HomeMy WebLinkAbout2004 CON CDC Environmental Business Solutions - Consulting Services Cleveland Ave.AGREEMENT BY AND BETWEEN THE
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF NATIONAL CITY AND
ENVIRONMENTAL BUSINESS SOLUTIONS
THIS AGREEMENT is entered into this 1" day of June, 2004 by and between the
COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, (the
"CDC"), and Environmental Business Solutions (the "CONTRACTOR").
RECITALS
WHEREAS, the CDC desires to employ a CONTRACTOR for consulting
services related to the reconsolidation of the north fill bank and waste discharge requirements or
a waiver, and the preparation of a post -closure monitoring and maintenance plan for the
properties Located at 2501 and 2510 Cleveland Avenue.
WHEREAS, the CDC has determined that the CONTRACTOR is an
environmental consultant and is qualified by experience and ability to perform the services
desired by the CDC, and the CONTRACTOR is willing to perform such services.
NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS
FOLLOWS:
1. ENGAGEMENT OF CONTRACTOR. The CDC hereby agrees to
engage the CONTRACTOR and the CONTRACTOR hereby agrees to perform the services
hereinafter set forth in accordance with all terms and conditions contained herein.
The CONTRACTOR represents that all services required hereunder will be
performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR.
2. SCOPE OF SERVICES. The CONTRACTOR will perform services as
set forth in the attached Exhibit "A".
The CONTRACTOR shall be responsible for all research and reviews related to
the work and shall not rely on personnel of the CDC for such services, except as authorized in
advance by the CDC. The CONTRACTOR shall appear at meetings cited in Exhibit "A" to keep
staff and the CDC Board advised of the progress on the project.
The CDC may unilaterally, or upon request from the CONTRACTOR, from time
to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under
this Agreement. Upon doing so, the CDC and the CONTRACTOR agree to meet in good faith
and confer for the purpose of negotiating a corresponding reduction or increase in the
compensation associated with said change in services, not to exceed a factor of 10% from the
base amount.
1
3. PROJECT COORDINATION AND SUPERVISION.
Benjamin Martinez hereby is designated as the Project Coordinator for the CDC and will monitor
the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project
Director to provide supervision and have overall responsibility for the progress and execution of
this Agreement for the CONTRACTOR. Nick Field thereby is designated as the Project Director
for the CONTRACTOR.
4. COMPENSATION AND PAYMENT. The compensation for the
CONTRACTOR shall be based on monthly billings covering actual work performed. Billings
shall include labor classifications, respective rates, hours worked and also materials, if any. The
total cost for all work described in Exhibit "A" shall not exceed the schedule given in Exhibit
"A" (the Base amount) without prior written authorization from the Project Director. Monthly
invoices will be processed for payment and remitted within thirty (30) days from receipt of
invoice, provided that work is accomplished consistent with Exhibit "A" as determined by the
CDC.
The CONTRACTOR shall maintain all books, documents, papers, employee time
sheets, accounting records, and other evidence pertaining to costs incurred and shall make such
materials available at its office at all reasonable times during the term of this Agreement and for
three (3) years from the date of final payment under this Agreement, for inspection by the CDC
and for furnishing of copies to the CDC, if requested.
5. LENGTH OF AGREEMENT. Completion dates or time durations for
specific portions of the Project are set forth in Exhibit "A".
6. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The
Memoranda, Reports, Maps, Drawings, Plans, Specifications and other documents prepared by
the CONTRACTOR for this Project, whether paper or electronic, shall become the property of
the CDC for use with respect to this Project, and shall be turned over to the CDC upon
completion of the Project, or any phase thereof, as contemplated by this Agreement.
Contemporaneously with the transfer of documents, the CONTRACTOR assigns
to the CDC and thereby expressly waives and disclaims, any copyright in, and the right to
reproduce, all written material, drawings, plans, specifications or other work prepared under this
agreement, except upon the CDC's prior authorization regarding reproduction, which
authorization shall not be unreasonably withheld. The CONTRACTOR shall, upon request of
the CDC, execute any further document(s) necessary to further effectuate this waiver and
disclaimer.
The CONTRACTOR agrees that the CDC may use, reuse, alter, reproduce,
modify, assign, transfer, or in any other way, medium or method utilize the CONTRACTOR's
written work product for the CDC's purposes, and the CONTRACTOR expressly waives and
disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to
intellectual property and artistic works.
Page 2
Revised 5/2004
H:\2004 CDC\2004 AGREEMENTS \06.01.04 ERS Closure.Monituring.Maintcnance Plan.doc
Any modification or reuse by the CDC of documents, drawings or specifications
prepared by the CONTRACTOR shall relieve the CONTRACTOR from liability under Section
14 but only with respect to the effect of the modification or reuse by the CDC, or for any liability
to the CDC should the documents be used by the CDC for some project other than what was
expressly agreed upon within the Scope of this project, unless otherwise mutually agreed.
