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HomeMy WebLinkAbout2013 CON ESGIL Corporation - Consulting ServicesAGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND ESGIL CORPORATION THIS AGREEMENT is entered into this 6TH day of August, 20l 3, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and ESGIL Corporation, a Plan view firm (the "CONSULTANT"). RECITALS WHEREAS, the CITY desires to employ a CONSULTANT to provide permit processing, plan reviews, construction inspections and code enforcement on -site and off -site services. WHEREAS, the CITY has determined that the CONSULTANT is a plan review firm and is qualified by experience and ability to perform the services desired by the CITY, and the CONSULTANT is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONSULTANT. The CITY agrees to engage the CONSULTANT, and the CONSULTANT agrees to perform the services set forth here in accordance with all terms and conditions contained herein. The CONSULTANT represents that all services shall be performed directly by the CONSULTANT or under direct supervision of the CONSULTANT. 2. SCOPE OF SERVICES. Consultant will perform services including but not limited to: permit processing, plan reviews, construction inspections and code enforcement on - site and off -site services. The scope of services to be performed is specifically set forth in the attached Exhibit "A". The CONSULTANT shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CONSULTANT shall appear at meetings specified in Exhibit "A" to keep staff and City Council advised of the progress on the Project. The CITY may unilaterally, or upon request from the CONSULTANT, from time to time reduce or increase the Scope of Services to be performed by the CONSULTANT under this Agreement. Upon doing so, the CITY and the CONSULTANT agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 25% from the base amount. 1 "Esgil Agreement August 6, 2D 13" 3. PROJECT COORDINATION AND SUPERVISION. Luis Sainz, Building Official hereby is designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONSULTANT shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONSULTANT. Kurt Culver, President, is designated as the Project Director for the CONSULTANT. 4. COMPENSATION AND PAYMENT. The CITY establishes the plan checking fee by resolution of the City Council. The CITY collects the plan checking fee from the applicant. The CONSULTANT'S compensation for reviewing building department plans, commonly referred to as plan checking, shall be sixty five -percent (65%) of the plan checking fee collected by the CITY for each permit based upon the CITY's adopted fee schedule in effect at the time of the the plan check submittal. The CONSULTANTS compensation for reviewing fire department plan reviews shall be thirty percent (30%) of the plan checking fee collected by the CITY for each permit based upon the CITY's adopted fee schedule in effect at the time of the the plan check submittal. The compensation for the CONSULTANT shall be based on monthly billings covering actual work performed. Compensation for services outside of plan checking and/or plan reviewing for either the building department or fire department shall be based on the hourly rates set forth in Exhibit A. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit "A" shall not exceed $300,000 per year for plan reviews and/or plan checking and shall not exceed $100,000 per year for services outside of plan reviews, without prior written authorization from the Director of Emergency Services or the City Engineer. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit "A", as determined by the CITY. The CONSULTANT shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred, and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY, and for furnishing of copies to the CITY, if requested. 5. ACCEPTABILITY OF WORK. The City shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In the event the CONSULTANT and the City cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT in this Agreement, the City or the CONSULTANT shall give to the other written notice. Within ten (10) business days, the CONSULTANT and the City shall each prepare a report which supports their position and file the same with the other party. The City shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT. 2 "Esgi1 Agreement August 6, 2D13" 6. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective on August 6, 2013. The duration of this Agreement is for the period of three years from August 6, 2013 through August 7, 2016. The parties may mutually agree to extend the terms of this Agreement for one year intervals, up to three extensions. 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications, and other documents prepared by the CONSULTANT for this Project, whether paper or electronic, shall become the property of the CITY for use with respect to this Project, and shall be turned over to the CITY upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONSULTANT hereby assigns to the CITY, and CONSULTANT thereby expressly waives and disclaims any copyright in, and the right to reproduce, all written material, drawings, plans, specifications, or other work prepared under this Agreement, except upon the CITY'S prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONSULTANT shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONSULTANT agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize the CONSULTANT'S written work product for the CITY'S purposes, and the CONSULTANT expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CITY of documents, drawings, or specifications prepared by the CONSULTANT shall relieve the CONSULTANT from liability under Section 14, but only with respect to the effect of the modification or reuse by the CITY, or for any liability to the CITY should the documents be used by the CITY for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. 8. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the CONSULTANT nor the CONSULTANT'S employees are employees of the CITY, and are not entitled to any of the rights, benefits, or privileges of the CITY'S employees, including but not limited to retirement, medical, unemploy- ment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONSULTANT and the CONSULTANT'S employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONSULTANT and its employees. Neither this Agreement nor any interest herein may be assigned by the CONSULTANT without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONSULTANT from employing or hiring as many employees, or SUBCONSULTANTS, as the CONSULTANT may deem necessary for the proper and efficient performance of this Agreement. All agreements by 3 "Esgil Agreement August 6, 2013" CONSULTANT with its SUBCONSULTANT(S) shall require the SUBCONSULTANT(S) to adhere to the applicable terms of this Agreement. 9. CONTROL. Neither the CITY nor its officers, agents, or employees shall have any control over the conduct of the CONSULTANT or any of the CONSULTANT'S employees, except as herein set forth, and the CONSULTANT or the CONSULTANT'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY, it being understood that the CONSULTANT its agents, servants, and employees are as to the CITY wholly independent CONSULTANT. and that the CONSULTANT'S obligations to the CITY are solely such as are prescribed by this Agreement. 10. COMPLIANCE WITH APPLICABLE LAW. The CONSULTANT, in the performance of the services to be provided herein, shall comply with all applicable state and federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City, whether now in force or subsequently enacted. The CONSULTANT and each of its SUBCONSULTANT(S), shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 11. LICENSES, PERMITS, ETC. The CONSULTANT represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONSULTANT represents and covenants that the CONSULTANT shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONSULTANT to practice its profession. 