Under the prior administration, plan check providers were not engaged under contract. Pursuant to the procurement policy, since the City’s total ongoing relationship across fiscal years exceeds the City Manager’s $49,000 purchasing authority, staff are bringing forward an agreement for City Council consideration. In fiscal year 2021-22, this vendor was paid $49,784.
ENVIRONMENTAL REVIEW
This does not constitute a “project” pursuant to the California Environmental Quality Act.
FISCAL IMPACT
The cost of on-call plan check and inspection services are fully offset by plan check and inspection fees paid by developers.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments
- Agreement
CITY OF FOWLER
CONTRACT SERVICES AGREEMENT FOR PROFESSIONAL SERVICES
This Contract Services Agreement for Professional Services ("Agreement") is entered into between the City of Fowler, a California general law city ("City") and CSG Consultants, Inc. ("Vendor"), a California Corporation, with respect to the following recitals, which are a substantive part of this Agreement. This Agreement shall be effective on the last date indicated below ("Effective Date").
RECITALS
A. City desires to engage the services of a qualified vendor for plan check and inspection services more fully described in Exhibit A, which is attached hereto and incorporated by reference.
B. Vendor is engaged in the business of providing these Services and hereby warrants and represents that Vendor is qualified, experienced, and capable of providing these Services, and possesses any required licenses, certifications, security/bonding, and/or training necessary thereto.
C. City desires to contract with Vendor to provide these Services on the terms and conditions as set forth in this Agreement.
Now, therefore, in consideration of the promises and mutual agreements herein, City and Vendor agree as follows:
AGREEMENT
1. Scope of Work. Vendor agrees to perform the services as more fully described in Exhibit A attached hereto and incorporated herein by reference (“Services”). Changes in the scope of Services, including work incidental to the Services, shall be made in writing and particularly describe the changes in Services, payment/costs, and schedule/term, as applicable.
2. Schedule. City and Vendor shall mutually agree on a schedule for performing the Services. The schedule shall be subject to modification based on the City’s operational needs. City will notify Vendor in advance of any modification to the schedule.
3. Term of Agreement; Commencement of Services. The term of this Agreement shall begin on the Effective Date and shall terminate on June 30, 2023, unless extended by mutual written agreement of the Parties. Notwithstanding the preceding sentence, this Agreement may be terminated during the term in accordance with Section 17 herein.
4. Payment for Services. City shall pay Vendor for the Services performed pursuant to this Agreement as follows: time and materials, per Exhibit A. The total amount paid by City to Vendor pursuant to this Agreement shall not exceed forty-nine thousand dollars ($49,000).
The foregoing is inclusive of all labor, equipment, materials, costs and expenses, taxes, and overhead. City shall pay Vendor for Services satisfactorily performed pursuant to this Agreement. Vendor shall submit an invoice to City containing detailed billing information regarding the Services provided and City shall tender payment to Vendor within thirty (30) days after receipt of invoice.
5. Independent Contractor Status. Vendor and its subcontractors, if any, shall perform the Services as independent contractors and not as officers, employees, agents or volunteers of City. Vendor is engaged in an independently established trade, occupation, or business to perform the Services required by this Agreement and is hereby retained to perform work that is outside the usual course of City’s business. Vendor is free from 2 the control and direction of City in connection with the manner of performance of the work. Nothing contained in this Agreement shall be deemed to create any contractual relationship between City and Vendor’s employees or subcontractors, nor shall anything contained in this Agreement be deemed to give any third party, including but not limited to Vendor’s employees or subcontractors, any claim or right of action against City.
6. Vendor Representations; Standard of Care; Compliance with Law. Vendor represents that Vendor and any subcontractors utilized by Vendor are and will be qualified in the field for which Services are being provided under this Agreement, and Vendor and any subcontractors are now, and will be throughout their performance of the Services under this Agreement, properly licensed, certified, secured/bonded, trained, and/or otherwise qualified and authorized to perform the Services required and contemplated by this Agreement, as may be required by law. Vendor and its subcontractors shall utilize the standard of care and skill customarily exercised by members of their profession, shall use reasonable diligence and best judgment while performing the Services, and shall comply with all applicable laws, regulations, and industry standards, including anti-discrimination and anti-harassment laws. Vendor shall comply with all Labor Code requirements for public works projects if applicable to Vendor’s work under this Agreement.
7. [Reserved]
8. Subcontractor Provisions. Vendor shall include in its written agreements with its subcontractors, if any, provisions which: (a) impose upon the subcontractors the obligation to provide to City the same insurance and indemnity obligations that Vendor owes to City; (b) make clear that City intends to rely upon the reports, opinions, conclusions and other work product prepared and performed by subcontractors for Vendor; and (c) entitle City to impose upon subcontractors the assignment rights found elsewhere in this Agreement.
9. Power to Act on Behalf of City. Vendor is not acting as an agent of City and shall not have any right, power, or authority to create any obligation, express or implied, or make representations on behalf of City except as may be expressly authorized in advance in writing from time to time by City and then only to the extent of such authorization.
10. Record Keeping; Reports. Vendor shall keep complete records showing the type of Services performed. Vendor shall be responsible and shall require its subcontractors to keep similar records. City shall be given reasonable access to the records of Vendor and its subcontractors for inspection and audit purposes.
Vendor shall provide City with a working draft of all reports upon reasonable request by City and of all final reports prepared by Vendor under this Agreement.
