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HomeMy WebLinkAbout2020 CON Esgil - Consulting ServicesAGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND ESGIL CORPORATION THIS AGREEMENT is entered into on this 21st day of April 2020, between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and ESGIL, LLC, a California limited liability company (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 to provide permit processing, plan reviews, construction inspections, and code enforcement on -site and off -site services, 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. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective on April 21, 2020. The duration of this Agreement is for the period of April 21, 2020 through April 20, 2023. This Agreement may be extended by mutual agreement upon the same terms and conditions for an additional one (1) year term. The Parties may exercise up to two one-year extensions. The City Council authorizes and delegates that any extension of this Agreement be approved in writing by the City Manager. 3. SCOPE OF SERVICES. The CONSULTANT will perform those building inspection, permit processing, plan reviews, construction inspections and code enforcement on - site and off -site services as set forth in the attached Exhibit "B". Additionally, CONSULTANT must send a copy of all plans CONSULTANT approves on the CITY's behalf to every CITY department that would have occasion to rely on, or later review, those approved plans. Additionally, CONSULTANT must perform all steps outlined in Exhibit "C" when "red - tagging" a property. Additionally, CONSULTANT must follow all departmental guidelines, policies and procedures communicated by CITY to CONSULTANT. 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 related to pre -plan submittals, pre -construction, and proposed plan changes and/or changes to construction methods and materials related to larger projects and at other meetings at the CITY, or on subject properities, as directed by Luis Sainz to keep staff and City Council advised of the progress on any given matter. 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. 4. 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. Bill Elizarraras thereby is designated as the Project Director for the CONSULTANT. 5. 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 percent (60%) 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 plan check submittal. The CONSULTANT's 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 plan check submittal. Beginning April 21, 2020, CONSULTANT will apply a 10% monthly reduction to plan check fees ("Reduction"). CONSULTANT shall provide the Reduction until (1) the dollar amount of each monthly Reduction totals $10,500, or (2) January 31, 2021 whichever occurs earlier. The CONSULTANT shall provide one full-time clerical support staff person on an as -needed basis at no cost to the CITY. This clerical support staff person shall be an employee of the CONSULTANT, not of the CITY, and shall be subject to the terms of this Agreement. 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 $800,000 per year for plan reviews, plan checking, or both, without prior written authorization from the Director of Community Development. The compensation for the CONSULTANT'S work shall not exceed the rates set forth in Exhibit "A". 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. For each billing error resulting in an incorrect charge to the CITY that CITY staff discovers in CONSULTANT'S invoices, CONSULTANT shall pay the CITY for the time incurred by CITY staff to identify the billing error. Any payment from CONSULTANT to CITY regarding billing errors referenced in Standard Agreement Page 2 of 12 City of National City and Revised May 2019 EsGil, LLC this Section shall be paid according to the fully -burdened hourly rate applicable to the CITY staff person who identified the billing error. 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. 6. 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. 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: (1) be free from defects; (2) become the property of the CITY for use with respect to this project; and (3) 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 Services 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 Standard Agreement Page 3 of 12 City of National City and Revised May 2019 EsGil, LLC 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 set forth in this Agreement. The CONSULTANT, or the CONSULTANT'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY. The CONSULTANT and its agents, servants, and employees are wholly independent from the CITY and CONSULTANT'S obligations to the CITY are solely 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 County of San Diego and 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, and all its employees dispatched to perform work on behalf of the CITY, have all licenses, permits, qualifications, and approvals of whatever nature that are legally required for CONSULTANT and CONSULTANT's employees to practice their profession. CONSULTANT must provide CITY copies of any such license, permit, or approval to CITY before any of CONSULTANT's employees perform services on behalf of CITY. 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, or CONSULTANT's employees, to practice their 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. Standard Agreement Page 4 of 12 City of National City and Revised May 2019 EsGil, LLC 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 -section 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, 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 14, 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. Standard Agreement Page 5 of 12 City of National City and Revised May 2019 EsGil, LLC CONSULTANT shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 15. 15. INDEMNIFICATION AND HOLD HARMLESS. To the maximum extent provided by law, The CONSULTANT agrees to defend, indemnify and hold harmless the City of National City, its officers, officials, agents, employees, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, 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, employees or volunteers. CITY will cooperate reasonably in the defense of any action, and CONSULTANT shall employ competent counsel, reasonably acceptable to the City Attorney. 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. EMPLOYEE PAYMENTS AND INDEMNIFICATION. 