7. INDEPENDENT CONTRACTOR. Both parties hereto in the
performance of this Agreement will be acting in an independent capacity and not as agents,
employees, partners or joint venturers with one another. The CONTRACTOR is not an
employee of the CDC and is not entitled to any of the rights, benefits, or privileges of the CDC's
employees, including but not limited to medical, unemployment, or workers' compensation
insurance.
This Agreement contemplates the personal services of the CONTRACTOR and
the CONTRACTOR's employees, and it is recognized by the parties that a substantial
inducement to the CDC for entering into this Agreement was, and is, the professional reputation
and competence of the CONTRACTOR and its employees. Neither this Agreement nor any
interest herein may be assigned by the CONTRACTOR without the prior written consent of the
CDC. Nothing herein contained is intended to prevent the CONTRACTOR from employing or
hiring as many employees, or subcontractors, as the CONTRACTOR may deem necessary for the
proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its
subcontractor(s) shall require the subcontractor to adhere to the applicable terms of this
Agreement.
8. CONTROL. Neither the CDC nor its officers, agents or employees shall
have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR'S
employees except as herein set forth, and the CONTRACTOR expressly agrees not to represent
that the CONTRACTOR or the CONTRACTOR's agents, servants, or employees are in any
manner agents, servants or employees of the CDC, it being understood that the CONTRACTOR,
its agents, servants, and employees arc as to the CDC wholly independent contractors and that
the CONTRACTOR's obligations to the CDC are solely such as are prescribed by this
Agreement.
9. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in
the performance of the services to be provided herein, shall comply with all applicable State and
Federal statutes and regulations, and all applicable ordinances, rules and regulations of the City
of National City, whether now in force or subsequently enacted. The CONTRACTOR, and each
of its subcontractors, shall obtain and maintain a current City of National City business license
prior to and during performance of any work within the CDC.
10. LICENSES, PERMITS, ETC. The CONTRACTOR represents and
covenants that it has all licenses, pern its, qualifications, and approvals of whatever nature that
are legally required to practice its profession. The CONTRACTOR represents and covenants
that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the
Page 3
Revised 5/2004
H:\2004 CDC"2004 AGREEMENTS\06.01.04 ERS Closure.Monitoring.Maintenance Plan.doc
term of this Agreement, any license, permit, or approval which is legally required for the
CONTRACTOR to practice its profession.
11. STANDARD OF CARE.
A. The CONTRACTOR, in performing any services under this Agreement,
shall perform in a manner consistent with that level of care and skill ordinarily exercised by
members of the profession currently practicing under similar conditions and in similar locations.
The CDC expects that the CONTRACTOR shall take all special precautions necessary to protect
the CONTRACTOR's employees and members of the public from risk of harm arising out of the
nature of the work and/or the conditions of the work site.
B. The CONTRACTOR warrants to the CDC that it is not now, nor has it
been for the five (5) years preceding, involved in arbitration or litigation concerning the
CONTRACTOR's professional performance or the furnishing of materials or services relating
thereto.
C. The CONTRACTOR is responsible for identifying any unique products,
treatments, processes or materials whose availability is critical to the success of the project the
CONTRACTOR has been retained to perform, within the time requirements of the CDC, or,
when no time is specified, then within a commercially reasonable time. Accordingly, unless the
CONTRACTOR has notified the CDC otherwise, the CONTRACTOR warrants that all products,
materials, processes or treatments identified in the project documents prepared for the CDC are
reasonably commercially available. Any failure by the CONTRACTOR to use due diligence
under this sub -paragraph will render the CONTRACTOR liable to the CDC for any increased
costs that result from the CDC's later inability to obtain the specified items or any reasonable
substitute within a price range that allows for project completion in the time frame specified or,
when not specified, then within a commercially reasonable time.
12. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR will
not discriminate against any employee or applicant for employment because of age, race, color,
ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or
medical condition. The CONTRACTOR will take positive action to insure that applicants are
employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation,
marital status, national origin, physical handicap, or medical condition. Such action shall include
but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or
recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and
selection for training, including apprenticeship. The CONTRACTOR agrees to post in
conspicuous places available to employees and applicants for employment any notices provided
by the CDC setting forth the provisions of this non-discrimination clause.
13. CONFIDENTIAL INFORMATION. The CDC may from time to time
communicate to the CONTRACTOR certain confidential information to enable the
CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR
shall treat all such information as confidential and shall not disclose any part thereof without the
prior written consent of the CDC. The CONTRACTOR shall limit the use and circulation of
such information, even within its own organization, to the extent necessary to perform the
services to be provided herein. The foregoing obligation of this Section 13, however, shall not
Page 4
Revised 5/2004
H:\2004 C13C\2004 AGREEMENTS\06.01.04 EBS Closurc.Monitoring.Maintenance Plan.doc
apply to any part of the information that (i) has been disclosed in publicly available sources of
information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly
available sources of information; (iii) is already in the possession of the CONTRACTOR without
any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the
CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has
been or is rightfully authorized by that third party.
