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HomeMy WebLinkAboutBureau Veritas Amendment 1AMENDMENT TO AGREEMENT NO. 1 THIS AMENDMENT TO AGREEMENT is made and entered in the City of San Luis Obispo on ______________ by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, herein after referred to as City, and Bureau Veritas North America, Inc., hereinafter referred to as Consultant. WITNESSETH: WHEREAS, on October 21, 2019, the City entered into an agreement with Consultant for on-call planning and environmental consulting with a term of three years; (the “Agreement”); and WHEREAS, the City publicly advertised requests for qualifications, and the advertisement closed on May 29, 2019, and; WHEREAS, the City of San Luis Obispo Municipal Code 3.24.070 establishes that the City shall renew on- call consultant lists every five years, and; WHEREAS, City and Consultant desire to amend the Agreement to a term of five years from the public advertisement closing date of May 29, 2019, and; NOW, THEREFORE, in consideration of their mutual promises, obligations, and covenants hereinafter contained, the parties hereto agree as follows: 1.The Agreement is hereby amended to a term of five years, expiring on May 29, 2024. 2.All other terms and conditions of the Agreement remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first written above. CITY OF SAN LUIS OBISPO CONTRACTOR _________________________________ ________________________ City Manager DocuSign Envelope ID: 2035F51D-3CC8-45E2-A531-2041A66089D6 10/5/2022 | 2:52 PM PDT AGREEMENT THIS AGREEMENT is made and entered into in the City of San Luis Obispo on ________________, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City, and BUREAU VERITAS NORTH AMERICA, INC., hereinafter referred to as Consultant. W I T N E S S E T H: WHEREAS, the City wishes to retain Consultant to conduct plan review and inspection services under City Specification No. 2019-4006-01. WHEREAS, Consultant is qualified to perform this type of service and has submitted a proposal to do so which has been accepted by City. NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows: 1. TERM. The term of this Agreement shall be for three years from the date this Agreement is made and entered, as first written above. 2. INCORPORATION BY REFERENCE. City Specification No. 2019-4006-01, and Consultant 's proposal dated May 28, 2019 are hereby incorporated in and made a part of this Agreement. To the extent that there are any conflicts between the City’s Specification and this Agreement and the Consultant’s proposal , the terms of the City’s specification and this Agreement shall prevail, unless specifically agreed otherwise in writing signed by both parties. 3. CITY'S OBLIGATIONS. For providing services as specified in this Agreement, City will pay and Consultant shall receive therefor the agreed-upon percentage, and/ or fees, as stipulated in the Consultant’s proposal. 4. CONSULTANTS OBLIGATIONS. For and in consideration of the payments and agreements herein before mentioned to be made and performed by City, Consultant agrees with City to provide services as set forth in Consultant’s proposal and City’s specifications. 5. AMENDMENTS. Any amendment, modification or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by the Community Development Director of the City. ' R F X 6 L J Q ( Q Y H O R S H , ' % ' % % ) ( $ % ' $ 10/21/2019 DocuSign Envelope ID: 2035F51D-3CC8-45E2-A531-2041A66089D6 Agreement Page 2 6. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete agreement between the parties hereto. No oral agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding, or representation be binding upon the parties hereto. 7. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: City: City Clerk’s Office City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Consultant: Bureau Veritas North America, Inc. 5905 Capistrano Avenue, Suite F Atascadero, CA 93422 8. AUTHORITY TO EXECUTE AGREEMENT. Both City and Consultant do covenant that each individual executing this agreement on behalf of each party is a person duly authorized and empowered to execute Agreements for such party. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. CITY OF SAN LUIS OBISPO, A Municipal Corporation By:_____________________________________ City Manager APPROVED AS TO FORM: CONSULTANT ________________________________ By: _____________________________________ City Attorney ' R F X 6 L J Q ( Q Y H O R S H , ' % ' % % ) ( $ % ' $ DocuSign Envelope ID: 2035F51D-3CC8-45E2-A531-2041A66089D6 Agreement Page 3 GENERAL TERMS AND CONDITIONS 1. Insurance Requirements. The Consultant shall provide proof of insurance in the form, coverages and amounts specified in Section E of the Request for Proposals, unless changes are otherwise approved by City. 2. Business License & Tax. The Consultant must have a valid City of San Luis Obispo business license & tax certificate before execution of the contract. Additional information regarding the City’s business tax program may be obtained by calling (805) 781-7134. 3. Ability to Perform. The Consultant warrants that it possesses, or has arranged through subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out and complete the work hereunder in compliance with all federal, state, county, city, and special district laws, ordinances, and regulations. 4. Laws to be Observed. The Consultant shall keep itself fully informed of and shall observe and comply with all applicable state and federal laws and county and City of San Luis Obispo ordinances, regulations and adopted codes during its performance of the work. 5. Payment of Taxes. The contract prices shall include full compensation for all taxes that the Consultant is required to pay. 6. Permits and Licenses. The Consultant shall procure all permits and licenses, pay all charges and fees, and give all notices necessary. 7. Safety Provisions. The Consultant shall conform to the rules and regulations pertaining to safety established by OSHA and the California Division of Industrial Safety. 