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HomeMy WebLinkAbout1999-05-18; City Council; Resolution 99-1754 a 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 RESOLUTION NO. 99-175 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT BETWEEN THE CITY OF CARLSBAD AND ESGIL CORPORATION FOR BULDING PLAN CHECK SERVICES AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. The City Council of the City of Carlsbad, California, does hereby resolve as follows 1. That the previous agreement between the City of Carlsbad and ESGIL Corpor approved by Resolution 93-1 88 adopted July 6, 1993 will terminate on June 30, 1999. 2. That the certain agreement between the City of Carlsbad and ESGIL Corporatic building plan check services, a copy of which is attached hereto and made a part hereof, is h approved. 3. That the Mayor of the City of Carlsbad is hereby authorized and directed to ex said agreement for and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council ( City of Carlsbad, California, held on the I 8 +h day of M~~ , by the following vote, to wit: 17 II 18 19 20 21 22 23 ~ AYES: Council Members Lewis, Nygaard, Finnila, Hall & Kulchin NOES: None ABSENT: None - 24 25 ATTEST: 26 27 aTHA b"hTE&kANZ, City Clerk KAREN R. KUNDTZ, Assistant City Clerk 28 ll (SEAL) 0 0 AGREEMENT THIS AGREEMENT is made and entered into as of the ninth day of June I 1999 -' by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City'', and ESGlL Corporation, hereinafter referred to as "Contractor." RECITALS City requires the services of a plan review Contractor to provide the necessary plan review services for proposed construction projects; and Contractor possesses the necessary '.skills..and qualifications to provide the services required by the City; ,: .. . . I. NOW, THEREFORE, in consideration of these. recitals and the mutual covenants .. contained herein, City and Contractor agree as follows: 1. CONTRACTOR'S OBLIGATIONS a. Perform traditional preliminary plan review consultations in Contractor's main office by meetings or by telephone. b. Perform traditional initial plan review of submitted plans to determine compliance with City adopted Uniform Building Code, Uniform Plumbing Code, Uniform Mechanical Code, National Electric Code, and California State, Title 24 (Energy Conservation; Disabled Access; and Noise Attenuation). c. Provide the applicant's designee and the City, a typed list of items needing clarification or change to achieve conformance with the above regulations. rev. 2/26/99 -1 - 0 0 d. Perform all necessary liaison with the applicant’s designee, either by telephone, mail or meeting in ESGlL Corporation’s main office, and perform all necessary rechecks to achieve conformance to the regulations. e. Perform all necessary liaison with the Building Official or his designee, either by mail, or telephone or in ESGlL Corporation’s main office, to ensure compliance with U.B.C. Sections 105 and 106 and to ensure compliance with local policy interpretations. f. Perform plan reviews of revisions to plans that have previously been approved for permit issuance, or perform plan reviews of major changes to plans prior to such approval, when such major changes are not required to achieve code conformance. g. Attend meetings related to proposed building projects at the -request of the ’ .. : .. .. Building Official at locations other than ESGlL Corporation’s Plan Check office. 2. CITY OBLIGATIONS The City shall perform the following work: a. Obtain from the applicant, at the time of the project submittal, the necessary items to allow plan checking to be completed in the shortest overall time frame. Necessary items include, but are not limited to, complete plans, construction specifications, soil reports, Title 24 energy calculations, structural calculations, the name and address and telephone number of the applicant’s designated contact person and similar items that may be unique to a particular project. b. Provide the valuation for the proposed construction or instruct the Contractor to calculate the valuation in accordance with Sec. Ill. B. 1. rev. 2/26/99 -2 - 0 0 c. Provide the Contractor with copies of any City ordinances that modify the regulations listed in 111. A. 2. d. Collect sufficient plan check fees or deposits from project applicants to ensure the City will not suffer a loss if the applicant decides to abandon the permit process after the Contractor has completed the initial plan check. 3. PROGRESS AND COMPLETION The Contractor agrees to provide adequate resources to achieve the following service delivery goals for timely performance of the work over which the Contractor has decision authority. .. ,. I .; ITEM SERVICE COAL A. Buildings less than four stories A. Complete initial plan review in and of normal complexity. Fifteen-work days or less. B. Buildings four or more stories B. As agreed by the City’s Building in height or of unusual Official and Contractor. complexity. 