The CONTRACTOR shall not disclose any reports, recommendations,
conclusions or other results of the services or the existence of the subject matter of this
Agreement without the prior written consent of the CDC. In its performance hereunder, the
CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting
the information or other property of any other person, firm or corporation.
CONTRACTOR shall be liable to CDC for any damages caused by breach of this
condition, pursuant to the provisions of Section 14.
14. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR
agrees to indemnify, defend, and hold harmless the CDC, the City of National City, and their
officers, employees and volunteers, against and from any and all liability, loss, damages to property,
injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings,
costs or attorneys' fees, of any kind or nature, including workers' compensation claims, of or by
anyone whomsoever, in any way resulting from or arising out of the CONTRACTOR's negligent
performance of this Agreement.
15. WORKERS' COMPENSATION. The CONTRACTOR shall comply
with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of
California, the applicable provisions of Division 4 and 5 of the California Government Code and
all amendments thereto; and all similar state or Federal acts or laws applicable; and shall
indemnify, defend and hold harmless the CDC and its officers, employees and volunteers from
and against all claims, demands, payments, suits, actions, proceedings and judgments of every
nature and description, including attorney's fees and costs presented, brought or recovered against
the CDC or its officers, employees, or volunteers, for or on account of any liability under any of
said acts which may be incurred by reason of any work to be performed by the CONTRACTOR
under this Agreement.
16. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall
purchase and maintain, and shall require its subcontractors, when applicable, to purchase and
maintain throughout the term of this agreement, the following insurance policies:
A. If checked, Professional Liability Insurance (errors and omissions) with
minimum limits of $1,000,000 per occurrence.
B. Comprehensive general liability insurance, with minimum limits of
$1,000,000 combined single limit per occurrence, covering all bodily injury and property damage
arising out of its operation under this Agreement.
C. Workers' Compensation Insurance covering all of its employees and
volunteers.
Page 5
Revised 5/2004
H:\2004 CDC\2004 AGREEMENTS\06.01.04 EBS Closure.Monitoring.Mainlenance Plan.doc
D. The aforesaid policies shall constitute primary insurance as to the CDC, its
officers, employees, and volunteers, so that any other policies held by the CDC shall not
contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior
written notice to the CDC of cancellation or material change.
E. Said policies, except for the professional liability and worker's
compensation policies, shall name the CDC and its officers, agents and employees as additional
insureds.
F. If required insurance coverage is provided on a "claims made" rather than
"occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years
after expiration of the term (and any extensions) of this Agreement.
G. Any aggregate insurance limits must apply solely to this Agreement.
H. Insurance shall be written with only California admitted companies which
hold a current policy holder's alphabetic and financial size category rating of not less than A VIII
according to the current Best's Key Rating Guide, or a company equal financial stability that is
approved by the CDC's Risk Manager.
I. This Agreement shall not take effect until certificate(s) or other sufficient
proof that these insurance provisions have been complied with, are filed with and approved by
the CDC's Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in
full force and effect at all times during the terms of this Agreement, the CDC may elect to treat
the failure to maintain the requisite insurance as a breach of this Agreement and terminate the
Agreement as provided herein.
17. LEGAL FEES. If any party brings a suit or action against the other party
arising from any breach of any of the covenants or agreements or any inaccuracies in any of the
representations and warranties on the part of the other party arising out of this Agreement, then in
that event, the prevailing party in such action or dispute, whether by final judgment or out -of -
court settlement, shall be entitled to have and recover of and from the other party all costs and
expenses of suit, including attorneys' fees.
For purposes of determining who is to be considered the prevailing party, it is
stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not
be considered in determining the amount of the judgement or award. Attorney's fees to the
prevailing party if other than the CDC shall, in addition, be limited to the amount of attorney's
fees incurred by the CDC in its prosecution or defense of the action, irrespective of the actual
amount of attorney's fees incurred by the prevailing party.
18. MEDIATION/ARBITRATION. if a dispute arises out of or relates to
this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the
dispute by mediation in San Diego, California, in accordance with the Commercial Mediation
Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The
costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of,
or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be
settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration
Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the
parties, and a judgment thereon may be entered in any court having jurisdiction over the subject
Page
Revised 5/2004
H:\2004 CIX,12004 AGREEMENTS10Ci.01.04 EBS Closure.Moniloring.Mainlenancc Plan.doc
matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to
the arbitration, provided that each party shall pay for and bear the costs of its own experts,
evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part
thereof against a specified party as part of the arbitration award.
19. TERMINATION. A. This Agreement may be terminated with or
without cause by the CDC. Termination without cause shall be effective only upon 60-day
written notice to the CONTRACTOR. During said 60-day period the CONTRACTOR shall
perform all services in accordance with this Agreement.
B. This Agreement may also be terminated immediately by the CDC for
cause in the event of a material breach of this Agreement, misrepresentation by the
CONTRACTOR in connection with the formation of this Agreement or the performance of
services, or the failure to perform services as directed by the CDC.
C. Termination with or without cause shall be effected by delivery of written
Notice of Termination to the CONTRACTOR as provided for herein.
