CITY COUNCIL: Resolution for Consultant Services Agreement for Building Inspection Services with Michael Rachel

Meeting Date: 7 July 2009
Prepared by: Sean Conroy, Planning & Building Services Manager

City Council
Agenda Item Summary

Name: Consideration of a Resolution authorizing the City Administrator to execute a Consultant Services Agreement with Michael Rachel for Building Inspection Services in fiscal year 2009/2010 for an amount not to exceed $45,000.

Description: The consultant will provide building inspection services and other duties related to the Building Department on an “as needed” basis for fiscal year 2009/2010 at an hourly rate of $50.00.

Overall Cost:
City Funds: Not to exceed $45,000.
Grant Funds: N/A

Staff Recommendation: Adopt the Resolution.

Important Considerations: With the anticipated one-year absence of The City’s Building Official, the City will require part time assistance for the duration. The Building Official’s position includes a wide range of responsibilities, the primary of which is performing construction inspections. The consultant will provide construction inspection services and building-related assistance to the Department of Community Planning and Building during the absence of the Building Official.

Decision Record: N/A

Reviewed by:

_____________________________ _____________________
Rich Guillen, City Administrator Date

CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL
RESOLUTION 2009-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA AUTHORIZING THE CITY ADMINISTRATOR TO EXECUTE A CONSULTANT SERVICES AGREEMENT WITH MICHAEL RACHEL FOR BUILDING INSPECTION SERVICES AND OTHER BUILDING-RELATED ASSISTANCE TO THE DEPARTMENT OF COMMUNITY PLANNING AND BUILDING FOR FISCAL YEAR 2009/2010

WHEREAS, The City of Carmel-by-the-Sea is a unique community that prides itself its unique character and the safety of its citizens; and

WHEREAS, the City has adopted a Building Code to coordinate the administration of the construction codes by establishing uniform procedures; and

WHEREAS, the City requires construction projects to be inspected to ensure compliance with the Building Code; and

WHEREAS, Michael Rachel submitted a proposal for consultant services to provide Building Inspection Services and other building-related assistance to the Department of Community Planning and Building for fiscal year 2009/2010.

NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA does hereby:

Authorize the City Administrator to execute a Consultant Services Contract with Michael Rachel for an amount not to exceed $45,000.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA this 7th day of July, 2009 by the following roll call vote:

AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:

SIGNED,

________________________
SUE McCLOUD, MAYOR

ATTEST:
__________________________________
Heidi Burch, City Clerk

CONSULTANT SERVICES AGREEMENT
THIS AGREEMENT, dated this 7th day of July 2009 is by and between the CITY OF CARMEL-BY-THE-SEA, a municipal corporation of the State of California, hereinafter referred to as the “City”, and MICHAEL RACHEL, hereinafter referred to as “Consultant”.

I. SERVICES BY CONSULTANT
A. Consultant will provide Building Inspection Services and other assistance as requested for the Department of Community Planning and Building.

B. Said services and all duties incidental or necessary thereto shall be performed diligently and competently and in accordance with generally accepted professional standards of performance.

II. COMPENSATION
A. City shall pay Consultant for services rendered at an hourly rate of $50.00, but not to exceed $45,000 for fiscal year 2009/2010. Consultant agrees to perform all services required by this Agreement on an ongoing basis until this Agreement is amended or terminated. Such amount shall constitute full and complete payment by City under this Agreement.

B. Consultant shall submit an itemized invoice to City on a monthly basis. Each invoice shall reference the specific project assignments completed during that period for which payment is requested. City shall make payment for work invoiced within thirty (30) days of receipt of invoice.

C. City shall have the right to withhold payment to Consultant for any work not completed in accordance with this agreement until such time as Consultant modifies such work so that the same is in accordance with the professional standards of performance.

III. OWNERSHIP OF WORK PRODUCT
A. Ownership of any reports, data, studies, surveys, charts, maps, figures, photographs, memoranda, and any other documents which are developed, compiled, or produced as a result of this Agreement, whether or not completed, shall be vested in City. Use of such data by City for projects not the subject of this Agreement shall be at City’s sole risk without legal liability or exposure to Consultant.

B. Methodology, materials, software, logic and systems developed under the said Contract are the property of Consultant.

IV. GENERAL ADMINISTRATION AND MANAGEMENT
A. The City Administrator of the City of Carmel-by-the-Sea, or his designee, shall have primary administrative responsibility for City under this Agreement, and shall review and approve Consultant's invoices to City under this Agreement.

B. The City Administrator of the City of Carmel-by-the-Sea, or his designee, shall have primary responsibility for overseeing and reviewing Consultant's work and shall coordinate all communications with Consultant from City.

