- 2.3 Changes. In the event any change or changes in the work is requested by City, the parties hereto shall execute an addendum to this Agreement, setting forth with particularity all terms of such addendum, including, but not limited to, any additional Consultant's fees. Addenda may be entered into: A. To provide for revisions or modifications to documents or other work product or work when documents or other work product or work is required by the enactment or revision of law subsequent to the preparation of any documents, other work product or work; B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in .Consultant's profession. 2.4 Payment for Changes. Approved change orders shall be compensated. at the personnel hourly rates prescribed in Exhibit "C" hereto (where applicable, rates shall apply to travel time). 2.5 Statement of Costs. Pursuant. to the provisions of California Government Code Section 7550, the total amount expended by City relating to the preparation of any report or documents prescribed herein shall be set forth within the final- edition thereof, in a separate section, in a statement substantially as follows: Pursuant to California Government Code Section 7550 the City of Tustin expended the total amount of $ for the preparation of this report and/or documents. 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed within any time periods prescribed in any Schedule of Performance attached hereto marked Exhibit "D". Extension of any time period specified in the Exhibit "D" must be approved in writing by the Contract officer. 3.3 Force Mai eure . Time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant,. including, but not restricted to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine -3- restrictions, riots, strikes, freight embargoes, and unusually severe weather if the Consultant shall within ten (10) days of the commencement of such condition notify the Contract Officer who shall thereupon ascertain the facts and the extent of any necessary delay, and extend the time for performing the services for the period of the enforced delay when and if in the Contract Officer's judgment such delay is justified, and the Contract Officer's determination shall be final and -conclusive upon the parties to this Agreement. 3.4 Term. Unless earlier terminated in accordance with Section 7.7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year from date hereof. 4. COORDINATION OF WORK 4.1 Representative of Consultant. The following Principal of the Consultant is hereby designated as being the principal and representative of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Jose D. Melad. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. The foregoing Principal may not be changed by Consultant without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be the Director of Community Development of City unless otherwise designated in writing by the City Manager of City. It shall be the Consultant's responsibility to keep the Contract Officer fully informed of the progress of the performance of the services and Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. -4- 4.4 Independent Consultant. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent consultant of City and shall remain at. all times as to City a wholly independent consultant with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. 5. INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. Consultant shall procure and maintain, at its cost, and submit concurrently with its execution of this Agreement, public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Consultant's performance under this Agreement. Consultant shall also carry workers' compensation insurance in accordance with California worker's compensation laws. Such insurance shall be kept in effect during the term of this Agreement and shall not be cancelable without thirty. (3 0 ) days written notice to City of any proposed cancellation. A certificate evidencing the foregoing and designating City as an additional named insured shall be delivered to and approved by the City prior to commencement of the services hereunder. The procuring of such insurance and the delivery of policies or certificates evidencing the same shall not be construed as a limitation of Consultant's obligation to indemnify the City, its consultants, officers, and employees. The amount of insurance required hereunder shall include comprehensive general liability, personal injury and automobile liability with limits of at least One Million Dollars ($1,000,000) combined single limit per occurrence and professional liability coverage with limits of at least Five Hundred Thousand Dollars ($500,000). 5.2 Indemnification. The Consultant shall defend, indemnify and hold harmless the City, its officers and employees, from and against any and all actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorneys' fees, for injury to or death of person or persons, for damage to property, including property owned by City, and for errors and omissions committed by Consultant, its officers, employees and agents, arising out of or related to Consultant's performance under this Agreement, except for such loss as may be caused by City's own negligence or that of its officers or employees. 6. RECORDS AND REPORTS 6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the -5- performance of the services required by this Agreement as the Contract Officer shall require. 6.2 Records. Consultant shall keep such books and records as shall be necessary to properly perform the services required by this Agreement and enable the Contract officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit and make records and transcripts from such records. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials hereunder. Consultant may retain copies of such documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. 6.4 Release of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7. ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as . the injuring party cures any default within ninety (90) days after service of the notice, or if the cure of the default is commenced within thirty (30) days after service of said notice and is cured within a reasonable time after commencement; provided that if the default is an immediate danger to the health, safety and general welfare, the City may take immediate action under Section 7.5 of this Agreement. Compliance with the -- provisions of this Section shall be a condition precedent to any legal action, and such compliance shall not be a waiver of any party' s right to take legal action in the event that the dispute is not cured. 7.3 Waiver. No delay or omission in the exercise of any right or remedy of a non -defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.5 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment or any other remedy consistent with the purposes of this Agreement. 7.6 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Consultant and its sureties shall be liable for and shall pay to City the sum of Dollars ($ ) as liquidated damages for each working day of delay in the performance of any service required hereunder. The City may withhold from any monies payable on account of services performed by the Consultant any accrued liquidated damages. 7.7 Termination Prior to Expiration of Term. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant, except that where termination is due to the fault of the Consultant and constitutes an immediate danger to health, safety and general welfare, the period of notice shall be such shorter time as may be appropriate. Upon receipt of the notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract officer. Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the.Contract Officer thereafter. -7- 7.8 Termination for Default of Consultant. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated, provided that the City shall use reasonable efforts to mitigate damages, and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed to City. 7.9 Attorneys Fees. If either party commences an action against the other party arising - out of or in connection with this Agreement or it subject matter, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of suit from the losing party. 8. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION 8.1 Non -Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Consultant, or any successor -in -interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry. Consultant shall take affirmative action to insure that applicants and employees are treated without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. WC 9. MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre -paid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if mailed as provided in this Section. To City: CITY OF TUSTIN 15222 Del Amo Avenue Tustin, CA 92680 Attention: Director of Community Development (Contract Officer) To Consultant: Melad and Associates 8907 Warner Avenue, suite 161 Huntington Beach, CA 92647 Attention: Jose D. Melad 9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 9.