4. FEES TO BE PAID TO CONTRACTOR a. Compensation for each plan reviewed under Sections 1, a-e shall be 52% of the building permit fee calculated per Section 107 of the latest published edition of the Uniform Building Code as adopted by the City for each building plan checked. The construction valuation shall be based on the most recent valuation multiplier adopted by the City or on the architect’s estimated construction cost, or on the Building Official’s cost estimate. The Building Official shall have final decision authority over the value used. Plan check fee for repetitive identical buildings shall be 52% of the building permit fee as noted above for the first, or basic building, and 13% of the plan check fee as rev. 2/26/99 -3 - 0 0 noted above for each additional building. The single fee includes all rechecks and there are no additional charges for preliminary plan check conferences at our office, expedited processing, checking plans that are eventually found to be incomplete or for the mailing of plans back to the jurisdiction. b. Compensation under Section 1, f. shall be calculated either the same as 4, a. or shall be based on Contractor's current Labor Rates Schedule. The method to be used will be at the discretion of the Contractor with the approval of the Building Official. c. Compensation for work performed under 1, g. shall be based on the attached Labor Rates Schedule (Attachment A) as modified each January 1'' .and July 1'' with approval of the Building Official. . ,. .. d. The Contractor shall not perform extra work without written authorization:from the Building Official. 5. FINAL DECISION AUTHORITY The City's Building Official shall have final decision authority over the results of the plan check by the Contractor and all work performed by the Contractor shall be to the satisfaction of the Building Official. In instances where the permit applicant takes exception to the Contractor's interpretation of the regulations contained in Title 24, the Building Official shall render a final decision utilizing, as deemed appropriate, the resources of the City and/or the Board of Appeals. rev. 2/26/99 -4 - i 0 0 6. DURATION OF CONTRACT This agreement shall extend for a period of three (3) years from date thereof. The contract may be extended by the City Manager for three (3) additional one (1) year periods or parts thereof, based upon a review of satisfactory performance and the City's needs. The parties shall prepare extensions in writing indicating effective date and length of the extended contract. 7. PAYMENT OF FEES The Contractor shall submit on the first work day of each month his invoice for initial plan. reviews performed during the prior,month;, P.ayment of approved items on the invoice shall be mailed to the Contractor pri.or to the.b+enty-fifth (25'h) day of each month the invoice was submitted. 8. CHANGES IN WORK If, in the course of the contract, changes seem merited by the Contractor or the City, and informal consultations with the other party indicate that a change in the conditions of the contract is warranted, the Contractor or the City may request a change in contract. Such changes shall be processed by the City in the following manner: A letter outlining the required changes shall be forwarded to the City by Contractor to inform them of the proposed changes along with a statement of estimated changes in charges or time schedule. A Standard Amendment to Agreement shall be prepared by the City and approved by the City according to the procedures described in Carlsbad Municipal Code Section 3.28.172. Such Amendment to Agreement shall not render ineffective or invalidate unaffected portions of the agreement. rev. 2/26/99 -5 - ,a 0 9. COVENANTS AGAINST CONTINGENT FEES The Contractor warrants that their firm has not employed or retained any company or person, other than a bona fide employee working for the Contractor, to solicit or secure this agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this agreement. For breach or violation of this warranty, the City shall have the right to annul this agreement without liability, or, in its discretion, to deduct from the ag-reement price or .. consideration, or otherwise recover, the full amount. of such fee, commission,.-percentage; brokerage fees, gift, or contingent fee. 10. NONDISCRIMINATION CLAUSE ,. . .i , The Contractor shall comply with the state and federal laws regarding nondiscrimination. 