11. [Reserved]
12. [Reserved]
13. City Name and Logo. Vendor shall not use City's name or insignia, photographs relating to the City projects or work for which Vendor’s services are rendered, or any publicity pertaining to the Vendor’s Services under this Agreement in any magazine, trade paper, newspaper, television or radio production, internet website, social media, or other similar medium without the prior written consent of City.
14. Conflicts of Interest. Vendor warrants that neither Vendor nor any of its employees have an improper interest, present or contemplated, in the Services which would affect Vendor’s or its employees’ performance of the Services. Vendor further warrants that neither Vendor nor any of its employees have real property, business interests or income that will be affected by the Services. Vendor covenants that no person having any such interest, whether an employee or subcontractor shall perform the Services under this Agreement. During the performance of the Services, Vendor shall not employ or retain the services of any person who is employed by the City or a member of any City Board or Commission. 3 15. Non-liability of Officers and Employees. No officer or employee of City shall be personally liable to Vendor, or any successors in interest, in the event of a default or breach by City for any amount which may become due Vendor or its successor, or for any breach of any obligation under the terms of this Agreement.
16. City Right to Employ Other Vendors. Unless Exhibit A specifically provides that the Services City seeks pursuant to this Agreement are exclusive to Vendor, this Agreement and the performance of the Services are non-exclusive and City reserves the right to employ other vendors or contractors in connection with the Services while this Agreement is in effect.
17. Termination of Agreement. This Agreement shall terminate as provided in Section 3, unless terminated earlier pursuant to the following:
a. Termination by City: For Convenience. City may at its discretion terminate this Agreement for convenience and without cause upon fourteen (14) days prior written notice to Vendor. Upon receipt of a termination notice pursuant to this subsection, Vendor shall promptly discontinue all Services affected, unless the notice directs otherwise.
b. Termination by City or Vendor: For Cause. Either party may terminate this Agreement upon ten (10) days prior written notice to the other party of a material breach, and a failure within that time period to cure or commence reasonable steps to cure the breach.
c. Compensation to Vendor Upon Termination. Vendor shall be paid compensation for Services satisfactorily performed prior to notice of termination. As to any phase partially performed but for which the applicable portion of Vendor’s compensation has not become due, Vendor shall be paid the reasonable value of its Services provided. However, in no event shall such payment when added to any other payment due under the applicable part of the work exceed the total compensation of such part as specified Section 4. In the event of termination due to Vendor’s failure to perform in accordance with the terms of this Agreement through no fault of City, City may withhold an amount that would otherwise be payable as an offset to City's damages caused by such failure.
d. Effect of Termination. Upon termination of this Agreement, Vendor shall promptly discontinue all Services affected, unless the notice of termination directs otherwise.
18. Insurance. Vendor shall satisfy the insurance requirements set forth in Exhibit B.
19. Indemnity and Defense. Vendor hereby agrees to indemnify, defend and hold the City, its officials, officers, employees, agents, and volunteers harmless from and against all claims, demands, causes of action, actions, damages, losses, expenses, and other liabilities, (including without limitation reasonable attorney fees and costs of litigation) of every nature arising out of or in connection with the alleged or actual acts, errors, omissions or negligence of Vendor or its subcontractors relating to the performance of Services described herein to the fullest extent permitted by law, unless the injuries or damages are the result of City's sole negligence or willful misconduct, subject to any limitations imposed by law. Vendor and City agree that said indemnity and defense obligations shall survive the expiration or termination of this Agreement for any items specified herein that arose or occurred during the term of this Agreement.
20. Taxes. Vendor agrees to pay all taxes, licenses, and fees levied or assessed by any governmental agency on Vendor as a result of the sale of the Equipment and/or performance of Services under this Agreement, and unemployment and workers’ compensation insurance, social security, or any other taxes upon the wages of Vendor, its employees, agents, and representatives. Vendor agrees to obtain and maintain a business license from City and pay the applicable business license fee to City during the term of this Agreement.
4 21. Assignment. Neither this Agreement nor any duties or obligations hereunder shall be assignable by Vendor without the prior written consent of City. In the event of an assignment to which City has consented, the assignee shall agree in writing to personally assume and perform the covenants, obligations, and agreements herein contained. In addition, Vendor shall not assign the payment of any monies due Vendor from City under the terms of this Agreement to any other individual, corporation or entity. City retains the right to pay any and all monies due Vendor directly to Vendor.
22. Form and Service of Notices. Any and all notices or other communications required or permitted by this Agreement or by law to be delivered to, served upon, or given to either party to this Agreement by the other party shall be in writing and shall be deemed properly delivered, served or given by one of the following methods:
a. Personally delivered to the party to whom it is directed. Service shall be deemed the date of delivery.
b. Delivered by e-mail to a known address of the party to whom it is directed provided the e-mail is accompanied by an acknowledgment of receipt by the other party. Service shall be deemed the date of acknowledgement.
c. Delivery by a reliable overnight delivery service, ex., Federal Express, receipted, addressed to the addressees set forth below the signatories to this Agreement. Service shall be deemed the date of delivery. d. Delivery by deposit in the United States mail, first class, postage prepaid. Service shall be deemed delivered ninety-six (96) hours after deposit.
23. Entire Agreement. This Agreement, including any referenced Exhibits, represents the entire agreement between City and Vendor and supersedes all prior negotiations, representations or agreements, either written or oral with respect to the subject matter herein.
24. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
25. Authority. The signatories to this Agreement warrant and represent that they have the legal right, power, and authority to execute this Agreement and bind their respective entities.
