HomeMy WebLinkAbout2017-06-13; City Council; Resolution 2017-103RESOLUTION NO. 2017-103
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD/
CALIFORNIA/ APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH
ESGIL CORPORATION TO PROVIDE BUILDING PLAN CHECK SERVICES FOR UP
TO FIVE YEARS.
EXHIBIT 1
WHEREAS/ the City of Carlsbad requires the services of a building plan check vendor; and
WHEREAS/ on February 11 20171 the Purchasing Division published a Request for Proposal (RFP)
inviting proposals for thecitis building plan check services; and
WHEREAS/ Friday March 31 2017 was the closing date to submit any proposals for consideration;
and
WHEREAS/ in accordance with the RFP the nine proposals received were evaluated using the
criteria outlined in the RFP; and
WHEREAS1 the city received proposals from nine firms and based on evaluation criteria/ a staff
selection committee chose EsGil Corporation; and
WHEREAS/ staff recommends approving a professional services agreement with EsGil
Corporation for building plan check services for a period of three years; and
WHEREAS/ staff recommends City Council authorize the city manager to approve a maximum
of two one-year extensions; and
WHEREAS/ payments made to contractor for plan check services are funded from fees collected
through the building permit process.
NOW/ THEREFORE/ BE IT RESOLVED by the City Council of the City of Carlsbad/ California/ as
follows:
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1. That the above recitations are true and correct.
2. That the Mayor is authorized and directed to execute the Professional Services
Agreement with EsGil Corporation/ for a term of three years with a maximum of two
one-year extensions/ which is attached hereto as Attachment A.
EXHIBIT 1
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 13th day of June, 2017, by the following vote, to wit:
AYES: M. Hall, K. Blackburn, M. Schumacher, C. Schumacher, M. Packard
NOES: None.
ABSENT: None.
(SEAL)
AGREEMENT FOR BUILDING PLAN CHECK SERVICES
ESGIL CORPORATION
T~IS AGREEMENT is made and entered into as of the J4tVl day of
( JUY\..t. , 2017, by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and ESGIL CORPORATION, a California corporation, ("Contractor").
RECITALS
A. City requires the professional services of a building plan check contractor to
provide the necessary building plan check services for proposed construction projects and is
experienced in current building codes as adopted by the City.
B. Contractor has the necessary experience in providing professional services and
advice related to building plan check.
C. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") as defined below:
a) Perform traditional preliminary building plan check consultations in Contractor's
main office by meetings or by telephone.
b) Perform traditional initial building plan check of submitted plans to determine
compliance with City adopted California Building Code, California Plumbing Code,
California Mechanical Code, California Electric Code, California Green Building
Code, California Residential Code, and California State, Title 24 (Energy
Conservation, Disabled Access and Noise Attenuation).
c) Provide the applicant's designee and the City a written list of items needing
clarification or change in order to achieve conformance with the above regulations.
d) Perform all necessary liaison with the applicant's designee, either by telephone,
mail or meeting in Contractor'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, telephone or in Contractor's main office, to ensure compliance with the
California Building Code Section 1.8.6.1 and to ensure compliance with local policy
interpretations.
f) Perform building plan checks of revisions to plans that have previously been
approved for permit issuance, or perform building plan checks of major changes
to plans prior to such approval, when such major changes are not required to
achieve code conformance.
g) Perform accessibility surveys upon request and demonstrate that designated staff
providing this service are GASP certified.
h) Attend meetings related to proposed building projects at the request of the Building
Official at locations other than Contractor's main office.
i) The City uses Tyler Technologies' EnerGov solution for land management,
business licenses and code compliance. Contractor will be provided appropriate
licensing for EnerGov and will be expected to enter plan-checking and inspection
information. Phase 2 of the EnerGov implementation includes digital plan-
checking. When digital plan review is implemented, Contractor will provide their
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own Adobe Acrobat or Bluebeam software license(s) to carry-out plan check
review in accordance with City procedures.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill
customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment while
exercising its professional skill and expertise.
3. CITY OBLIGATIONS
The City shall perform the following work:
a) Obtain from applicant, at time of project submittal, the necessary items to allow
plan checking to be completed in the shortest overall timeframe. Necessary items
include, but are not limited to, complete plans, construction specifications, soil
reports, Title 24 energy calculations, structural calculations, the name, 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 Contractor to
calculate the valuation in accordance with City's adopted valuation schedule.
c) Provide Contractor with copies of any City ordinances that modify the regulations
listed in 1.b.
d) Collect sufficient plan check fees or deposits from project applicants to ensure City
will not suffer a loss if the applicant decides to abandon the permit process after
Contractor has completed the initial plan check.