12. STANDARD OF CARE. A. The CONSULTANT, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONSULTANT'S trade or profession currently practicing under similar conditions and in similar locations. The CONSULTANT shall take all special precautions necessary to protect the CONSULTANT'S employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this Agreement, the CONSULTANT warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONSULTANT'S professional performance or the furnishing of materials or services relating thereto. C. The CONSULTANT is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONSULTANT has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONSULTANT has notified the CITY otherwise, the CONSULTANT warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONSULTANT to use due diligence under this sub -paragraph will render the CONSULTANT liable to the CITY for any increased costs that result from the CITY'S later inability to obtain the specified items or any reasonable 4 "Esgil Agreement August 6, 2013" substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 13. NON-DISCRIMINATION PROVISIONS. The CONSULTANT shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONSULTANT will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONSULTANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 14. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONSULTANT certain confidential information to enable the CONSULTANT to effectively perform the services to be provided herein. The CONSULTANT shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONSULTANT shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 13, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONSULTANT, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONSULTANT without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONSULTANT by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONSULTANT shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONSULTANT shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONSULTANT shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 15. INDEMNIFICATION AND HOLD HARMLESS. The CONSULTANT agrees to defend, indemnify and hold harmless the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suites, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONSULTANT'S performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or 5 "Esgil Agreement August 6, 2013" willful misconduct of the City, its agents, officers, or employees. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 16. WORKERS' COMPENSATION. The CONSULTANT shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONSULTANT under this Agreement. 17. INSURANCE. The CONSULTANT, at its sole cost and expense, shall purchase and maintain, and shall require its SUBCONSULTANT(S), when applicable, to purchase and maintain throughout the term of this Agreement, the following checked insurance policies: A. ® If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of $1,000,000 per occurrence and $2,000,000 aggregate, and a $5,000,000 Umbrella Liability coverage, covering all bodily injury and property damage arising out of its operations under this Agreement. The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of CONSULTANT'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. If CONSULTANT has no employees subject to the California Workers' Compensation and Labor laws, CONSULTANT shall execute a Declaration to that effect. Said Declaration shall be provided to CONSULTANT by CITY. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. 6 "Esgil Ag,ec lent August 6, 2013" F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONSULTANT shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. G. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. H. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If the CONSULTANT does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. I. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. 18. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of - court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 19. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 7 "Esgil Agreement August 6, 2013" 20. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to the CONSULTANT. During said 60-day period the CONSULTANT shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the CONSULTANT in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONSULTANT as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONSULTANT, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONSULTANT'S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 6. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONSULTANT; (2) a reorganization of the CONSULTANT for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONSULTANT. 21. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: Luis Sainz Building Official Building Department City of National City 1243 National City Boulevard National City, CA 91950-4301 8 " Fsgnl Agreement August 6, 2013- To CONSULTANT: Kurt Culver President Esgil Corporation 9320 Chesapeake Drive, Suite 208 San Diego, CA 92123 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty- eight (48) hours by letter mailed or delivered as specified in this Section. 22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONSULTANT shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONSULTANT also agrees not to specify any product, treatment, process or material for the project in which the CONSULTANT has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONSULTANT shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONSULTANT shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONSULTANT has a financial interest as defined in Government Code Section 87103. The CONSULTANT represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. ❑ If checked, the CONSULTANT shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONSULTANT shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONSULTANT shall obtain from the City Clerk. The CONSULTANT shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 22 by the CONSULTANT. 23. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720,1720.2, 1720.3, 1720.4, and 1771. Consultant is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 24. MISCELLANEOUS PROVISIONS. 9 "Esgsl Agreement August 6, 2013" A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 1. Audit. If this Agreement exceeds ten -thousand dollars ($I0,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. J. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. K. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. L. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement. (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such parry's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. 10 "Psgil Agreement August 6, 2013" IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. Signature page to follow 11 "Esgil Agreement August 6, 2013" CITY OF NATIONAL CITY By: APPROVED AS TO FORM: Cl ailva City Att•rney 12 ESGIL CORPORATION (Corporation— signatures of two corporate officers/required) By: By (Name) kf 1vti-r (Print) Pr s;cL+ (Title) (Name) (Aar (Print) (Title) kel/J.6,161.c " Esgi] Agreement August 6, 2013" Exhibit "A" A. Plan Reviews Provide plan reviews consistent with application of building standards for buildings, shopping malls, civic centers, hospitals, sports arenas, City facilities, hotels, hazardous occupancies, trash recycling, dwelling additions, residential dwellings, residential complexes by qualified staff identified in the RFP. Staff to include the following: • licensed structural engineers • licensed electrical engineers • licensed civil engineers • certified plans examiners • mechanical engineers • certified building inspectors Structural reviews to always be performed by or under the supervision of one of our licensed structural engineers. All plan review engineers are to be International Code Council (ICC) Certified and required to have previous experience working in government building departments. Provide state -mandated Certified Access Specialist Program (CASp) Plans Examiners and Energy and Environmental Design (LEED) Certified Plans Examiners when necessary. Provide 3`d party reviews for the Engineering Department for Capital Improvement Projects on an as needed basis by qualified plans examiners. Provide plan reviews for the Fire Department on an as needed basis by qualified plans examiners. EsGil shall pick-up and deliver plans when requested by the City staff, at no cost to the City. Pick-ups and deliveries can be made within 24 hours of the City's request. EsGil shall have the ability to receive plans from the City or from the applicant by mail, courier, or via electronic transmission. After plans are reviewed staff will identify any code deficiencies in a customized typed list for the applicant. The plan reviewer coordinates his/her review with the other plan check disciplines (electrical, mechanical, plumbing, structural energy, and disabled access) to ensure good communication and coordination of listed