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. Dated: APPROVED AS TO FORM: James G. Rourke City Attorney "City" CITY OF TUSTIN, a municipal corporation By: • Christine Shingleton Director of Community Development "Consultant" Melad and Associates By. Jose D. Melad President -10- EXHIBIT "A" PROPOSAL and SCOPE OF SERVICES Attached hereto are: 1) Consultant's Proposal; and 2) Scope of Services Dick Scope of Services The following is the itemized scope of services which the Consultant is expected to perform as a part of this Agreement. Building Plan Review 1. Review plans, calculations and specifications for compliance with the most recently enacted rules and regulations of federal, state and local governing authorities. Included are: a. Tustin City Code Building Regulations Fire Protection Regulations b. California State Building Code (Title 24, parts 1-9, 12) 2. Provide two copies of the plan check correction list for each project reviewed. The list shall indicate all items needed to be changed for the plans to be in compliance with all rules and regulations. Provide necessary communication with the applicant to assure understanding of all correction items. Provide necessary rechecks until the construction documents are in compliance. The Consultant's plan review manager shall sign a statement that plans approved by the Consultant comply with all requirements and standard engineering practice. 3. Attend meetings related to plan review at City Hall. 4. Pick-up and deliver plans for review. 5. Provide a monthly plan check status report to the City of all assigned plans. 6. Upon completion of a building plan review, the Consultant shall send a questionnaire to the applicant requesting comments on the performance of the Consultant. Copies of all questionnaires returned shall be given to the City on a monthly basis. The text of the questionnaire shall be approved by the City within thirty (30) days of the execution of this Agreement. 7. A copy of all plan check correction sheets used in the performance of services shall be submitted to the City within five ( 5 ) working days of the execution of this Agreement for comparison to state regulations and Tustin City Code. Consultant shall amend their correction sheet(s) as necessary to be consistent with City codes. 0 W Building Inspection 1. Provide ICBG Certified Building Inspectors to inspect buildings and associated structures under construction for compliance with approved plans and specifications. Inspectors are responsible for checking including: a. Building b. Mechanical C. Plumbing d. Electrical e. Energy Conservation f. Handicapped Accessibility all phases of construction 2. Provide accurate daily inspection sheets. Note all discrepancies, cite code violations, and issue correction or stop -work notices. Landscape and Irrigation Plan Review 1. Review plans, calculations and specifications for compliance with the most recently enacted rules and regulations of federal, state and local governing authorities. Included are: a. Tustin City Code b. Tustin Landscape Improvement Standards 2. Provide two copies of the plan check correction list for each project reviewed. The list shall indicate all items needed to be changed for the plans to be in compliance with the rules and regulations. Provide necessary communication with the applicant to assure understanding of all correction items. Provide necessary rechecks until the plans are in compliance. The Consultant's plan review manager shall sign a statement that plans approved by the Consultant comply with all requirements.and standard.engineering practice. 3. Attend meetings related to plan review at City Hall. 4. Pick-up and deliver plans for review. 5. Provide monthly plan check status report to City of all assigned plans. 6. Upon completion of a landscape or irrigation plan review, the Consultant shall send a questionnaire to the applicant requesting comments on the performance of the Consultant. Copies of all questionnaires returned shall be given to the City on a monthly basis. The text of the questionnaire shall be approved by the City within thirty (30) days of the execution of this Agreement. -13- 7. A copy of all plan check correction sheets used in the performance of services shall be submitted to the City within five ( 5 ) working days of the execution of this Agreement for comparison to state regulations and Tustin City Code. Consultant shall amend their correction sheet(s) as necessary to be consistent with City codes. -14- EXHIBIT "B" SPECIAL REQUIREMENTS 1. That Section 1.9 shall be added to read: 1.9 Conflict of Interest. In order to assure City that Consultant is not subject to any conflict of interest, Consultant affirms that while Agreement is in effect, neither Consultant nor any of its officers or employees will accept work from or provide services for any company whose project Consultant is plan checking or inspecting for City. Consultant also affirms that while Agreement is in effect, Consultant shall not accept a project from City if the project owner or applicant is a client of Consultant or its officers or employees. If either City or Consultant thinks there may be a conflict of interest involving any project, Consultant shall immediately return plans or remove inspector from project. In the event of uncertainty about whether a potential conflict of interest exists, Consultant shall advise Contract officer whose decision shall be final. 2. That Section 2.1 shall be revised to read: 2.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, Consultant shall be compensated in accordance with the Schedule of Compensation attached hereto as Exhibit "C". 3. That Section 2.3(B) shall be revised to read: 2.3(B) To provide for services not included in this Agreement which are within the expertise of the Consultant's profession. 4. That Section 2.4 shall be revised to read: 2.4 Payment for Changes. Approved change orders shall be compensated at an agreed upon rate and based on the Schedule of Compensation or Consultant's Personnel Hourly Rates, attached hereto as Exhibit "C". 5. That Section 7.6 Liquidated Damages shall be deleted. -15- EXHIBIT "C" SCHEDULE OF COMPENSATION and PERSONNEL HOURLY RATES Attached hereto are: 1) Schedule of Compensation; and 2) Personnel Hourly Rates -16- SCHEDULE OF COMPENSATION The following is the itemized schedule of compensation which the Consultant shall be compensated for the scope of services as a part of this Agreement. The Building Division Fee Schedule as adopted by City Council Resolution No. 87-138, is the basis for determining plan check fees collected by City. Building Plan Review For standard plan review: 70% of the plan check fee collected by City. For repetitive plan review, such as on tracts, 25% of the plan check fee collected by the City for each building that is a duplicate. Included in the repetitive plan review is construction observation of models units by Consultant, to assist City inspectors in discovering and eliminating deficiencies prior to the start of production units. For architectural plan review only: 25% of the plan check fee collected by City. For structural plan review only: 45% of the plan check fee collected by City. For energy conservation plan review only: 15% of the plan check fee collected by City. For electrical, including related energy conservation, plan review only: 15% of the plan check fee collected by City. For mechanical, including related energy conservation, plan review only: 15% of the plan check fee collected by City. For plumbing plan review only: 15% of the plan check fee collected by City. Included in the above fees are pick-up and delivery of plans; a weekly one-hour meeting with City; and, consultation on related matters. Building Inspection For an ICBO Certified Combination Building Inspector: $35.00 per hour (4 hour minimum), plus on-the-job mileage of $0.30 per mile. -17- Landscape and Irrigation Plan Review For standard review of landscape and/or irrigation projects: 50% of the plan check fee collected by City. -18- PERSONNEL HOURLY RATES The Consultant's personnel hourly rates shall not change from the attached schedule without approval from City. -19- EXHIBIT "D" SCHEDULE OF PERFORMANCE 1. Plan check services shall be performed within seven (7) working days maximum to within fourteen (14) working days maximum, depending on the complexity of the project. The actual project due date will be established by City for each project before it is released to the Consultant. The time for performance shall begin the same day a request for plan pick- up is made by City. Projects shall be picked -up within one (1) working day of the request. Reviewed projects and their correction sheets shall be returned to City for release to the applicant within one (1) working day of completion, but o later than the project due date. Rechecks shall be completed within seven (7) working days maximum. 