26. Severability. In the event any term or provision of this Agreement is declared to be invalid or illegal for any reason, this Agreement will remain in full force and effect and will be interpreted as though such invalid or illegal provision were not a part of this Agreement. The remaining provisions will be construed to preserve the intent and purpose of this Agreement and the parties will negotiate in good faith to modify any invalidated provisions to preserve each party’s anticipated benefits.
27. Applicable Law and Interpretation and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. The language of all parts of this Agreement shall, in all cases, be construed as a whole, according to its fair meaning, and not strictly for or against either party. This Agreement is entered into by City and Vendor in the County of Fresno, California. Vendor shall perform the Services required under this Agreement in the County of Fresno, California. Thus, in the event of litigation, venue shall only lie with the appropriate state or federal court in Fresno County.
28. Amendments and Waiver. This Agreement shall not be modified or amended in any way, and no provision shall be waived, except in writing signed by the parties hereto. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor 5 shall any such waiver constitute a continuing or subsequent waiver of the same provision. Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement.
29. Third Party Beneficiaries. Nothing in this Agreement shall be construed to confer any rights upon any party not a signatory to this Agreement.
30. Execution in Counterparts. This Agreement may be executed in counterparts such that the signatures may appear on separate signature pages. A copy or an original, with all signatures appended together, shall be deemed a fully executed Agreement.
31. Alternative Dispute Resolution. If a dispute arises out of or relating to this Agreement, or the alleged breach thereof, and if said dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by non-binding mediation before resorting to litigation. The mediator shall be mutually selected by the parties, but in case of disagreement, the mediator shall be selected by lot from among two nominations provided by each party. All costs and fees required by the mediator shall be split equally by the parties, otherwise each party shall bear its own costs of mediation. If mediation fails to resolve the dispute within thirty (30) days, either party may pursue litigation to resolve the dispute.
Demand for mediation shall be in writing and delivered to the other party to this Agreement.
A demand for mediation shall be made within reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for mediation be made after the date when institution of legal or equitable proceedings based on such a claim, dispute or other matter in question would be barred by California statues of limitations.
32. Non-Discrimination. Contractor shall not discriminate on the basis of any protected class under federal or State law in the provision of the Services or with respect to any Contractor employees or applicants for employment. Contractor shall ensure that any subcontractors are bound to this provision. A protected class, includes, but is not necessarily limited to race, color, national origin, ancestry, religion, age, sex, sexual orientation, marital status, and disability.
Now, therefore, the City and Vendor have executed this Agreement on the date(s) set forth below.
CSG CONSULTANTS, INC. CITY OF FOWLER
550 Pilgrim Drive 128 South 5th Street
Foster City, CA 94404 Fowler, CA 93625
__________________________
Cyrus Kianpour Wilma Tucker
President City Manager
Date: Date:
July 7, 2022
6 EXHIBIT A
SCOPE OF SERVICES
550 Pilgrim Drive
Foster City, CA 94404
phone 650.522.2500
fax 650.522.2599
www.csgengr.com
FOSTER CITY | PLEASANTON | SAN JOSE | SACRAMENTO | NEWMAN | ORANGE | REDLANDS May 25, 2022
Wilma Quan
City Manager
City of Fowler
128 South 5th Street
Fowler, CA 93625
Re: FY 22-23 Compensation Schedule
CSG Consultants appreciates the opportunity to provide services to the Fowler since 2021 and it is our goal to continue our long partnership with the City.
The current rates were effective as of July 2021. Per our agreement, CSG is entitled to an annual rate increase based on change in CPI for the applicable region data. U.S. Bureau of Statistics releases CPI data every two months, February, April, June and so on. For CPI rates, CSG used April 2022, 12 months percentage data which was 5% CPI adjustment.
These adjusted rates are for FY 22-23 and will become effective as of July 1, 2022. We have attached the new rate schedule to this letter as an Exhibit A. We have also included your current rates in this same Exhibit A.
We value our continued relationship. Should you have any questions, please feel free to contact Jeff Janes via phone at (209) 862-9511 or by email at [email protected].
Sincerely,
Cyrus Kianpour PE, PLS
President
cc: Jeff Janes, Regional Operations Manager, CSG Consultants, Inc.
Accounting – CSG Consultants, Inc.
2 EXHIBIT A
City of Fowler
Building Safety Plan Check & Inspection Services
Fee Amendment
Effective July 1, 2022
CSG's hourly rates for contract coming year are provided in the table below. These rates are for FY 22-23 and hourly rates are 5% increase from previous rates.
CSG's fee schedule which includes fees for personnel providing the proposed scope of work is provided in the table below. We will coordinate the pickup and return of all plans via CSG staff or licensed courier service. This service is provided at no additional cost. CSG will mail an invoice at the beginning of every month for services rendered during the previous month.
All hourly rates include overhead costs including, but not limited to, salaries, benefits, Workers Compensation Insurance, and office expenses. Overtime work will be billed at 1.5 X the hourly rates indicated in the table above. Should the scope of work change or circumstances develop which necessitate special handling, CSG will notify the City prior to proceeding. On each anniversary of the contract start date, CSG will initiate a rate increase based on the change in CPI for the applicable region. CSG will invoice on a monthly basis for services rendered during the prior month. Unless otherwise agreed, payment terms are 30-days from receipt of invoice.