deficiencies. The completed review list shall be attached to the permit in the City's software program prior to or on the contract deadline The following is a list of turnaround times for each type of job assigned: Single Family Dwellings 7 Working days 5 Working days 5 Working days Apartments 10 Working days 5 Working days 5 Working days Tenant Improvements 7 Working days 5 Working days 5 Working days Commercial/Industrial 12 Working days 5 Working days 5 Working days Rechecks 5 Working days 5 Working days 5 Working days Plan Changes 5 Working days 5 Working days 5 Working days Accelerated / exp&Med plan reviews can times or as requested by the Bu ltg OMJaet. Page 1 to wont B. Inspection Services Provide personnel for inspections ranging from dwelling additions, to shopping malls and others. All inspectors shall be ICC Certified and each shall have 3 years of government building & safety experience. Provide personnel for as -needed building inspection assignments that are ICC Certified for building safety inspection services during the construction phase of various projects. Provide Inspection Services for Fire Department and Engineering Department on an as needed basis by qualified inspectors. Inspectors shall provide the following services: • Read and study project specifications, plans, and drawings to become familiar with project prior to inspection, ensuring that structural or architectural changes have been stamped as approved by the appropriate authority; recognizing the need for and requiring plan checks for electrical, plumbing, and mechanical code requirements. • Perform and document inspections on construction projects to determine that all aspects of the project, such as foundations, building, electrical, plumbing, and mechanical systems conform to the applicable building codes, ordinances, energy conservation, and disabled access requirements including known local, city, state and federal requirements. • Provide excellent customer service to the public as an extension of City staff. Our certified inspectors are knowledgeable and specialize in on -site problem solving and working closely with contractors and property owners through completion of the inspection. • Coordinate reviews with fire, health, and other government agency inspectors, as well as owners and builders. • Maintain a record of non -complying items and follow-up to resolution of such items, including any appeals. • All inspectors carry cell phones for contacting supervisors and all plan check disciplines, to assist in problem solving and providing high service levels. • Results findings in the City's software program. C. Code Enforcement Provide personnel to assist the City with conducting investigations of building safety related violations of the applicable codes. Staff shall work closely with decision makers to understand the philosophy within the City. All inspectors shall be fully trained in building safety -related code enforcement. Provide code enforcement assistance to Planning, Fire and Engineering/Public Works as -needed. D. Additional Services Provide additional services including but not limited to writing code adoption ordinances, answering questions, expediting reviews, pick-up and delivery of plans and general building services. Page 2 E. Compensation Each month, a detailed invoice shall be sent to the City which shows each project reviewed. In addition to fee information, the invoice will also indude a project description and turn -around times. Engineering Plan Reviews shall be charged on an hourly basis. A proposal for the review shall be submitted to the City with a not -to -exceed amount. Labor rates are used for other departments only when requested by our clients and where the use of a percentage of the permit fee or plan check fee is not applicable or appropriate. CLASSIFICATION HOURLY RATE1 Division Manager $ 140.00 Supervising Structural Engineer 135.00 CASp Certified Access Examiner 94.40 LEED Certified Plans Examiner 94.40 Structural Engineer 94.40 Civil Engineer 94.40 Electrical Engineer 94.40 Energy Plans Examiner 94.40 Mechanical Engineer 94.40 Building Official 94.40 Supervising Building Inspector 94.40 Deputy Building Official 94.40 I.C.C. Plans Examiner 94.40 Building Inspector 83.00 Permit Specialist/Counter Tech 72.00 Clerical Support 34.00 (Rates are subject to change each year on August 6)2 1 Rates are increased by a factor of 1.5 for overtime, and for holiday and weekend assignments 2 Thirty day written notice is required and the increase shall not exceed 3% per year. 3 This single fee includes all rechecks, plan check conferences at the EsGil office, reviewing plans that are initially found to be incomplete and for the transmission of plans to and from the jurisdiction via EsGil courier service. Page 3 Regular Basis Rate / As -Needed Rate On -site staffing Counter Technician Hourly rate: $ 72.00 Building/ Engineering/Fire Inspector Hourly rate: 83.00 Off -site staffing Building and Fire Plan Reviews Building Plan Reviews: Percentage of Fee: 65 % of the City Plan Check Fee3 Fire Department Plan Reviews Percentage of Fee: 30% of the Citv's Plan Check Fee3 Page 4 ® A o CERTIFICATE OF LIABILITY INSURANCE DATE WM/DDIYYYY) 7/17/2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. HOLDER. THIS BY THE POLICIES AUTHORIZED IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Cavignac & Associates 450 B Street, Suite 1800 San Diego, CA 92101-8005 g License No. 0A99520 CONTACT Certificate Department PHONE _(A/C. No. Ext.): 619-234-6848 .(A/c,N0,619-234-8601 E-MAIL certificates@cavi nac. corn ADDRESS- g INSURER(S) AFFORDING COVERAGE NAIL # INSURER A: TT AS)FLFRS PROP 25674 37540 INSURED EsGi1 Corporation 9320 Chesapeake Drive, 4208 San Diego, CA 92123 United States CAS CO OF AMFR INSURER B : BEAZLEY INS CO INC INSURERC: INSURERD: INSURER E: INSURER F: • _---'-----..--.-. ---- r\r..eroiVr\ RVIeroCR. 6.J1GDo THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POL CY PERIOD INDICATED. NOTVVITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADOL INSR SUER WVD POLICY NUMBER POLICY EFF (MM1DD/YYYY) POLICY EXP (MM/DDIYYYY) '' LIMITS A GENERAL LIABILITY 6801052T972 9/1/2012 9/1/2013 EACH OCCURRENCE $ 1,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $ 1, 000, 000 1 CLAIMS -MADE X 1 OCCUR PREMISES (Ea occurrence) MED EXP $ 10, 000 (Any one person) X Separation of Insureds X PERSONAL &ADV INJURY $ 1,000,000 X Contractual Liability GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: 11 PRODUCTS - COMP/OP AGG $ 2,000,000 POLICY X PRO- TECT LOC Deductible $ 0 A AUTOMOBILE LIABILITY BA6663M034 9/1/2012 9/1/2013 OMBINEDt SINGLE LIMIT $ 1, 000, 000 X ANY AUTO ALL OWNED SCHEDULED BODILY INJURY (Per person) $ A AUTOS ' X I BODILY INJURY (Per accident) $ H HIRED AUTOS -OWNED AUTOS PROPERTY DAMAGE (Per accident) $ $ A X UMBRELLA LIAR �X OCCUR CUP1052T892 9/1/2012 9/1/2013 EACH OCCURRENCE $ 5,000,000 EXCESS UAB CLAIMS -MADE AGGREGATE $ 5,000,000 DED X RETENT ON $ NIL $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N 11110675T169 9/1 /2012 9/1/2013 X WC STATU- TORY LIMITc OTH- ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? N / A X E.L. EACH ACCIDENT $ 1,000,000 (MandatoryinNH) If yes, describe under E.L. DISEASE - EA EMPLOYEE $ 1 000,000 r DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ 1,000, 000 B Professional Liability V15WOK120701 9/1/2012 9/1/2013 Each Claim $1,000,000 Aggregate $2,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule i1 more space is required) Additional Insured coverage applies to General and Automobile Liability for City of National City, its elected officials, officers, agents, and employees per policy form. Waiver of subrogation applies to Workers Compensation per policy form. Prof. Liab. - Claims made, defense costs included within limit. CANCELLATION City of National City 1243 National City Blvd. National City, CA 91950 United States SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Jeffrey W. Cavignac ACORD 25 (2010/05) © 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD EXIGIS - CAVIGNAC & ASSOCIATES 231236 ❑0,00 ern POLICY NUMBER: 6901052T972 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED (ARCHITECTS, ENGINEERS AND SURVEYORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. The following is added to WHO IS AN INSURED (Section II): Any person or organization that you agree in a "contract or agreement requiring insurance" to include as an additional insured on this Coverage Part, but only with respect to liability for "bodily injury", "property