11. TERMINATION OF CONTRACT In the event of the Contractor's failure to prosecute, deliver, or perform the work as provided for in this contract, the City Manager may terminate this contract for nonperformance by notifying the Contractor by certified mail of the termination of the Contractor. The Contractor, thereupon, has five (5) working days to deliver said documents owned by the City and all work in progress to the Building Official. The Building Official shall make a determination of fact based upon the documents delivered to City of the percentage of work which the Contractor has performed which is usable and rev. 2/26/99 -6 - 0 e of worth to the City in having the contract completed. Based upon that finding as reported to the City Manager, the Manager shall determine the final payment of the contract. This agreement may be terminated by either party upon tendering thirty (30) days written notice to the other party. In the event of such suspension or termination, upon request of the City, the Contractor shall assemble the work product and put same in order for proper filing and closing and deliver said product to City. In the event of termination, the Contractor shall be paid for work performed to the termination date; however, the total shall not exceed the lump sum fee payable under paragraph 4. The City Manager shall make the final determination as to the portions of.,tasks completed and the compensation to .be made. 12. CLAIMS AND LAWSUITS The Contractor agrees that any contract claim submitted to the City must be asserted as part of the contract process as set forth in this agreement and not in anticipation of litigation or in conjunction with litigation. The Contractor acknowledges that if a false claim is submitted to the City, it may be considered fraud and the Contractor may be subject to criminal prosecution. The Contractor acknowledges that California Government Code sections 12650 et sea., the False Claims Act, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If the City of Carlsbad seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. The Contractor acknowledges that the filing of a false claim may subject the Contractor to -7 - rev. 2/26/99 (b e an administrative debarment proceeding wherein the Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five years. The Contractor acknowledges debarment by another jurisdiction is grounds for the City of Carlsbad to disqualify the Contractor from the selection process,,, (Initial) The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32.026, 3.32.027 11 and 3.32.028 pertaining to false claims are incorporated herein by reference. z .,.(Initial) 13. JURISDICTION The Contractor agrees and hereby stipulates that the proper venue and jurisdiction for,.reSolution of any disputes between the paflies arisi~ng out of this agreement is San Diego County, California. .. .. 14. STATUS OF THE CONTRACTOR . ., The Contractor shall perform the services provided for herein in Contractor's own way as an independent Contractor and in pursuit of Contractor's independent calling, and not as an employee of the City. Contractor shall be under control of the City only as to the result to be accomplished, but shall consult with the City as provided for in the request for proposal. The persons used by the Contractor to provide services under this agreement shall not be considered employees of the City for any purposes whatsoever. The Contractor is an independent Contractor of the City. The payment made to the Contractor pursuant to the contract shall be the full and complete compensation to which the Contractor is entitled. The City shall not make any federal or state tax withholdings on behalf of the Contractor or its employees or subcontractors. The City shall not be required to pay any workers' compensation insurance or unemployment contributions on behalf of rev. 2/26/99 -8 - 0 0 the Contractor or its employees or subcontractors. The Contractor agrees to indemnify the City within 30 days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which the City may be required to make on behalf of the Contractor or any employee or subcontractor of the Contractor for work done under this agreement or such indemnification amount may be deducted by the City from any balance owing to the Contractor. The Contractor shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limited to, verifying the eligibility,.for employment of all agents, employees, subcontractors and Consultants that are included in this agreement. , .. ,, . 15. 'CONFORMITY TO. LEGAL REOUIREMENTS .. The Contractor shall cause all drawings and specifications to conform to all applicable requirements of law: federal, state and local. Contractor shall provide all necessary supporting documents, to be filed with any agencies whose approval is necessary. The City will provide copies of the approved plans to any other agencies. 16. OWNERSHIP OF DOCUMENTS All plans, studies, sketches, drawings, reports, and specifications as herein required are the property of the City, whether the work for which they are made be executed or not. in the event this contract is terminated, all documents, plans, specifications, drawings, reports, and studies shall be delivered forthwith to the City. Contractor shall have the right to make one (1) copy of the plans for its records. rev. 2/26/99 -9 - 0 0 17. REPRODUCTION RIGHTS The Contractor agrees that all copyrights which arise from creation of the work pursuant to this contract shall be vested in City and hereby agrees to relinquish all claims to such copyrights in favor of City. 18. HOLD HARMLESS AGREEMENT Contractor agrees to indemnify and hold harmless the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused,by any willful misconduct, or5 negligent act,.or: omission of the contractor, any subcontractor, anyone directly or indirectly employed by any of;them or anyone for whose acts any of them- may be liable. 