Review Type / Role All Inclusive Fee Hourly Rate
Full Plan Review by Percentage 75% of City’s Building Plan Check Fees Structural Plan Review by Percentage 50% of City’s Building Plan Check Fees Expedited Plan Review by Percentage 95% of City’s Building Plan Check Fees Review Type / Role Current
Hourly Rates
FY 22-23
Hourly Rates
Plan Review Engineer $130 $137
Plan Review Examiner $115 $121
Building Official $160 $168
CASp Consultation $135 $142
Combination Building Inspector $90 $95
Certified Permit Technician $70 $74
Fire Plan Review and Inspection $115 $121
Fire Marshall $150 $158
Overtime 1.5 X Hourly Rates 1.5 X Hourly Rates
Holidays and Weekends 2.0 X Hourly Rates 2.0 X Hourly Rates 7 EXHIBIT B
INSURANCE REQUIREMENTS
Prior to commencement of the Services, Vendor shall take out and maintain at its own expense the insurance coverage required by this Exhibit C. Vendor shall cause any subcontractor with whom Vendor contracts for the performance of Services pursuant to this Agreement to take out and maintain equivalent insurance coverage. Said insurance shall be maintained at all times during Vendor’s performance of Services under this Agreement, and for any additional period specified herein. All insurance shall be placed with insurance companies that are licensed and admitted to conduct business in the State of California and are rated at a minimum with an "A:VII" by A.M. Best Company, unless otherwise acceptable to the City.
a. Minimum Limits of Insurance. Vendor shall maintain the following types of insurance with limits no less than specified:
(i) General Liability Insurance (including operations, products and completed operations coverages) in an amount not less than $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. (ii) Worker's Compensation Insurance as required by the State of California. (iii) Automobile Liability Insurance in an amount not less than $1,000,000 per accident for bodily injury and property damage.
(iv) Umbrella or Excess Liability. In the event Vendor purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents and volunteers.
If Vendor maintains higher limits than the minimums shown above, the City shall be entitled to coverage at the higher limits maintained.
b. Other Insurance Provisions. The general liability policy is to contain, or be endorsed to contain, the following provisions:
(i) The City, its officers, officials, employees, agents, and volunteers are to be covered as insured's with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Vendor; and with respect to liability arising out of work or operations performed by or on behalf of the Vendor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Vendor’s insurance (at least as broad as ISO Form 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33 or CG 20 38; and CG 20 37 forms if later revisions used).
(ii) For any claims related to the Services performed pursuant to this Agreement, the Vendor’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Vendor’s insurance and shall not contribute with it. 8 (iii) Each insurance policy required by this section shall be endorsed to state that the City shall receive written notice at least thirty (30) days prior to the cancellation, non-renewal, or material modification of the coverages required herein.
(iv) Vendor grants to the City a waiver of any right to subrogation which any insurer of said Vendor may acquire against the City by virtue of the payment of any loss under such insurance. Vendor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. (v) Any deductibles or self-insured retentions must be declared to and approved by the City of Fowler Risk Services. The City may require the Vendor to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
c. Evidence of Coverage. Vendor shall deliver to City written evidence of the above insurance coverages, including the required endorsements prior to commencing Services under this Agreement; and the production of such written evidence shall be an express condition precedent, notwithstanding anything to the contrary in this Agreement, to Vendor’s right to be paid any compensation under this Agreement. City's failure, at any time, to object to Vendor’s failure to provide the specified insurance or written evidence thereof (either as to the type or amount of such insurance), shall not be deemed a waiver of City's right to insist upon such insurance later.
d. Maintenance of Insurance. If Vendor fails to furnish and maintain the insurance required by this section, City may (but is not required to) purchase such insurance on behalf of Vendor, and the Vendor shall pay the cost thereof to City upon demand, and City shall furnish Vendor with any information needed to obtain such insurance. Moreover, at its discretion, City may pay for such insurance with funds otherwise due Vendor under this Agreement.
e. Subcontractors. If the Vendor should subcontract all or any portion of the work to be performed in this Agreement, the Vendor shall cover the subcontractor, and/or require each subcontractor to adhere to all the requirements contained herein. Similarly, any cancellation, lapse, reduction or change of subcontractor’s insurance shall have the same impact as described above. f. Special Risks or Circumstances. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
g. Indemnity and Defense. Except as otherwise expressly provided, the insurance requirements in this section shall not in any way limit, in either scope or amount, the indemnity and defense obligations separately owed by Vendor to City under this Agreement. 9 EXHIBIT C
CERTIFICATE OF INSURANCE
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 7-N
REPORT TO THE CITY COUNCIL
August 2, 2022
FROM DARIO DOMINGUEZ, Public Works Director
SUBJECT
APPROVE a Professional Services Agreement with Freeline Architecture, Inc. in the amount of $55,000 to prepare architectural plans, specifications, and cost estimates for Phase II improvements of the Fire Station
RECOMMENDATION
Staff recommend City Council approve a Professional Services Agreement with Freeline Architecture, Inc. in the amount of $55,000 to prepare architectural plans, specifications, and cost estimates for the development of Phase II of the Fire Station.
BACKGROUND
Staff received a proposal from Freeline Architecture, Inc. to provide architectural services for the development of Phase II of the Fire Station and to assist the City in the construction bidding process.
Phase II will include the design of the second floor sleeping quarters, showers, restrooms, and other operational and life safety modifications such as an integrated exhaust system.
Section 7-I of the City of Fowler Purchasing Policy allows for the City Council to waive a competitive process when “it is in the best interests of the City to shorten the selection process in order to begin work immediately on a City project or retain a vendor or consultant who is already familiar with a City’s project.” Staff recommend award to Freeline Architecture as they are uniquely qualified to deliver this scope of work due to their experience delivering the design of Phase I of the project, and the firm’s history of successfully completion of similar projects.