D. In the event of termination, all finished or unfinished Memoranda Reports,
Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR,
whether paper or electronic, shall immediately become the property of and be delivered to the
CDC, and the CONTRACTOR shall be entitled to receive just and equitable compensation for
any work satisfactorily completed on such documents and other materials up to the effective date
of the Notice of Termination, not to exceed the amounts payable hereunder, and less any
damages caused the CDC by the CONTRACTOR'S breach, if any. Thereafter, ownership of said
written material shall vest in the CDC all rights set forth in Section 6.
E. The CDC further reserves the right to immediately terminate this
Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a
reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business
reorganization, change in business name or change in business status of the CONTRACTOR.
20. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail
(Federal Express or the like); or sent by registered or certified mail, postage prepaid, return
receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or
delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the
earlier of (i) if personally delivered, the date of delivery to the address of the person to receive
such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight
mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if
the address is outside the State of California) after the date of deposit in a post office, mailbox,
mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if
given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or
(v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand,
direction or other communication delivered or sent as specified above shall be directed to the
following persons:
Page 7
Revised 5/2004
}1:\2004 CDC12004 AGREEMENTS\06.01.04 EBS Closure.Monitoring.Maintenance Plan.due
To the CDC:
Benjamin Martinez, Executive Director
Community Development Commission of the City of National City
140 East 12th Street, Suite B
National City, CA 91950-3312
To the CONTRACTOR:
Nicki Field
Environmental Business Solutions
8799 Balboa Avenue, Suite 290
San Diego, CA 92123
Notice of change of address shall be given by written notice in the manner
specified in this Section. Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given shall be deemed to constitute receipt of the notice,
demand, request or communication sent. Any notice, request, demand, direction or other
communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-
eight (48) hours by letter mailed or delivered as specified in this Section.
21. CONFLICT OF INTEREST AND POLITICAL REFORM ACT
OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform
services of any kind for any person or entity whose interests conflict in any way with those of the
CDC. The CONTRACTOR also agrees not to specify any product, treatment, process or
material for the project in which the CONTRACTOR has a material financial interest, either
direct or indirect, without first notifying the CDC of that fact. The CONTRACTOR shall at all
times comply with the terms of the Political Reform Act and the National City Conflict of
Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its
official position to influence in any way any matter coming before the CDC in which the
CONTRACTOR has a financial interest as defined in Government Code Section 87103. The
CONTRACTOR represents that it has no knowledge of any financial interests that would require
it to disqualify itself from any matter on which it might perform services for the CDC.
❑ If checked, the CONTRACTOR shall comply with all of the reporting
requirements of the Political Reform Act and the National City Conflict of Interest Code.
Specifically, the CONTRACTOR shall file a Statement of Economic Interests with the City
Clerk of the City of National City in a timely manner on forms which the CONTRACTOR shall
obtain from the City Clerk.
The CONTRACTOR shall be strictly liable to the CDC for all damages, costs or
expenses the CDC may suffer by virtue of any violation of this Paragraph 21 by the
CONTRACTOR.
Page 8
Revised 5/2004
H:\2004 CDC\2004 AGREEMENTS\06.0I.04 ERS Closure.Monitoring.Maintenance Plan.doc
22. MISCELLANEOUS PROVISIONS.
A. Computation of Time Periods. If any date or time period provided for in
this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date
shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a
Saturday, Sunday or federal, state or legal holiday.
B. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which, together, shall constitute but one and
the same instrument.
C. Captions. Any captions to, or headings of, the sections or subsections of
this Agreement are solely for the convenience of the parties hereto, are not a part of this
Agreement, and shall not be used for the interpretation or determination of the validity of this
Agreement or any provision hereof.
D. No Obligations to Third Parties. Except as otherwise expressly provided
herein, the execution and delivery of this Agreement shall not be deemed to confer any rights
upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto.
E. Exhibits and Schedules. The Exhibits and Schedules attached hereto arc
hereby incorporated herein by this reference for all purposes.
F. Amendment to this Agreement. The terms of this Agreement may not be
modified or amended except by an instrument in writing executed by each of the parties hereto.
G. Waiver. The waiver or failure to enforce any provision of this Agreement
shall not operate as a waiver of any future breach of any such provision or any other provision
hereof.
H. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
I. Entire Agreement. This Agreement supersedes any prior agreements,
negotiations and communications, oral or written, and contains the entire agreement between the
parties as to the subject matter hereof. No subsequent agreement, representation, or promise
made by either party hereto, or by or to an employee, officer, agent or representative of any party
hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby.
J. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the parties hereto.
K. Construction. The parties acknowledge and agree that (i) each party is of
equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and
negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity
to consult with its own, independent counsel and such other professional advisors as such party
has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv)
each party and such party's counsel and advisors have reviewed this Agreement, (v) each party
has agreed to enter into this Agreement following such review and the rendering of such advice,
and (vi) any rule or construction to the effect that ambiguities are to be resolved against the
drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or
any amendments hereto.
