HomeMy WebLinkAbout25D - BLDG PLAN CHECKREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
NOVEMBER 17, 2008
TITLE:
AGREEMENTS FOR BUILDING PLAN CHECK
SERVICES AND APPROPRIATION
ADJUSTMENT S
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r ~ ~
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CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONL1Y:
CONTINUED TO
APPROVED
^ As Recommended
^ As Amended
^ Ordinance on 1S` Readin<
^ Ordinance on 2"d Readin
^ Implementing Resolution
^ Set Public Hearing For
FILE NUMBER
1. Authorize the City Manager and Clerk of the Council to execute the
attached agreements with Scott Fazekas and Associates, Inc.; Tmad,
Taylor & Gaines; and Nabih Youssef & Associates, subject o non-
substantive changes approved by the City Manager and City Att rney in
an aggregate total amount not to exceed $120,000.
2. Approve appropriation adjustments recognizing aggregate total amounts
not to exceed $120,000 in the 2008-2009 FY revenue acco nt for
building plan check (account no. 011-01-5401) and appro riating
various amounts not to exceed $120,000 to the Planning and uilding
Agency 2008-2009 FY budget allocation in the account for con ractual
services (account no. 11-508-6291) for payments to the con ultants
contracted to complete building plan checks of various project .
DISCUSSION
The City experienced an uneven work flow in development over t
several years, in part due to the number of high-rise projects.
to keep up with plan check service demands, the City contract
various consultants on an as needed basis. In August 2007, City
approved $300,000 for these contracted services for fiscal year
With the decline of high-rise projects, it is anticipated that t
for contracted plan check services will not be required to t
degree as in the past few years. Accordingly, the current regL
decreased to $120,000 for the current year.
This request is primarily for the purpose of maintaining a thz
turn-around time for all plan submittals. Over the past 18 mon
Planning and Building Agency has strived to reach this standard, a
the past year over 90% of the plans submitted for first revi~
ze last
n order
'd with
Council
007-08.
ze need
ie same
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ee-week
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,w were
25D-1
Plan Check Agreements and Appropriation Adjustments
November 17, 2008
Page 2
completed within thre
contracted plan check
submitted or when one
time.
e weeks or less. This has been achieved y
services when an inordinate amount of pl n:
or more large projects enter plan check at he
Of eight consulting firms that responded to the original Reques
Proposal, three consulting firms continue to meet the City's requ:
for availability of qualified engineering staff, turn-arounc
locale, and fees. One of these recommended firms, Scott Faze
Associates, Inc., will provide complete plan check services at a ~
to exceed 70~ of the City's plan check fee charged to each proje
receive. The other two recommended firms, Tmad, Taylor & Gai
Nabih Youssef & Associates, will provide structural only plan cl-
selected projects at a rate not to exceed 40~ of the City's pla
fee charged to the project. All contracted firms will proc
required plan revisions and deferred submittals at acceptable
rates. All three firms have agreed to no other add-on costs.
FISCAL IMPACT
Plan check fees paid to the City for each project contracted out
plan check will fund the cost for the consultants at an amount
exceed 705 of the plan check fee paid to the City. In cases why
structural plan check is provided by a consulting firm, the fee wi
amount not to exceed 40% of the total plan check fee paid to t]
These amounts will be recognized in the revenue account for build:
check (account no. 011-01-5401) and a like amount appropriated
Planning and Building Agency account for contractual services
no. 11-508-6291), not to exceed a total amount of $120,000.
APPROVED AS TO FUNDS AND AC
,~
Jay Trevino
Ex c tive Director
Planning and Building Agency
SB:rb
sb\rfca's\2008-09\Plan Check Services Nov-OB
Francisco
Executive
Finance &
25D-2
Gutierrez
Director
Management Services
using
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rements
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:as and
ate not
~t they
ies and
~cks on
z check
ass any
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ng plan
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CONSULTANT AGREEMENT
THIS AGREEMENT made and entered into this 17`}' day of November, 2008 by and
between SCOTT FAZEKAS & ASSOCIATES, INC., a California corporation (hereinafter
"Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized
existing under the Constitution and laws of the State of California (hereinafter "City").
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field
municipal plan check services.
B. Consultant represents that Consultant is able and willing to provide such services to
City.
C. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to
terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall provide plan check services on request of the Executive Director of the
Planning and Building Agency, as set forth in Exhibit A, attached hereto.