2. The pick-up and delivery of projects from and to City shall be at no additional expense to City. 3. If an applicant requests plan check issues be resolved in person, an appointment shall be arranged for by the Consultant within one (1) working day, shall include the applicant, Consultant and City, and shall be held at City Hall. The meeting shall be at no additional expense to the applicant nor City. 4. Contract officer reserves the right to request "f ast tracking" of a project. The project shall be reviewed by Consultant at a faster than normal plan review schedule. 5. Inspection services shall be performed within one (1) working day of notice, unless otherwise agreed to by Contract Officer. 6. For special service projects and reports, a Schedule of Performance shall be agreed to by Consultant and City, and shall be incorporated into this Agreement upon execution. -20- CONSULTANT SERVICES AGREEMENT This Agreement for Contract Services (herein "Agreement"), is made and entered into by and between the CITY OF TUSTIN, a municipal corporation ("City"), and PACESETTER MUNICIPAL SERVICES, Incorporated ("Consultant"). WHEREAS, Consultant is qualified to provide the necessary services and has agreed to provide such services; and WHEREAS, Consultant has submitted to City a proposal, dated July 11, 1991 (updated September 5, 1991), a copy of which is attached hereto as Exhibit "A", and is by this reference incorporated herein as though set forth in full hereat ("Proposal"). NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein, City agrees to employ and does hereby employ Consultant and Consultant agrees to provide consulting services as follows: 1. SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms - and conditions of this Agreement, Consultant shall provide those. services specified in the "Proposal and Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, (the "services" or the "work"). Consultant warrants that all services shall be performed -in a competent, professional and satisfactory manner in accordance with all standards prevalent in the industry. 1.2 Consultant's Proposal. The scope of services shall include all the terms contained in Exhibit "A". In the event of any inconsistency between the terms contained in Exhibit "A" and the terms set forth in the main body of this -Agreement, the terms set forth in the main body of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all laws, ordinances, resolutions, statutes, rules; and regulations of the City of Tustin and of any federal, state or local governmental agency of competent jurisdiction. 1.4 Licenses and Permits. Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. -1- 1.5 Familiarity with Work. By executing this Contract, Consultant warrants that Consultant (a) has thoroughly investigated and considered the work to be performed, (b) has investigated the site of the work and become fully acquainted with the conditions there existing, (c) has carefully considered how the work should be performed, and (d) fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. Should the Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by the City, Consultant shall immediately inform City of such fact and shall not proceed with any work except at Consultant's risk until written instructions are received from the Contract officer. 1.6 Care of Work. Consultant shall adopt and follow reasonable procedures and methods during the term of the Agreement to prevent loss or damage to materials, papers or other components of the work, and shall be responsible for all such damage until acceptance of the work by City, except such loss or damages as may be caused by City's own negligence. 1.7 Additional Services. Consultant shall perform services in addition to those specified in the Proposal when directed to do so by the Contract Officer, provided that Consultant shall not be required to perform any additional services without compensation. . Any additional compensation not exceeding ten percent (10%) of the Contract sum must be approved in writing by the Contract Officer. Any greater increase must be approved in writing by the City Manager. 1.8 Special Requirements. Any additional terms and conditions of this Agreement, are set forth in Exhibit "B" hereto, "Special Requirements" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provision or provisions of this Agreement, the provisions of Exhibit B shall govern. 2. COMPENSATION 2.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, the Consultant shall be compensated and reimbursed only such amounts as are prescribed in the Proposal. 2.2 Method of Payment. In any month in which. Consultant wishes to receive payment, Consultant shall no later than the first working day of such month, submit to City in.the form approved by City's Director of Finance, an invoice for services rendered prior to the date of the invoice. City shall pay Consultant for all expenses stated thereon which are approved by City consistent with this Agreement, no later than the last working day of said month. :►= - 2.3 Changes. In the event any change or changes in the work is requested by City, the parties hereto shall execute an addendum to this Agreement, setting forth with particularity all terms of such addendum, including, but not limited to, any additional Consultant's fees. Addenda may be entered into: A. To provide for revisions or modifications to documents or other work product or work when documents or other work product or work is required by the enactment or revision of law subsequent to the preparation of any documents, other work product or work; B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant's profession. 2.4 Payment for Changes. Approved change orders shall be compensated at the personnel hourly rates prescribed in Exhibit "C" hereto (where applicable, rates shall apply to travel time). 2.5 Statement of Costs. Pursuant to the provisions of California Government Code Section 7550, the total amount expended by City relating to the preparation of any report or documents prescribed herein shall be set forth within the final edition thereof, in a separate section, in a statement substantially as follows: Pursuant to California Government Code Section 7550 the City of Tustin expended the total amount of $ for the preparation of this report and/or documents. 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed within any time periods prescribed in any Schedule of Performance attached hereto marked Exhibit "D". Extension of any time period specified in the Exhibit "D" must be approved in writing by the Contract officer. 3.3 Force Majeure. Time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine -3- restrictions, riots, strikes, freight embargoes, and unusually severe weather if the Consultant shall within ten(10) days of the Officer who commencement of -such condition notify the Contract shall thereupon ascertain the facts and the extent of any necessary delay, and extend the time for performing the services for the period of the enforced delay when and if in the Contract officer's judgment such delay is justified, and the Cont theparties is determination shall, be final and conclusive upon this Agreement. 3.4 Term. Unless earlier terminated in accordance with Section 7.7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year from date hereof. 4. COORDINATION OF WORK 4.1 Representative of Consultant. The following Principal of the Consultant is hereby designated as being the principal and representative of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Joseph H. Buzzone. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting -sufficient time to personally supervise the services hereunder. The foregoing Principal may not be changed by Consultant without the express written approval of City. 4.2 Contract Off icer. The Contract officer shall be the Director of Community Development of City unless shall otherwise the designated in writing by the City Manager of City. Consultant's responsibility to keep the Contract officer fully informed of the progress of the performance of the services and Consultant shall refer any decisions which must be made by City to the Contract officer. Unless otherwise specified a a if i a royal hereinot the approval of City required hereunder shall m Pp Contract officer. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. -4- nor 4.4 Independent Consultant. o ert the manner Y modethe aor of its employees shall have any control means by which Consultant, its agents or employees perform the services required herein, except as otherwise, set forth herein herein. as an Consultant shall perform all services required independent consultant of City and shall remain at all times as to City a wholly independent consultant with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees. are agents or employees of City. 5. INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. Consultant shall procure and maintain, at its cost, and submit concurrently with its execution of this Agreement, public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Consultant's performance under this Agreement. Consultant shall also carry workers' compensation insurance in accordance with California worker's compensation Such insurance shall be kept in effherof this Agreement and shall not be cancelable without.thirty (30) days written notice to City of any proposed cancellation. A certificate evidencing the foregoing and designating City as an additional named insured shall be delivered to and approved by the City prior insurance commencement me ttof the services hereunder. The procuring of such he delivery of policies or certificates evidencing the same shall not be construed as a limitation of Consultant'.s obligation to The indemnify the City, its consultants, shallsincludemcomprehensive amount of insurance required hereunder general liability, personal injury and automobile liability with limits of at least One Million Dollars ($1,000,000) combined single limit per occurrence and professional liability coverage with limits of at least Five Hundred Thousand Dollars ($500,000). 5.2 Indemnification. The Consultant shall defend, indemnify and hold harmless the City, its officers and employees, from and against any and all actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorneys' fees, for injury to or death of person or persons, for damage to property, including property owned by City, and for errors and omissions committed 'by Consultant, its officers, employees and agents, arising out of or related hto Consultant's performance under this Agreement, except for caused by City's own negligence or that of its officers or employees. 6. RECORDS AND REPORTS 6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the -5- performance of the services required by this Agreement as the Contract Officer shall require. 6.2 Records. Consultant shall keep su theooks and services records as shall be necessary to properly perform required by this Agreement and enable the Contract Officer t Off icer evaluate the performance of suhtsoesuches. booksThe and records at all shall have full and free accessaudit and reasonable times, including the right to inspect, copy, make records and transcripts from s. 6.3 Ownership of Documents. All drawings, then materials specifications, reports, records, documents mancenof this Agreement shall prepared by Consultant in the pe be the property of City and shall be delivered, to City upon request of the Contract Officer or upon the termination of this employmentAgreement or and Consultant shall have no result of the exercise by Ciof its additional compensation as a r ts full rights or ownership of the documents and materials hereunder. Consultant may retain copies of such documents use the concepts for its own use. Consultant shall have an unrestricted rig embodied therein. 6.4 Release of Documents. All drawings, specifications, reports, records, documents and other materials prepared ared by Consultant in the performanceof services under this Agreement shall not be released publicly without the prior written approval of the Contract officer. 7. ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shallbece construed and interpreted both as to validWsyand ofntheostate of California. the parties in accordance with the la Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California or any other appropriate court in such county, and Consultant, covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any ,he injuring dis tarisg under this Agreement, the injured party o partin writing of its contentions by submitting al claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party cures any default cure ofwithin the ninety (90) days after service of the notice, or if e of said default is commenced within thirty (30) days after serommencement; notice and is cured within a reasonable time after c provided that if the default is an immediate danger to the health, safety and general welfare, the City may take immediate action under Section 7.5 of this Agreement. Compliance with the provisions of this Section shall be a te awaiver condition precedent i er of any legal action, and such compliance shall party' s right to take legal action in the event that the dispute is not cured. 7.3 Waiver. No delay or omission in the rise of any right or remedy of a non -defaulting party on any def ault ll impair such right or remedy or be construed o swaive or waiver. No consent. or approval of City shall be deemed t er unnecessary City's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be inn writing and shall not be awaiver of any other defaultg the same or any other provision of this Agreement. 7.4 Ri hts and Remedies are cumulative. bExcep with respect to rights and remedies expressly declared ve in this Agreement, the rights and remedies of the parties are ne or more of such cumulative and the exercise by either party the exercise by it, at the rights or remedies shall not preclude same or different times, of any other rights or remedies for thet same default or any other default by the other party. 7.5 Legal Action. In addition to any other rights or i in remedies, either party may take legal action, n lawor es fouity, to cure, correct or remedy any default, to recover g r any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment or any other remedy consistent with the purposes of this Agreement. 7.6 Liquidated Damages. Since thedetermination Agreement would actual damages for any delay in performance determine in the event of be extremely difficult or impractical a breach of this Agreement, the Consultant and its sureties shall be liable for and shall pay to City the sum of as Dollars ($ liquidated damages for each working day of delay in the performance of any service required hereunder.. The City may withhold from any monies payable on account of services performed by the Consultant any accrued liquidated damages. 7.7 Termination Prior to Expiration of Term. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant, except that where termination is due to the fault of the Consultant and constitutes an immediate danger to health, shall be such to e time as may be appropriate. Upon receipt o general welfare, the period of noti f the notice of termination, Consultant shall immediately cease all services hereunderexceptConsultant shall be specifically approved by the Contract officer. be entitled to compensation for all services any rendered prior to receipt of the notice of termination and Y services authorized by the Contract Officer thereafter. -7- 7.8 Termination for Default of Consultant. If termination is due to the failure of the Consultant r thelf ill its work and obligations under this Agreement, City may take o prosecute the same to completion by contract t the total or cst for and the Consultant shall be liable to the extent t completion of the services required hereunderCity the use compensation herein stipulated, provided that Y reasonable efforts to mitigate damages, and f is set-off withhold and payments to the Consultant for the purpose payment of the amounts owed to City. 7.9 Attorneys Fees. If either party commences an action against the other party arising out of or in connection with this Agreement or it subject matter, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of suit from the losing party. 8. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION 8.1 Non Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Consultant, or any successor -in -interest, may become in the event of any default or breach by the City or for any whi h due to the Consultant or its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, there shall assigns, and all persons claiming under or through them, be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry.Consultant shall take affirmative action to insure that applicants and employees are treated without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9. MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre -paid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if mailed as provided in this Section. To City: CITY OF TUSTIN 15222 Del Amo Avenue Tustin, CA 92680 Attention: Director (Contract To Consultant: of Community Development officer) Pacesetter Municipal Services, Incorporated. 