Page 9
Revised 5/2004
H:\2004 CDC\2004 AGREEMENTS \06.01.04 EBS Closure.Mnnitoring.Maintcnance Plan.doc
//
Signature page to follow
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first above written.
COMMUNITY DEVELOPMENT
COMMISSION OF
THE CITY OF NATIONAL CITY
By:
Benjamin Martinez
Executive Director, CDC
APPROVED AS TO FORM:
George H. Eiser, III
Legal Counsel
By:
Environmental Business Solutions
(Two signatures required)
(Tessa McRae)
(Vice -President)
(Vice -President)
Page 10
Revised 5/2004
H:\2004 CD02004 AGREEMENTS\06A1.04 EBS Ckxure.Monitoring.Maintenance Ptan.doc
M+
w•.
Yew
/A
0
environmental
An SCS Enyinoeru Company
T 858 571 5.00
economic
environmental
solutions
Business solutions
CONFIDENTIAL AND PRIVILEGED
NOT TO BE DISCLOSED TO NON -CLIENT PARTIES
Copyright 2003 Environmental Business Solutions,
An SCS Engineers Company
April 22, 2004
Proposal Number: 01501204.05
Exhibit 05
Mr. Oliver Mujica
Community Development Commission
140 East 12°i Street, Suite B
National City, California 91950
RE: Proposal for Consulting Services Related to the Reconsolidation of the
North Fill Bank and Waste Discharge Requirements or a Waiver, and
to Prepare a Post -Closure Monitoring and Maintenance Plan for 2501
and 2510 Cleveland Avenue, within the Harbor District Redevelopment
Area, National City, California (Site)
Dear Mr. Mujica:
Environmental Business Solutions (EBS) is pleased to submit this proposal for
consulting services for consulting services related to the reconsolidation of the North
Fill Bank (NFB) portion of the Site and waste discharge requirements or a waiver,
and to prepare a Post -Closure Monitoring and Maintenance Plan (PCMMP) for the
NFB. Upon your signature, this proposal will serve as Exhibit 05 to the existing
agreement between EBS and the Community Development Commission of National
City (CDC) (Client).
BACKGROUND
The Site consists of two properties in National City, California: the Cleveland
Property (assessor parcel numbers [APNs] 559-117-14 and -15; and 559-160-
03, -09, and -21) at 2501 Cleveland Avenue and the Cuyamaca Property
(APN 559-160-11) at 2510 Cleveland Avenue. The Site is currently vacant
and all structures have been demolished. The Site is part of the CDC's Harbor
District Redevelopment Arca and is slated for redevelopment (likely as a
hotel). The Site is located adjacent to Paradise Creek and Paradise Marsh,
part of the Sweetwater Marsh National Wildlife Refuge. The County of San
wwvv.cb5cnv-•onrnenta, corn
T
pe011
OP SE
SWIM
Community Development Commission AGREEMENT FOR SERVICES
Proposal Number: 01810203.04 Page 2 of 9
April 22, 2004 Environmental Business Solutions
Diego Department of Environmental Health (DEH) is the lead agency for this work as
determined by the California Environmental Protection Agency (Cal -EPA) site
designation committee for the Harbor District Redevelopment Area.
The Site was historically occupied by several industrial facilities including a railroad
maintenance facility, an auto wrecking yard, an auto maintenance facility, meat packing
facilities, a plating shop, and a landfill. In addition, five underground storage tanks
(USTs) were reported to have been removed from the Site.
Numerous soil and groundwater assessment activities, associated with the UST removals
and historical Site land uses, have been conducted by EBS and other consultants at the
Site and in the surrounding Site vicinity. These assessments have revealed evidence of
releases of petroleum hydrocarbons and hazardous materials/wastes to the soil and
oundwater at the Site.
EBS has conducted work at the Site under the Cal -EPA lead agency case, including the
preparation of the following documents:
Master Workplan, CDC Harbor District Redevelopment Project, Environmental
Remediation, dated September 4, 2001 (MWP) (approved by DEH on December
24, 2001).
Feasibility Study: Preliminary Geotechnicul Evaluation, Ecological Scoping
Study, and Supporting Site Assessment Activities for the Harbor District
Redevelopment Project, National City, California, dated June 26, 2002
(Feasibility Study).
Property -Mitigation Planfor the Cleveland Associates, Inc. Property, APNs 559-
117-14 and -15; and APNs 559-160-03, -09, and -21, and the Former Cuyumaca
Meats, Inc. Property', APNs 559-160-11, dated March 25, 2003 (PMP)
(conditionally approved by DEH on April 16, 2003).
Letter Report of Additional Site Assessment Conducted Pursuant to the
Requirements of the County of San Diego Department of Environmental Health
at 2501 and 2510 Cleveland Avenue within the Harbor District Redevelopment
Area. National City, California, dated September 12, 2003 (September 2003
Report).
Letter Report of Soil and Groundwater Assessment Activities in the Vicinity of
Two Former Underground Storage Tanks at 2501 and 2510 Cleveland Avenue,
within the Harbor District Redevelopment Area, National City, California, dated
February 17, 2004 (February 2004 Report).
