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HomeMy WebLinkAbout4.3 - 1934 First Amendment to Agreement with West Coas Page 1 of 2 STAFF REPORT CITY COUNCIL DATE: April 17, 2018 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: First Amendment to Agreement with West Coast Code Consultants, Inc. for On-Call Building and Safety Services Prepared by: Gregory Shreeve, Sr., Chief Building Official EXECUTIVE SUMMARY: The City Council will consider approving an amendment to the agreement with West Coast Code Consultants, Inc. for on-call Building and Safety services to increase the not-to-exceed amount from $500,000 to $800,000. STAFF RECOMMENDATION: Adopt the Resolution Approving First Amendment to Consulting Services Agreement with West Coast Code Consultant. FINANCIAL IMPACT: All charges will be in accordance with assigned on-call work and charged to the Division in accordance with the adopted budget. DESCRIPTION: The Building and Safety Division utilizes consultants on an as -needed basis to assist staff with specific areas of technical expertise and to assist with overf low work. This includes plan check, inspections and building code compliance activities. The current agreement with West Coast Code Consultants includes a not to exceed amount of $500,000 with an expiration date of June 30, 2019 (Attachment 1). Staff is proposing that the existing agreement for on-call consultant services with West Coast Code Consultants be amended to increase the limit on compensation paid to the consultant through the term of the agreement (Attachments 2 and 3). The “not to exceed” limit on compensation would be increased by $300,000. The new not to exceed amount would be $800,000. There would be no change in the expiration date of the agreement. Page 2 of 2 NOTICING REQUIREMENTS/PUBLIC OUTREACH: N/A ATTACHMENTS: 1. Consulting Services Agreement for Building and Safety Services between the City of Dublin and West Coast Code Consultants, Inc., dated July 1, 2016 2. Resolution Approving First Amendment to Consulting Services Agreement with West Coast Code Consultants, Inc. 3. Exhibit A to Resolution - Agreement Amendment CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND WEST COAST CODE CONSULTANTS, INC. THIS AGREEMENT for consulting services is made by and between the City of Dublin ( "City ") and West Coast Code Consultants, Inc. ( "Consultant ") as of July 1, 2016. Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A_ at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. Consultant shall conform to the requirements of the Special Conditions attached as Exhibit C. 1.1 Term of Services. The term of this Agreement shall begin on the date first noted above and shall end on June 30, 2019, the date of completion specified in Exhibit A, and Consultant shall complete the work described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8. 1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession. Consultant shall prepare all work products required by this Agreement in a substantial, first - class manner and shall conform to the standards of quality normally observed by a person practicing in Consultant's profession. 1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.1 above and to satisfy Consultant's obligations hereunder. Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in the Payment Schedule contained in Exhibit B, the total sum paid to Consultant shall not to exceed $ 500,000, notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal, Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 1 of 15 regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and /or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. No individual performing work under this Contract shall bill more than 2,000 hours in a fiscal year unless approved, in writing, by the City Manager or his /her designee. Invoices shall contain the following information: Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; The beginning and ending dates of the billing period; A copy of the applicable time entries or time sheets shall be submitted showing the following: o Daily logs of total hours worked by each individual performing work under this Contract o Hours must be logged in increments of tenths of an hour or quarter hours o If this Contract covers multiple projects, all hours must be logged by project assignment o A brief description of the work, and each reimbursable expense A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder, as well as a separate notice when the total number of hours of work by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours, which shall include an estimate of the time necessary to complete the work described in Exhibit A; The Consultant's signature. Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 2 of 15 2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. 2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within sixty (60) days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed. 2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown in the Payment Schedule, attached as Exhibit B: 2.6 Reimbursable Expenses. Reimbursable expenses, if any, are set forth in Exhibit B. Expenses not listed in Exhibit B are not chargeable to City. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded. 2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 3 of 15 perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long- distance telephone or other communication charges, vehicles, and reproduction facilities. Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and /or limits shall be available to City as an additional insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. The additional insured coverage under the Consultant's policy shall be "primary and non - contributory" and will not seek contribution from City's insurance or self - insurance and shall be at least as broad as CG 20 0104 12. In the event Consultant fails to maintain coverage as required by this Agreement, City at its sole discretion may purchase the coverage required and the cost will be paid by Consultant. Failure to exercise this right shall not constitute a waiver of right to exercise later. Each insurance policy shall include an endorsement providing that it shall not be cancelled, changed, or allowed to lapse without at least thirty (30) days' prior written notice to City of such cancellation, change, or lapse. 4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 4 of 15 DOLLARS ($1,000,000.00) per accident. In the alternative, Consultant may rely on a self - insurance program to meet those requirements, but only if the program of self - insurance complies fully with the provisions of the California Labor Code. Determination of whether a self - insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Consultant, if a program of self - insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement. An endorsement shall state that coverage shall not be canceled except after thirty (3 0) days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non -owned automobiles. 4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 Code 1 ( "any auto "). 4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as an endorsement to the policy: a. City and its officers, employees, agents, and volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of activities performed by or on Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 5 of 15 behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. b. The insurance shall cover on an occurrence or an accident basis, and not on a claims -made basis. An endorsement must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self - insurance maintained by the City shall be called upon to contribute to a loss under the coverage. d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall not affect coverage provided to CITY and its officers, employees, agents, and volunteers. e. An endorsement shall state that coverage shall not be canceled except after thirty (3 0) days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions. 4.3.1 Any deductible or self - insured retention shall not exceed $150,000 per claim. 4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. 4.3.3 The policy must contain a cross liability or severability of interest clause. 4.3.4 The following provisions shall apply if the professional liability coverages are written on a claims -made form: Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 6 of 15 a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. C. If coverage is canceled or not renewed and it is not replaced with another claims -made policy form with a retroactive date that precedes the date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise, at the Consultant's sole cost and expense, any extended reporting provisions of the policy, if the Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement. 4.4 All Policies Requirements. 4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than ANII. 4.4.2 Verification of coveraue. Prior to beginning any work under this Agreement, Consultant shall furnish City with certificates of insurance and with original endorsements effecting coverage required herein. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The City reserves the right to require complete, certified copies of all required insurance policies and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later. 4.4.3 Subcontractors. Consultant agrees to include with all subcontractors in their subcontract the same requirements and provisions of this Agreement including the Indemnification and Insurance requirements to the extent they apply to the scope of the Subcontractor's work. Subcontractors hired by Consultant agree to be bound to Consultant and the City in the same manner and to the same extent as Consultant is bound to the City under the Contract Documents. Subcontractor further agrees to include these same provisions with any Sub- subcontractor. A copy of the Owner Contract Document Indemnity and Insurance provisions will be furnished to the Subcontractor upon request. The General Contractor shall require all Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 7 of 15 subcontractors to provide a valid certificate of insurance and the required endorsements included in the agreement prior to commencement of any work and will provide proof of compliance to the City. 4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon a determination that the coverages, scope, limits, and forms of such insurance are either not commercially available, or that the City's interests are otherwise fully protected. 4.4.5 Deductibles and Self- Insured Retentions. All self - insured retentions (SIR) and /or deductibles must be disclosed to the City for approval and shall not reduce the limits of liability. Policies containing any self - insured retention provision and /or deductibles shall provide or be endorsed to provide that the SIR and /or deductibles may be satisfied by either the named insured or the City. 4.4.6 Excess Insurance. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non - contributory basis for the benefit of City (if agreed to in a written contract or agreement) before City's own insurance or self - insurance shall be called upon to protect City as a named insured. 4.4.7 Notice of Reduction in Coverage. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: ■ Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and /or ■ Terminate this Agreement. Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 8 of 15 Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. To the maximum extent allowed by law, Consultant shall indemnify, keep and save harmless the City, and City Councilmembers, officers, agents and employees against any and all suits, claims or actions arising out of any injury to persons or property, including death, that may occur, or that may be alleged to have occurred, in the course of the performance of this Agreement by a negligent act or omission or wrongful misconduct of the Consultant or its employees, subcontractors or agents. Consultant further agrees to defend any and all such actions, suits or claims and pay all charges of attorneys and all other costs and expenses arising therefrom or incurred in connection therewith; and if any judgment be rendered against the City or any of the other individuals enumerated above in any such action, Consultant shall, at its expense, satisfy and discharge the same. Consultant's responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and /or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Consultant /Subcontractor's responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. Section 6. STATUS OF CONSULTANT. 6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and /or employee contributions for PERS benefits. Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 9 of 15 6.2 Consultant No Alzent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, approvals and training that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 10 of 15 Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon ninety (90) days' written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 11 of 15 8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall included, but not be limited to, the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties. 9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and /or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 12 of 15 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. Section 10. MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County Alameda or in the United States District Court for the Northern District of California. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 13 of 15 in this Agreement that would violate California Government Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 et. seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California. Principals and those performing work for City of Dublin may be required to submit a California Fair Political Practices Commission (FPPC) Form 700: Statement of Economic Interests documenting potential financial conflicts of interest. For additional information, proposers should refer to the FPPC website at www.fppe.ca.gov/ii-idex.php?id=500. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by the City Manager ( "Contract Administrator "). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: Giyan Senaratne, PE, SE, LEED AP, CASp Principal / CEO 2400 Camino Ramon Suite 240 San Ramon, CA 94583 Any written notice to City shall be sent to: City of Dublin Attention: City Manager 100 Civic Plaza Dublin, CA 94568 Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 14 of 15 10.11 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. CITY OF DUBLIN �4=4: � (Chtfis-topher L. Foss City Manager Attest: laes�' Caroline Soto, City Clerk Approved as to Form: Jo Bakker, City Attorney CONSULTANT / CEO PE, SE, LEED AP, CASp Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants Page 15 of 15 EXHIBIT A SCOPE OF SERVICES BUILDING INSPECTION AND PLAN CHECK SERVICES. Consultant shall enforce provisions of the City's Building, Residential, Electrical, Plumbing, Mechanical, Green Building Standards, Universal Design, Energy and Housing Codes; The City of Dublin's Zoning Code; and related State and local laws. Consultant shall make such inspections and investigations as may be required to effect such enforcement and issue permits as / are required by the City's Ordinances and duly adopted policies. Such enforcement shall include the duties related to the Building Official, as assigned, as set forth in the Dublin Municipal Code, and in the performance of such work the Consultant shall do the following: a. Plan Review. As directed by the Chief Building Official, review plans prepared by or on behalf of applicants for compliance with the applicable Federal, State, and City ordinances and regulations. Consultant shall maintain a close liaison with City Planning Division Staff in order to insure that appropriate requirements of the Zoning Ordinance are incorporated within the plans submitted. Consultant will strive to complete the first plan check submitted within ten (10) business days of notification of assignment of review by the City. The goal agreed to by Consultant will be to complete 95% of all complete submittal within the 10 day period. City recognizes that on large scale projects this may not be possible and Consultant will strive for a plan review period that does not exceed fifteen (15) days on large -scale projects. The Consultant SHALL notify the Chief Building Official if the first plan check will not be completed within 10 business days. Consultant will strive to complete the second or subsequent plan check submitted within five (5) business days of notification of assignment of review by the City. The goal agreed to by Consultant will be to complete 95% of all complete submittal within the 5 day period. City recognizes that on large scale projects this may not be possible and Consultant will strive for a plan review period that does not exceed ten (10) days on large -scale projects. The Consultant SHALL notify the Chief Building Official if the first plan check will not be completed within 5 business days. b. Building Inspection. Provide building inspection services during the course of construction of facilities to enforce compliance with the provisions of applicable laws including City Ordinances and regulations set forth on the plans for which the permit is issued. In the performance of such duties, Consultant shall provide