V. COMPLETION DATE
A. It is projected that the work contracted will be completed by 1 July 2010. Consultant will diligently proceed with the work contracted for, but it is expressly agreed and understood that Consultant shall not be held responsible for delays occasioned by factors beyond its control, nor by factors that could not reasonably have been foreseen at the time of the execution of the Agreement between the parties.

VI. DELAYS AND EXTENSIONS
A. Time is of the essence concerning performance of this Agreement; however, Consultant will be granted time extensions for delays beyond Consultant’s control. Time extensions will be equal to the length of the delay or as otherwise agreed upon between Consultant and City. Any such time extensions shall be in writing and signed by both parties.

VII. SUSPENSION OF AGREEMENT/DISPUTES
A. Consultant and City reserve the right to terminate or suspend this Agreement, without cause, at any time by giving twenty (20) days written notice to the other party.

B. In the event that City requests termination of the work prior to completion, Consultant reserves the right to complete such analyses and records as may be necessary to place its files in order.

C. Should either party to this Agreement bring legal action against the other (formal judicial proceeding, mediation or arbitration) the case shall be handled in Monterey County, California, and the party prevailing in such action shall be entitled to a reasonable attorney’s fee which shall be fixed by the judge, mediator or arbitrator hearing the case and such fee shall be included in the judgment, together with all costs.

VIII. NON-DISCRIMINATION/AFFIRMATIVE ACTION
A. Consultant will not discriminate against any employee or applicant for employment because of race, creed, color, sex, age, national origin, marital status, physical or other motor handicap, unless based upon bona fide occupational qualification. Consultant will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, sex, age, national origin, marital status, physical or other motor handicap.

IX. ASSIGNMENT
A. This Agreement may not be assigned or otherwise transferred by either party hereto without the prior written consent of the other party. Any purported assignment or delegation of performance in violation of this provision is void. Subject to the foregoing, this Agreement is binding and shall inure to the benefit of the successors and assigns of the parties to this Agreement.

X. MODIFICATION
A. No change, alteration, modification, or addition to this Agreement will be effective unless it is in writing and properly signed by all parties hereto.

XI. HOLD HARMLESS
A. Consultant is covered by, and agrees to maintain, general liability insurance for bodily injury and property damage arising directly from its negligent acts or omissions with limits as specified below. Certificates of insurance shall be provided to City upon request. Within the limits and conditions of such insurance, Consultant agrees to indemnify, protect, defend and name City, its public officials, officers and employees as additional insureds and hold harmless any negligent act or omission by Consultant. Consultant shall not be responsible for any loss, damage or liability beyond the amounts, limits and conditions of such insurance. Consultant shall not be responsible for any loss, damage or liability arising from any act or omission by City, its agents, staff, other consultants, independent contractors, third parties or others working on the project that have not been hired by Consultant and over which Consultant has no supervision or control.

XII. COMPLIANCE WITH LAWS
A. This Agreement shall be governed by all applicable federal, State of California, and local laws, rules and regulations affecting Consultant and his/her work hereunder, and shall ensure that all subcontractors do the same. Consultant represents and warrants to City that Consultant has and will keep in effect during the term of this Agreement all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice Consultant’s profession and to do the work hereunder.

B. Consultant agrees to abide by the requirements of the Immigration and Control Reform Act pertaining to assuring that all employees of Consultant performing any services under this Agreement have a legal right to work in the United States of America, that all required documentation of such right to work is inspected, and that INS Form 1-9 (as it may be amended from time to time) is completed and on file for each employee. Consultant shall make the required documentation available upon request to City for inspection.

XIII. INSURANCE
A. Without limiting Consultant’s duty to indemnify, Consultant shall maintain in effect throughout the term of this agreement a policy or policies of insurance covering all of its operations (including public liability coverage, property damage coverage and professional malpractice) with the following minimum limits of liability:
1. COMMERCIAL GENERAL LIABILITY INSURANCE:
a. Commercial General Liability, including but not limited to, premises, personal injuries, products and completed operations, with a combined single limit of not less than $1,000,000.00 per occurrence.
b. Bodily injury $1,000,000.00 per occurrence and $1,000,000.00 aggregate and
$1,000,000.00 property damage; and
c. A combined single limit of not less than $1,000,000.00 per occurrence.

2. AUTOMOBILE LIABILITY INSURANCE
a. Comprehensive automobile liability covering all motor vehicles including owned, leased, non-owned, and hired vehicles, used in providing services under this agreement, with a combined single limit of not less than $1,000,000.00 per occurrence.
b. Bodily injury $1,000,000.00 per occurrence and $1,000,000.00 aggregate and
$1,000,000.00 property damage; and
c. A combined single limit of not less than $1,000,000.00 per occurrence.