damage" or "personal injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: a. In the performance of your ongoing operations; b. In connection with premises owned by or rented to you; or C. In connection with "your work" and included within the "products -completed operations hazard". Such person or organization does not qualify as an additional insured for "bodily injury", "property damage" or "personal injury" for which that person or organization has assumed liability in a contract or agreement. The insurance provided to the additional insured is limited as follows: d. This insurance does not apply on any basis to any person or organization for which coverage as an additional insured specifically is added by another endorsement to this Coverage Part. e. This insurance does not apply to the rendering of or failure to render any "professional services". f. The limits of insurance afforded to the additional insured shall be the limits which you agreed in that "contract or agreement requiring insurance" to provide for that additional insured, or the limits shown in the Declarations for this Coverage Part, whichever are less. This endorsement does not increase the limits of insurance stated in the LIMITS OF INSURANCE (Section III) for this Coverage Part. B. The following is added to Paragraph a. of 4. Other Insurance in COMMERCIAL GENERAL LIABILITY CONDITIONS (Section IV): However, if you specifically agree in a "contract or agreement requiring insurance" that the insurance provided to an additional insured under this Coverage Part must apply on a primary basis, or a primary and non-contributory basis, this insurance is primary to other insurance that is available to such additional insured which covers such additional insured as a named insured, and we will not share with the other insurance, provided that: (1) The "bodily injury" or "property damage" for which coverage is sought occurs; and (2) The "personal injury" for which coverage is sought arises out of an offense committed; after you have entered into that "contract or agreement requiring insurance". But this insurance still is excess over valid and collectible other insurance, whether primary, excess, contingent or on any other basis, that is available to the insured when the insured is an additional insured under any other insurance. C. The following is added to Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us in COMMERCIAL GENERAL LIABILITY CONDITIONS (Section IV): We waive any rights of recovery we may have against any person or organization because of payments we make for "bodily injury", "property damage" or "personal injury" arising out of "your work" performed by you, or on your behalf, under a "contract or agreement requiring insurance" with that person or organization. We waive these rights only where you have agreed to do so as part of the "contract or agreement requiring insurance" with such person or organization entered into by you before, and in effect when, the "bodily injury" or "property damage" occurs, or the "personal injury" offense is committed. D. The following definition is added to DEFINITIONS (Section V): "Contract or agreement requiring insurance" means that part of any contract or agreement under which you are required to include a person or organization as an additional insured on this Coverage Part, provided that the "bodily injury" and "property damage" occurs, and the "personal injury" is caused by an offense committed: a. After you have entered into that contract or agreement; b. While that part of the contract or agreement is in effect; and c. Before the end of the policy period. CG D3 81 09 07 © 2007 The Travelers Companies, Inc. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 1 of 1 WORKERS COMPENSATION AND EMPLOYERS LIABILITY POLICY ENDORSEMENT WC 99 03 76 (00) POLICY NUMBER: UB0675T169 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA (BLANKET WAIVER) We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be % of the Califomia workers' compensation premium otherwise due on such remuneration. Schedule Person or Organization Job Description ANY PERSON OR ORGANIZATION FOR WHICH THE NAMED INSURED HAS AGREED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER. Dnnc. A "S A Policy No. BA6663M034 COMMERCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. AUTO COVERAGE PLUS ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modi- fied by the endorsement, GENERAL DESCRIPTION OF COVERAGE — This endorsement broadens coverage. However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to the Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general cover- age description only. Limitations and exclusions may apply to these coverages. Read all the provisions of this en- dorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered, A. BLANKET ADDITIONAL INSURED H. AUDIO, VISUAL AND DATA ELECTRONIC B. EMPLOYEE HIRED AUTO C. D. E. F. G. EMPLOYEES AS INSURED SUPPLEMENTARY PAYMENTS — INCREASED LIMITS TRAILERS — INCREASED LOAD CAPACITY HIRED AUTO PHYSICAL DAMAGE PHYSICAL DAMAGE — TRANSPORTATION EXPENSES — INCREASED LIMIT A. BLANKET ADDITIONAL INSURED The following is added to Paragraph A.1., Who Is An Insured, of SECTION I1 — LIABILITY COV- ERAGE: Any person or organization who is required under a written contract or agreement between you and that person or organization, that is signed and executed by you before the "bodily injury" or "property damage" occurs and that is in effect during the policy period, to be named as an addi- tional insured is an "insured" for Liability Cover- age, but only for damages to which this insurance applies and only to the extent that person or or- ganization qualifies as an "insured" under the Who Is An Insured provision contained in Section II. B. EMPLOYEE HIRED AUTO 1. The following is added to Paragraph A.1., Who Is An Insured, of SECTION II — LI- ABILITY COVERAGE: An "employee" of yours is an "insured" while operating a covered "auto" hired or rented under a contract or agreement in that "em- ployee's" name, with your permission, while CA T4 20 07 10 J. K. L. M. EQUIPMENT— INCREASED LIMIT WAIVER OF DEDUCTIBLE — GLASS PERSONAL EFFECTS AIRBAGS AUTO LOAN LEASE GAP BLANKET WAIVER OF SUBROGATION performing duties related to the conduct of your business. 2. The following replaces Paragraph b. in B.5., Other Insurance, of SECTION IV — BUSI- NESS AUTO CONDITIONS: b. For Hired Auto Physical Damage Cover- age, the following are deemed to be cov- ered "autos" you own: (1) Any covered "auto" you lease, hire, rent or borrow; and (2) Any covered "auto" hired or rented by your "employee" under a contract in that individual "employee's" name, with your permission, while perform- ing duties related to the conduct of your business. However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto". C. EMPLOYEES AS INSURED The following is added to Paragraph A.1., Who Is An Insured, of SECTION I1 — LIABILITY COV- ERAGE: Cs) 2010 The Travelers Indemnity Company. NI rights reserved. Page 1 of 3 Includes copyrighted material of Insurance Services Office, Inc with its permission. Policy No. BA6663M034 COMMERCIAL AUTO Any "employee" of yours is an "insured" while us- ing a covered "auto" you don't own, hire or borrow in your business or your personal affairs. D. SUPPLEMENTARY PAYMENTS — INCREASED LIMITS 1. The following replaces Paragraph A.2.a.(2) of SECTION II — LIABILITY COVERAGE: (2) Up to $3,000 for cost of bail bonds (in- cluding bonds for related traffic law viola- tions) required because of an "accident" we cover. We do not have to furnish these bonds. 