Consultant shall deliver to City all work product resulting from the services provided.
Said work product shall be submitted in a hard copy and in a form compatible with City's
computer system, as agreed between the Executive Director and Consultant.
In regard to copyrightable material produced as a deliverable under this Agreement,
including but not limited to books, reports, plans, photographs, drawings and computer
programs, Consultant agrees and shall ensure that all of Consultant's affected officers,
employees, agents, contractors, and volunteer workers agree that (a) other such material may n
be copyrighted without prior review from the City, and (b) the authors of all such material,
whether copyrighted or not, award to the City, and to its officers, agents and employees acting
within the scope of their official duties, as a condition of payment to the Consultant, aroyalty-
free, nonexclusive, irrevocable license throughout the world for governmental purposes to
disclose, publish, translate, reproduce, and use such materials.
25D-3
COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services,
seventy percent (70%) of the applicable plan check fee charged by City. The total sum to be
expended for Plan Check services by all Consultants during the term of this Agreement shall no
exceed the $120,000.00 aggregate amount approved by City Council on November 17, 2008.
b. Payment by City shall be made within thirty (30) days following receipt of proper
invoice evidencing work performed, subject to City accounting procedures. Consultant may
charge fifty percent (50%) of the total fee upon submission of the initial plan check report and
the balance upon completion of Plan Check for the project. Payment need not be made for work
which fails to meet the standards of performance set forth in the Recitals which may reasonably
be expected by City.
3. TERM
This Agreement shall commence on the date first written above and terminate when
allocated funds have been expended, unless terminated earlier in accordance with Section 12,
below.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor
shall it be construed to create an employer-employee relationship, a joint venture relationship,
to allow the City to exercise discretion or control over the professional manner in which
Consultant performs the services which are the subject matter of this Agreement; however, the
services to be provided by Consultant shall be provided in a manner consistent with all
applicable standards and regulations governing such services. Consultant shall pay all salaries a
wages, employer's social security taxes, unemployment insurance and similar taxes relating to
employees and shall be responsible for all applicable withholding taxes.
5. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Worker's Compensation Insurance. In accordance with the provisions of Section 33
of the Labor Code, Consultant, if Consultant has any employees, is required to be insured agar
liability for worker's compensation or to undertake self-insurance. Prior to commencing the
performance of the work under this Agreement, Consultant agrees to obtain and maintain any
employer's liability insurance with limits not less than $1,000,000 per accident.
b. Professional liability (errors and omissions) insurance, with a combined single limit
not less than $1,000,000 per claim, subject to $1,000,000.00 aggregate.
2
25D-4
c. The following requirements apply to the insurance to be provided by Consultant
pursuant to this section:
(i) Consultant shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
(ii) Certificates of insurance shall be furnished to the City upon execution of
this Agreement and shall be approved in form by the City Attorney.
(iii) Certificates and policies shall state that the policies shall not be canceled
or reduced in coverage or changed in any other material aspect without
thirty (30) days prior written notice to the City.
d. If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has been procure
and is in force and paid for, the City shall have the right, at the City's election, to forthwith
terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its
time and materials expended prior to notification of termination. Consultant waives the right to
receive compensation and agrees to indemnify the City for any work performed prior to approva
of insurance by the City.
6. INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability for personal injury,
damages, just compensation, restitution, judicial or equitable relief arising out of claims for
personal injury, including health, and claims for property damage, which may arise from the
direct or indirect negligent operations of the Consultant or its contractors, subcontractors, agents
employees, or other persons acting on their behalf which relates to the services described in
section 1 of this Agreement. This indemnity and hold harmless agreement applies to all claims
for damages, just compensation, restitution, judicial or equitable relief suffered by reason of the
events referred to in this Section or by reason of the terms of, or effects, arising from this
Agreement. The Consultant further agrees to indemnify, hold harmless the City, regarding any
action by a third party challenging the validity of this Agreement, or asserting that personal
injury, damages, just compensation, restitution, judicial or equitable relief due to personal or
property rights arises by reason of the terms of, or effects arising from this Agreement. City ma;
make all reasonable decisions with respect to its representation in any legal proceeding.
7. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Consultant agrees
that it shall not use or disclose such information except in the performance of this Agreement,
and further agrees to exercise the same degree of care it uses to protect its own information of
like importance, but in no event less than reasonable care. "Confidential Information" shall
include all nonpublic information. Confidential information includes not only written
information, but also information transferred orally, visually, electronically, or by other means.