4. PROGRESS AND COMPLETION
Contractor shall complete plan checks according to the following schedule:
a) First plan check: complete and return to City within ten (1 0) working days from date
of plan submission to City.
b) Second and third plan checks: compete and return to City within five (5) working
days from date of submission to City
5. TERM
The term of this Agreement will be effective for a period of three (3) years from the date first above
written. The City Manager may amend the Agreement to extend it for two (2) additional one (1)
year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's
performance, City needs, and appropriation of funds by the City Council. The parties will prepare
a written amendment indicating the effective date and length of the extended Agreement.
6. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
7. COMPENSATION
a) The total fee payable for Services to be performed during the initial Agreement
term will be as indicated in Exhibit A. 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. No other
compensation for the Services will be allowed except for items covered by
subsequent amendments to this Agreement. The City reserves the right to withhold
a ten percent (10%) retention until City has accepted the work and/or Services as
specified in Exhibit "A".
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b) Compensation under Section 1.f shall be calculated either the same as 7.a or shall
be based on Contractor's current Hourly Rates Schedule. The method used will be
at the discretion of the Contractor with the approval of the Building Official.
c) Compensation for work performed under 1.g and 1.h shall be based on
Contractor's hourly rates (Exhibit A).
d) The Contractor shall not perform extra work without written authorization from the
Building Official.
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
8. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and
in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be
under control of City only as to the result to be accomplished, but will consult with City as
necessary. The persons used by Contractor to provide services under this Agreement will not be
considered employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. City will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be
required to pay any workers' compensation insurance or unemployment contributions on behalf
of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty
(30) days for any tax, retirement contribution, social security, overtime payment, unemployment
payment or workers' compensation payment which City may be required to make on behalf of
Contractor or any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's election, City may deduct the indemnification amount from any balance
owing to Contractor.
9. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City.
If Contractor subcontracts any of the Services, Contractor will be fully responsible to 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 Agreement will create any contractual
relationship between any subcontractor of Contractor and City. Contractor will be responsible for
payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of
a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically
noted to the contrary in the subcontract and approved in writing by City.
10. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
11. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees
and volunteers from and against all claims, damages, losses and expenses including attorney's
fees arising out of the performance of the work described herein caused by any negligence,
recklessness, or willful misconduct 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.
The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or
makes to or on behalf of an injured employee under the City's self-administered workers'
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compensation is included as a loss, expense or cost for the purposes of this section, and that this
section will survive the expiration or early termination of this Agreement.
12. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement 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 of the services by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will 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-:VII"; OR with a surplus
line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating
in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by
the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.
12.1 Coverage and Limits.
Contractor will maintain the types of coverage and minimum limits indicated below, unless the
Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage
will not constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement. City, its officers, agents and employees make no representation that the limits of the
insurance specified to be carried by Contractor pursuant to this Agreement are adequate to
protect Contractor. If Contractor believes that any required insurance coverage is inadequate,
Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense. The full limits available to the named insured shall also be available
and applicable to the City as an additional insured.
12.1.1 Commercial 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 will apply separately to the work under this Agreement
or the general aggregate will be twice the required per occurrence limit.
12.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work
for City). $1,000,000 combined single-limit per accident for bodily injury and property damage.
12.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as
required by the California Labor Code. Workers' Compensation will not be required if Contractor
has no employees and provides, to City's satisfaction, a declaration stating this.
12.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's
profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a
period of five years following the date of completion of the work.
12.2 Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
12.2.1 The City will be named as an additional insured on Commercial General Liability
which shall provide primary coverage to the City.
12.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which
will be written as claims-made coverage.
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12.2.3 This insurance will be in force during the life of the Agreement and any extensions
of it and will not be canceled without thirty (30) days prior written notice to City sent by certified
mail pursuant to the Notice provisions of this Agreement.
12.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
12.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to maintain
the required coverages. Contractor is responsible for any payments made by City to obtain or
maintain insurance and City may collect these payments from Contractor or deduct the amount
paid from any sums due Contractor under this Agreement.
12.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete
and certified copies of any or all required insurance policies and endorsements.
13. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
14. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of City
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will allow inspection of all
work, data, documents, proceedings, and activities related to the Agreement for a period of three
(3) years from the date of final payment under this Agreement.
15. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of City. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy
of the work product for Contractor's records.
16. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and
Contractor relinquishes all claims to the copyrights in favor of City.
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17. NOTICES
The name of the persons who are authorized to give written notice or to receive written notice on
behalf of City and on behalf of Contractor under this Agreement.