14322 Main Street Hesperia, CA 92345-4636 Attention: Peter A. Hess 9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 9.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an. instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. WC IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. Dated: APPROVED AS TO FORM: "City" CITY OF TUSTIN, a municipal corporation By: Christine Shingleton Director of Community Development James G. Rourke City Attorney "Consultant" Pacesetter Municipal Services, Inc. By. Peter A. Hess Vice President -10- EXHIBIT "A" PROPOSAL and SCOPE OF SERVICES Attached hereto are: 1) Consultant's Proposal; and 2) Scope of Services Mime Scope of Services The following is the itemized scope of services which the Consultant is expected to perform as a part of this Agreement. Building Plan Review 1. Review plans, calculations and specifications for compliance with the most recently enacted rules and regulations of federal, state and local governing authorities. Included are: a. Tustin City Code Building Regulations Fire Protection Regulations b. California State Building Code (Title 24, parts 1-9, 12) 2. Provide two copies of the plan check correction list for each project reviewed. The list shall indicate all items needed to be changed for the plans to be in compliance with all rules and regulations. Provide necessary communication with the applicant to assure understanding of all correction items. Provide necessary rechecks until the construction documents are in compliance. The Consultant's plan review manager shall sign a statement that plans approved by the Consultant comply with all requirements and standard engineering practice. 3. Attend meetings related to plan review at City Hall. 4. Pick-up and deliver plans for review. 5. Provide a monthly plan check status report to the City of all assigned plans. 6. Upon completion of a building plan review, the Consultant shall send a questionnaire to the applicant requesting comments on the performance of the Consultant. Copies of all questionnaires returned shall be given to the City on a monthly basis. The text of the questionnaire shall be approved by the City within thirty (30) days of the execution of this Agreement. 7. A copy of all plan check correction sheets used in the performance of services shall be submitted to the City within five ( 5 ) working days of the execution of this Agreement for comparison to state regulations and Tustin City' Code. Consultant shall amend their correction sheets) as necessary to be consistent with City codes. -12- Building Inspection 1. Provide ICBG Certified Building Inspectors to inspect buildings and associated structures under construction for compliance with approved plans and specifications. Inspectors are responsible for checking all phases of construction including: a. Building b. Mechanical C. Plumbing d. Electrical e. Energy Conservation f. Handicapped Accessibility 2. Provide accurate daily inspection sheets. Note all discrepancies, cite code violations, and issue correction or stop -work notices. Grading and Infrastructure Plan Review 1. Review plans, specifications and calculations for compliance with the most recently enacted rules and regulations of federal, state and local governing authorities. Included are: a. Tustin City Code,including 1. Construction Standards for Private Streets, Storm Drains and On-site Private Improvements 2. Grading and Excavation Ordinance 3. Floodplain Management Ordinance b. Orange County Environmental Management Agency C. Federal Environmental Management Agency (FEMA) Floodplain Management 2. Grading plan review shall include on-site grading, hydrology and hydraulic calculations, drainage plans and erosion control plans. 3. Provide two copies of the plan check correction list for each project reviewed. The list shall indicate all items needed to be changed for the plans to be in compliance with all rules and regulations. Provide necessary communication with the applicant to assure understanding of all corrections items. Provide necessary rechecks until the plans are in compliance. The Consultant's plan review manager shall sign a statement that plans approved by the Consultant comply with all requirements and standard engineering practice. 4. Attend meetings related to plan review at City Hall. 5. Pick-up and deliver plans for review. 6. Provide a monthly plan check status report to the City of all assigned plans. -13- 7. Upon completion of a grading or infrastructure plan review, the Consultant shall send a questionnaire to the applicant requesting comments on the performance of the Consultant. Copies of all questionnaires returned shall be given to the City on a monthly basis. The text of the questionnaire shall be approved by the City within thirty (30) days of the execution of this Agreement. 8. A copy of all plan check correction sheets used in the performance of services shall be submitted to the City within five ( 5) working days of the execution of this Agreement for comparison to state regulations and Tustin City Code. Consultant shall amend their correction sheets) as necessary to be consistent with City codes. Grading and Infrastructure Inspection 1. Provide inspectors qualified in grading and infrastructure inspections. 2. Provide accurate daily inspection sheets. Note all discrepancies, cite code violations, and issue correction or stop -work notices. Landscape and Irrigation Plan Review 1. Review plans, calculations and specifications for compliance with the most recently enacted rules and regulations of federal, state and local governing authorities. Included are: a. Tustin City Code b. Tustin Landscape Improvement Standards 2. Provide two copies of the plan check correction list for each project reviewed. The list shall indicate all items needed to be changed for the plans to be in compliance with the rules and regulations. Provide necessary communication with the applicant to assure understanding of all correction items. Provide necessary rechecks until the plans are in compliance. The Consultant's plan review manager shall sign a statement that the plans approved by the Consultant comply with all requirements and standard engineering practice. 3. Attend meetings related to plan review at City Hall. 4. Pick up and deliver plans for review. 5. Provide monthly plan check status report to City of all assigned plans. 6. Upon completion of a landscape or irrigation plan review, the Consultant shall send a questionnaire to the applicant requesting comments on the performance of the Consultant. -14- Copies of the questionnaires returned shall be given to the stionnaire shall City on a monthly basis. The text of the que be approved by the City within thirty (3o) days of the execution of this Agreement. 7. A copy of all plan check correction sheets used in the performance of services shall be submitted to the City within five ( 5 ) working days of the execution of this Agreement comparison to state regulations and Tor Citynecessary Consultant shall amend their correction sheet(s) as to be consistent with City codes. -15- s EXHIBIT "B" SPECIAL REQUIREMENTS 1. That Section 1.9 shall be added to read: 1.9 Conflict of Interest. in order to assure City that Consultant is not subject to any conflict of interest, Consultant aff irms that while Agreement is in effect, neither Consultant nor any officers or employees will accept work from or provide services for any company whose project Consultant is plan checking or inspecting for City. Consultant also Consultant shall affirms that while Agreement is Citylnif effect,the proj ect owner or not accept a project from applicant is a client of Consultant °r its officers or employees. It either .CityConsultant athinks there may be projects, Consultant a conflict of interest involving Y shall immediately return plans or removeinspector whether project. In the event of uncertainty about potential conflict of interest exists, Consultant shall advise Contract officer whose decision shall be final. 2. That Section 2.1 shall be revised to read: 2.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, Consultant shall be compensated ched hereto accordance with the Schedule of Compensation attached as Exhibit "C". 3. That Section 2.3(B) shall be revised to read:- 2.3(B) ead:2.3(B) To provide for servicesnot included Consultant' profession. n this Agreement which are within the expertise of th profession. 