Confidential information disclosed to either party by any subsidiary and/or agent of the other
25D-5
party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure
shall not apply to any information that (a) has been disclosed in publicly available sources; (b)
through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful
possession of the Consultant without an obligation of confidentiality; (d) is required to be
disclosed by operation of law; or (e) is independently developed by the Consultant without
reference to information disclosed by the City.
8. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct
or indirect, which would conflict in any manner with performance of services specified under
this Agreement.
9. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given if delivered in person
mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other
telegraphic communication in the manner provided in this Section, to the following persons:
To City: Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
telefacsimile (714) 647-6956
With courtesy copies to:
Executive Director of Planning and Building Agency
Building Safety Division
City of Santa Ana
20 Civic Center Plaza (M-19)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-5897
and
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6515
To Consultant: Scott Fazekas & Associates, Inc.
9 Corporate Park, Suite 200
Irvine, California 92606
4
25D-6
telefacsimile (949) 475-2560
A party may change its address by giving notice in writing to the other party. If sent by
mail, communication shall be effective or deemed to have been given three (3) days after it has
been deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by telefacsimile, communication shall be effective or
deemed to have been given twenty-four (24) hours after the time set forth on the transmission
report issued by the transmitting facsimile machine, addressed as set forth above. For purposes
of calculating these time frames, weekends, federal, state, County or City holidays shall be
excluded.
10. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties. In
the event of a conflict between the terms of this Agreement and any attachments hereto, the
terms of this Agreement shall prevail. This Agreement may not be modified except by written
instrument signed by the City and by an authorized representative of Consultant. The parties
agree that any terms or conditions of any purchase order or other instrument that are inconsistent
with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor
the City. Each party to this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein.
11. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement
shall be construed to limit the City's ability to have any of the services which are the subject to
this Agreement performed by City personnel or by other consultants retained by City.
12. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Consultant shall be entitled to receive and the City shall pay Consult
compensation for all services performed by Consultant prior to receipt of such notice of terminate
subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to delive
to the City all work product completed as of such date, and in such case such work product shall be
the property of the City unless prohibited by law, and Consultant consents to the City's use thereof
for such purposes as the City deems appropriate.
25D-7
b. Payment need not be made for work which fails to meet the standard of performance
specified in the Recitals of this Agreement.
13. DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Consultant affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
14. JURISDICTION -VENUE
This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of this Agreement
shall be determined and governed by the laws of the State of California. Both parties further
agree that Orange County, California, shall be the venue for any action or proceeding that may
be brought or arise out of, in connection with or by reason of this Agreement.
15. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services
hereunder and required by the laws and regulations of the United States, the State of California,
the City of Santa Ana and all other governmental agencies. Consultant shall notify the City
immediately and in writing of its inability to obtain or maintain such permits, licenses, approval:
waivers, and exemptions. Said inability shall be cause for termination of this Agreement.
16. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereinbelow has the power,
authority and right to bind their respective parties to each of the terms of this Agreement, and shall
indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to
City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement.
//
//
//
//
25D-8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
PATRICIA E. HEALY
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By:
Laura Sheedy
Assistant City Attorney
CITY OF SANTA ANA
DAVID N. REAM
City Manager
SCOTT FAZEKAS & ASSOCIATES,
SCOTT FAZEKAS
President
Tax ID#
25D-9
EXHIBIT A
SCOPE OF SERVICES
General Description
Building Safety Division of the City of Santa Ana foresees submittal of several large projects in
the near future. Therefore, the City is seeking the services of professional consultants to support
the efforts of City staff in the area of plan checking.
Scope of Services
Consultant shall perform the following services for each assigned building plan review.
1. Detail review the mechanical, plumbing, electrical and building (architectural/structural)
plans. Review supporting documents for industrial, commercial, residential and public
buildings and determine compliance with applicable building standards as related to
existing and proposed buildings.
2. Review the plans for compliance with California state-mandated regulations for energy
conservation, disabled access and City Adopted Ordinances.
Review the plans for compliance with Federal Flood Plain regulations for projects in the
special flood hazard area designated on the flood insurance rate map (FIRM) as zone A0
or AE.
4. Recheck and approval of final plans and supporting documents to be provided without
additional charge for recheck.
Submittal of approved plans and all supporting documents to the City of Santa Ana.