2. The following replaces Paragraph A.2.a(4) of SECTION II — LIABILITY COVERAGE: (4) All reasonable expenses incurred by the "insured" at our request, including actual loss of earnings up to $500 a day be- cause of time off from work. E. TRAILERS — INCREASED LOAD CAPACITY The following replaces Paragraph C.1. of SEC- TION I — COVERED AUTOS: 1. "Trailers" with a load capacity of 3,000 H. pounds or less designed primarily for travel on public roads. F. HIRED AUTO PHYSICAL DAMAGE The following is added to Paragraph A.4., Cover- age Extensions, of SECTION 111 — PHYSICAL I. DAMAGE COVERAGE: Hired Auto Physical Damage Coverage If hired "autos" are covered "autos" for Liability Coverage but not covered "autos" for Physical Damage Coverage, and this policy also provides Physical Damage Coverage for an owned "auto", then the Physical Damage Coverage is extended to "autos" that you hire, rent or borrow subject to the following: (1) The most we will pay for "loss" in any one "accident" to a hired, rented or borrowed "auto" is the lesser of: (a) $50,000; (b) The actual cash value of the damaged or stolen property as of the time of the "loss"; or (c) The cost of repairing or replacing the damaged or stolen property with other property of like kind and quality. (2) An adjustment for depreciation and physical condition will be made in determining actual cash value in the event of a total "loss". Page 2 of 3 G. J. If a repair or replacement results in better than like kind or quality, we will not pay for the amount of betterment. (4) A deductible equal to the highest Physical Damage deductible applicable to any owned covered "auto". (5) This Coverage Extension does not apply to: (a) Any "auto" that is hired, rented or bor- rowed with a driver; or (b) Any "auto" that is hired, rented or bor- rowed from your "employee". PHYSICAL DAMAGE — TRANSPORTATION EXPENSES — INCREASED LIMIT The following replaces the first sentence in Para- graph A.4.a., Transportation Expenses, of SECTION III — PHYSICAL DAMAGE COVER - AG E: We will pay up to $50 per day to a maximum of $1,500 for temporary transportation expense in- curred by you because of the total theft of a cov- ered "auto" of the private passenger type. AUDIO, VISUAL AND DATA ELECTRONIC EQUIPMENT— INCREASED LIMIT Paragraph C.2.. Limit Of Insurance, of SEC- TION 111 — PHYSICAL DAMAGE COVERAGE is deleted. WAIVER OF DEDUCTIBLE — GLASS The following is added to Paragraph D., Deducti- ble, of SECTION tll — PHYSICAL DAMAGE COVERAGE: No deductible for a covered "auto" will apply to glass damage if the glass is repaired rather than replaced. PERSONAL EFFECTS The following is added to Paragraph A.4., Cover- age Extensions, of SECTION III — PHYSICAL DAMAGE COVERAGE: Personal Effects Coverage We will pay up to $400 for "loss" to wearing ap- parel and other personal effects which are: (1) Owned by an "insured"; and (2) In or on your covered "auto". This coverage only applies in the event of a total theft of your covered "auto". No deductibles apply to Personal Effects cover- age. (3) © 2010 The Travelers Indemnity Company. All rights reserved. CA T4 20 07 10 Includes copyrighted material of Insurance Services Office, Inc. with its permission. Policy No. BA6663M034 COMMERCIAL AUTO K. AIRBAGS The following is added to Paragraph B.3., Exclu- sions, of SECTION III — PHYSICAL DAMAGE COVERAGE: Exclusion 3.a. does not apply to "loss" to one or more airbags in a covered "auto" you own that in- flate due to a cause other than a cause of "loss" set forth in Paragraphs A.1.b. and A.1.c., but only: a. If that "auto" is a covered "auto" for Compre- hensive Coverage under this policy; b. The airbags are not covered under any war- ranty; and c. The airbags were not intentionally inflated. We will pay up to a maximum of $1,000 for any one "loss". L. AUTO LOAN LEASE GAP The following is added to Paragraph A.4., Cover- age Extensions, of SECTION III — PHYSICAL DAMAGE COVERAGE: Auto Loan Lease Gap Coverage for Private Passenger Type Vehicles In the event of a total "loss" to a covered "auto" of the private passenger type shown in the Schedule or Declarations for which Physical Damage Cov- erage is provided, we will pay any unpaid amount due on the lease or loan for such covered "auto" less the following: (1) The amount paid under the Physical Damage Coverage Section of the policy for that "auto"; and CA T4 20 07 10 (2) Any: (a) Overdue lease or loan payments at the time of the "loss"; (b) Financial penalties imposed under a lease for excessive use, abnormal wear and tear or high mileage; (c) Security deposits not returned by the les- sor; (d) Costs for extended warranties, Credit Life Insurance, Health, Accident or Disability Insurance purchased with the loan or lease; and Carry-over balances from previous loans or leases. M. BLANKET WAIVER OF SUBROGATION The following replaces Paragraph A.5., Transfer Of Rights Of Recovery Against Others To Us, of SECTION IV — BUSINESS AUTO CONDI- TIONS: 5. Transfer Of Rights Of Recovery Against Others To Us We waive any right of recovery we may have against any person or organization to the ex- tent required of you by a written contract exe- cuted prior to any "accident" or "loss", pro- vided that the "accident" or "loss" arises out of the operations contemplated by such con- tract. The waiver applies only to the person or organization designated in such contract. (e) © 2010 The Travelers Indemnity Company. All rights reserved. Page 3 of 3 Includes copyrighted material of insurance Services Office, Inc. with its permission. RESOLUTION NO. 2013 — 112 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH ESGIL CORPORATION TO PROVIDE ON -CALL PLAN REVIEWS, PERMIT PROCESSING, CONSTRUCTION INSPECTIONS, CODE ENFORCEMENT SERVICES, AND RELATED SERVICES FOR VARIOUS CITY DEPARTMENTS, INCLUDING BUT NOT LIMITED TO, BUILDING, FIRE, AND ENGINEERING IN THE NOT -TO -EXCEED AMOUNT OF $400,000 PER YEAR FOR A PERIOD OF THREE YEARS WHEREAS, on April 30, 2013, the City issued to 30 firms a Request for Proposal for on -call services to provide assistance with permit processing, plan reviews, construction inspections, and code enforcement services for various City departments, including but not limited to, Building, Fire, and Engineering; and WHEREAS, after staff conducted a panel interview with the firms on July 2, 2013, evaluating the qualifications and available services, reviewing the cost proposals, and conducting reference checks, the conclusion is that EsGil Corporation ("EsGil") is the most qualified to provide these services to the City for the total not -to -exceed amount of $300,000 per year for three years for plan reviews, and $100,000 per year for three years for all other services, for a total not -to -exceed amount of $400,000 per year; and WHEREAS, EsGil has provided services to the City of National City for over 30 years, and has agreed to reduce their for fee for plan reviews by 15% to provide financial relief to the City. NOW THEREFORE BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a three-year Agreement with EsGil Corporation in the not -to -exceed amount of $400,000 per year to provide assistance with permit processing, plan reviews, construction inspections, and code enforcement services for various City departments, including but not limited to, Building, Fire, and Engineering. PASSED and ADOPTED this 6'h day of August, 2013. on Morrison, Mayor ATTEST: N Mic ael R. Dalla, y Clerk APPROVED AS TO •RM: C'u•ia Gp.'tua Silva City Attorney Passed and adopted by the Council of the City of National City, California, on August 6, 2013 by the following vote, to -wit: Ayes: Councilmembers Cano, Morrison, Rios, Sotelo-Solis. Nays: None. Absent: Councilmember Natividad. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California A erk of the City of City ational City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2013-112 of the City of National City, California, passed and adopted by the Council of said City on August 6, 2013. City Clerk of the City of National City, California By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT FETING DATE: August 6, 2013 AGENDA ITEM NO. 5 ITEM TITLE: Resolution of the City Council of The City of National City approving a contract agreement between the City of National City and EsGil Corporation to provide on -call plan reviews, permit processing, construction inspections, code enforcement services and related services for various City departments including but not limited to Building, Fire, and Engineering in the not -to -exceed amount of $400,000 per year for a period of three years, and authorizing the Mayor to execute the agreement (funded by fees collected, developer deposits and various Capital Improvement Project funds and other funds as needed 1 PREPARED BY: Luis Sainz DEPARTMENT: Biding PHONE: 4214 APPROVED BY: EXPLANATION: See attached FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. Finance APPROVED: MIS No financial impact at this time. This contract is an as needed basis and funded by fees collected, developers deposits and various capital improvements projects ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt Resolution BOARD / COMMISSION RECOMMENDATION: TTACHMENTS: 1. Explanation 2. Agreement 3. Resolution Explanation: On April 30, 2013, the City issued a Request for Proposal (RFP) for On -Call Services to provide assistance with Permit Processing, Plan reviews, Construction Inspections, and Code Enforcement Services. The RFP was sent