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HomeMy WebLinkAbout2005 CON Rore Environmental - Site Assessment Police StationAGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND RORE Environmental Science & Engineering R. 2oos-1i5 c too s- MOINAL THIS AGREEMENT is entered into this 15 day of November, 2005, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and Rore Environmental Science & Engineering, a private company (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires to employ a CONTRACTOR to provide a subsurface site assessment per requirements of the County of San Diego Department of Environmental Health (DEH) at 1200 National City Blvd., City of National City (DEH File No. H32234-002). WHEREAS, the CITY has determined that the CONTRACTOR is a Environmental Science & Engineering Company and is qualified by experience and ability to perform the services desired by the CITY, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CITY 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 CITY for such services, except as authorized in advance by the CITY. The CONTRACTOR shall appear at meetings cited in Exhibit " A "to keep staff and City Council advised of the progress on the project. The CITY 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 CITY and the CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a Revised April 2005 corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 10% from the base amount. 3. PROJECT COORDINATION AND SUPERVISION. Steve Kirkpatrick hereby is designated as the Project Coordinator for the CITY 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 CONTRA- CTOR. Gita Murthy 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 Coordinator. 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 CITY. 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 CITY and for furnishing of copies to the CITY, 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 CITY for use with respect to this Project, and shall be turned over to the CITY upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONTRACTOR hereby assigns to the CITY and CONTRACTOR 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 CITY's prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONTRACTOR agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium or method utilize the 2 Revised April 2005 CONTRACTOR'S written work product for the CITY'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. Any modification or reuse by the CITY 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 CITY, or for any liability to the CITY should the documents be used by the CITY 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. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employee of the CITY and are not entitled to any of the rights, benefits, or privileges of the CITY's employees, including but not limited to retirement, 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 CITY 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 CITY. 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 CITY 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 CITY, it being understood that the CONTRACTOR, its agents, servants, and employees are as to the CITY wholly independent contractors and that the CONTRACTOR'S obligations to the CITY 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 3 Revised April 2005 City of National City business license prior to and during performance of any work pursuant to this Agreement. 10. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, 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 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 CONTRACTOR'S trade or profession currently practicing under similar conditions and in similar locations. 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. Unless disclosed in writing prior to the date of this agreement, the CONTRACTOR warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings 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 CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CITY otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CITY for any increased costs that result from the CITY'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 shall 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 4 Revised April 2005 places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 13. CONFIDENTIAL INFORMATION. The CITY 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 CITY. 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 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 CITY. 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 CITY 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 defend, indemnify, and hold harmless the City of National City, its officers and employees, 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, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, 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, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY 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. 5 Revised April 2005 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. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include non -owned vehicles. C. 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. D. Workers' compensation insurance covering all of CONTRACTOR's employees. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. F. Said policies, except for the professional liability and worker's compensation policies, shall name the CITY and its officers, agents and employees as additional insureds. G. 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 Agree- ment. H. Any aggregate insurance limits must apply solely to this Agree - I. 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 City's Risk Manager. J. 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 CITY'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 CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. ment. 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. 6 Revised April 2005 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 judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY 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 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 CITY. Termination without cause shall be effective only upon 60- day's 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 CITY 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 CITY. 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 CITY, 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 CITY by the CONTRACTOR's breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 6. E. The CITY 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. 7 Revised April 2005 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: To the CITY: To the CONTRACTOR: Steve Kirkpatrick, City Engineer City of National City 1243 National City Boulevard National City, CA 91950-4301 Gita Murthv, Ph.D Rore Environmental Science & Engineering 1640 Collingwood Drive San Diego, CA 92109-2239 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 City of National City. 