6. Provide all necessary liaison with applicants via fax, phone, a-mail or in person to
expedite the review process and consult on complex code issues with City of Santa Ana
Building Official.
7. Plan review report to be customized for each project and be delivered via fax, mail or e-
mail to City and the applicant.
Structural portion of the plans to be reviewed by California Licensed Civil or Structural
Engineer.
Plan reviewer to be consistent, accurate, available and responsive to the City and the
applicant via phone, fax, a-mail and meetings. Also, the plan reviewer shall be available
to the Building Official and his staff to help answer Code questions arising from review.
25D-10
Plan reviewer shall provide assistance in evaluation of alternate materials, design and
methods of construction proposed by applicant.
10. Plan reviewer shall be available, at no expense to the City of Santa Ana, to meet at the
City office with owners, architects, engineers and contractors to discuss the Plan Check
issues.
11. Plan reviewer to verify that the job description, square footages, occupancy
classifications and type of construction, on the permit application agrees with the plans
and specifications. Plan reviewer will also verify the building valuation based upon
valuation costs used by the City of Santa Ana.
12. Initial Plan review to be complete within fifteen (15) working days and recheck within
five (5) working days.
13. Deferred submittals, trusses, stairs, curtain walls, etc. to be plan checked on an hourly
rate of $85.00/hour.
14. Consultant fee for review services to be 70% of the City of Santa Ana Plan Check Fee.
25D-11
CONSULTANT AGREEMENT
THIS AGREEMENT made and entered into this 17`" day of November, 2008 by and
between TMAD, TAYLOR & GAINES, a California corporation (hereinafter "Consultant"), ani
the City of Santa Ana, a charter city and municipal corporation organized and existing under the
Constitution and laws of the State of California (hereinafter "City").
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field
municipal plan check services.
B. Consultant represents that Consultant is able and willing to provide such services to
City.
C. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to
terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall provide structural plan check services on request of the Executive
Director of the Planning and Building Agency, as set forth in Exhibit A, attached hereto.
Consultant shall deliver to City all work product resulting from the services provided.
Said work product shall be submitted in a hard copy and in a form compatible with City's
computer system, as agreed between the Executive Director and Consultant.
In regard to copyrightable material produced as a deliverable under this Agreement,
including but not limited to books, reports, plans, photographs, drawings and computer
programs, Consultant agrees and shall ensure that all of Consultant's affected officers,
employees, agents, contractors, and volunteer workers agree that (a) other such material may n
be copyrighted without prior review from the City, and (b) the authors of all such material,
whether copyrighted or not, award to the City, and to its officers, agents and employees acting
within the scope of their official duties, as a condition of payment to the Consultant, aroyalty-
free, nonexclusive, irrevocable license throughout the world for governmental purposes to
disclose, publish, translate, reproduce, and use such materials.
2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services,
forty percent (40%) of the applicable plan check fee charged by City. The total sum to be
25D-12
expended for Plan Check services by all Consultants during the term of this Agreement shall
exceed the $300,000.00 aggregate amount approved by City Council on November 17, 2008.
b. Payment by City shall be made within thirty (30) days following receipt of proper
invoice evidencing work performed, subject to City accounting procedures. Consultant may
charge fifty percent (50%) of the total fee upon submission of the initial plan check report and
the balance upon completion of Plan Check for the project. Payment need not be made for work
which fails to meet the standards of performance set forth in the Recitals which may reasonably
be expected by City.
3. TERM
This Agreement shall commence on the date first written above and terminate when
allocated funds have been expended, unless terminated earlier in accordance with Section 12,
below.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor
shall it be construed to create an employer-employee relationship, a joint venture relationship,
to allow the City to exercise discretion or control over the professional manner in which
Consultant performs the services which are the subject matter of this Agreement; however, the
services to be provided by Consultant shall be provided in a manner consistent with all
applicable standards and regulations governing such services. Consultant shall pay all salaries a
wages, employer's social security taxes, unemployment insurance and similar taxes relating to
employees and shall be responsible for all applicable withholding taxes.
5. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Worker's Compensation Insurance. In accordance with the provisions of Section 3301
of the Labor Code, Consultant, if Consultant has any employees, is required to be insured agains
liability for worker's compensation or to undertake self-insurance. Prior to commencing the
performance of the work under this Agreement, Consultant agrees to obtain and maintain any
employer's liability insurance with limits not less than $1,000,000 per accident.
b. Professional liability (errors and omissions) insurance, with a combined single limit
not less than $1,000,000 per claim, subject to $1,000,000.00 aggregate.
c. The following requirements apply to the insurance to be provided by Consultant
pursuant to this section:
25D-13
(i) Consultant shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
(ii) Certificates of insurance shall be furnished to the City upon execution of
this Agreement and shall be approved in form by the City Attorney.
(iii) Certificates and policies shall state that the policies shall not be canceled
or reduced in coverage or changed in any other material aspect without
thirty (30) days prior written notice to the City.
d. If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has been procured
and is in force and paid for, the City shall have the right, at the City's election, to forthwith
terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its 'I
time and materials expended prior to notification of termination. Consultant waives the right to
receive compensation and agrees to indemnify the City for any work performed prior to approva~
of insurance by the City.
6. INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,',
employees, consultants, special counsel, and representatives from liability for personal injury,
damages, just compensation, restitution, judicial or equitable relief arising out of claims for ',
personal injury, including health, and claims for property damage, which may arise from the
direct or indirect negligent operations of the Consultant or its contractors, subcontractors, agentslb
employees, or other persons acting on their behalf which relates to the services described in '~,
section 1 of this Agreement. This indemnity and hold harmless agreement applies to all claims ''
for damages, just compensation, restitution, judicial or equitable relief suffered by reason of the
events referred to in this Section or by reason of the terms of, or effects, arising from this
Agreement. The Consultant further agrees to indemnify, hold harmless the City, regarding any
action by a third party challenging the validity of this Agreement, or asserting that personal
injury, damages, just compensation, restitution, judicial or equitable relief due to personal or
property rights arises by reason of the terms of, or effects arising from this Agreement. City ma~
make all reasonable decisions with respect to its representation in any legal proceeding.
7. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Consultant agrees
that it shall not use or disclose such information except in the performance of this Agreement,
and further agrees to exercise the same degree of care it uses to protect its own information of
like importance, but in no event less than reasonable care. "Confidential Information" shall
include all nonpublic information. Confidential information includes not only written
information, but also information transferred orally, visually, electronically, or by other means.
Confidential information disclosed to either party by any subsidiary and/or agent of the other
party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure
shall not apply to any information that (a) has been disclosed in publicly available sources; (b)
through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful
25D-14
possession of the Consultant without an obligation of confidentiality; (d) is required to be
disclosed by operation of law; or (e) is independently developed by the Consultant without
reference to information disclosed by the City.
8. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct
or indirect, which would conflict in any manner with performance of services specified under
this Agreement.
9. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given if delivered in person
mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other
telegraphic communication in the manner provided in this Section, to the following persons:
To City: Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
telefacsimile (714) 647-6956
With courtesy copies to:
Executive Director of Planning and Building Agency
Building Safety Division
City of Santa Ana
20 Civic Center Plaza (M-19)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-5897
and
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6515
To Consultant: Tmad, Taylor & Gaines
Attn: Terry Tsang
800 N. Ferrari Lane, Suite 100
Ontario, California 91764
telefacsimile (909) 477-6916
25D-15
A party may change its address by giving notice in writing to the other party. If sent by
mail, communication shall be effective or deemed to have been given three (3) days after it has
been deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by telefacsimile, communication shall be effective or
deemed to have been given twenty-four (24) hours after the time set forth on the transmission
report issued by the transmitting facsimile machine, addressed as set forth above. For purposes
of calculating these time frames, weekends, federal, state, County or City holidays shall be
excluded.
10. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties. In
the event of a conflict between the terms of this Agreement and any attachments hereto, the
terms of this Agreement shall prevail. This Agreement may not be modified except by written
instrument signed by the City and by an authorized representative of Consultant. The parties
agree that any terms or conditions of any purchase order or other instrument that are inconsistent
with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor
the City. Each party to this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein.
11. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement
shall be construed to limit the City's ability to have any of the services which are the subject to
this Agreement performed by City personnel or by other consultants retained by City.
12. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Consultant shall be entitled to receive and the City shall pay Consult
compensation for all services performed by Consultant prior to receipt of such notice of terminate
subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to delive
to the City all work product completed as of such date, and in such case such work product shall be
the property of the City unless prohibited by law, and Consultant consents to the City's use thereof
for such purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of performance
specified in the Recitals of this Agreement.