Agreement with Freeline Architecture, Inc. for Phase II improvements of the Fire Station August 2, 2022
ENVIRONMENTAL REVIEW
Pursuant to the California Environmental Quality Act (CEQA), an agency must complete environmental review prior to committing itself to a definite course of action in regard to a proposed project (CEQA Guidelines Section 15352). Environmental review must occur as early as feasible in the planning process to enable environmental considerations to influence project program and design, yet late enough to provide meaningful information for environmental assessment (CEQA Guidelines Section 15004(b)).
At this time, the City Council is not taking any action that would constitute approval of a Project.
FISCAL IMPACT
The approved fiscal year 2022-23 budget includes appropriations from Fire Impact Fees to complete this scope of work.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments
- Agreement
- Exhibit A - Scope of Work
CITY OF FOWLER
CONTRACT SERVICES AGREEMENT FOR PROFESSIONAL SERVICES
This Contract Services Agreement for Professional Services ("Agreement") is entered into between the City of Fowler, a California general law city ("City") and FREELINE ARCHITECTURE ("Vendor") with respect to the following recitals, which are a substantive part of this Agreement. This Agreement shall be effective on August 3, 2022 ("Effective Date").
RECITALS
A. City desires to engage the services of a qualified vendor to Fire Station No. 1 Remodel ("Services") more fully described in Exhibit A, which is attached hereto and incorporated by reference.
B. Vendor is engaged in the business of providing these Services and hereby warrants and represents that Vendor is qualified, experienced, and capable of providing these Services, and possesses any required licenses, certifications, security/bonding, and/or training necessary thereto.
C. City desires to contract with Vendor to provide these Services on the terms and conditions as set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual agreements herein, City and Vendor agree as follows:
AGREEMENT
1. Scope of Work. Vendor agrees to perform the services as more fully described in Exhibit A attached hereto and incorporated herein by reference (“Services”). Changes in the scope of Services, including work incidental to the Services, shall be made in writing and particularly describe the changes in Services, payment/costs, and schedule/term, as applicable.
2. Schedule. City and Vendor shall mutually agree on a schedule for performing the Services. The schedule shall be subject to modification based on the City’s operational needs. City will notify Vendor in advance of any modification to the schedule.
3. Term of Agreement; Commencement of Services. The term of this Agreement shall begin on the Effective Date and shall terminate on February 3, 2023, unless extended by mutual written agreement of the Parties. Notwithstanding the preceding sentence, this Agreement may be terminated during the term in accordance with Section 17 herein.
4. Payment for Services. City shall pay Vendor for the Services performed pursuant to this Agreement as follows: LUMP SUM. The total amount paid by City to Vendor pursuant to this Agreement shall not exceed Fifty Five Thousand Dollars ($55,000).
The foregoing is inclusive of all labor, equipment, materials, costs and expenses, taxes, and overhead. City shall pay Vendor for Services satisfactorily performed pursuant to this Agreement. Vendor shall submit an invoice to City containing detailed billing information regarding the Services provided and City shall tender payment to Vendor within thirty (30) days after receipt of invoice.
5. Independent Contractor Status. Vendor and its subcontractors, if any, shall perform the Services as independent contractors and not as officers, employees, agents or volunteers of City. Vendor is engaged in an independently established trade, occupation, or business to perform the Services required by this Agreement and is hereby retained to perform work that is outside the usual course of City’s business. Vendor is free from Prepared March 2022 2
the control and direction of City in connection with the manner of performance of the work. Nothing contained in this Agreement shall be deemed to create any contractual relationship between City and Vendor’s employees or subcontractors, nor shall anything contained in this Agreement be deemed to give any third party, including but not limited to Vendor’s employees or subcontractors, any claim or right of action against City.
6. Vendor Representations; Standard of Care; Compliance with Law. Vendor represents that Vendor and any subcontractors utilized by Vendor are and will be qualified in the field for which Services are being provided under this Agreement, and Vendor and any subcontractors are now, and will be throughout their performance of the Services under this Agreement, properly licensed, certified, secured/bonded, trained, and/or otherwise qualified and authorized to perform the Services required and contemplated by this Agreement, as may be required by law. Vendor and its subcontractors shall utilize the standard of care and skill customarily exercised by members of their profession, shall use reasonable diligence and best judgment while performing the Services, and shall comply with all applicable laws, regulations, and industry standards, including anti-discrimination and anti-harassment laws. Vendor shall comply with all Labor Code requirements for public works projects if applicable to Vendor’s work under this Agreement.
7. [Reserved]
8. Subcontractor Provisions. Vendor shall include in its written agreements with its subcontractors, if any, provisions which: (a) impose upon the subcontractors the obligation to provide to City the same insurance and indemnity obligations that Vendor owes to City; (b) make clear that City intends to rely upon the reports, opinions, conclusions and other work product prepared and performed by subcontractors for Vendor; and (c) entitle City to impose upon subcontractors the assignment rights found elsewhere in this Agreement.
9. Power to Act on Behalf of City. Vendor is not acting as an agent of City and shall not have any right, power, or authority to create any obligation, express or implied, or make representations on behalf of City except as may be expressly authorized in advance in writing from time to time by City and then only to the extent of such authorization.
10. Record Keeping; Reports. Vendor shall keep complete records showing the type of Services performed. Vendor shall be responsible and shall require its subcontractors to keep similar records. City shall be given reasonable access to the records of Vendor and its subcontractors for inspection and audit purposes.
Vendor shall provide City with a working draft of all reports upon reasonable request by City and of all final reports prepared by Vendor under this Agreement.