Pa.
PPP
P
Community Development Commission AGREEMENT FOR SERVICES
Proposal Number: 01810203.04 Page 3 of 9
April 22, 2004 Environmental Business Solutions
The MWP established the overall regulatory setting for assessment and remediation of
all the properties within the Harbor District Redevelopment Area, including the Site. The
MWP stated that the reuse of soil was the preferred strategy wherever possible because
of the cost of soil excavation and disposal and the cost of imported fill. The MWP
concluded that the reconsolidation and capping of the NFB, rather than excavation and
off -site disposal, was preferable based on ecological considerations. In the Feasibility
Study, EBS conducted geotechnical, ecological, and groundwater assessments to
determine if the proposed reconsolidation and capping were feasible for the proposed
redevelopment and consistent with the Specific Area Plan (SAP).' The SAP is a master
planning document, which established conservation and development standards for the
Harbor District Redevelopment Area and included specific guidelines for the Site.
The Feasibility Study evaluated and discussed potential Applicable or Relevant and
Appropriate Requirements (ARARs). It was determined that the most appropriate
ARARs related to groundwater contamination were water quality objectives established
in the California Ocean Plan (Ocean Plan)` and in the Environmental Protection
Agency's (EPA's) California Toxics Rule criteria (CTRC).3
The geotechnical assessment concluded that the reconsolidation and capping of the NFB
was feasible and could result in a stable slope. The ecological assessment concluded that
there was not a complete exposure pathway from the groundwater beneath the Site to the
water in Paradise Marsh, and that, even if a pathway were present, the groundwater from
the Site did not pose a threat to Paradise Marsh, because the concentrations of dissolved
metals did not exceed the ARARs. Therefore, based on the available data, currently no
groundwater remediation is planned for the Site.
The PMP described soil remediation activities required to redevelop the Site consistent
with the SAP. Based on review of current and historical records for the Site and
analytical data from the previous soil and groundwater assessments, soil impacts appear
to have become commingled over time due to the history of industrial use of the Site.
City of National City, Local Coastal Program, Harbor District Specific Area Plan. dated November 5, 1998. Certified by
the California Coastal Commission on November 5, 1998. Approved by the Planning Commission on July 20, 1998, and
adopted by City Council on July 28, 1998.
2 Water Oualiry Control Plan, Ocean Waters of California, California Ocean Plan, State Water Resources Control Board
(SWRCB), 2001.
3
Water Ouality Standards,, Establishment of Numeric Criteria for Priority Toxic Pollutantsfor the State of California (40
Code of Federal Regulations fart 131), more commonly referred to as the California Toxics Rule, May 18, 2000. Adopted
in SWRCB Resolution Number 2000-15 and 2000-030 in April 2000. Standards most recently updated in National
Recommended Water Quality Criteria: 2002, EPA, dated November 2002.
IWO
iron
IMO
Community Development Commission AGREEMENT FOR SERVICES
Proposal Number: 01810203.04 Page 4 of 9
April 22, 2004 Environmental Business Solutions
Given the nature and extent of the contaminated soils, the PMP emphasized the reuse of
these soils during redevelopment wherever practicable.
In accordance with the SAP, it was proposed that a 100-foot-wide habitat buffer be
established within the NFB and that the NFB be reconsolidated, capped with a minimum
of two feet of clean fill soil, and revegetated in accordance with Integrated Waste
Management Board (IWMB) guidance and SAP requirements. The CDC has been
awarded a work grant by the IWMB, whereby the IWMB will conduct the
reconsolidation of the NFB. It is anticipated the reconsolidation will be conducted no
later than fall of 2004.
OBJECTIVES
The objective of the scope of services is to:
• Provide consulting services and regulatory agency liaison, as necessary, to
advance the reconsolidation of the NFB.
• Provide consulting services and regulatory agency liaison, as necessary, to obtain
•
a waiver from or waste discharge requirements (WDRs).
Prepare a Post -Closure Monitoring and Maintenance Plan (PCMMP) for the Site
that will describe the post -closure monitoring and maintenance requirements for
the NFB portion of the Site.
SCOPE OF SERVICES
The scope of services that has been developed to meet the objectives includes the
following tasks.
Task I Consulting Services and Regulatory Agency Liaison Related to
Reconsolidation of the NFB
The proposed reconsolidation of the NFB is complicated by the involvement of
numerous regulatory agencies, including, but not limited to: the DEH, 1WMB, Regional
Water Quality Control Board (RWQCB), United States Fish and Wildlife Service
(USFW), and the County of San Diego Landfill Enforcement Agency. (LEA). This task
includes time to communicate with the various agencies as necessary to complete to
project objectives. This task also includes time for two internal meetings (between EBS,
CDC, and CDC counsel), and two meetings with regulatory agencies (one meeting with
the DEH and one meeting with the DEH and IWMB)to discuss the reconsolidation of the
...
linst
FA%
mkt
Community Development Commission AGREEMENT FOR SERVICES
Proposal Number: 01810203.04 Page 5 of 9
April 22, 2004 Environmental Business Solutions
NFB and the post -closure requirements for the NFB. The Client shall be responsible for
any DEH charges. This task also includes time to followup with the developer team
regarding such issues as utility conduits which will go through the NFB and will need to
be provided for during the reconsolidation of the NFB, and the coordination of upcoming
fieldwork with required geotechnical studies. This task includes 7 hours ofprincipal time
and 28 hours of project professional time.