8. Public and Employee Safety. Whenever the Consultant’s operations create a condition hazardous to the public or City employees, it shall, at its expense and without cost to the City, furnish, erect and maintain such fences, temporary railings, barricades, lights, signs and other devices and take such other protective measures as are necessary to prevent accidents or damage or injury to the public and employees. 9. Preservation of City Property. The Consultant shall provide and install suitable safeguards, approved by the City, to protect City property from injury or damage. If City property is injured or damaged resulting from the Consultant’s operations, it shall be replaced or restored at the Consultant’s expense. The facilities shall be replaced or restored to a condition as good as when the Consultant began work. 10. Immigration Act of 1986. The Consultant warrants on behalf of itself and all subcontractors engaged for the performance of this work that only persons authorized to work in the United State pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder. 11. Consultant Non-Discrimination. In the performance of this work, the Consultant ' R F X 6 L J Q ( Q Y H O R S H , ' % ' % % ) ( $ % ' $ DocuSign Envelope ID: 2035F51D-3CC8-45E2-A531-2041A66089D6 Agreement Page 4 agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of age, race, color, sex, national origin or ancestry, sexual orientation, or religion of such persons. 12. Work Delays. Should the Consultant be obstructed or delayed in the work required to be done hereunder by changes in the work or by any default, act, or omission of the City, or by strikes, fire, earthquake, or any other Act of God, or by the inability to obtain materials, equipment, or labor due to federal government restrictions arising out of defense or war programs, then the time of completion may, at the City’s sole option, be extended for such periods as may be agreed upon by the City and the Consultant. In the event that there is insufficient time to grant such extensions prior to the completion date of the contract, the City may, at the time of acceptance of the work, waive liquidated damages that may have accrued for failure to complete on time, due to any of the above, after hearing evidence as to the reasons for such delay, and making a finding as to the causes of same. 13. Payment Terms. The City’s payment terms are 30 days from the receipt of an original invoice and acceptance by the City of the materials, supplies, equipment, or services provided by the Consultant (Net 30). 14. Inspection. The Consultant shall furnish City with every reasonable opportunity for City to ascertain that the services of the Consultant are being performed in accordance with the requirements and intentions of this contract. All work done, and all materials furnished, if any, shall be subject to the City’s inspection and approval. The inspection of such work shall not relieve Consultant of any of its obligations to fulfill its contract requirements. 15. Audit. The City shall have the option of inspecting and/or auditing all records and other written materials used by Consultant in preparing its invoices to City as a condition precedent to any payment to Consultant. 16. Interests of Consultant. The Consultant covenants that it presently has no interest, and shall not acquire any interest—direct, indirect or otherwise—that would conflict in any manner or degree with the performance of the work hereunder. The Consultant further covenants that, in the performance of this work, no subcontractor or person having such an interest shall be employed. The Consultant certifies that no one who has or will have any financial interest in performing this work is an officer or employee of the City. It is hereby expressly agreed that, in the performance of the work hereunder, the Consultant shall at all times be deemed an independent contractor and not an agent or employee of the City. 17. Hold Harmless and Indemnification. (a) Non-design, non-construction Professional Services: To the fullest extent permitted by law (including, but not limited to California Civil Code Sections 2782 and 2782.8), Consultant shall indemnify, defend, and hold harmless the City, and its elected officials, officers, employees, volunteers, and agents (“City Indemnitees”), from and against any and all causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable legal counsels’ fees and costs of litigation (“claims”), arising out of the Consultant’s performance or ' R F X 6 L J Q ( Q Y H O R S H , ' % ' % % ) ( $ % ' $ DocuSign Envelope ID: 2035F51D-3CC8-45E2-A531-2041A66089D6 Agreement Page 5 Consultant’s failure to perform its obligations under this Agreement or out of the operations conducted by Consultant, including the City’s active or passive negligence, except for such loss or damage arising from the sole negligence or willful misconduct of the City. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from Consultant’s performance of this Agreement, the Consultant shall provide a defense to the City Indemnitees or at the City’s option, reimburse the City Indemnitees their costs of defense, including reasonable legal fees, incurred in defense of such claims. (b) Non-design, construction Professional Services: To the extent the Scope of Services involve a “construction contract” as that phrase is used in Civil Code Section 2783, this paragraph shall apply in place of paragraph A. To the fullest extent permitted by law (including, but not limited to California Civil Code Sections 2782 and 2782.8), Consultant shall indemnify, defend, and hold harmless the City, and its elected officials, officers, employees, volunteers, and agents (“City Indemnitees”), from and against any and all causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable legal counsels’ fees and costs of litigation (“claims”), arising out of the Consultant’s performance or Consultant’s failure to perform its obligations under this Agreement or out of the operations conducted by Consultant, except for such loss or damage arising from the active negligence, sole negligence or willful misconduct of the City. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from Consultant’s performance of this Agreement, the Consultant shall provide a defense to the City Indemnitees or at the City’s option, reimburse the City Indemnitees their costs of defense, including reasonable legal fees, incurred in defense of such claims. (c) Design Professional Services: In the event Consultant is a “design professional”, and the Scope of Services require Consultant to provide “design professional services” as those phrases are used in Civil Code Section 2782.8, this paragraph shall apply in place of paragraphs A or B. To the fullest extent permitted by law (including, but not limited to California Civil Code Sections 2782 and 2782.8) Consultant shall indemnify, defend and hold harmless the City and its elected officials, officers, employees, volunteers and agents (“City Indemnitees”), from and against all claims, damages, injuries, losses, and expenses including costs, attorney fees, expert consultant and expert witness fees arising out of, pertaining to or relating to, the negligence, recklessness or willful misconduct of Consultant, except to the extent caused by the sole negligence, active negligence or willful misconduct of the City. Negligence, recklessness or willful misconduct of any subcontractor employed by Consultant shall be conclusively deemed to be the negligence, recklessness or willful misconduct of Consultant unless adequately corrected by Consultant. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from Consultant’s performance of this Agreement, the Consultant shall provide a defense to the City Indemnitees or at the City’s option, reimburse the City Indemnitees their costs of defense, including reasonable legal fees, incurred in defense of such claims. In no event shall the cost to defend charged to Consultant under this paragraph exceed Consultant’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, Consultant shall meet and confer with other parties regarding unpaid defense costs. ' R F X 6 L J Q ( Q Y H O R S H , ' % ' % % ) ( $ % ' $ DocuSign Envelope ID: 2035F51D-3CC8-45E2-A531-2041A66089D6 Agreement Page 6 (d) The review, acceptance or approval of the Consultant’s work or work product by any indemnified party shall not affect, relieve or reduce the Consultant’s indemnification or defense obligations. This Section survives completion of the services or the termination of this contract. The provisions of this Section are not limited by and do not affect the provisions of this contract relating to insurance. 18. Contract Assignment. The Consultant shall not assign, transfer, convey or otherwise dispose of the contract, or its right, title or interest, or its power to execute such a contract to any individual or business entity of any kind without the previous written consent of the City. 19. Termination for Convenience. The City may terminate all or part of this Agreement for any or no reason at any time by giving 30 days written notice to Consultant. Should the City terminate this Agreement for convenience, the City shall be liable as follows: (a) for standard or off-the-shelf products, a reasonable restocking charge not to exceed ten (10) percent of the total purchase price; (b) for custom products, the less of a reasonable price for the raw materials, components work in progress and any finished units on hand or the price per unit reflected on this Agreement. For termination of any services pursuant to this Agreement, the City’s liability will be the lesser of a reasonable price for the services rendered prior to termination, or the price for the services reflected on this Agreement. Upon termination notice from the City, Consultant must, unless otherwise directed, cease work and follow the City’s directions as to work in progress and finished goods. 20. Termination. If, during the term of the contract, the City determines that the Consultant is not faithfully abiding by any term or condition contained herein, the City may notify the Consultant in writing of such defect or failure to perform. This notice must give the Consultant a 10 (ten) calendar day notice of time thereafter in which to perform said work or cure the deficiency. If the Consultant has not performed the work or cured the deficiency within the ten days specified in the notice, such shall constitute a breach of the contract and the City may terminate the contract immediately by written notice to the Consultant to said effect. Thereafter, neither party shall have any further duties, obligations, responsibilities, or rights under the contract except, however, any and all obligations of the Consultant’s surety shall remain in full force and effect, and shall not be extinguished, reduced, or in any manner waived by the terminations thereof. In said event, the Consultant shall be entitled to the reasonable value of its services performed from the beginning date in which the breach occurs up to the day it received the City’s Notice of Termination, minus any offset from such payment representing the City’s damages from such breach. “Reasonable value” includes fees or charges for goods or services as of the last milestone or task satisfactorily delivered or completed by the Consultant as may be set forth in the Agreement payment schedule; compensation for any other work, services or goods performed or provided by the Consultant shall be based solely on the City’s assessment of the value of the work-in-progress in completing the overall work scope. The City reserves the right to delay any such payment until completion or confirmed ' R F X 6 L J Q ( Q Y H O R S H , ' % ' % % ) ( $ % ' $ DocuSign Envelope ID: 2035F51D-3CC8-45E2-A531-2041A66089D6 Agreement Page 7 abandonment of the project, as may be determined in the City’s sole discretion, so as to permit a full and complete accounting of costs. In no event, however, shall the Consultant be entitled to receive in excess of the compensation quoted in its proposal. ' R F X 6 L J Q ( Q Y H O R S H , ' % ' % % ) ( $ % ' $ DocuSign Envelope ID: 2035F51D-3CC8-45E2-A531-2041A66089D6