11. [Reserved]
12. [Reserved]
13. City Name and Logo. Vendor shall not use City's name or insignia, photographs relating to the City projects or work for which Vendor’s services are rendered, or any publicity pertaining to the Vendor’s Services under this Agreement in any magazine, trade paper, newspaper, television or radio production, internet website, social media, or other similar medium without the prior written consent of City.
14. Conflicts of Interest. Vendor warrants that neither Vendor nor any of its employees have an improper interest, present or contemplated, in the Services which would affect Vendor’s or its employees’ performance of the Services. Vendor further warrants that neither Vendor nor any of its employees have real property, business interests or income that will be affected by the Services. Vendor covenants that no person having any such interest, whether an employee or subcontractor shall perform the Services under this Agreement. During the performance of the Services, Vendor shall not employ or retain the services of any person who is employed by the City or a member of any City Board or Commission.
Prepared March 2022 3
15. Non-liability of Officers and Employees. No officer or employee of City shall be personally liable to Vendor, or any successors in interest, in the event of a default or breach by City for any amount which may become due Vendor or its successor, or for any breach of any obligation under the terms of this Agreement.
16. City Right to Employ Other Vendors. Unless Exhibit A specifically provides that the Services City seeks pursuant to this Agreement are exclusive to Vendor, this Agreement and the performance of the Services are non-exclusive and City reserves the right to employ other vendors or contractors in connection with the Services while this Agreement is in effect.
17. Termination of Agreement. This Agreement shall terminate as provided in Section 3, unless terminated earlier pursuant to the following:
a. Termination by City: For Convenience. City may at its discretion terminate this Agreement for convenience and without cause upon fourteen (14) days prior written notice to Vendor. Upon receipt of a termination notice pursuant to this subsection, Vendor shall promptly discontinue all Services affected, unless the notice directs otherwise.
b. Termination by City or Vendor: For Cause. Either party may terminate this Agreement upon ten (10) days prior written notice to the other party of a material breach, and a failure within that time period to cure or commence reasonable steps to cure the breach.
c. Compensation to Vendor Upon Termination. Vendor shall be paid compensation for Services satisfactorily performed prior to notice of termination. As to any phase partially performed but for which the applicable portion of Vendor’s compensation has not become due, Vendor shall be paid the reasonable value of its Services provided. However, in no event shall such payment when added to any other payment due under the applicable part of the work exceed the total compensation of such part as specified Section 4. In the event of termination due to Vendor’s failure to perform in accordance with the terms of this Agreement through no fault of City, City may withhold an amount that would otherwise be payable as an offset to City's damages caused by such failure.
d. Effect of Termination. Upon termination of this Agreement, Vendor shall promptly discontinue all Services affected, unless the notice of termination directs otherwise.
18. Insurance. Vendor shall satisfy the insurance requirements set forth in Exhibit B.
19. Indemnity and Defense. Vendor hereby agrees to indemnify, defend and hold the City, its officials, officers, employees, agents, and volunteers harmless from and against all claims, demands, causes of action, actions, damages, losses, expenses, and other liabilities, (including without limitation reasonable attorney fees and costs of litigation) of every nature arising out of or in connection with the alleged or actual acts, errors, omissions or negligence of Vendor or its subcontractors relating to the performance of Services described herein to the fullest extent permitted by law, unless the injuries or damages are the result of City's sole negligence or willful misconduct, subject to any limitations imposed by law. Vendor and City agree that said indemnity and defense obligations shall survive the expiration or termination of this Agreement for any items specified herein that arose or occurred during the term of this Agreement.
20. Taxes. Vendor agrees to pay all taxes, licenses, and fees levied or assessed by any governmental agency on Vendor as a result of the sale of the Equipment and/or performance of Services under this Agreement, and unemployment and workers’ compensation insurance, social security, or any other taxes upon the wages of Vendor, its employees, agents, and representatives. Vendor agrees to obtain and maintain a business license from City and pay the applicable business license fee to City during the term of this Agreement.
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21. Assignment. Neither this Agreement nor any duties or obligations hereunder shall be assignable by Vendor without the prior written consent of City. In the event of an assignment to which City has consented, the assignee shall agree in writing to personally assume and perform the covenants, obligations, and agreements herein contained. In addition, Vendor shall not assign the payment of any monies due Vendor from City under the terms of this Agreement to any other individual, corporation or entity. City retains the right to pay any and all monies due Vendor directly to Vendor.
22. Form and Service of Notices. Any and all notices or other communications required or permitted by this Agreement or by law to be delivered to, served upon, or given to either party to this Agreement by the other party shall be in writing and shall be deemed properly delivered, served or given by one of the following methods:
a. Personally delivered to the party to whom it is directed. Service shall be deemed the date of delivery.
b. Delivered by e-mail to a known address of the party to whom it is directed provided the e-mail is accompanied by an acknowledgment of receipt by the other party. Service shall be deemed the date of acknowledgement.
c. Delivery by a reliable overnight delivery service, ex., Federal Express, receipted, addressed to the addressees set forth below the signatories to this Agreement. Service shall be deemed the date of delivery. d. Delivery by deposit in the United States mail, first class, postage prepaid. Service shall be deemed delivered ninety-six (96) hours after deposit.
23. Entire Agreement. This Agreement, including any referenced Exhibits, represents the entire agreement between City and Vendor and supersedes all prior negotiations, representations or agreements, either written or oral with respect to the subject matter herein.
24. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
25. Authority. The signatories to this Agreement warrant and represent that they have the legal right, power, and authority to execute this Agreement and bind their respective entities.