to 30 firms. The deadline to submit was June 3, 2013. On July 2, 2013, staff conducted a panel interview with the firms. After evaluating the qualifications and services available, reviewing the cost proposals and conducting reference checks, the panel concluded that EsGil Corporation can best service the City of National City's needs. EsGil Corporation is currently providing services for Permit Processing, Plan reviews, Construction Inspections, and Code Enforcement Services for the Building Department and has been for more than 32 years. Through an amendment to the contract, EsGil began providing services to our Fire Department. The recent RFP was expanded to include the needs of other departments. EsGil is a qualified firm and is willing to provide services to other City departments as needed. Additionally, EsGil Corporation has agreed to reduce their fee for plan reviews by 15% to provide financial relief to the City. This contract has a not exceed amount $300,000 per year for a period of three years for plan review and $100,000 per year for all services outside of plan view for a period of three years for a total contract amount of $400,000 per year. Upon mutual agreement by both parties, the contract may be extend by 1 year, no more than 3 times. EsGil's many of years of support services has been of great value to the City. Staff recommends that Council approve the contract for On -Call Services to provide assistance with Permit Processing, Plan reviews, Construction Inspections, Code Enforcement, and related services on an as needed basis and authorize the Mayor to execute the contract. AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND ESGIL CORPORATION THIS AGREEMENT is entered into this 6TH day of August, 2013, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and ESGIL Corporation, a Plan view firm (the "CONSULTANT"). RECITALS WHEREAS, the CITY desires to employ a CONSULTANT to provide permit processing, plan reviews, construction inspections and code enforcement on -site and off -site services. WHEREAS, the CITY has determined that the CONSULTANT is a plan review firm and is qualified by experience and ability to perform the services desired by the CITY, and the CONSULTANT is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONSULTANT. The CITY agrees to engage the CONSULTANT, and the CONSULTANT agrees to perform the services set forth here in accordance with all terms and conditions contained herein. The CONSULTANT represents that all services shall be performed directly by the CONSULTANT or under direct supervision of the CONSULTANT. 2. SCOPE OF SERVICES. Consultant will perform permit processing, plan reviews, construction inspections and code enforcement on -site and off -site services. The scope of services to be performed is specifically set forth including but not limited to: services set forth in the attached Exhibit "A". The CONSULTANT shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CONSULTANT shall appear at meetings specified in Exhibit "A" to keep staff and City Council advised of the progress on the Project. The CITY may unilaterally, or upon request from the CONSULTANT, from time to time reduce or increase the Scope of Services to be performed by the CONSULTANT under this Agreement. Upon doing so, the CITY and the CONSULTANT agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 25% from the base amount. 1 "Esgil Agreement August 6, 2013" 3. PROJECT COORDINATION AND SUPERVISION. Luis Sainz, Building Official hereby is designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONSULTANT shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONSULTANT. Kurt Culver, President, thereby is designated as the Project Director for the CONSULTANT. 4. COMPENSATION AND PAYMENT. The CITY establishes the plan checking fee by resolution of the City Council. The CITY collects the plan checking fee from the applicant. The CONSULTANT'S compensation for reviewing plans, commonly referred to as plan checking, shall be sixty five -percent (65%) of the plan checking fee collected by the CITY for each permit based upon the CITY's adopted fee schedule in effect at the time of the the plan check submittal. The compensation for the CONSULTANT shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit "A" shall not exceed $300,000 per year for plan views nor $100,000 per year for services outside of plan views as set forth in the schedule given in Exhibit "A" (the Base amount) without prior written authorization from the Director of Emergency Services or the City Engineer. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit "A", as determined by the CITY. The CONSULTANT shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred, and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY, and for furnishing of copies to the CITY, if requested. 5. ACCEPTABILITY OF WORK. The City shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In the event the CONSULTANT and the City cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT in this Agreement, the City or the CONSULTANT shall give to the other written notice. Within ten (10) business days, the CONSULTANT and the City shall each prepare a report which supports their position and file the same with the other party. The City shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT. 6. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective on August 6, 2013. The duration of this Agreement is for the period of three years from August 6, 2013 through August 7, 2016. The parties may mutually agree to extend the terms of this Agreement for one year intervals, up to three extensions. 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications, and other documents prepared by the CONSULTANT for this Project, whether paper or electronic, shall become the property of the 2 "Esgil Agreement August 6, 2013" CITY for use with respect to this Project, and shall be turned over to the CITY upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONSULTANT hereby assigns to the CITY, and CONSULTANT thereby expressly waives and disclaims any copyright in, and the right to reproduce, all written material, drawings, plans, specifications, or other work prepared under this Agreement, except upon the CITY'S prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONSULTANT shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONSULTANT agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize the CONSULTANT'S written work product for the CITY'S purposes, and the CONSULTANT expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CITY of documents, drawings, or specifications prepared by the CONSULTANT shall relieve the CONSULTANT from liability under Section 14, but only with respect to the effect of the modification or reuse by the CITY, or for any liability to the CITY should the documents be used by the CITY for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. 8. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the CONSULTANT nor the CONSULTANT'S employees are employees of the CITY, and are not entitled to any of the rights, benefits, or privileges of the CITY'S employees, including but not limited to retirement, medical, unemploy- ment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONSULTANT and the CONSULTANT'S employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONSULTANT and its employees. Neither this Agreement nor any interest herein may be assigned by the CONSULTANT without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONSULTANT from employing or hiring as many employees, or SUBCONSULTANTS, as the CONSULTANT may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONSULTANT with its SUBCONSULTANT(S) shall require the SUBCONSULTANT(S) to adhere to the applicable terms of this Agreement. 9. CONTROL. Neither the CITY nor its officers, agents, or employees shall have any control over the conduct of the CONSULTANT or any of the CONSULTANT'S employees, except as herein set forth, and the CONSULTANT or the CONSULTANT'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY, it being understood that the CONSULTANT its agents, servants, and employees are as to the CITY wholly 3 " Esgil Agreement August 6, 2013" independent CONSULTANT, and that the CONSULTANT'S obligations to the CITY are solely such as are prescribed by this Agreement. 