16.1 PERS Eligibility Indemnification. If CONSULTANT's employee(s) providing services under this Agreement claims, or is determined by a court of competent jurisdiction or the California Public Employees Retirement System ("PERS') to be eligible for enrollment in PERS of the CITY, CONSULTANT shall indemnify, defend, and hold harmless CITY for the payment of any employer and employee contributions for PERS benefits on behalf of the employee as well as for payment of any penalties and interest on such contributions which would otherwise be the responsibility of the CITY. CONSULTANT'S employees providing service under this Agreement shall not: (1) qualify for any compensation and benefit under PERS; (2) be entitled to any benefits under PERS; (3) enroll in PERS as an employee of CITY; (4) receive any employer contributions paid by CITY for PERS benefits; or (5) be entitled to any other PERS-related benefit that would accrue to a CITY employee. CONSULTANT's employees hereby waive any claims to benefits or compensation described in this Section 16. This Section 16 applies to CONSULTANT notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary. 16.2 Limitation of CITY Liability. The payment made to CONSULTANT under this Agreement shall be the full and complete compensation to which CONSULTANT and CONSULTANT's officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither CONSULTANT nor CONSULTANT's officers, employees, agents, and subcontractors are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to CITY employees. The CITY will not make any federal or state tax withholdings on behalf of CONSULTANT. The CITY shall not be required to pay any workers' compensation insurance on behalf of CONSULTANT. Standard Agreement Page 6 of 12 City of National City and Revised May 2019 EsGiI, LLC 16.3 Indemnification for Employee Payments. CONSULTANT agrees to defend and indemnify the CITY for any obligation, claim, suit, or demand for tax, retirement contribution including any contribution to PERS, social security, salary or wages, overtime payment, or workers' compensation payment which the CITY may be required to make on behalf of (1) CONSULTANT, (2) any employee of CONSULTANT, or (3) any employee of CONSULTANT construed to be an employee of the CITY, for work performed under this Agreement. This is a continuing obligation that survives the termination of this Agreement. 17. 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 Labor 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, employees, and volunteers 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. 18. 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 insurance policies: A. Professional Liability Insurance (errors and omissions) with minimum limits of $9,000,000 per claim. 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 non -owned, hired vehicles, and "any auto". The policy shall name the CITY and its officers, agents, employees, and volunteers 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 with a $10,000,000 umbrella policy, covering all bodily injury and property damage arising out of its operations, work, or performance under this Agreement. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". The "project" or "location" should be noted with specificity on an endorsement that shall be incorporated into the policy. 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. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, officials, 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) Standard Agreement Page 7 of 12 City of National City and Revised May 2019 EsGil, LLC days prior written notice to the CITY's Risk Manager, at the address listed in subsection G below, 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 `Petro" date must be on or before the date of this Agreement. G. The Certificate Holder for all policies of insurance required by this Section shall be: City of National City do Risk Manager 1243 National City Boulevard National City, CA 91950-4397 H. Insurance shall be written with only insurers authorized to conduct business in California that hold a current policy holder's alphabetic and financial size category rating of not less than A:VII according to the current Best's Key Rating Guide, or a company of 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 List of Approved Surplus Line Insurers ("LASLI") and otherwise meet rating requirements. I. 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 insurance policies required by this Section 18 in full force and effect at all times during the term of this Agreement, the CITY may treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. CITY reserves the right to modify the insurance requirements of this Section 18, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. K. If the CONSULTANT maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY shall be entitled to the broader coverage or higher limits (or both) maintained by the CONSULTANT. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. 19. 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 Standard Agreement Page 8 of 12 City of National City and Revised May 2019 EsGil, LLC 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. 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 7. 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 91950-4397 Standard Agreement Page 9 of 12 City of National City and Re. ised May 2019 EsGiI, LLC To CONSULTANT: Eric Gleason Senior Director 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. 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 Section 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. ADMINISTRATIVE 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 Standard Agreement Page 10 of 12 City of National City and Revised May 2019 EsGil, LLC 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. To the extent any exhibits, schedules, or provisions thereof conflict or are inconsistent with the terms and conditions contained in this Agreement, the terms and conditions of this Agreement shall control. 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. Assignment & Assumption of Rights. CONSULTANT shall not assign this Agreement, in whole or in part, to any other party without first obtaining the written consent of CITY. H. 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. I. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The venue for any legal action arising under this Agreement shall be in either state or federal court in the County of San Diego, State of California. J. 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. K. 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. L. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. M. Subcontractors or Subconsultants. The CITY is engaging the services of the CONSULTANT identified in this Agreement. The CONSULTANT shall not subcontract any portion of the work, unless such subcontracting was part of the original proposal or is allowed by the CITY in writing. In the event any portion of the work under this Agreement is subcontracted, the subconsultant(s) shall be required to comply with and agree to, for the benefit of and in favor of the CITY, both the insurance provisions in Section 18 and the indemnification and hold harmless provision of Section 15 of this Agreement. Standard Agreement Page 11 of 12 City of National City and Revised May 2019 EsGil, LLC N. 