26. Severability. In the event any term or provision of this Agreement is declared to be invalid or illegal for any reason, this Agreement will remain in full force and effect and will be interpreted as though such invalid or illegal provision were not a part of this Agreement. The remaining provisions will be construed to preserve the intent and purpose of this Agreement and the parties will negotiate in good faith to modify any invalidated provisions to preserve each party’s anticipated benefits.
27. Applicable Law and Interpretation and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. The language of all parts of this Agreement shall, in all cases, be construed as a whole, according to its fair meaning, and not strictly for or against either party. This Agreement is entered into by City and Vendor in the County of Fresno, California. Vendor shall perform the Services required under this Agreement in the County of Fresno, California. Thus, in the event of litigation, venue shall only lie with the appropriate state or federal court in Fresno County.
28. Amendments and Waiver. This Agreement shall not be modified or amended in any way, and no provision shall be waived, except in writing signed by the parties hereto. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor Prepared March 2022 5
shall any such waiver constitute a continuing or subsequent waiver of the same provision. Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement.
29. Third Party Beneficiaries. Nothing in this Agreement shall be construed to confer any rights upon any party not a signatory to this Agreement.
30. Execution in Counterparts. This Agreement may be executed in counterparts such that the signatures may appear on separate signature pages. A copy or an original, with all signatures appended together, shall be deemed a fully executed Agreement.
31. Alternative Dispute Resolution. If a dispute arises out of or relating to this Agreement, or the alleged breach thereof, and if said dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by non-binding mediation before resorting to litigation. The mediator shall be mutually selected by the parties, but in case of disagreement, the mediator shall be selected by lot from among two nominations provided by each party. All costs and fees required by the mediator shall be split equally by the parties, otherwise each party shall bear its own costs of mediation. If mediation fails to resolve the dispute within thirty (30) days, either party may pursue litigation to resolve the dispute.
Demand for mediation shall be in writing and delivered to the other party to this Agreement.
A demand for mediation shall be made within reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for mediation be made after the date when institution of legal or equitable proceedings based on such a claim, dispute or other matter in question would be barred by California statues of limitations.
32. Non-Discrimination. Contractor shall not discriminate on the basis of any protected class under federal or State law in the provision of the Services or with respect to any Contractor employees or applicants for employment. Contractor shall ensure that any subcontractors are bound to this provision. A protected class, includes, but is not necessarily limited to race, color, national origin, ancestry, religion, age, sex, sexual orientation, marital status, and disability.
Now, therefore, the City and Vendor have executed this Agreement on the date(s) set forth below.
FREELINE ARCHITECTURE CITY OF FOWLER
__________________________
Jeromy Stevens Wilma Tucker
TITLE City Manager
Date: Date:
814 18th Street
Bakersfield, CA 93301
128 South 5th Street
Fowler, CA 93625
661-633-9667 (559) 834-3113
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EXHIBIT A
SCOPE OF SERVICES
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EXHIBIT B
INSURANCE REQUIREMENTS
Prior to commencement of the Services, Vendor shall take out and maintain at its own expense the insurance coverage required by this Exhibit C. Vendor shall cause any subcontractor with whom Vendor contracts for the performance of Services pursuant to this Agreement to take out and maintain equivalent insurance coverage. Said insurance shall be maintained at all times during Vendor’s performance of Services under this Agreement, and for any additional period specified herein. All insurance shall be placed with insurance companies that are licensed and admitted to conduct business in the State of California and are rated at a minimum with an "A:VII" by A.M. Best Company, unless otherwise acceptable to the City.
a. Minimum Limits of Insurance. Vendor shall maintain the following types of insurance with limits no less than specified:
(i) General Liability Insurance (including operations, products and completed operations coverages) in an amount not less than $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. (ii) Worker's Compensation Insurance as required by the State of California. (iii) Automobile Liability Insurance in an amount not less than $1,000,000 per accident for bodily injury and property damage.
(iv) Umbrella or Excess Liability. In the event Vendor purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents and volunteers.
If Vendor maintains higher limits than the minimums shown above, the City shall be entitled to coverage at the higher limits maintained.
b. Other Insurance Provisions. The general liability policy is to contain, or be endorsed to contain, the following provisions:
(i) The City, its officers, officials, employees, agents, and volunteers are to be covered as insured's with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Vendor; and with respect to liability arising out of work or operations performed by or on behalf of the Vendor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Vendor’s insurance (at least as broad as ISO Form 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33 or CG 20 38; and CG 20 37 forms if later revisions used).
(ii) For any claims related to the Services performed pursuant to this Agreement, the Vendor’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Vendor’s insurance and shall not contribute with it.
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(iii) Each insurance policy required by this section shall be endorsed to state that the City shall receive written notice at least thirty (30) days prior to the cancellation, non-renewal, or material modification of the coverages required herein.