4. That Section 2.4 shall be revised to read: 2.4 Payment for Changes. Approved change orders shall be compensated at an agreed upon rate and based on the Schedule of Compensation or Consultant's Personnel Hourly Rates, attached hereto as Exhibit "C". 5. That Section 7.6 Liquidated Damages shall be deleted. -16- EXHIBIT "C" SCHEDULE OF COMPENSATION and PERSONNEL HOURLY RATES Attached hereto are: 1) Schedule of Compensation; and 2) Personnel Hourly Rates -17- SCHEDULE OF COMPENSATION The following is the itemized schedule of compensation services wase a part the Consultant shall be compensated for the scope of of this Agreement. The Building Division Fee Schedule, as adopted by City Council Resolution No. 87-138, is the basis for determining the plan check fee collected by City. Building Plan Review For standard plan review: 60% of the plan check fee collected by City. For repetitive plan review, such as on tracts, 15% of the plan check collected by the City for each building that is a duplicate. Included in the desrepetitive tsplan review is construction observation o by Consultant, to assist City inspectors in discovering and eliminating deficiencies prior to the start of production units. Included in the above fees are pick-up and delivery of plans; a weekly one-hour meeting with City; and, consultation on related matters. Building Inspection For an ICBG Certified Combination Building Inspector: $35.00 per hour (4 hour minimum), plus on-the-job mileage of $0.30 per mile. Grading and Infrastructure Plan Review For standard review of grading, drainage and erosion control projects: 75% of the plan check fee collected by City. For standard review of infrastructure projects: 50% of the plan check fee collected by City. Grading and Infrastructure Inspection For a qualified grading or infrastructure inspector: $35.00 per hour (4 hour minimum), plus on-the-job mileage of $0.30 per mile. Landscape and Irrigation Plan Review For standard review of landscape and/or irrigation projects: 50% of the plan check review fee collected by City. PERSONNEL HOURLY RATES The Consultant's personnel hourly rates shall not change from the attached schedule without approval from City. -19- EXHIBIT "D" SCHEDULE OF PERFORMANCE 1. Plan check services shallbe performed within seven (7) working days maximum to within fourteen (14) working days maximum, depending on the complexity of the project. The actual project due date will be established by City for each project before it is released to the Consultant. forhe time pick- up shall begin the same day a requestplan up is made by City. Projects shall be pic ked-up ode is within and one (1) working day of the request. Reviewed eir correction sheets shall be returned to City for release to the applicant within one (1) working day of completion, but o later than the project due date. Rechecks shall be completed within seven (7) working days maximum. 2. Thepick-up and delivery of projects from and to City shall be at no additional expense to City. 3. If an- applicant requests plan check issues be resolved in person, an appointment shall be arranged for by the Consultant. within one (1) working day, shall include the applicant, Consultant and City, and shall be held at Cityapplicant Hall. The nor meeting shall be at no additional expense to the City. 4. Contract officer reserves the right to request " f ast tracking" ant at of a project. The project shall be reviewed y a faster than normal plan review schedule. 5. Inspection services shall be performed within one (1) working day of notice, unless otherwise agreed to by Contract Officer. 6. For special service projects and reports, a Schedule of Performance shall be agreed to by Consultant and city, and shall be incorporated into this Agreement upon execution. -20- CONSULTANT SERVICES AGREEMENT This Agreement for Contract Services (herein "Agreement"), is made and entered into by• and between the CITY OF TUSTIN, a • and GOVERNMENTAL PROFESSIONAL municipal corporation ("City"), SERVICES, INCORPORATED ("Consultant"). WHEREAS, Consultant is qualified to providea necessary services and has agreed to provide such ser; and WHEREAS, Consultant has submitted to City a proposal, dated July 51 1991, a copy of which is attached hereto u Exhibit forth 'in lf and is by this reference incorporated herein as though set full hereat (the "Proposal"). NOW, THEREFORE, in consideration of the premises and hereby agreements contained herein, City agrees to employ and d employ Consultant and Consultant agrees to provide consulting services as follows: 1. SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall services specified in��the "Proposal and Scope of Services" attached � hereto as Exhibit A and incorporated herein y thi warrantsef that erenail (the "services" or the "work,,). Consultant professional and services shall be performed in with all standards prevalent in satisfactory manner in accordance the industry. 1.2 Consultant's Proposal. The scope of services n Exhibit "All - In the event shall include all the terms contained emslcontained in Exhibit "A" and of any inconsistency between th the terms set forth in the main body of this Agreement, the terms set forth in the main body of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all laws, ces resolutions, statutes, rules, and regulations of the ordinances, City of Tustin and of any federal, state or local governmental agency of competent jurisdiction. 1.4 Licenses and Permits. Consultant shall obtain is sole cost and expense such licenses, permits and approvals as. may be required by law for the performance of the services required by this Agreement. executing this 1.5 Familiarity with Work. By. has thoroughly Contract, Consultant warrants that Consultant (a) -1- investigated and considered the work to be performed, (b) has investigated the site of the work and become fully cquainted with red how the the conditions there existi • dfullc) has carefully ) understands the facilities, work should be performed, an ( ) Y performance of the work difficulties and restrictions attending p under this Agreement. Should the Consultant disc ver a inherent Latent or in the unknown conditions materially differing from those work or as represented by the City, Consultant with shall ork except ediately inform City of such fact and shall not proceed any w at Consultant's risk until written instructions are received from the Contract officer. 1.6 Care of Work. Consultant shall of°theand reement reasonable procedures and methods ialsng papers or other components. to prevent loss or damage to materials, P P of the work, and shall be responsible for all such damage m ese until a acceptance of the work by City, except such loss or q s may be caused by City's own negligence. 1.7 Additional Services. Consultant shall perform services in addition to -those specified in the Proposal when directed to do so by the Contract officer, provided that Consultant shall not be required to perform any additional services without compensation. Any additional compensation exceedingnot itingten percent (10%) of the Contract sum must be approved in by the Contract officer. Any greater increase must be approved in writing by the City Manager. 1.8 Spin-Exhibit Requirements. Anyadditional terms and conditions of this Agreement, are set forth tor "Special Requirements and incorporateherein this ExhibitncB�� In the event of a conflict between theprovisions and any other provision or provisions of this Agreement, the provisions of Exhibit "B shall govern. 2. COMPENSATION 2.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, the Consultant shall be compensated and reimbursed only such amounts as are prescribed in the Proposal. 2.2 Method of Payment. In any month Consultant wishes to receive payment, Consultant shall no later than the f irst working day of such month, submit a ° City. in the into invoice for form approved by City's Director of Finance, services rendered prior to the date of the invoice. City shall pay Consultant for all expenses stated thereon which the approved by City consistent with this Agreement, no later than ast working day of said month. -2- 2.3 Changes. In the event any change or changes in the work is requested by City, the parties hereto shall execute an addendum to this Agreement, setting forth with particularity all terms of such addendum, including, but not limited to, any additional Consultant's fees. Addenda may be entered into: A. To provide for revisions or modifications to documents or other work product or work when documents or other work product or work is required by the enactment or revision of law subsequent to the preparation of any documents, other work product or work; B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant's profession. 