19. ASSIGNMENT OF CONTRACT The Contractor shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the City. 20. SUBCONTRACTING If the Contractor shall subcontract any of the work to be performed under this contract by the Contractor, Contractor shall be fully responsible to the City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this contract shall create any contractual relationship between any subcontractor of Contractor and the City. The Contractor shall bind every subcontractor and every subcontractor of a subcontractor by rev. 2/26/99 -10 - 0 0 the terms of this contract applicable to Contractor's work unless specifically noted to the contrary in the subcontract in question approved in writing by the City. 21. PROHIBITED INTEREST No official of the City who is authorized in such capacity on behalf of the City to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of this agreement, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer or employee of the City who is authorized in such capacity and on behalf of the City to exercise any executive, supervisory, or similar .. . functions in connection with the- performance of this contract shall become directly;or indirectly interested personally in this contract.or.any part thereof. 22. : VERBAL AGREEMENT OR CONVERSATION I, .. . No verbal agreement or conversation with any officer, agent, or employee of the City, either before, during or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained nor entitle the Contractor to any additional payment whatsoever under the terms of this contract. 23. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all terms, conditions, and provisions hereof shall inure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 24. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. -11 - rev. 2/26/99 0 e 25. CONFLICT OF INTEREST The Contractor shall file a conflict of interest statement with the City Clerk in accordance with the requirements of the City's conflict of interest code incorporating Fair Political Practices Commission Regulation 18700 as it defines A consultant. The disclosure category shall be categories 1, 2, 3 and 4. 26. INSURANCE The Contractor shall obtain and maintain for the duration of the contract and any and all amendments insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance;offlhe w.ork hereunder by the ' . Contractor, his agents, representatives, employees or.subcontractors. Said insurance shall be obtained, from an insurance carrier admitted and authorized to do. business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI' and shall meet the City's policy for insurance as stated in Resolution No. 91 -403. A. Coverages and Limits. Contractor shall maintain the types of coverages and minimum limits indicated herein, unless a lower amount is approved by the City Attorney or City Manager: 1. Comprehensive General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits shall apply separately to the work under this contract or the general aggregate shall be twice the required per occurrence limit. rev. 2/26/99 -12 - 0 0 2. Automobile Liability (if the use of an automobile is involved for Contractor's work for the City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the Labor Code of the State of California and Employer's Liability limits of $1,000,000 per accident for bodily injury. 4. Professional Liability. Errors and omissions liability appropriate to the contractor's profession with limits of not less than $1,000,000 per claim. Coverage shall be maintained:for a period of five years.following the date, of completion of .the work. -B., ,Additional Provisions. ., .. ,. Contractor shall ensure that the policies of insurance required under this agreement contain, or are endorsed to contain, the following provisions. 1. The City shall be named as an additional insured on all policies excluding Workers' Compensation and Professional Liability. 2. The Contractor shall furnish certificates of insurance to the City before commencement of work. 3. The Contractor shall obtain occurrence coverage, excluding Professional Liability which shall be written as claims-made coverage. 