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 party'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. CITY OF NATIONAL CITY By: A ejandra Sote o-Solis, Mayor APPROVED AS TO FORM: Angil P. Morris -Jones City Attorney By: Roberto M. Contreras Deputy City Attorney Standard Agreement Revised May 2019 ESGIL, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (Corporation — signatures of two corporate officers required) B By: Page 12 of 12 (Print) C\o (Title) (Name) 7maS 0ILS (Print) CFO (Title) City of National City and EsGil, LLC N. 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 party'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. CITY OF NATIONAL CITY By: Alejandra Sotelo-Solis, Mayor APPROVED AS TO FORM: Angil P. Morris -Jones City Attorney (Title) By: ✓, i1/ An :r Corns -Jones C' ttorney ESGIL, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (Corporation — signatures of two corporate officers required) By: (Name) (Print) (Name) (Print) (Title) Standard Agreement Page 12 of 12 City of National City and Revised May 2019 EsGil, LLC EXHBIT A — ESGIL RATE SCHEDULE REGULAR BASIS RATE / AS -NEEDED RATE ON -SITE STAFFING RATES Clerical/Administrative Support Provide one (I) clerical support staff person on an as - needed basis at no cost to City. This clerical support staff shall be an employee of EsGil, LLC, not of the City of National City, and shall be subject to the terms of the Agreement. Building/Engineering/Fire Inspector $83.00 per hour OFF -SITE STAFFING RATES Building Plan Review 60% of City Plan Check Fee based on adopted fee schedule in effect at the time of plan check submittal Fire Plan Review 30% of City Plan Check Fee based on adopted fee schedule in effect at the time of plan check submittal Effective through December 31, 2020: EsGil will apply a 10% monthly reduction to plan check fees until total reduction reaches $10,500.00. LABOR CLASSIFICATION POSITION RATE Labor rates are used only when requested by City and where the use of a percentage of the permit fee or plan check fee is not applicable or appropriate. LABOR CLASSIFICATION HOURLY BILLING RATE 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 Technician $72.00 1. Rates are subject to change each year on August 8'1'. 2. Rates are increased by a factor of 1.5 for overtime, holiday and weekend assignments. 3. Thirty (30) day written notice is required and the increase shall not exceed 3% each year. 4. Rate includes all necessary resources including equipment, materials, rechecks, plan check conferences at EsGil location, review of plan that are initially incomplete and for the transition of plans to and from the City. 5. Engineering plan reviews will be charged on an hourly basis. A proposal for the review will be submitted to the City with a not -to -exceed amount. Page 1 of 2 Page 2 of 2 EXHIBIT B — ESGIL SCOPE OF WORK A. Plan Reviews I Provide plan reviews consistent with application of building standards for buildings, shopping malls, civic centers, hospitals, sports arenas, municipal facilities, hotels, hazardous occupancies, trash recycling, dwelling additions, residential dwellings, and residential complexes by qualified staff. Staff to include the following: • Licensed structural engineers • Licensed civil engineers • Mechanical engineers • Licensed electrical engineers • Certified plans examiners • Certified building inspectors • Structural reviews will be performed by or under the supervision of one of our licensed structural engineers. All plan review engineers are International Code Council (ICC) Certified and required to have previous experience working in government building departments. I Provide state -mandated Certified Access Specialist Program (CASp) Plans Examiners and Energy and Environmental Design (LEED) Certified Plans Examiners when needed. ✓ Provide 3rd 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 will pick-up and deliver plans at no cost to the City upon City request. • Pick-up and deliveries will be made within twenty-four (24) hours of the City's request. • EsGil will receive plans by mail, courier, or via electronic transmission. ✓ Staff will identify any code deficiencies in a customized typed list for the applicant. I Coordinate review with the other plan check disciplines (electrical, mechanical, plumbing, energy, structural and disabled access) to ensure communication and coordination of listed deficiencies. I 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 plan review turnaround times for each type of job assigned: Project Type Initial Check Recheck Plan Change Single Family Dwelling 7 working days 5 working days 5 working days Apartment 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/expedited plan reviews are performed in one-half of the normal turnaround time • Performed at standard overtime rate of time and one-half by City/Building Official request Page 1 of 3 B. Inspection Services I Provide International Code Council (ICC) Certified Inspectors with a minimum of three (3) years of government building & safety experience. ✓ Provide as -needed inspections for Fire and Engineering Department(s) using qualified staff I Provide as -needed code compliant inspections for residential and commercial projects. • 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. • 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. 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 property owners and builders. • Maintain records and follow-up to resolution of non -complying items — including appeals • Be available to all parties by cell phone and email to assist in problem solving and maintain high customer service levels. • Lease a copy of inspection ticket and discuss inspection results with site personnel • Result inspections finding into the City's designated software. C. Code Enforcement • Provide personnel to assist the City with conducting investigations of building safety related violations of applicable codes. Staff shall work closely with City decision makers. All Inspectors will be fully trained in City philosophy and City code enforcement requirements. ✓ Provide as -needed code enforcement assistance to City Planning, Fire, Engineering and Public Works. D. Additional Se vices I Provide additional services as mutually agreed upon ✓ Assist City staff in revising and updating City codes and ordinances E. Independent Contractor ✓ EsGil is an independent contractor, and neither EsGil, nor any employee or agent thereof, shall be deemed for any reason to be an employee or agent of the City. EsGil and City agree that EsGil will be free to contract for similar service to be performed for other employers while under contract with City. EsGil is not an agent or employee of City and is not entitled to participate in any pension plan, insurance, bonus or similar benefits City provides for its employees. EsGil shall determine all conditions of employment including hours, wages, working conditions, discipline, hiring and discharge or any other condition of employment. EsGil employees are not subject to the direction and control of City. Any provision in this Agreement that may appear to give City the right to direct Page 2 of 3 EsGil