3. WORKER’S COMPENSATION INSURANCE:
Worker’s compensation insurance in accordance with California Labor Code section 3700 and with a minimum of $100,000.00 per occurrence for employer’s liability.

XIV. ADDITIONAL SERVICES
A. It is understood and agreed by City and Consultant that City might request Consultant to render additional professional services beyond the original Scope of Services as described in Section 1.A. of this Agreement. Such additional services may include those due to abnormal conditions beyond Consultant's control, changes in phasing, time delays, changes in scope or requirements on the part of others and services necessitated by legal challenge of the work products. Any work requested of Consultant by City beyond what is noted in Section 1.A. of this
Agreement shall constitute additional services. Such work will be undertaken only upon written authorization of City, written agreement by all parties, and based upon an agreed amount of compensation.

XV. INDEPENDENT CONTRACTOR
A. Consultant is and shall be at all times during the term of this Agreement an independent contractor.

B. Consultant shall maintain a valid business license with the City of Carmel-by-the-Sea at all times during the term of this Agreement.

C. Without receiving the Consultant’s written permission, City agrees not to hire, retain or contract with any employee of Consultant who performs services for City under this Agreement for a period of one year from the date this Agreement is terminated

XVI. SUBCONTRACTING
A. None of the services covered by this Agreement shall be subcontracted without the prior written consent of City. In accordance with Government Code Section 7550, Consultant agrees to state in a separate section of any filed report the numbers and dollar amounts of all contracts and subcontracts relating to preparation of the report(s).

XVII. RECORDS OF PERFORMANCE
A. Consultant shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Agreement; the accounting and control systems shall be satisfactory to City. City and City’s auditor shall be afforded access to Consultant’s records, books, correspondence and other data relating to this Agreement. Consultant shall preserve these records, books, correspondence and other data relating to this Agreement for a period of four (4) years after final payment, or for such longer period as may be required by law. In addition, Consultant agrees to make said records, books, correspondence and other data relating to this Agreement available to City at City’s principal place of business upon seventy-two (72) hours written notice. The City Administrator, or his or her designee, shall at all times have the right to inspect the work, services, or materials. Consultant shall furnish all reasonable aid and assistance required by City for the proper examination of the work or services and all parts thereof. Such inspection shall not relieve Consultant from any obligation to perform said work or services strictly in accordance with the specifications or any modification thereof and in compliance with the law.

XVIII. CONFLICTS OF INTEREST
A. Consultant shall at all times avoid conflicts of interest, or the appearance of conflicts of interest, in the performance of this Agreement.

XIX. INTERPRETATION
A. In the event of a conflict between the provisions of this Agreement, the Agreement together with its attachments shall take precedence. Notwithstanding the fact that one or more persons of this Agreement may have been drafted by one of the parties to this Agreement, such provisions shall be interpreted as though they were a product of a joint drafting effort and no provisions shall be interpreted against a party on the grounds that said party was solely or primarily responsible for drafting the language to be interpreted.

XX. STATEMENT OF ECONOMIC INTEREST
A. If City determines Consultant comes within the definition of Consultant under the Political Reform Act (Government Code Section 87100.1), Consultant shall complete and file and shall require any other person doing work under this Agreement to complete and file a “statement of Economic Interest” with City disclosing Consultant and/or such other person’s financial interests.

XXI. THIRD PARTY BENEFICIARIES
A. Nothing in this Agreement shall be construed to create, and the parties do not intend to create, any rights in third parties.

XXII. SEVERABILITY
A. If any term of this Agreement is held invalid by a court of competent jurisdiction, or arbitrator, the remainder of this Agreement shall remain in effect.

XXIII. NOTICES
Any notices to be given to the parties hereunder shall be addressed as follows (until notice of a different address is given to the parties):

CITY CONSULTANT
Rich Guillen Michael Rachel
City Administrator PO Box 5605
City Hall Carmel, CA 93921
PO Box CC
Carmel CA 93921

Any and all notices or other communications required or permitted relative to this Agreement shall be in writing and shall be deemed duly served and given when personally delivered to the parties to whom it is directed; or in lieu of such personal service, when deposited in the United States mail, first class, postage prepaid, addressed to CITY or to CONSULTANT at the addresses set forth above.
Either party may change their address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided for in the preceding paragraph.

IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.
CITY OF CARMEL-BY-THE-SEA, MICHAEL RACHEL
CALIFORNIA

By: By:
____________________________ ____________________________
Rich Guillen, City Administrator MICHAEL RACHEL