4. This insurance shall be in force during the life of the agreement and any extension thereof and shall not be canceled without 30 days prior written notice to the City sent by certified mail. rev. 2/26/99 -13 - 0 0 5. If the Contractor fails to maintain any of the insurance coverages required herein, then the City will have the option to declare the Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order that the required coverages may be maintained. The Contractor is responsible for any payments made by the City to obtain or maintain such insurance and the City may collect the same from the Contractor or deduct the amount paid from any sums due the Contractor under this agreement. 27. RESPONSIBLE PARTIES The name' of the persons who are authorized to -give written: notices or. to receive written notice on behalf of the City and on behalf.of theContract0.r in.connection :with the foregoing are as follows: For City: Title PrinciPal Building InsDector .. Name Pat Kellev Address 2075 Las Palmas Drive Carlsbad, CA 92009 For Contractor: Title President Name Richard James Esgate - Address 9320 Chesapeake.Dr., B 208 San Dieeo, CA 971 23 28. BUSINESS LICENSE Contractor shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. rev. 2/26/99 -14 - 0 e 29. ENTIRE AGREEMENT This agreement, together with any other written document referred to or contemplated herein, embody the entire agreement and understanding between the parties relating to the subject matter hereof. Neither this agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. Executed by Contractor this day of 1- 19 . CONTRACTOR: % CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT I. 1 State of CAczFORm@ County of SHd =,EL 0 I - OPTIONAL SECTION 1 CAPACITY CLAIMED BY SI Though statute does not require the N fill in the data below. doina so mal 1 11 1 I invaluable to persons relying in the d& I 1 On- before me, -a.-Ef. /cIoIRR~ 0 INDIVIDUAL I personally appeare 1 i rn CORPORATE OFFICER(S) NAME, TITLE OF OFFICER - E.G., *JmE DOE, NOTARY PUBLIC" TITLE(S) H personally known to me - OR - proved to me on the basis of satisfactory evidence PARTNER(S) LiMlTED to be the person(s) whose name(s) Hare subscribed to the within instrument and ac- ATToRNEY-IN-FACT knowledged to me that w/.sW/they executed TRUSTEE(S) the Same in Wh;er/their authorized capacity(ies), and that by tpS/Wr/their signature@) on the instrument the person@), or the entity upon behalf of which the 0 GENEW 0 GUARDIAN/CONSERVATOI 0 OTHER: SIGNER IS REPRESENTIN( - NAME OF PERSON(S) OR ENTIP((IES) i OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT dZr/ BY C#ug#a OoflHCjr THE DOCUMENT DESCRIBED AT RIGHT Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. SIGNER@) OTHER THAN NAMED ABOVE &%!E fir ZZmE a#= A'o7jjw NUMBER OF PAGES /s DATE OF DOCUMENT RE L/ &LhC/Pp 01992 NATIONAL NOTARY ASSOCIATION 8236 Remmet Ave.. P.O. Box 7184 Canoga Park, C, ~. . - . . - - -. b 0' . 0 9687. ENDORI FILE NO!I YO 13; ARTICLES OF IXORPORATION f;l the cS:a d <ha S::rcl cf $53 Stat0 of Cali OF ESGIL CORPORATION WRCI W:.: EU, Secre! Lesfie Glcr V2pfy ONE: The name of this corporation is Esgil Corporation. .TWO: The purpose of this corporation is to engage in any lawful act or activity for .which a corporation may be organized under the general Corporation Law of Calif- ornia other than the banking business, ,. the , trust company business or the practice -of a profession permitted to .be incorporated by the California Corporations Code. THiiEE: The name and address in this state of the corporation's initial agent for service of process is: James Gilshian 4601 Mt. Abernathy Avenue San Diego, California. 92117 FOUR: This corporation is authorized to issue only one class of shares of stock which shall be dksignated common stock. The total number of shares it is author- ized to issue is 10,000. FIVE: This corporation is a close corporation. All of the corporation's issued shares of all classes shall be held of record by not more than two persons. .I .. .. a. SIX: The names and addresses of the persons who are appointed to act as the initial directors of this corporation are; Yame Address Richard James Esgate 731 Avalon Court San Diego, Calif. 92109 James Joseph Gilshian 4601 "I. Abernathy Ave. 'San Diego, Calif. 92117 IN WITNESS WHEREOF, the undersigned. being all the . I persons named above as the initial directors, have executed these Articles of Incorporation. I .. DATED: November 27, 1979 .. I' .. ../ .?+.a fl ,..+4 Y / . I# vy 9 /.- , l.J ,TI&- J*--7-/ /{y;! /p yg/* j. : G2.k &.P * *../ -y J-+7 Richard Jhes Esgate L . - ,.? i . .. . [ .i 2. ---. ! .I ._. -. *_ ". :kLL,- ,- :..--- : ' James Joseph Gilshian 17." ". c 4,; . -;:- '\.. .(, :- "i., .. 1 .;I '._, : t 6 \. Ll The undersigned, being all the persons named above as the initial directors, declare that they are the persons who executed the foregoing Articles of Incor- poration, which execution is their act and deed. i-- DATED: November 27, 1979 * ,2 j- >:I ..,' .' /- , .- .. ; w?;.-e w<L .- 2 .i' ..., &:< J. .. 7. . *. 4 .. ",-. . J .. ;; .;/ " Richard Ja&s Esgaie .. -w:sc&&, .+ &/ ,. 7. .. k. .. I. . ._. .i . : , ;. .. .-. y -;: ! '! , -. -< 'X. - :, :, , . , . "- ': .. . " &es Joseph Gilshian * t. ,