as to the details of doing the work or to exercise a measure of control over the work means that EsGil will follow the direction of the City as to end results of the work only. Page 3 of 3 EXHIBIT "C" CONSULTANT must satisfy the following steps when posting a "Stop Work Order": • If a complaint is received by the Building Division regarding construction without proper building permits, the Permit Technician will verify what, if any, permits are issued for the subject location. If permits are issued, the complainant will be notified that no action will be taken. If the Permit Technician confirms that permits have not been issued, the complainant will be notified that an investigation will begin regarding the complaint. Immediately after determining that an investigation much begin, a referral is given to the Building Inspector for that day. The Building Inspector will be provided with the location of the job site is and a description of the type of work being performed. The Building Inspector will arrive at the job site to investigate what type of construction is being performed if any. If the Building Inspector does not see any work being performed at the job site, the inspector must call the Permit Technician to notify the Permit Technician of the Building Inspector's findings. If the Building Inspector sees work being performed that requires a building permit, then the Building Inspector must complete a Stop Work Order (Red Tag) and post the Stop Work Order on the building. The Stop Work Order (Red Tag) has a section called "Remarks". Under this section, the Building Inspector must enter the following: "Per 2019 C.B.C., Section 105.1 and N.C.M.C. Section 15.08.060 - Stop all construction work immediately. Obtain building permits prior to any construction work." The posting of the Stop Work Order (Red Tag) must be posted on the front of the building. Whenever possible, the Building Inspector should post the order on a window facing the front of the building, from the inside of the building with the written information facing the street. Depending on the size of the construction site, more than one Stop Work Order (Red Tag) may be necessary to be posted on the structure. The Building Inspector must use either duct tape or staples as appropriate to post the Stop Work Order (Red Tag). • After posting the Stop Work Order (Red Tag), the Building Inspector must complete a Correction Notice. The Correction Notice must contain the location of the Stop Work Order (Red Tag), the date, time, and a description of what work was found to have been performed without building permits. In addition, the Correction Notice must also note that certain penalties now will apply when applying for the required permit and that anyone with questions about this process may contact the City's Building Division at 619-336-4210. Photographs of the actual Stop Work Order posting must be taken from the public right-of-way, as well as a "close up" photograph from about 2-3 feet from the location where the Stop Work Order (Red Tag) is physically posted. The Building Inspector must leave their contact information (i.e. business card) with the homeowner, or others on site, and also answer any questions the Page 1 of 2 contractor/homeowner may have regarding why the posting was made and what must be done to resolve the violation. • If any Building Inspector ever has any questions regarding any Stop Work Order (Red Tag) referral, or any questions regarding this protocol, please call Luis Sainz at (619)-336-4214. Page 2 of 2 RESOLUTION NO. 2020 - 69 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A THREE-YEAR AGREEMENT WITH ESGIL, LLC FOR A NOT -TO -EXCEED AMOUNT OF $800,000 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 WHEREAS, on May 1, 2019, the City of National City (City) requested services via a Request for Proposal (RFP) for on -call services to provide assistance with permit processing, plan reviews, construction inspection and Code Enforcement services; and WHEREAS, the RFP was e-mailed to over 100 professional consulting firms and also advertised on PlanetBids where over 400 firms were notified; and WHEREAS, the City has an existing contract with EsGil Corporation (SafeBuilt), who provides services for permit processing, plan reviews, construction inspections and code enforcement services for the Building Division and Fire Department; and WHEREAS, the contract with EsGil, LLC would run concurrently with the contract of any new firm selected as a result of the RFP; and WHEREAS, on August 19, 2019, staff conducted panel interviews and ultimately Bureau Veritas was selected which would provide the Building Division with two (2) firms to provide services; and WHEREAS, after the Bureau Veritas contract was ratified by the City Council on December 17, 2019, EsGil Corporation reached out to the City and met with City staff to discuss how they could improve on the services they provide and agreed to lower their plan review fees to be in line with the current Bureau Veritas contract; and WHEREAS, staff recommends executing a three-year Agreement with EsGil ,LLC for a not -to -exceed amount of $800,000 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. 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, LLC for a not -to -exceed amount of $800,000 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. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 21st day of April, 202 Alej.ndra olis, '"ayor ATTEST: /i Michel R. Dalla, Cit APPROVED C. Atto Passed and adopted by the Council of the City of National City, California, on April 21, 2020 by the following vote, to -wit: Ayes: Councilmembers Cano, Morrison, Quintero, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: ALEJANDRA SOTELO-SOLIS Mayor of the City of National City, California MICHAEL R. DALLA City Clerk of the City of National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2020-69 of the City of National City, California, passed and adopted by the Council of said City on April 21, 2020. City Clerk of the City of National City, California By: CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT 2va�-sue MEETING DATE: April 21, 2020 AGENDA ITEM NO. 5 TEM TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute a three year agreement between the City of National City and EsGil, LLC for a not -to -exceed amount of $800,000 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. (Building) PREPARED BY: Luis Sainz, Building Official DEPARTMENT: Commnunit Development / R PHONE: 619-336-4214 APPROVED BY: EXPLANATION: See attached. FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: APPROVED: Finance MIS This agreement is on an as -needed basis and will be funded by fees collected, developer deposits, and various Capital Improvement Project funds and other funds as needed. This contract has a not -to -exceed amount of $800,000 per year for a period of three years and is part of an existing contract. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the Resolution executing an Agreement with EsGil Corporation for a not -to -exceed amount of $800,000 to provide on -call project support services for National City's Community Development Department. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: 1. Explanation 2. Agreement 3. Resolution 19eAdte.A;n ?to dopa- 6 5 Explanation On May 1, 2019, 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 emailed to over 100 professional consulting firms and also advertised on PlanetBids where over 400 firms were notified. The deadline to submit was June 10, 2019. At the time, the City had an existing contract with EsGil Corporation (SafeBuilt), who provides services for Permit Processing, Plan Reviews, Construction Inspections and Code Enforcement Services for the Building Division and Fire Department. The contract with Esgil would run concurrently with the contract of any new firm selected as a result of the RFP. On August 19, 2019, staff conducted panel interviews and ultimately Bureau Veritas was selected. This would now provide the Bldg. division with two firms to provide these services. After the Bureau Veritas contract was ratified by the City Council on December 17, 2019 EsGil Corporation reached out to the City and met with City staff to discuss how they could improve on the services they provide and agreed to lower their plan review fees to be in line with the current Bureau Veritas contract. In addition, they also agreed to provide the City with an EsGil staff member to assist the Building Division with clerical work at the front counter at no cost to the City. This contract has a not -to -exceed amount of $800,000 per year for a period of three years. Upon mutual agreement by both parties, the contract may be extended by one year, for no more than two occurrences. Staff recommends that Council approve the contract for On -Call Services to provide assistance with Permit Processing, Clerical help, Plan Reviews, Construction Inspections, Code Enforcement and related services on an as -needed basis and authorize the Mayor to execute the contract. ATTACHMENT 1 1 AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND ESGIL CORPORATION THIS AGREEMENT is entered into on this 21st day of April 2020, between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and ESGIL, LLC, a California limited liability company (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 to provide permit processing, plan reviews, construction inspections, and code enforcement on -site and off -site services, 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. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective on April 21, 2020. The duration of this Agreement is for the period of April 21, 2020 through April 20, 2023. This Agreement may be extended by mutual agreement upon the same terms and conditions for an additional one (1) year term. The Parties may exercise up to two one-year extensions. The City Council authorizes and delegates that any extension of this Agreement be approved in writing by the City Manager. 3. SCOPE OF SERVICES. The CONSULTANT will perform those building inspection, permit processing, plan reviews, construction inspections and code enforcement on - site and off -site services as set forth in the attached Exhibit "B". Additionally, CONSULTANT must send a copy of all plans CONSULTANT approves on the CITY's behalf to every CITY department that would have occasion to rely on, or later review, those approved plans. Additionally, CONSULTANT must perform all steps outlined in Exhibit "C" when "red - tagging" a property. Additionally, CONSULTANT must follow all departmental guidelines, policies and procedures communicated by CITY to CONSULTANT. ATTACHMENT 2 2 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 related to pre -plan submittals, pre -construction, and proposed plan changes and/or changes to construction methods and materials related to larger projects and at other meetings at the CITY, or on subject properities, as directed by Luis Sainz to keep staff and City Council advised of the progress on any given matter. 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. 4. 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. Bill Elizarraras thereby is designated as the Project Director for the CONSULTANT. 5. 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 percent (60%) 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 plan check submittal. The CONSULTANT's 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 plan check submittal. Beginning April 21, 2020, CONSULTANT will apply a 10% monthly reduction to plan check fees ("Reduction"). CONSULTANT shall provide the Reduction until (1) the dollar amount of each monthly Reduction totals $10,500, or (2) January 31, 2021 whichever occurs earlier. The CONSULTANT shall provide one full-time clerical support staff person on an as -needed basis at no cost to the CITY. This clerical support staff person shall be an employee of the CONSULTANT, not of the CITY, and shall be subject to the terms of this Agreement. 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 $800,000 per year for plan reviews, plan checking, or both, without prior written authorization from the Director of Community Development. The compensation for the CONSULTANT'S work shall not exceed the rates set forth in Exhibit "A". 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. For each billing error resulting in an incorrect charge to the CITY that CITY staff discovers in CONSULTANT'S invoices, CONSULTANT shall pay the CITY for the time incurred by CITY staff to identify the billing error. Any payment from CONSULTANT to CITY regarding billing errors referenced in Standard Agreement City of National City and Revised May 2019 EsGil, LLC 3 this Section shall be paid according to the fully -burdened hourly rate applicable to the CITY staff person who identified the billing error. 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. 6. 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. 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: (1) be free from defects; (2) become the property of the CITY for use with respect to this project; and (3) 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 Services 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 Standard Agreement City of National City and Revised May 2019 EsGil, LLC 4 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 set forth in this Agreement. The CONSULTANT, or the CONSULTANT'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY. The CONSULTANT and its agents, servants, and employees are wholly independent from the CITY and CONSULTANT'S obligations to the CITY are solely 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 County of San Diego and 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, and all its employees dispatched to perform work on behalf of the CITY, have all licenses, permits, qualifications, and approvals of whatever nature that are legally required for CONSULTANT and CONSULTANT's employees to practice their profession. CONSULTANT must provide CITY copies of any such license, permit, or approval to CITY before any of CONSULTANT's employees perform services on behalf of CITY. 