10. COMPLIANCE WITH APPLICABLE LAW. The CONSULTANT, in the performance of the services to be provided herein, shall comply with all applicable state and federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City, whether now in force or subsequently enacted. The CONSULTANT and each of its SUBCONSULTANT(S), shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 11. LICENSES, PERMITS, ETC. The CONSULTANT represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONSULTANT represents and covenants that the CONSULTANT shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONSULTANT to practice its profession. 12. STANDARD OF CARE. A. The CONSULTANT, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONSULTANT'S trade or profession currently practicing under similar conditions and in similar locations. The CONSULTANT shall take all special precautions necessary to protect the CONSULTANT'S employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this Agreement, the CONSULTANT warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONSULTANT'S professional performance or the furnishing of materials or services relating thereto. C. The CONSULTANT is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONSULTANT has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONSULTANT has notified the CITY otherwise, the CONSULTANT warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONSULTANT to use due diligence under this sub -paragraph will render the CONSULTANT liable to the CITY for any increased costs that result from the CITY'S later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 13. NON-DISCRIMINATION PROVISIONS. The CONSULTANT shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONSULTANT will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, 4 "Esgil Agreement August 6, 2013" marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONSULTANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 14. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONSULTANT certain confidential information to enable the CONSULTANT to effectively perform the services to be provided herein. The CONSULTANT shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONSULTANT shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 13, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONSULTANT, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONSULTANT without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONSULTANT by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONSULTANT shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONSULTANT shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONSULTANT shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 15. Hold harmless and indemnity title. The CONSULTANT agrees to defend, indemnify and hold harmless the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suites, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONSULTANT'S performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, or employees. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 16. WORKERS' COMPENSATION. The CONSULTANT shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and 5 "Esgil Agreement August 6, 2013" all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONSULTANT under this Agreement. 17. INSURANCE. The CONSULTANT, at its sole cost and expense, shall purchase and maintain, and shall require its SUBCONSULTANT(S), when applicable, to purchase and maintain throughout the term of this Agreement, the following checked insurance policies: A. If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of $1,000,000 per occurrence and $2,000,000 aggregate, and a $5,000,000 unbrella Liability coverage, covering all bodily injury and property damage arising out of its operations under this Agreement. The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of CONSULTANT'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. If CONSULTANT has no employees subject to the California Workers' Compensation and Labor laws, CONSULTANT shall execute a Declaration to that effect. Said Declaration shall be provided to CONSULTANT by CITY. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONSULTANT shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. G. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non -admitted 6 "Esgil Agreement August 6, 2013" "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. H. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY' S Risk Manager. If the CONSULTANT does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. I. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. 18. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of - court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY m its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 19. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 20. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to the CONSULTANT. During said 60-day period the CONSULTANT shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the 7 "Esgil Agreement August 6, 2013" CONSULTANT in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONSULTANT as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONSULTANT, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONSULTANT'S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 6. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONSULTANT; (2) a reorganization of the CONSULTANT for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONSULTANT. 21. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: Luis Sainz Building Official Building Department City of National City 1243 National City Boulevard National City, CA 91950-4301 To CONSULTANT: Kurt Culver President Esgil Corporation 9320 Chesapeake Drive, Suite 208 San Diego, CA 92123 8 "Esgil Agreement August 6, 2013" Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty- eight (48) hours by letter mailed or delivered as specified in this Section. 22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONSULTANT shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONSULTANT also agrees not to specify any product, treatment, process or material for the project in which the CONSULTANT has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONSULTANT shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONSULTANT shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONSULTANT has a financial interest as defined in Government Code Section 87103. The CONSULTANT represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. ❑ If checked, the CONSULTANT shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONSULTANT shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONSULTANT shall obtain from the City Clerk. The CONSULTANT shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 22 by the CONSULTANT. 23. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720,1720.2, 1720.3, 1720.4, and 1771. Consultant is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 24. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. 9 "Esgil Agreement August 6, 2013" C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Audit. If this Agreement exceeds ten -thousand dollars ($10,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. J. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. K. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. L. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such parry's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. Signature page to follow 10 "Esgil Agreement August 6, 2013" CITY OF NATIONAL CITY By: Ron Morrison, Mayor APPROVED AS TO FORM: Claudia G. Silva City Attorney ESGIL CORPORATION (Corporation — signatures of two corporate officers/required) By: (Name) (Print) (Title) By: (Name) (Print) (Title) 11 "Esgil Agreement August 6, 2013" Exhibit "A" A. Plan Reviews Provide plan reviews consistent with application of building standards for buildings, shopping malls, civic centers, hospitals, sports arenas, City facilities, hotels, hazardous occupancies, trash recycling, dwelling additions, residential dwellings, residential complexes by qualified staff identified in the RFP. Staff to include the following: • licensed structural engineers . licensed electrical engineers • licensed civil engineers • certified plans examiners • mechanical engineers • certified building inspectors Structural reviews to always be performed by or under the supervision of one of our licensed structural engineers. All plan review engineers are to be International Code Council (ICC) Certified and required to have previous experience working in government building departments. Provide state -mandated Certified Access Specialist Program (CASp) Plans Examiners and Energy and Environmental Design (LEED) Certified