25D-16
13. DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Consultant affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
14. JURISDICTION -VENUE
This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of this Agreement
shall be determined and governed by the laws of the State of California. Both parties further
agree that Orange County, California, shall be the venue for any action or proceeding that may
be brought or arise out of, in connection with or by reason of this Agreement.
15. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services
hereunder and required by the laws and regulations of the United States, the State of California,
the City of Santa Ana and all other governmental agencies. Consultant shall notify the City
immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals
waivers, and exemptions. Said inability shall be cause for termination of this Agreement.
16. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereinbelow has the power,
authority and right to bind their respective parties to each of the terms of this Agreement, and shall
indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to
City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement.
//
//
//
//
//
25D-17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
CITY OF SANTA ANA
PATRICIA E. HEALY DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By:
Laura Sheedy
Assistant City Attorney
TMAD, TAYLOR & GAINES
TERRY TSANG
Vice President
Tax ID#
25D-18
EXHIBIT A
SCOPE OF SERVICES
General Description
Building Safety Division of the City of Santa Ana foresees submittal of several large projects in
the near future. Therefore, the City is seeking the services of professional consultants to support
the efforts of City staff in the area of plan checking.
Scope of Services
Consultant shall perform the following services for each assigned building plan review.
Provide structural only plan check and review the supporting documents
industrial, commercial, residential and public buildings and determine compli
with applicable building standards as related to existing and proposed buildings.
2. Recheck(s) and approval of final plans and supporting documents to be done
additional charges for recheck.
Submittal of approved plans and all supporting documents to the City of Santa Ana.
4. Provide all necessary liaisons with applicants via fax, phone, a-mail or in person
expedite the review process and consult on complex code issues with City of Sa;
Ana Building Official.
Plan review report to be customized for each project and be delivered via fax, mail
e-mail to the city and the applicant.
Structural portion of the plans to be reviewed by a California Licensed Civil
Structural Engineer.
7. Plan reviewer to be consistent, accurate, available and responsive to the City of S
Ana and the applicants via phone, fax, a-mail and meetings. Also, the plan revif
is to be available to the Building Official and his staff to help field code questions
surface. Also provide assistance in evaluation of alternate materials, design
methods of construction proposed by applicant.
Plan reviewer to be available, at no additional expense to the City of Santa Ana,
meet at the city office with owners, architects, engineers and contractors to disci
the plan check issues.
9. Plan reviewer to verify that job description, square footages, occ
classifications and the type of construction set forth in the application for
25D-19
agrees with the plans and specifications. Also the plan reviewer shall verify
building valuation based on valuation costs used by the City of Santa Ana.
10. Initial plan review to be done within 15 working days and recheck within 5
days.
11. Deferred submittals, trusses, stairs, curtain walls, etc. to be done on an hourly rate
$85.00/hour.
12. Consultant fee for structural plan review services to be 40% of the plan check fee
City of Santa Ana charges.
25D-20
CONSULTANT AGREEMENT
THIS AGREEMENT made and entered into this 17`h day of November, 2008 by and
between NABIH YOUSSEF & ASSOCIATES, a California corporation (hereinafter
"Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized
existing under the Constitution and laws of the State of California (hereinafter "City").
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field
municipal plan check services.
B. Consultant represents that Consultant is able and willing to provide such services to
City.
C. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to
terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall provide structural plan check services on request of the Executive
Director of the Planning and Building Agency, as set forth in Exhibit A, attached hereto.
Consultant shall deliver to City all work product resulting from the services provided.
Said work product shall be submitted in a hard copy and in a form compatible with City's
computer system, as agreed between the Executive Director and Consultant.
In regard to copyrightable material produced as a deliverable under this Agreement,
including but not limited to books, reports, plans, photographs, drawings and computer
programs, Consultant agrees and shall ensure that all of Consultant's affected officers,
employees, agents, contractors, and volunteer workers agree that (a) other such material may n
be copyrighted without prior review from the City, and (b) the authors of all such material,
whether copyrighted or not, award to the City, and to its officers, agents and employees acting
within the scope of their official duties, as a condition of payment to the Consultant, aroyalty-
free, nonexclusive, irrevocable license throughout the world for governmental purposes to
disclose, publish, translate, reproduce, and use such materials.