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, or CONSULTANT's employees, to practice their 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. Standard Agreement City of National City and Revised May 2019 EsGil, LLC 5 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 -section 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, 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 14, 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. Standard Agreement City of National City and Revised May 2019 EsGil, LLC 6 CONSULTANT shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 15. 15. INDEMNIFICATION AND HOLD HARMLESS. To the maximum extent provided by law, The CONSULTANT agrees to defend, indemnify and hold harmless the City of National City, its officers, officials, agents, employees, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, 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, employees or volunteers. CITY will cooperate reasonably in the defense of any action, and CONSULTANT shall employ competent counsel, reasonably acceptable to the City Attorney. 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. EMPLOYEE PAYMENTS AND INDEMNIFICATION. 16.1 PERS Eligibility Indemnification. If CONSULTANT's employee(s) providing services under this Agreement claims, or is determined by a court of competent jurisdiction or the California Public Employees Retirement System ("PERS") to be eligible for enrollment in PERS of the CITY, CONSULTANT shall indemnify, defend, and hold harmless CITY for the payment of any employer and employee contributions for PERS benefits on behalf of the employee as well as for payment of any penalties and interest on such contributions which would otherwise be the responsibility of the CITY. CONSULTANT'S employees providing service under this Agreement shall not: (1) qualify for any compensation and benefit under PERS; (2) be entitled to any benefits under PERS; (3) enroll in PERS as an employee of CITY; (4) receive any employer contributions paid by CITY for PERS benefits; or (5) be entitled to any other PERS-related benefit that would accrue to a CITY employee. CONSULTANT's employees hereby waive any claims to benefits or compensation described in this Section 16. This Section 16 applies to CONSULTANT notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary. 16.2 Limitation of CITY Liability. The payment made to CONSULTANT under this Agreement shall be the full and complete compensation to which CONSULTANT and CONSULTANT's officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither CONSULTANT nor CONSULTANT's officers, employees, agents, and subcontractors are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to CITY employees. The CITY will not make any federal or state tax withholdings on behalf of CONSULTANT. The CITY shall not be required to pay any workers' compensation insurance on behalf of CONSULTANT. Standard Agreement City of National City and Revised May 2019 EsGil. LLC 7 16.3 Indemnification for Employee Payments. CONSULTANT agrees to defend and indemnify the CITY for any obligation, claim, suit, or demand for tax, retirement contribution including any contribution to PERS, social security, salary or wages, overtime payment, or workers' compensation payment which the CITY may be required to make on behalf of (1) CONSULTANT, (2) any employee of CONSULTANT, or (3) any employee of CONSULTANT construed to be an employee of the CITY, for work performed under this Agreement. This is a continuing obligation that survives the termination of this Agreement. 17. 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 Labor 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, employees, and volunteers 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. 18. 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 insurance policies: A. Professional Liability Insurance (errors and omissions) with minimum limits of $9,000,000 per claim. 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 non -owned, hired vehicles, and "any auto". The policy shall name the CITY and its officers, agents, employees, and volunteers 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 with a $10,000,000 umbrella policy, covering all bodily injury and property damage arising out of its operations, work, or performance under this Agreement. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". The "project" or "location" should be noted with specificity on an endorsement that shall be incorporated into the policy. 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. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, officials, 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) Standard Agreement City of National City and Revised May 2019 EsGil. LLC 8 days prior written notice to the CITY's Risk Manager, at the address listed in subsection G below, 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. The Certificate Holder for all policies of insurance required by this Section shall be: City of National City do Risk Manager 1243 National City Boulevard National City, CA 91950-4397 H. Insurance shall be written with only insurers authorized to conduct business in California that hold a current policy holder's alphabetic and financial size category rating of not less than A:VII according to the current Best's Key Rating Guide, or a company of 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 List of Approved Surplus Line Insurers ("LASLI") and otherwise meet rating requirements. I. 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 insurance policies required by this Section 18 in full force and effect at all times during the term of this Agreement, the CITY may treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. CITY reserves the right to modify the insurance requirements of this Section 18, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. K. If the CONSULTANT maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY shall be entitled to the broader coverage or higher limits (or both) maintained by the CONSULTANT. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. 19. 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 Standard Agreement City of National City and Revised May 2019 EsGil. LLC 9 incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attomey's fees incurred by the prevailing party. 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 7. 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 91950-4397 Standard Agreement City of National City and Revised May 2019 EsGil, LLC 10 To CONSULTANT: Eric Gleason Senior Director 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. 