prompt inspections for each project at the completion of various stages of construction to determine compliance. Consultant shall provide City Manager and / or designee with relevant background information on all assigned inspection Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants -- Exhibit A Page 1 of 3 personnel prior to assignment under this agreement. Consultant shall assign competent personnel whose background, experience, applicable certifications, and demeanor demonstrate an ability to conduct inspections of the type required under this Agreement, in accordance with City standards. City Manager and / or designee shall determine acceptability of assigned inspection personnel. Consultant shall promptly identify alternate personnel in the event of a request by the City Manager and / or designee. In the event that Consultant request a change in the assigned inspection personnel, Consultant shall bear the full cost of any training required to familiarize the assigned personnel with the current status of projects in the City. At the minimum, this shall include a one -week overlap with both inspectors. In the event that an assigned inspector is absent for a period of greater than three concurrent workdays, the Consultant will provide a qualified temporary replacement that is approved by the City. c. .`Housing Code Enforcement. Under the direction of the Chief Building Official, Consultant shall enforce the City's Housing Code by investigation of complaints regarding substandard housing conditions and when necessary, prepare cases for citation hearings, criminal proceedings in municipal court, and / or civil abatement proceedings. d. Presentations of Code Updates. In the event that the State of California adopts revisions to any of the adopted codes during the term of this Agreement, Consultant shall assist the Chief Building Official in preparing the staff report and necessary ordinances in advance of the State mandatory implementation date. e. Other Duties. Consultant shall perform other related activities as requested by the City, including Building Official services. Fees for such services shall be negotiated on an as- needed basis as approved by the City Manager or his /her designee. 2. REPORTING / PUBLIC INFORMATION. Consultant shall be responsible for coordination of monthly and annual reports summarizing activities undertaken pursuant to this Agreement. Reports shall be in a format as mutually agreed by the City Manager and /or designee. As required, Consultant may prepare staff reports for City Council, including but not limited to review and adoption of related code updates. Consultant shall also assist with the preparation of informational brochures designed to assist the public with Building and Safety process. 3. COLLECTION OF FEES. All fees collected from permit applicants in connection with the carrying out of the functions set forth in this Agreement shall be collected by the City. If required, Consultant shall submit as appropriate, information and recommendations on proposed City adjustments to the adopted fee schedules. Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants -- Exhibit A Page 2 of 3 4. LIMITATIONS (AVODANCE OF CONFLICTS). During the term of this Agreement, Consultant shall not provide services to any client for a project that requires and approval from the City. Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants -- Exhibit A Page 3 of 3 EXHIBIT B PAYMENT SCHEDULE A. City shall pay Consultant for services rendered in accordance with the hourly rates stated in section B. Consultant shall submit invoices, not more often than once per month, based upon the work completed. At the sole discretion of the City, other payment schedules may be considered. Invoices shall include an accounting of all hours by classification and task. Invoices shall include the purchase order number, amount of purchase order, amount of purchase order remaining, and total hours of augmentation personnel assigned to the City covered by purchase order. The format documentation included on the invoice shall be subject to approval by the City Manager and / or designee. B. HOURLY RATES: The following rates include all reimbursable or indirect costs, including but not limited to business cards, all required code books and references, a vehicle and mobile field device (smart phone or laptop) compatible with the City's permitting system. Supervising Building Inspector $110 (Includes oversight of Contract Inspectors, monitoring of Inspections demand and a knowledge / certification in commercial /multi- family and single family building systems. May include plan checking assignments) 2. Building Inspector lIl $95 (Includes knowledge / certification in commercial /multi - family and single family building systems including structural, mechanical, plumbing, and electrical systems. May include plan checking of non- structural plans.) Building Inspector II $85 (Includes knowledge / certification in residential building systems including structural, mechanical, plumbing, and electrical systems. May include plan checking of non - structural plans.) Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants -- Exhibit B Page 1 of 2 4. Building Inspector I $80 (Includes inspections of residential buildings) 5. Building Inspector Trainee $70 (Includes training or entry level inspections of residential buildings) 6. Plan Review (on or off site) $120 (Includes accessibility plan review meeting State standards) 7. Certified Access Specialist — $5 Augmentation Inspector (An hourly surcharge is permitted for each Building Inspector rate listed in this Exhibit that holds an active CASp certification) 8. Overtime rate 150% of Above Hourly Rate (When pre- approved in writing from Contract Administrator or designee) Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants -- Exhibit B Page 2 of 2 Ka a. I Fff Fire SPECIAL PROVISIONS The following provisions are hereby incorporated in the Agreement by and between COMPANY (Consultant) and City of Dublin (City): ASSIGNED PERSONNEL / SUB CONTRACTORS. The following terms and conditions are hereby agreed to by Consultant prior to the assignment of personnel or use by Consultant of subcontractors. a. Submittal to City Manager, The name, background and experience of any and every firm or individual to which any work outlined in this Agreement is to be performed must be submitted to the City Manager and / or designee for prior approval. b. Consultant Liable for Work of Subcontractors. Approval by the City Manager of a subcontractor shall not relieve Consultant of any liability for the work to be performed pursuant to this Agreement, nor shall such approval infer any contractual relationship between City and any subcontractor. EMERGENCY OPERATIONS ASSISTANCE. The following terms and conditions are hereby agreed to by Consultant in the event of a local or regional emergency: a. Report into the City of Dublin Emergency Operations Center (E.O.C.). Contract personnel assigned to the City will make a reasonable effort to report to the City of Dublin E.O.C. as soon as possible following a local or regional emergency. b. Consultant shall provide emergency preparedness training. All contract personnel assigned to the City shall maintain at all times appropriate emergency training and certification, such as ATC -20 Damage Assessment Training and Certification. c. The Consultant shall make contract personnel and Consultant resources available for emergency response at the same hourly rates and conditions specified in this contract. d. The Consultant acknowledges that emergency response work may require variations in the work hours and assignments. Consulting Services Agreement between July 1, 2016 City of Dublin and West Coast Code Consultants -- Exhibit C Page 1 of 1 RESOLUTION NO. XX- 18 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING FIRST AMENDMENT TO CONSULTING SERVICES AGREEMENT WITH WEST COAST CODE CONSULTANTS, INC. WHEREAS, Staff prepared and initiated a Request for Qualifications (RFQ) for on-call building and safety services; and WHEREAS, Staff reviewed and selected the most qualified firms to provide certain plan check, inspections and building code compliance activit y services on an as- needed basis; and WHEREAS, on July 1, 2016, the City of Dublin and West Coast Code Consultants, Inc. entered into a Consulting Services Agreement for Building and Safety Services (hereinafter referred to as the “Agreement”); and WHEREAS, the compensation for the Agreement was approved at the sum not to exceed five hundred thousand ($500,000) dollars; and WHEREAS, Staff is seeking to amend Agreement to increase the not-to-exceed compensation amount of the Agreement to eight hundred thousand ($800,000) dollars; and WHEREAS, total compensation for the services provided under the Agreement is subject to budgetary approval by the City Council for the term of each Agreement . NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the First Amendment to the Consulting Services Agreement with West Coast Code Consultants, Inc. as attached hereto as Exhibit A; and BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Amendment. PASSED, APPROVED AND ADOPTED this 17 day of April, 2018, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ________________________________ Mayor ATTEST: _______________________________________ City Clerk 2932810.1 FIRST AMENDMENT TO CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND WEST COAST CODE CONSULTANTS, INC. WHEREAS, on July 1, 2016, the City of Dublin (hereinafter referred to as "City") and West Coast Code Consultants, INC. (hereinafter referred to as "Consultant") entered into a Consulting Services Agreement for Building and Safety Services (hereinafter referred to as the “Agreement”); and WHEREAS, the compensation for the Agreement was approved at a sum not to exceed five hundred thousand ($500,000) dollars and is set to expire on June 30, 2019; and WHEREAS, the City and Consultant now wish to amend the Agreement to increase the limit on the total compensation payable to the Consultant under the Agreement. NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Agreement is amended as follows: 1) Section 2. Compensation, shall be rescinded in its entirely and replaced with the following: Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in the Payment Schedule contained in Exhibit B, the total sum paid to Consultant shall not to exceed $800,000, notwithstanding any contrary indications that may be contained in Consultant’s proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant’s proposal, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City, consultant shall not bill City for duplicate services performed by more than one person. 2) All requisite insurance policies to be maintained by the Consultant pursuant to the Agreement, as may have been amended from time to time, shall include coverage for the amended term, as described above. 3) The individuals executing this First Amendment and the instruments referenced in it on behalf of Consultant each represent and warrant that they have the legal power, right and actual authority to bind Consultant to the terms and conditions of this First Amendment. 4) Except to the extent inconsistent with this First Amendment, the Parties ratify and confirm all of the terms and conditions of the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed as of the date written below. CITY OF DUBLIN Dated: ___________________ By: __________________________ Christopher L. Foss, City Manager ATTEST: By: Caroline Soto, City Clerk WEST COAST CODE CONSULTANT, INC. Dated: By: _____________________________ Giyan Senaratne, PE, SE, LEED AP, CASp Principal / CEO 2932866.1