Plans Examiners when necessary. Provide 3id party reviews for the Engineering Department for Capital Improvement Projects on an as needed basis by qualified plans examiners. Provide plan reviews for the Fire Department on an as needed basis by qualified plans examiners. EsGil shall pick-up and deliver plans when requested by the Gty staff, at no cost to the city. Pick-ups and deliveries can be made within 24 hours of the City's request. EsGil shall have the ability to receive plans from the City or from the applicant by mail, courier, or via electronic transmission. After plans are reviewed staff will identify any code deficiencies in a customized typed list for the applicant. The plan reviewer coordinates his/her review with the other plan check disciplines (electrical, mechanical, plumbing, structural energy, and disabled access) to ensure good communication and coordination of listed deficiencies. The completed review list shall be attached to the permit in the City's software program prior to or on the contract deadline The following is a list of turnaround times for each type of job assigned: Sin le Famil Dwellin.s A • a rtments Tenant Im•rovements Commercial/Industrial Rechecks Plan Chan•es 7 Workin• da s 5 Workin• da s 5 Workin• da s 10 Workinda s 5 Workin• da s 5 Workin• da s 7 Workinda s 5 Workin• da s 5 Workin• da s 12 Workin• da s 5 Workinda s 5 Workin• da s 5 Workinda s 5 Workin• da s 5 Workin• da s 5 Workin• da s 5 Workin• da s 5 Workinda s Accelerated / expedited plan reviews can be performed on overtime, in half of the normal turnaround times or as requested by the Building Official. Page 1 B. Inspection Services Provide personnel for inspections ranging from dwelling additions, to shopping malls and others. All inspectors shall be ICC Certified and each shall have 3 years of govemment building & safety experience. Provide personnel for as -needed building inspection assignments that are ICC Certified for building safety inspection services during the construction phase of various projects. Provide Inspection Services for Fire Department and Engineering Department on an as needed basis by qualified inspectors. Inspectors shall provide the following services: • Read and study project specifications, plans, and drawings to become familiar with project prior to inspection, ensuring that structural or architectural changes have been stamped as approved by the appropriate authority; recognizing the need for and requiring plan checks for electrical, plumbing, and mechanical code requirements. • Perform and document inspections on construction projects to determine that all aspects of the project, such as foundations, building, electrical, plumbing, and mechanical systems conform to the applicable building codes, ordinances, energy conservation, and disabled access requirements including known local, city, state and federal requirements. • Provide excellent customer service to the public as an extension of City staff. Our certified inspectors are knowledgeable and specialize in on -site problem solving and working closely with contractors and property owners through completion of the inspection. • Coordinate reviews with fire, health, and other government agency Inspectors, as well as owners and builders. • Maintain a record of non -complying items and follow-up to resolution of such items, including any appeals. • All inspectors carry cell phones for contacting supervisors and all plan check disciplines, to assist in problem solving and providing high service levels. • Results findings in the City's software program. C. Code Enforcement Provide personnel to assist the City with conducting investigations of building safety related violations of the applicable codes. Staff shall work dosely with decision makers to understand the philosophy within the City. All inspectors shall be fully trained in building safety -related code enforcement. Provide code enforcement assistance to Planning, Fire and Engineering/Public Works as -needed. D. Additional Services Provide additional services including but not limited to writing code adoption ordinances, answering questions, expediting reviews, pick-up and delivery of plans and general building services. Page 2 E. Compensation Each month, a detailed invoice shall be sent to the City which shows each project reviewed. In addition to fee information, the invoice will also indude a project description and turn -around times. Engineering Plan Reviews shall be charged on an hourly basis. A proposal for the review shall be submitted to the City with a not -to -exceed amount. Labor rates are used for other departments only when requested by our clients and where the use of a percentage of the permit fee or plan check fee is not applicable or appropriate. CLASSIFICATION HOURLY RATE1 Division Manager $ 140.00 Supervising Structural Engineer 135.00 CASp Certified Access Examiner 94.40 LEED Certified Plans Examiner 94.40 Structural Engineer 94.40 Civil Engineer 94.40 Electrical Engineer 94.40 Energy Plans Examiner 94.40 Mechanical Engineer 94.40 Building Official 94.40 Supervising Building Inspector 94.40 Deputy Building Official 94.40 I.C.C. Plans Examiner 94.40 Building Inspector 83.00 Permit Specialist/Counter Tech 72.00 Clerical Support 34.00 (Rates are subject to change each year on August 6)2 ' Rates are increased by a factor of 1.5 for overtime, and for holiday and weekend assignments 2 Thirty day written notice is required and the increase shall not exceed 3% per year. 3 This single fee includes all rechecks, plan check conferences at the EsGil office, reviewing plans that are initially found to be incomplete and for the transmission of plans to and from the jurisdiction via EsGi/ courier service. Page 3 Regular Basis Rate / As -Needed Rate On -site staffing Counter Technician Building/ Engineering/Fire Inspector Off -site staffing Building and Fire Plan Reviews Hourly rate: $ 72.00 Hourly rate: 83.00 Building Plan Reviews: Percentage of Fee: 65 % of the Citv Plan Check Fee3 Fire Department Plan Reviews Percentage of Fee: 30% of the Citv's Plan Check Fee3 Page 4 RESOLUTION NO. 2013 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH ESGIL CORPORATION TO PROVIDE ON -CALL PLAN REVIEWS, PERMIT PROCESSING, CONSTRUCTION INSPECTIONS, CODE ENFORCEMENT SERVICES, AND RELATED SERVICES FOR VARIOUS CITY DEPARTMENTS, INCLUDING BUT NOT LIMITED TO, BUILDING, FIRE, AND ENGINEERING IN THE NOT -TO -EXCEED AMOUNT OF $400,000 PER YEAR FOR A PERIOD OF THREE YEARS WHEREAS, on April 30, 2013, the City issued to 30 firms a Request for Proposal for on -call services to provide assistance with permit processing, plan reviews, construction inspections, and code enforcement services for various City departments, including but not limited to, Building, Fire, and Engineering; and WHEREAS, after staff conducted a panel interview with the firms on July 2, 2013, evaluating the qualifications and available services, reviewing the cost proposals, and conducting reference checks, the conclusion is that EsGil Corporation ("EsGil") is the most qualified to provide these services to the City for the total not -to -exceed amount of $300,000 per year for three years for plan reviews, and $100,000 per year for three years for all other services, for a total not -to -exceed amount of $400,000 per year; and WHEREAS, EsGil has provided services to the City of National City for over 30 years, and has agreed to reduce their for fee for plan reviews by 15% to provide financial relief to the City. NOW THEREFORE BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a three-year Agreement with EsGil Corporation in the not -to -exceed amount of $400,000 per year to provide assistance with permit processing, plan reviews, construction inspections, and code enforcement services for various City departments, including but not limited to, Building, Fire, and Engineering. PASSED and ADOPTED this 6th day of August, 2013. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney orkNI (',- S August 8, 2013 CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk Mr. Kurt Culver EsGi1 Corporation 9320 Chesapeake Drive, Suite 208 San Diego, CA 92123 Dear Mr. Culver, On August 6th, 2013, Resolution No. 2013-112 was passed and adopted by the City Council of the City of National City, authorizing execution of an Agreement with EsGil Corporation. We are enclosing for your records a certified copy of the above Resolution and a fully executed original Agreement. Michael R. Dalla, CMC City Clerk Enclosures cc: Building Dept.