For City
Name Mike Peterson
Title Building Official
Department Building Division
City of Carlsbad
Address 1635 Faraday Avenue
Carlsbad, CA 92008
Phone No. 760-602-2721
For Contractor
Name Kurt Culver
Title Director
Address 9320 Chesapeake Dr. #208
San Diego, CA 92123
Phone No. 858-560-1468
Email kculver@esgil.com
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
18. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report
investments or interests in all four categories.
19. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulations
which in any manner affect those employed by Contractor, or in any way affect the performance
of the Services by Contractor. Contractor will at all times observe and comply with these laws,
ordinances, and regulations and will be responsible for the compliance of Contractor's services
with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants whose services are
required by this Agreement.
20. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
21. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement
between the parties. Representatives of Contractor or City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be forwarded to both parties
involved along with recommended methods of resolution, which would be of benefit to both
parties. The representative receiving the letter will reply to the letter along with a recommended
method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The
City Manager will consider the facts and solutions recommended by each party and may then opt
to direct a solution to the problem. In such cases, the action of the City Manager will be binding
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upon the parties involved, although nothing in this procedure will prohibit the parties from seeking
remedies available to them at law.
22. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If City decides to abandon or indefinitely postpone the work or services contemplated
by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon
notification of termination, Contractor has five (5) business days to deliver any documents owned
by City and all work in progress to City address contained in this Agreement. City will make a
determination of fact based upon the work product delivered to City and of the percentage of work
that Contractor has performed which is usable and of worth to City in having the Agreement
completed. Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may terminate this
Agreement. In this event and upon request of City, Contractor will assemble the work product and
put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work
performed to the termination date; however, the total will not exceed the lump sum fee payable
under this Agreement. City will make the final determination as to the portions of tasks completed
and the compensation to be made.
23. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for 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, City will have the right to annul this Agreement without liability, or, in its discretion,
to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the
fee, commission, percentage, brokerage fees, gift, or contingent fee.
24. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must
be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation
of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is
submitted to City, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.,
the False Claims Act applies to this Agreement and, 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 City seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement for
a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is
grounds for City to terminate this Agreement.
25. JURISDICTION AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
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26. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and Contractor
and their respective successors. Neither this Agreement nor any part of it nor any monies due or
to become due under it may be assigned by Contractor without the prior consent of City, which
shall not be unreasonably withheld.
27. ENTIREAGREEMENT
This Agreement, together with any other written document referred to or contemplated by it, along
with the purchase order for this Agreement and its provisions, embody the entire Agreement and
understanding between the parties relating to the subject matter of it. In case of conflict, the terms
of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions
may be amended, modified, waived or discharged except in a writing signed by both parties.
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28. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR ESGIL CORPORATION,
a California corporation
By: ~ ~-·-re_(_c -(JJ--,5
Gregory Toth, President
(print name/title)
By~
c (sign here)
Tom Wilkas, CFO
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
ATTEST:
City Clerk
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a corporation, Agreement must be signed by one corporate officer from each of the following
two groups.
Group A
Chairman,
President, or
Vice-President
Group 8
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
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a) Initial Plan Review
EXHIBIT "A"
ESGIL CORPORATION
BUILDING PLANCHECK
SCOPE OF SERVICES
For building code plan reviews (including plumbing, mechanical, electrical,
energy and disabled access), Contractor's fee will be as follows:
• City of Carlsbad FY 17/18 equal to 57% of Building Permit Fee collected by the City.
• City of Carlsbad FY 18/19 equal to 61% of Building Permit Fee collected by the City.
• City of Carlsbad FY 19/20 equal to 65% of Building Permit Fee collected by the City.
b) Repetitive Track Homes:
For repetitive plan reviews, Contractor proposes a fee equal to 10% of the
Building Plan Check Fee collected by the City, for each building.
c) Rechecks #1, #2, #3 (all):
No additional fees. Fees included in the initial plan review fee.
d) Plan Pickup and Delivery Charge:
No charge to the City.
e) Other Fees:
• Preliminary Plan Checks: No charge to City.
• Revisions: Plan check revisions, after plans are approved, will be
reviewed and b iII e d on an hourly basis, based on the hourly rates
listed below.
Supervising Structural Engineer
CASp Certified Access Examiner
LEED Certified Plans Examiner
Structural Engineer
Civil Engineer
Electrical Engineer
Mechanical Engineer
I.C.C. Plans Examiner
Note
ESGIL Hourly Rates
$135.00
$120.00
$120.00
$120.00
$105.00
$105.00
$105.00
$90.00
EsGil hourly labor rates may be used when requested by our clients where a
Building Plan Check Fee is not applicable.
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