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 Section 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. ADMINISTRATIVE 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 Standard Agreement City of National City and Revised May 2019 EsGil. LLC 11 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. To the extent any exhibits, schedules, or provisions thereof conflict or are inconsistent with the terms and conditions contained in this Agreement, the terms and conditions of this Agreement shall control. 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. Assignment & Assumption of Rights. CONSULTANT shall not assign this Agreement, in whole or in part, to any other party without first obtaining the written consent of CITY. H. 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. I. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The venue for any legal action arising under this Agreement shall be in either state or federal court in the County of San Diego, State of California. J. 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. K. 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. L. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. M. Subcontractors or Subconsultants. The CITY is engaging the services of the CONSULTANT identified in this Agreement. The CONSULTANT shall not subcontract any portion of the work, unless such subcontracting was part of the original proposal or is allowed by the CITY in writing. In the event any portion of the work under this Agreement is subcontracted, the subconsultant(s) shall be required to comply with and agree to, for the benefit of and in favor of the CITY, both the insurance provisions in Section 18 and the indemnification and hold harmless provision of Section 15 of this Agreement. Standard Agreement City of National City and Revised May 20(9 EsGiI. LLC 12 N. 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 party'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. CITY OF NATIONAL CITY By: Alejandra Sotelo-Solis, Mayor APPROVED AS TO FORM: Angil P. Morris -Jones City Attorney By: Angil P. Morris -Jones City Attorney ESGIL, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (Corporation — signatures of two corporate officers required) By: (Name) (Print) (Title) By: (Name) Thomas P. Wilkes (Print) Chief Financial Officer (Title) Standard Agreement City of National City and Revised May 2019 EsGil. LLC 13 EXHBIT A — ESGIL RATE SCHEDULE REGULAR BASIS RATE / AS -NEEDED RATE --7,07711111 r ON -SITE STAFFING RATES Clerical/Administrative Support Provide one (1) clerical support staff person on an as - needed basis at no cost to City. This clerical support staff shall be an employee of EsGil, LLC, not of the City of National City, and shall be subject to the terms of the Agreement. Building/Engineering/Fire Inspector $83.00 per hour OFF -SITE STAFFING RATES Building Plan Review 60% of City Plan Check Fee based on adopted fee schedule in effect at the time of plan check submittal Fire Plan Review 30% of City Plan Check Fee based on adopted fee schedule in effect at the time of plan check submittal Effective through December 31, 2020: EsGil will apply a 10% monthly reduction to plan check fees until total reduction reaches $10,500.00. LABOR CLASSIFICATION POSITION RATE ■ . Labor rates are used only when requested by City and where the use of a percentage of the permit fee or plan check fee is not applicable or appropriate. LABOR CLASSIFICATION HOURLY BILLING RATE 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 Technician $72.00 1. Rates are subject to change each year on August 8'. 2. Rates are increased by a factor of 1.5 for overtime, holiday and weekend assignments. 3. Thirty (30) day written notice is required and the increase shall not exceed 3% each year. 4. Rate includes all necessary resources including equipment, materials, rechecks, plan check conferences at EsGil location, review of plan that are initially incomplete and for the transition of plans to and from the City. 5. Engineering plan reviews will be charged on an hourly basis. A proposal for the review will be submitted to the City with a not -to -exceed amount. 14 EXHIBIT B — ESGIL SCOPE OF WORK A. Plan Reviews ✓ Provide plan reviews consistent with application of building standards for buildings, shopping malls, civic centers, hospitals, sports arenas, municipal facilities, hotels, hazardous occupancies, trash recycling, dwelling additions, residential dwellings, and residential complexes by qualified staff. Staff to include the following: • Licensed structural engineers • Licensed civil engineers • Mechanical engineers • Licensed electrical engineers • Certified plans examiners • Certified building inspectors ✓ Structural reviews will be performed by or under the supervision of one of our licensed structural engineers. All plan review engineers are 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 needed. ✓ Provide 3rd 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. I EsGil will pick-up and deliver plans at no cost to the City upon City request. • Pick-up and deliveries will be made within twenty-four (24) hours of the City's request. • EsGil will receive plans by mail, courier, or via electronic transmission. ✓ Staff will identify any code deficiencies in a customized typed list for the applicant. ✓ Coordinate review with the other plan check disciplines (electrical, mechanical, plumbing, energy, structural and disabled access) to ensure communication and coordination of listed deficiencies. ✓ 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 plan review turnaround times for each type of job assigned: Project Type Initial Check Recheck Plan Change Single Family Dwelling 7 working days 5 working days 5 working days Apartment 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/expedited plan reviews are performed in one-half of the normal turnaround time • Performed at standard overtime rate of time and one-half by City/Building Official request 15 B. Jnsnection Services ✓ Provide International Code Council (ICC) Certified Inspectors with a minimum of three (3) years of government building & safety experience. ✓ Provide as -needed inspections for Fire and Engineering Department(s) using qualified staff I Provide as -needed code compliant inspections for residential and commercial projects. • 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. • 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. 