The estimated cost to conduct the scope of services in Task 1 is $8,210.
Task 11 Consulting Services and Regulatory Agency Liaison Related to
Waste Discharge Requirements
The RWQCB has indicated that the proposed reconsolidation of the NFB may require
that either waste discharge requirements (WDRs) or a waiver from WDRs be obtained.
There is an annual fee associated with WDRs and annual requirements (such as
groundwater monitoring and reporting) that also add cost to projects. If it becomes
necessary, EBS will pursue obtaining a waiver from WDRs. This task includes time for
internal strategy development and for communication with the RWQCB, and additional
time for the internal meetings referenced in Task I. This Task also includes time to
complete an application for a waiver from WDRs. This Task does not include time to
prepare reports that may be required to demonstrate that WDRs should be required for
the Site. This task includes 8 hours of principal time, 2 hours of senior project manager
time, and 25 hours of project professional time.
The estimated cost to conduct the scope of services in Task II is $4,015.
Task 111 Preparation of Post -Closure Monitoring and Maintenance Plan
A PCMMP must be prepared and implemented subsequent to the reconsolidation of the
NFB. The PCMMP will describe how the CDC or future Site occupants will manage
ongoing Title 27 requirements such as:
• Site security.
• Grading. of fill surfaces.
• Site maintenance.
• Drainage and erosion control.
• Litter control.
• Gas control.
• Explosive gas control.
• Post -closure land use.
• Groundwater monitoring.
1
0.411
MYR
Pow
w
n1S
IM
Community Development Commission
Proposal Number: 01810203.04
April 22, 2004
AGREEMENT FOR SERVICES
Page 6 of 9
Environmental Business Solutions
The PCMMP will be submitted to the DEH for approval. In addition to preparation of
the PCMMP, this task also includes time to:
•
•
Review various documents, including previous reports prepared for the Site and
various regulatory guidance and correspondence.
Discuss the PCMMP with the DEH, LEA, IWMB, and other regulatory agencies
or interested parties.
Prepare and circulate a draft PCMMP.
Finalize the PCMMP.
The estimated cost to perform the scope of services in Task Ill is $11,895.
ESTIMATED BUDGET AND SCHEDULE
The EBS team stands ready to begin this project immediately upon receipt of this signed
contract specified on page 7. Please note, the schedule cannot be definitively determined
at this time, because much of the schedule is dependent on parties other than EBS or
CDC, such as the IWMB and DEH; and their schedule remains uncertain to us at this
time. Once a schedule can be developed, we will provide the CDC and other interested
parties with the schedule.
THE TOTAL TIME AND MATERIALS COST FOR THE ACTIVITIES
DESCRIBED HEREIN IS ESTIMATED TO BE $24,120.*
* Please allow for a minimum 10 percent variance in the total estimated cost due to
changed site conditions or unanticipated circumstances.
Compensation described herein shall be subject to renegotiation if authorization to
proceed has not been given within 30 days of the date of the Agreement of Services. We
propose to perform our services, and invoice, in accordance with the previously executed
Consulting Agreement and the attached Schedule of Rates and Conditions of Service.
...
Community Development Commission
Proposal Number: 01810203.04
April 22, 2004
AGREEMENT FOR SERVICES
Page 7 of 9
Environmental Business Solutions
If we can be of further assistance, or if you have any questions regarding the above scope of
work, please contact one of the undersigned at (858) 571-5500.
Respectfully,
«-- ENVIRONMENTAL BUSINESS SOLUTIONS
An SCS Engineers Company
Nicki M. Field
Project Professional
NMMF
- F:U'roposals\204`500-550501 (CDC\01501204.05.ppr.wpd
3-
VINO
3-
Mal
.1.101
PPM
111.41
Community Development Commission
Proposal Number: 01810203.04
April 22, 2004
AGREEMENT FOR SERVICES
Page 8 of 9
Environmental Business Solutions
Upon acceptance and execution of this proposal, this document may serve as Exhibit 05 to the
previously executed Agreement between EBS and the Client. The Client should sign the two
enclosed copies of Exhibit 05 and return the two documents to EBS. One fully executed copy
of Exhibit 05 will be returned to you for your records.
Signature f the F.B ` Representative
1
Printed Name
\%r �e Pre s�c6►t
Title
/i/c4
Date
Signature of the Client Repre
Printed Name
Title
Date
fit.