2.4 Payment for Changes. Approved change orders shall be compensated at the personnel hourly rates prescribed in Exhibit "C" hereto (where applicable, rates shall apply to travel time). 2.5 Statement of Costs. Pursuant to the provisions of California Government Code Section 7550, the total amount expended by City relating to the preparation of any report or documents prescribed herein shall be set forth within the final edition thereof, in a separate section, in a statement substantially as follows: Pursuant to California Government Code Section 7550 the City of Tustin expended the total amount of $ for the preparation of this report and/or documents. 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. All services, rendered pursuant to this Agreement shall be performed within any time periods prescribed in any Schedule of Performance attached hereto marked Exhibit "D". Extension of any time period specified in the Exhibit "D" must be approved in writing by the Contract officer. 3.3 Force Majeure. Time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine -3- - restrictions riotso, strikes, freight embargoes, and unusually severe weather if the Consultant shall within ten (10) days of the commencement of such condition notify the Contract officer who shall thereupon ascertain the facts and the extent of any necessary delay, and extend the time for performing the services Off ceche period of the enforced delay when and if in the Con judgment such delay is justified, and the Contract parties is u determination shall be final and conclusive p P to this Agreement. 3.4 Term. Unless earlier terminated in accordance with Section 7.7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year from date hereof. 4. COORDINATION OF WORK 4.1 Representative of Consultant. The following Principal of the Consultant is hereby designated as being the principal and representative of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Norman K. Spielman. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Principal is a substantial inducement for City. to enter into this Agreement. Therefore, the foregoing Principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the evices hereunder. The foregoing Principal may notchanged Consultant without the express written approval of City. 4.2 Contract officer. The Contract officer shall be the Director of Community Development of City unless shall otherwise the designated in writing by the City Manager of City. Consultant's responsibility to keep the Contract officer fully informed of the progress of the performance of the services and Consultant shall refer any decisions which must be made by City to the Contract officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract officer. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. -4- 4.4 Independent Consultant. Neither the City nor any of its employees shall have any control over the to e a rieerformetor means by which Consultant, xc s agents otherwise set forth herein. he services required herein, e ptsan Consultant shall perform all services required herein as to independent consultant of hall withra n at all timonly such obligations as city a wholly independent consultant are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. 5. INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. Consultant shall procure and maintain, at its cost, and submit concurrently with its execution of this Agreement, public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Consultant's performance under this Agreement. Consultant shall also carry workers compensation insurance in accordance with California worker's compensationth s Agreement Such insurance shall be kept in effect thirtye term of (3 0 ) days written notice and shall not be cancelable withoutY to City of any proposed cancellation. A certificate evidencing the foregoing and designating City as an additional named insured shall be delivered to and approved by the City prior to nt of the services hereunder. The procuringof such the same shasurance d the ll not delivery of policies orcertificates of e,dencing Consult nt's obligation to be construed as a limitation indemnify the City, its consultants, officers, and employees. The amount of insurance required hereunder shall include comprehensive general liability, personal injury and automobile liability with limits of at least One Million Dollars ($1,000,000) combined single limit per occurrence and professional liability coverage with limits of at least Five Hundred Thousand Dollars ($500,000). 5.2 Indemnification. The Consultant shall defend, indemnify and hold harmless the City, its officers and employees, from and against any and all actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorneys' fees, injury for in'to or death of person or persons, for damage to property, including property owned by City, and for errors and omissions committed by Consultant, its officers, employees and agents, arising out of or related Consultant's as ay performance under this Agreement, except for such be caused by City's own negligence or that of its officers or employees. 6. RECORDS AND REPORTS 6.1 Reports. Consultant shall periodically prepare and submit to the Contract officer such reports concerning the -5- performance of the services required by this Agreement as the Contract officer shall require. 6.2 Records. Consultant shall keep such books and records as shall be necessary to properly perform the services required by this Agreement and enableservices. The Contract Cont act officer evaluate the performance of such se shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit and make records and transcripts from such records. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the ll be deli eyed erformance of this CityAgreement upon request be the property of city and sha of the Contract officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials hereunder. Consultant may retain copies of such doiuhtnto for use the conceptsits own use. Consultant shall have an unrestricted r g embodied therein. 6.4 Release of Documents. All drawings, specifications, reports, records, documents and underthis d servicesother materials prepared by Consultant in the performance of Agreement shall not be released publicly without the prior written approval of the Contract officer. 7. ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to tperformance of parties in accordance with the laws of the State of California.Californi Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 * Disputes. In the event of any dispute arising under this Agreement, the injured party shallnotify the injuring party in- writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party cures any default the within the ninety (90) days after service of the notice, or ife cure default is commenced within thirty (30) days after service commencements notice and is cured within a reasonable time after provided that if the default is an immediate danger to the health, safety and general welfare, the City may take immeda with tion under Section 7.5 of this Agreement. compliance - provisions of this Section shall be a condition precedent to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured. 7.3 Waiver. No delay or omission in the exercise of any right or remedy of a non -defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this' Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.5 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment or any other remedy consistent with the purposes of this Agreement. 7.6 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Consultant and its sureties shall be liable for and shall pay to City the sum of Dollars ($ ) as liquidated damages for each working day of delay in the performance of any service required hereunder. The City may withhold from any monies payable on account of services performed by the Consultant any accrued liquidated damages. 7.7 Termination Prior to Expiration of Term. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant, except that where termination is due to the fault of the Consultant and constitutes an immediate danger to health, safety and general welfare, the period of notice shall be such shorter time as may be appropriate. Upon receipt of the notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any .services authorized by the Contract Officer thereafter. -7- 7.8 Termination for Default of Consultant. if termination is due to the failure ofthe Consultant r thelfill its work and obligations under this Agreement, City may take over pletion by contract or otherwise,tal and the prosecute the same to comcost for Consultant shall be liable to the extent that the to completion of the services required hereunderexceeds use the compensation herein stipulated, provided that Y reasonable efforts to mitigate damages, and f ty may off withhold and payments to the Consultant for the purpose payment of the amounts owed to City. 7.9 Attorneys Fees. If either -party commences an action against the other party arising out of or in connection with this Agreement or it subject matattornethe s prevailing and party costs of suit l be entitled to recover reasonable Y from the losing party. 8. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION 8.1 Non Liability of City Officers and Employees. No officer or employee of City shall be personally liable vent of any Consultant, or any, successor-in-ine anst j, in the default or breach by the City or fory amount which may become due to the Consultant .or its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assignse and all persons claiming under or through them, that there of shall orbe no discrimination or segregation in the pe in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry• Consultant and employees are affirmative action to insure that applicants treated without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9. MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any other person ,shall be in writing and either served personally or sent by pre -paid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated forty-eight ( 48 ) hours from the time of mailing if mailed as provided in this Section. To City: CITY OF TUSTIN 15222 Del Amo Avenue Tustin, CA 92680 Attention: Director (Contract To Consultant: of Community Development officer) GOVERNMENTAL PROFESSIONAL SERVICES, INCORPORATED 17821 E. Seventeenth Street, suite 295 Tustin, CA 92680 Attention: Norman K. Spielman Executive Vice President 9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 9.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. cm IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. Dated: APPROVED AS TO FORM: "City" CITY OF TUSTIN, a municipal corporation By: Christine Shingleton Director of Community Development James G. Rourke City Attorney "Consultant" GOVERNMENTAL PROFESSIONAL SERVICES, INCORPORATED By: Norman K. Spielman Executive Vice President -10- EXHIBIT "A" PROPOSAL and SCOPE OF SERVICES Attached hereto are: 1) Consultant's Proposal; and 2) Scope of Services -11- Scope of Services The following is the itemized scope of services which the Consultant is expected to perform as a part of this Agreement. Grading and Infrastructure Plan Review 1. Review plans, specifications and calculations for compliance with the most recently enacted rules and regulations of federal, state and local governing authorities. Included are: a. Tustin City Code,including 1. Construction Standards for Private Streets, Storm Drains and On-site Private Improvements 2. Grading and'Excavation Ordinance 3. Floodplain Management Ordinance b. Orange County Environmental Management Agency C. Federal Environmental Management Agency (FEMA) Floodplain Management 2. Grading plan review shall include on-site grading, hydrology and hydraulic calculations, drainage plans and erosion control plans. 3. Provide two copies of the plan check correction list for each project reviewed.' The list shall indicate .all items needed to be changed for the plans to be in compliance with all rules and regulations. Provide necessary communication with the applicant to assure understanding of all corrections items.. Provide necessary rechecks until the plans are in compliance. The Consultant's plan review manager shall sign a statement that plans approved by the Consultant comply with all requirements and standard engineering practice. 4. Attend meetings related to plan review at City Hall. 5. Pick-up and deliver plans for review. 6. Provide a monthly plan check status report to the City of all assigned plans. 7. Upon completion of a grading or infrastructure plan review, the Consultant shall send a questionnaire to the applicant requesting comments on the performance of the Consultant. Copies of all questionnaires returned shall be given to the City on a monthly basis. The text of the questionnaire shall be approved by the City within thirty (30) days of the execution of this Agreement. 8. A copy of all plan check correction sheets used in the performance of services shall be submitted to the City within five (5) working days of the execution of this Agreement for -12- comparison to state regulations and Tustin City Code. Consultant shall amend their correction sheets) as necessary to be consistent with City codes. -13- EXHIBIT "B" SPECIAL REQUIREMENTS 1. That Section 1.9 shall be added to read: 1.9 Conflict of Interest. In order to assure City that Consultant is not subject to any conflict of interest, Consultant aff irms that while Agreement is in effect, neither Consultant nor any of its officers or employees will accept private work from or provide services for any company whose project Consultant is plan checking or inspecting for City. Consultant also affirms that while Agreement is in effect, Consultant shall not accept a project from City if the project owner or applicant is a client of Consultant or its officers or employees. If either City or Consultant thinks there may be a conflict of interest involving any project, Consultant shall immediately return plans or remove inspector from project. In the event of uncertainty about whether a potential conflict of interest exists, Consultant shall advise Contract officer whose decision shall be final. 2. That Section 2.1 shall be revised to read: 2.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, Consultant shall be compensated in accordance with the Schedule of Compensation attached hereto as Exhibit "C". 3. That Section 2.3(B) shall be revised to read: 2.3(B) To provide for services not included in this Agreement which are within the expertise of the Consultant's profession. 4. That Section 2.4 shall be revised to read: 2.4 Payment for Changes. Approved change orders shall be compensated at an agreed upon rate and based on the Schedule of Compensation or Consultant's Personnel Hourly Rates, attached hereto as Exhibit "C". 5. That Section 7.6 Liquidated Damages, shall be deleted. -14- EXHIBIT "C" SCHEDULE OF COMPENSATION and PERSONNEL HOURLY RATES Attached hereto are: 1) Schedule of Compensation; and 2) Personnel Hourly Rates -15- SCHEDULE OF COMPENSATION The following is the itemized schedule of compensation which the Consultant shall be compensated for the scope of services as a part of this Agreement. The Building Division Fee Schedule, as adopted by City Council Resolution No. 87-138, is the bapis for determining the plan check fee collected by City. Grading and Infrastructure Plan Review For standard review of grading, drainage and erosion control projects: 75% of the plan check fee collected by City. For standard review of infrastructure projects: 75% of the plan check fee collected by City. -16- PERSONNEL HOURLY RATES The Consultant's personnel hourly rates shall not change from the attached schedule without approval from City. -17- EXHIBIT "D" SCHEDULE OF PERFORMANCE 1. Plan check services shall be performed within seven (7) working days maximum to within fourteen (14) working days maximum, depending on the complexity of the project. The actual project due date will be established by City for each project before it is released to the Consultant. The time for performance shall begin the same day a request for plan pick- up is made by City. Projects shall be picked -up within one (1) working day of the request. Reviewed projects and their correction sheets shall be returned to City for release to the applicant within one (1) working day of completion, but o later than the project due date. Rechecks shall be completed within seven (7) working days maximum. 2. The pick-up and delivery of projects from and to City shall be at no additional expense to City. 3. If an applicant requests plan check issues be resolved in person, an appointment shall be arranged for by the Consultant within one (1) working day, shall include the applicant, Consultant and City, and shall be held at City Hall. The meeting shall be at no additional expense to the applicant nor City. 4. Contract Officer reserves the right to request "fast tracking" of a project. The project shall be reviewed by Consultant at a faster than normal plan review schedule. 5. Inspection services shall be performed within one (1) working day of notice, unless otherwise agreed to by Contract Officer. 6. For special service projects and reports, a Schedule of Performance shall be agreed to by Consultant and City, and shall be incorporated into this Agreement upon execution.