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 property owners and builders. • Maintain records and follow-up to resolution of non -complying items — including appeals • Be available to all parties by cell phone and email to assist in problem solving and maintain high customer service levels. • Lease a copy of inspection ticket and discuss inspection results with site personnel • Result inspections finding into the City's designated software. C. Code Enforcement I Provide personnel to assist the City with conducting investigations of building safety related violations of applicable codes. Staff shall work closely with City decision makers. All Inspectors will be fully trained in City philosophy and City code enforcement requirements. ✓ Provide as -needed code enforcement assistance to City Planning, Fire, Engineering and Public Works. D. Additional Se vices ✓ Provide additional services as mutually agreed upon I Assist City staff in revising and updating City codes and ordinances E. jndependent Contractor ✓ EsGil is an independent contractor, and neither EsGil, nor any employee or agent thereof, shall be deemed for any reason to be an employee or agent of the City. EsGil and City agree that EsGil will be free to contract for similar service to be performed for other employers while under contract with City. EsGil is not an agent or employee of City and is not entitled to participate in any pension plan, insurance, bonus or similar benefits City provides for its employees. EsGil shall determine all conditions of employment including hours, wages, working conditions, discipline, hiring and discharge or any other condition of employment. EsGil employees are not subject to the direction and control of City. Any provision in this Agreement that may appear to give City the right to direct 16 EsGil as to the details of doing the work or to exercise a measure of control over the work means that EsGil will follow the direction of the City as to end results of the work only. 17 EXHIBIT "C" CONSULTANT must satisfy the following steps when posting a "Stop Work Order": • If a complaint is received by the Building Division regarding construction without proper building permits, the Permit Technician will verify what, if any, permits are issued for the subject location. If permits are issued. the complainant will be notified that no action will be taken. If the Permit Technician confirms that permits have not been issued, the complainant will be notified that an investigation will begin regarding the complaint. • Immediately after determining that an investigation much begin, a referral is given to the Building Inspector for that day. The Building Inspector will be provided with the location of the job site is and a description of the type of work being performed. • The Building Inspector will arrive at the job site to investigate what type of construction is being performed if any. If the Building Inspector does not see any work being performed at the job site, the inspector must call the Permit Technician to notify the Permit Technician of the Building Inspector's findings. If the Building Inspector sees work being performed that requires a building permit, then the Building Inspector must complete a Stop Work Order (Red Tag) and post the Stop Work Order on the building. The Stop Work Order (Red Tag) has a section called "Remarks". Under this section, the Building Inspector must enter the following: "Per 2019 C.B.C., Section 105.1 and N.C.M.C. Section 15.08.060 - Stop all construction work immediately. Obtain building permits prior to any construction work." The posting of the Stop Work Order (Red Tag) must be posted on the front of the building. Whenever possible, the Building Inspector should post the order on a window facing the front of the building, from the inside of the building with the written information facing the street. Depending on the size of the construction site, more than one Stop Work Order (Red Tag) may be necessary to be posted on the structure. The Building Inspector must use either duct tape or staples as appropriate to post the Stop Work Order (Red Tag). • After posting the Stop Work Order (Red Tag), the Building Inspector must complete a Correction Notice. The Correction Notice must contain the location of the Stop Work Order (Red Tag), the date, time, and a description of what work was found to have been performed without building permits. In addition, the Correction Notice must also note that certain penalties now will apply when applying for the required permit and that anyone with questions about this process may contact the City's Building Division at 619-336-4210. Photographs of the actual Stop Work Order posting must be taken from the public right-of-way, as well as a "close up" photograph from about 2-3 feet from the location where the Stop Work Order (Red Tag) is physically posted. • The Building Inspector must leave their contact information (i.e. business card) with the homeowner, or others on site, and also answer any questions the 18 contractor/homeowner may have regarding why the posting was made and what must be done to resolve the violation. If any Building Inspector ever has any questions regarding any Stop Work Order (Red Tag) referral, or any questions regarding this protocol, please call Luis Sainz at (619)-336-4214. 19 RESOLUTION NO. 2020 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A THREE-YEAR AGREEMENT WITH ESGIL, LLC FOR A NOT -TO -EXCEED AMOUNT OF $800,000 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 WHEREAS, on May 1, 2019, the City of National City requested services via a Request for Proposal (RFP) for on -call services to provide assistance with permit processing, plan reviews, construction inspection and Code Enforcement services; and WHEREAS, the RFP was e-mailed to over 100 professional consulting firms and also advertised on PlanetBids where over 400 firms were notified; and WHEREAS, the City has an existing contract with EsGil Corporation (SafeBuilt), who provides services for permit processing, plan reviews, construction inspections and code enforcement services for the Building and Fire Department; and WHEREAS, the contract with EsGil, LLC would run concurrently with the contract of any new firm selected as a result of the RFP; and WHEREAS, on August 19, 2020, staff conducted panel interviews and ultimately Bureau Veritas was selected which would provide the Building Division with two firms to provide services; and WHEREAS, after the Bureau Veritas contract was ratified by the City Council on December 17, 2019, EsGil Corporation reached out to the City and met with City staff to discuss how they could improve on the services they provide and agreed to lower their plan review fees to be in line with the current Bureau Veritas contract; and WHEREAS, staff recommends executing a three-year Agreement with EsGil ,LLC for a not -to -exceed amount of $800,000 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. 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, LLC for a not -to -exceed amount of $800,000 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. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 21st day of April, 2020. Alejandra Sotelo-Solis, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Angil P. Morris -Jones, City Attorney Date: CONTRACT TRANSMITTAL FORM (Attach as Cover Sheet to Documents dropped off to City Clerk's Office) 5/21/20' Building Divsision From (Dept.): Tonya Hussain Submitted by (First & Last Name): Vendor: Esgil Resolution: YES / NO Resolution No. (if applicable): oZo—(12-cl 6000 Originals Provided to City Clerk (Select Quantity) riDepartment has Copy / Duplicate Original Vendor has Copy / Duplicate Original