2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services,
forty percent (40%) of the applicable plan check fee charged by City. The total sum to be
25D-21
expended for Plan Check services by all Consultants during the term of this Agreement shall
exceed the $300,000.00 aggregate amount approved by City Council on November 17, 2008.
b. Payment by City shall be made within thirty (30) days following receipt of proper
invoice evidencing work performed, subject to City accounting procedures. Consultant may
charge fifty percent (50%) of the total fee upon submission of the initial plan check report and
the balance upon completion of Plan Check for the project. Payment need not be made for work
which fails to meet the standards of performance set forth in the Recitals which may reasonably
be expected by City.
3. TERM
This Agreement shall commence on the date first written above and terminate when
allocated funds have been expended, unless terminated earlier in accordance with Section 12,
below.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor
shall it be construed to create an employer-employee relationship, a joint venture relationship,
to allow the City to exercise discretion or control over the professional manner in which
Consultant performs the services which are the subject matter of this Agreement; however, the
services to be provided by Consultant shall be provided in a manner consistent with all
applicable standards and regulations governing such services. Consultant shall pay all salaries a
wages, employer's social security taxes, unemployment insurance and similar taxes relating to
employees and shall be responsible for all applicable withholding taxes.
5. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Worker's Compensation Insurance. In accordance with the provisions of Section 3
of the Labor Code, Consultant, if Consultant has any employees, is required to be insured aga
liability for worker's compensation or to undertake self-insurance. Prior to commencing the
performance of the work under this Agreement, Consultant agrees to obtain and maintain any
employer's liability insurance with limits not less than $1,000,000 per accident.
b. Professional liability (errors and omissions) insurance, with a combined single limit of
not less than $1,000,000 per claim, subject to $1,000,000.00 aggregate.
c. The following requirements apply to the insurance to be provided by Consultant
pursuant to this section:
25D-22
(i) Consultant shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
(ii) Certificates of insurance shall be furnished to the City upon execution of
this Agreement and shall be approved in form by the City Attorney.
(iii) Certificates and policies shall state that the policies shall not be canceled
or reduced in coverage or changed in any other material aspect without
thirty (30) days prior written notice to the City.
d. If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has been procure
and is in force and paid for, the City shall have the right, at the City's election, to forthwith
terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its
time and materials expended prior to notification of termination. Consultant waives the right to
receive compensation and agrees to indemnify the City for any work performed prior to approva
of insurance by the City.
6. INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability for personal injury,
damages, just compensation, restitution, judicial or equitable relief arising out of claims for
personal injury, including health, and claims for property damage, which may arise from the
direct or indirect negligent operations of the Consultant or its contractors, subcontractors, agents
employees, or other persons acting on their behalf which relates to the services described in
section 1 of this Agreement. This indemnity and hold harmless agreement applies to all claims
for damages, just compensation, restitution, judicial or equitable relief suffered by reason of the
events referred to in this Section or by reason of the terms of, or effects, arising from this
Agreement. The Consultant further agrees to indemnify, hold harmless the City, regarding any
action by a third party challenging the validity of this Agreement, or asserting that personal
injury, damages, just compensation, restitution, judicial or equitable relief due to personal or
property rights arises by reason of the terms of, or effects arising from this Agreement. City ma;
make all reasonable decisions with respect to its representation in any legal proceeding.
7. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Consultant agrees
that it shall not use or disclose such information except in the performance of this Agreement,
and further agrees to exercise the same degree of care it uses to protect its own information of
like importance, but in no event less than reasonable care. "Confidential Information" shall
include all nonpublic information. Confidential information includes not only written
information, but also information transferred orally, visually, electronically, or by other means.
Confidential information disclosed to either party by any subsidiary and/or agent of the other
party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure
shall not apply to any information that (a) has been disclosed in publicly available sources; (b)
through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful
25D-23
possession of the Consultant without an obligation of confidentiality; (d) is required to be
disclosed by operation of law; or (e) is independently developed by the Consultant without
reference to information disclosed by the City.
8. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct
or indirect, which would conflict in any manner with performance of services specified under
this Agreement.
NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given if delivered in person or
mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other
telegraphic communication in the manner provided in this Section, to the following persons:
To City: Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
telefacsimile (714) 647-6956
With courtesy copies to:
Executive Director of Planning and Building Agency
Building Safety Division
City of Santa Ana
20 Civic Center Plaza (M-19)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-5897
and
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6515
To Consultant: Nabih Youssef & Associates
Attn: Nabih Youssef
800 Wilshire Boulevard, Suite 200
Los Angeles, California 90017
telefacsimile (213) 688-3018
4
25D-24
A party may change its address by giving notice in writing to the other party. If sent by
mail, communication shall be effective or deemed to have been given three (3) days after it has
been deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by telefacsimile, communication shall be effective or
deemed to have been given twenty-four (24) hours after the time set forth on the transmission
report issued by the transmitting facsimile machine, addressed as set forth above. For purposes
of calculating these time frames, weekends, federal, state, County or City holidays shall be
excluded.
10. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties. In
the event of a conflict between the terms of this Agreement and any attachments hereto, the
terms of this Agreement shall prevail. This Agreement may not be modified except by written
instrument signed by the City and by an authorized representative of Consultant. The parties
agree that any terms or conditions of any purchase order or other instrument that are inconsistent
with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor
the City. Each party to this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein.
11. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement
shall be construed to limit the City's ability to have any of the services which are the subject to
this Agreement performed by City personnel or by other consultants retained by City.
12. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Consultant shall be entitled to receive and the City shall pay Consult
compensation for all services performed by Consultant prior to receipt of such notice of terminate
subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to delive
to the City all work product completed as of such date, and in such case such work product shall be
the property of the City unless prohibited by law, and Consultant consents to the City's use thereof
for such purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of performance
specified in the Recitals of this Agreement.
25D-25
13. DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Consultant affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
14. JURISDICTION -VENUE
This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of this Agreement
shall be determined and governed by the laws of the State of California. Both parties further
agree that Orange County, California, shall be the venue for any action or proceeding that may
be brought or arise out of, in connection with or by reason of this Agreement.
15. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services
hereunder and required by the laws and regulations of the United States, the State of California,
the City of Santa Ana and all other governmental agencies. Consultant shall notify the City
immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals
waivers, and exemptions. Said inability shall be cause for termination of this Agreement.
16. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereinbelow has the power,
authority and right to bind their respective parties to each of the terms of this Agreement, and shall
indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to
City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement.
//
//
//
//
//
25D-26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
CITY OF SANTA ANA
PATRICIA E. HEALY DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By:
Laura Sheedy
Assistant City Attorney
NABIH YOUSSEF & ASSOCIATES
NABIH YOUSSEF
Principal
Tax ID#
25D-27
EXHIBIT A
SCOPE OF SERVICES
General Description
Building Safety Division of the City of Santa Ana foresees submittal of several large projects in
the near future. Therefore, the City is seeking the services of professional consultants to support
the efforts of City staff in the area of plan checking.
Scope of Services
Consultant shall perform the following services for each assigned building plan review.
1. Provide structural only plan check and review the supporting documents
industrial, commercial, residential and public buildings and determine compli
with applicable building standards as related to existing and proposed buildings.
2. Recheck(s) and approval of final plans and supporting documents to be done without
additional charges for recheck.
3. Submittal of approved plans and all supporting documents to the City of Santa Ana.
4. Provide all necessary liaisons with applicants via fax, phone, a-mail or in person
expedite the review process and consult on complex code issues with City of Say
Ana Building Official.
5. Plan review report to be customized for each project and be delivered via fax, mail
e-mail to the city and the applicant.
6. Structural portion of the plans to be reviewed by a California Licensed Civil
Structural Engineer.
7. Plan reviewer to be consistent, accurate, available and responsive to the City of S
Ana and the applicants via phone, fax, a-mail and meetings. Also, the plan revie
is to be available to the Building Official and his staff to help field code questions
surface. Also provide assistance in evaluation of alternate materials, design
methods of construction proposed by applicant.
8. Plan reviewer to be available, at no additional expense to the City of Santa Ana,
meet at the city office with owners, architects, engineers and contractors to disc
the plan check issues.
9. Plan reviewer to verify that job description, square footages, occ~:
classifications and the type of construction set forth in the permit application
25D-28
with the plans and specifications. Plan reviewer to verify that the building
is based on the valuation costs used by the City of Santa Ana.
10. Initial plan review to be done within 15 working days and recheck within 5
days.
11. Deferred submittals, trusses, stairs, curtain walls, etc. to be done on an hourly rate
$85.00/hour.
12. Consultant fee for structural plan review services to be 40% of the plan check fee
City of Santa Ana charges.
25D-29
25D-30