01.0c1-1-"'
6 I 41
nor
Community Development Commission
Proposal Number: 01810203.04
April 22, 2004
AGREEMENT FOR SERVICES
Page 9 of 9
Environmental Business Solutions
CONDITIONS OF SERVICE
..o
This Agreement for Services is based on, but not limited to, the following conditions:
General Conditions
•
•
WPM
rime
•
IBM
_plan
We would be pleased to perform services in addition to those described in this
proposal. However, additional services that arc requested that are not specifically
outlined in this proposal will be billed to the Client as an additional cost per our
Fee Schedule contained herein. We also respectfully request written notification
of any additional tasks that you desire us to perform.
ea
P.�
mn
environmental
An SCS Enpinwwn CompPny
T 8e8 571 5500
economic
environmental
solutions
Business solutions
Community Development Commission of National City
Preferred Fee Schedule
2004
Principal S 155.00
Project Director $145.00
Senior Technical Manager $135.00
Project Manager S 125.00
Senior Project Professional S 105.00
Project Professional S 9I.00
Staff Professional 5 S 1.00
Project Administrator S 75.00
Associate Professional $ 75.00
Technical Editor S 70.00
Technician $ 67.00
Desi guer/Drafte r S 65.00
Administrative Assistant S 55.00
Word Processor 5 55.00
•
Additional Terms and Conditions
• Scheduled labor rates include overhead, administration, and profit.
• Rates for principals of the firm may be negotiated on a project -specific basis.
• Scheduled rates are effective through .tune 30. 2004. Work performed thereafter is subject to a new Fee
Schedule.
• Expert witness testimony (depositions and trial) will be charged at $250.00 per hour. Preparation for
testimony and general litigation support will be charged at normal hourly rates.
• Direct project expenses (such as field equipment. subcontracted services including drilling, laboratory
analyses, etc., permits. supplies, etc.) will be charged at cost plus 15 percent. loran initial scope of work
or a scope of services change in excess of S50,000, the markup will be cost plus 10 percent. Field vehicles
will be charged at $10.00 per hour when used. Mileage in excess of 100 miles per day will be charged at
0.40 cents per mile. All other field equipment will be charged in accordance with the Fee Schedule in effect
at the time the work is performed.
• Per diem will he charged on all projects requiring overnight stays from our office. The per diem rate is
S 100.00 per day per person or the federal per diem rate for the area. whichever is greater.
• Overtime will be charged at 125 percent of standard rates for weekday work in excess of 8 hours. Work
performed on holidays and weekends will be charged at 150 percent of standard rates.
• invoices will be prepared monthly or more frequently for work in progress. unless otherwise agreed.
Invoices are due and payable upon receipt. Invoices not paid within 30 days are subject to a service charge
of 1.5 percent per month on the unpaid balance.
• Payment of EB S invoices for services performed will not be contingent upon the client's receipt of payment
form other parties. unless otherwise agreed in writing. Client agrees to pay legal costs, including attorney's
fees, incurred by SCS in collecting any amounts past due and owning on client's accounts..
• Communications including telephone. facsimile and postage will be charged at 5 percent of the invoiced
staff hours.
The rationale and methodology for determining our Schedule of Rates is based on Manual 45c of the American
Society of Civil Engineers.
w w.m.eu,err:ircrment con;
FIELD EQUIPMENT RENTAL AND REIMBURSABLE FEE SCHEDULE
ENVIRONMENTAL BUSINESS SOLUTIONS
EQUIPMENT RATE ($)
Drager Kit 25/Day
Drager Tubes 5/Tube
Flow Meter Assembly 100/Day
Gastech Meter 75/Day
Generator 60/Day
Hand Auger 60/Day
Power Hand field Auger I0(1/Day
Tube, Caps and Teflon Sheets 5/Tube
'Pedlar Bags 20/13ag
Organic Vapor Meter 85/Day
Moisture Meter 75/Day
Bailers - Teflon or Stainless 25/Day
Bailers - Disposable 15!Lach
Bailers - PVC 20/Day
10 ml Visqueen 20' x 100' 100/Itoll
Expendable Field Supplies 35/Day
(caution tape. decontamination equipment, ice, sampling jars, etc.)
Hazardous Waste Field Kit 60/Day
(for any field sampling; personal protective equipment
through Level C; protective clothing, respirators, gloves, etc.)
Hazardous Waste Field Kir (for Level A or Bl Quoted/Job Specific
Vehicle 10/Hour
Miles (over 100 per day) .40/Mile
Still Camera 10/Day
Film and Processing 20/Roll
Digital Camera (includes contact sheet 8c color printing) 15/Day
Electronic Distance Meter 25/Day
Sampler 50/Day
Fluid/Petroleum Level Meter 75/Day
Multiple Parameter Water Quality Meter 225/Day
pH/Temp/Conductivity Meter 60/Day
Bladder Pump 150/Day'
Pump Bladders, Tubing 8t Hardware Quoted/Job Specific
Water Sampling Pump (with controller) (Grundfos or peristaltic) 125/Day
Water Sampling Pump (DC) 50/Day
Copies .10/Page
Color Copies/Prints (8 th x I I) 120/Page
Color Copies/Prints (11 x 17) 2.40/Page