(iv) Vendor grants to the City a waiver of any right to subrogation which any insurer of said Vendor may acquire against the City by virtue of the payment of any loss under such insurance. Vendor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. (v) Any deductibles or self-insured retentions must be declared to and approved by the City of Fowler Risk Services. The City may require the Vendor to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
c. Evidence of Coverage. Vendor shall deliver to City written evidence of the above insurance coverages, including the required endorsements prior to commencing Services under this Agreement; and the production of such written evidence shall be an express condition precedent, notwithstanding anything to the contrary in this Agreement, to Vendor’s right to be paid any compensation under this Agreement. City's failure, at any time, to object to Vendor’s failure to provide the specified insurance or written evidence thereof (either as to the type or amount of such insurance), shall not be deemed a waiver of City's right to insist upon such insurance later.
d. Maintenance of Insurance. If Vendor fails to furnish and maintain the insurance required by this section, City may (but is not required to) purchase such insurance on behalf of Vendor, and the Vendor shall pay the cost thereof to City upon demand, and City shall furnish Vendor with any information needed to obtain such insurance. Moreover, at its discretion, City may pay for such insurance with funds otherwise due Vendor under this Agreement.
e. Subcontractors. If the Vendor should subcontract all or any portion of the work to be performed in this Agreement, the Vendor shall cover the subcontractor, and/or require each subcontractor to adhere to all the requirements contained herein. Similarly, any cancellation, lapse, reduction or change of subcontractor’s insurance shall have the same impact as described above. f. Special Risks or Circumstances. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
g. Indemnity and Defense. Except as otherwise expressly provided, the insurance requirements in this section shall not in any way limit, in either scope or amount, the indemnity and defense obligations separately owed by Vendor to City under this Agreement.
EXHIBIT A
CITY OF FOWLER
FIRE STATION REMODEL
SCOPE OF WORK
Introduction
The City of Fowler (Client) desires to hire a Freeline Architecture (Consultant) to prepare architectural plans, specifications and estimates for the improvements to Fire Station No. 1 to add the second floor sleeping quarters, showers/bathroom, locker room, and other operational modifications such as an integrated exhaust system. The plans and specifications will be prepared in consultation with City staff and a third-party fire service consultant. The architectural services include preliminary and final design services. Bidding and construction phase services are optional tasks and will be authorized as Additional Services.
Specifically, the design will include developing original design for self-supporting mezzanine structure inside existing facility utilizing project program provided by client.
The anticipated drawing list is as follows:
Architectural Drawing:
• Cover Sheet (Project data, Maps, Notes, etc.)
• Architectural Site Plan (existing accessible analysis) • Architectural Floor Plan (existing and proposed)
• Schedules (door / hardware, finishes, accessories, etc.) • Building Sections / Enlarged Wall Sections
• Building Elevations (existing)
• Interior Elevations (cabinet and room)
• Reflected Ceiling Plan and Details
• Project Manual / Specification Book
Structural Engineer Drawings:
• Foundation Plan (details and notes)
• Framing Plans (details and notes)
• Structural Sections (details and notes)
MEP Engineering Drawings:
• Mechanical Plan (HVAC with Equipment Schedules and Details) • Electrical Plans (Power, Lighting, Fixture Schedules, and Details) • Plumbing Plans (Wastewater, Venting, Domestic Water, Schedules and Notes Task 100 – Kickoff Meeting
The task involves meeting with City staff and reviewing relevant plans, goals and objectives to establish the design strategy for the improvements. Consultant will confer with client regarding project needs / goals (including an inventory of spaces). City will provide Consultant with available record drawings of the fire station.
Task 200 – Schematic Design
Consultant will prepare a 30% set of architectural plan presenting the design improvements that will serve as the basis for the final design. Consultant will meet with City and design stakeholders to discuss review comments.
Task 300 – Final Design
Consultant will incorporate comments received on the schematic design plans and will prepare a 90% set of architectural plans, specifications and estimate for the proposed improvements. Consultant will meet with City and design stakeholders to discuss review comments.
Task 400 – Construction Documents
Consultant will incorporate comments received on the final design plans and specifications and will prepare a final set of architectural plans, specifications and estimate for the use in bidding and construction of the improvements. One hard copy and electronic copies in (pdf) of the plans, specification and estimate will be provided to the Client.
Task 500 – Bidding and Award
Consultant will respond to bidders’ questions, prepare the bid summary and provide other related support.
Task 600 – Construction Phase Services
The Consultant will respond to Requests for Information, prepare necessary change orders, provide up to five periodic site visits during construction and assist in evaluating submittals and pay requests during construction.
CLIENT’S DUTIES AND RESPONSIBILITIES
The Client shall:
a) Provide all criteria and full information concerning Client’s requirements for the project. b) Apply for and obtain all approvals and permits from all governmental agencies having jurisdiction over the project, and such approvals from other entities as may be necessary for the project, with the assistance from the Consultant or as additionally authorized.
Client shall pay all fees and charges associated with securing permits and approvals not previously described.
c) Provide any necessary environmental documents necessary for approval or completion of the project.
d) Give prompt notice to Consultant whenever Client observes or otherwise becomes aware of any development that affects the scope or timing of Consultant’s services. e) At Client’s discretion, authorize and direct Consultant to provide necessary Additional Services.
ADDITIONAL SERVICES
The Client may, at its sole discretion, request that Consultant perform Additional Services.
Both parties, prior to proceeding with these services, shall execute a written amendment to the agreement. Changes in the project base mapping and geometrics after completion of the preliminary design drawings may require additional services.
Traffic counts, collection of field data, design and construction phase services are excluded from the scope of services and would be considered Additional Services.
RIGHT TO RELY
Consistent with the professional standard of care, Consultant shall be entitled to rely upon the accuracy of data and information provided by the Client or others without independent review or evaluation unless specifically required in the Scope of Services.
COMPENSATION
Consultant’s fee for the services described in Tasks 100-400 herein shall be a lump sum of $55,000.00. Compensation for Tasks 500 & 600 as well as Additional Services shall be in accordance with the attached Hourly Rate Schedule (Exhibit “B”).
SCHEDULE
Consultant will diligently endeavor to complete the project within six months from receipt of written authorization to proceed.