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 CITY 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 CITY in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it 8 Revised April 2005 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 CITY. 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 CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 21 by the CONTRACTOR. 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 are 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 agree- ments, 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. Revised April 2005 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY By: Rore Environmental Science & Engineering (Corporation — signatures of two corporate officers) (Partnership — one signature) (Sole proprietorship — one signature) By: _fit Nick`nzunza, Mayor (Name) APPROVED AS TO FORM: %7 l By: George H. Eiser, III (Name) City Attorney CFO/�rz.s (Title) C +: o (Title) 10 Revised April 2005 Y CE & LNGLNEERJNG 1640 Collingwood Drive • San Diego, California 92109-2239 • 858.483.8625 • Fax 858.483.4583 • www.roreinc.com September 28, 2005 Mr. Stephen Kirkpatrick City Engineer City of National City, Engineering Department 1243 National City Blvd. National City, CA 91950-4301 RE: Proposal to Conduct a Subsurface Site Assessment Per Requirements of the County of San Diego Department of Environmental Health (DEH) at 1200 National City Boulevard, City of National City (DEH File No. H32234-002) Dear Mr. Kirkpatrick: Per your request and based upon the required action measures requested by the County of San Diego DEH (letter dated September 13, 2005), RORE is pleased to submit the scope of work and cost proposal for work to be performed at the above -referenced site. BACKGROUND The site is located at 1200 National City Blvd., City of National City. It is currently occupied by the City of National City's Police Department. A 500-gallon diesel underground storage tank (UST) that was located by the driveway entrance to the Police Department was removed on August 2, 2005. The tank was empty when it was removed by ACE Excavating and Environmental Services, Inc. After removal, the area was backfilled with excavated soil, and paved with asphalt. RORE collected two soil samples from the area surrounding the UST, as directed by the County of San Diego DEH Inspector. The results from the soil analysis indicated a release of diesel. Following submission of laboratory data to DEH on August 25, 2005, a Notice of Responsibility dated September 13, 2005 was issued to the City of National City, from DEH that listed specific initial corrective action measures. These measures include: 1. Maintenance of the unauthorized release site in a manner that does not create public health, safety, and environmental hazards. 2. Removal of as much of the hazardous substance from the underground tank system as is necessary to prevent further release to the environment. 3. Investigation of the unauthorized release and prevention of further migration of the released substance into the environment. 4. Remedy of hazards posed by contaminated soils that are exposed or excavated as a result of release confirmation, site investigation, or abatement activities. 5. Submission of all available information relevant to the underground tank site and the unauthorized release, including the nature and estimated quantity of release, and current or potential off -site impacts on land uses, water wells/resources, subsurface utilities, etc. OBJECTIVES Based upon background information above, RORE's objectives are to: 1. Excavate the area, which contained the 500-gallon UST. 2. Remove the concrete base upon which the UST rested and export concrete off -site. 3. Excavate approximately ten cubic yards of apparent diesel -contaminated soil based upon the sample result and location within the area. 4. Stockpile contaminated soil on -site and cover with visqueen for subsequent loading. 5. Collect confirmatory soil samples to ensure that the site is devoid of contamination. If confirmatory soil samples do not meet the DEH threshold level for residual contamination, excavate additional diesel -contaminated soil and resample area for further confirmation. Please note that the excavation area will be fenced off and protected from public per county -approved traffic permit requirements. 6. Backfill and compact the excavated area with existing clean soil as deemed fit and/or 3/4 rock fill material. 7. Haul and dispose of the excavated soil to the appropriate landfill. 8. Prepare a site closure report documenting all field activities and laboratory analyses. 9. Request a Site Closure Status from the DEH. PROPOSED SCOPE OF SERVICES To meet the objectives, RORE will execute the following tasks: Task 1—Project Management, including Meetings with Client Project Management includes two meetings with the client, one meeting with DEH, regular communication with client and sub -contractor, subcontractor management, schedule and coordination with contractor and client, project quality and cost control monitoring, and cost review and invoice generation. 2 The lump sum cost for project management, including labor, materials, travel, and expendables, is $1,990. Task 2-Site-Specific Health & Safety Plan and Work Plan to Excavate Soil RORE will prepare a Site -Specific Health & Safety Plan and a Work Plan to remove the contaminated soil as required by DEH. These plans will be prepared according to DEH Site Assessment and Mitigation (SAM) guidelines (2005) and submitted to DEH for approval prior to field activities. A Health and Safety Plan for field activity and field personnel at the site will be prepared. The plan will include potential physical and chemical hazards that may impact personnel during excavating, sampling, and hauling activities. The plan will also include appropriate protective equipment and emergency response procedures for the anticipated site -specific hazards. The Work Plan will summarize the specific tasks designed to achieve the objectives and will describe field activities, methodologies for sample collection, laboratory analyses required to test soil samples for contamination and for disposal at a landfill. The lump sum cost for preparing the Plans, including labor, materials, travel, and expendables, is $2,750. Task 3-Excavation and Removal of Contaminated Soil Underground Service Alert will be notified as required by State law so that all public utilities are identified and marked. Safety barricades around the excavation site and a chain -link fence and storm water control measures will be implemented. The asphalt surface material will then be saw cut, demoed, and removed. A subcontractor, ACE Excavating and Environmental Services, Inc. will be used for these required services. It is estimated that 10 cubic yards of contaminated soil will be excavated. Excavated soil will be stockpiled and left inside the Police Department (just south of the wall) for no more than 72 hours, pending laboratory data. The lump sum cost for excavated and removal of contaminated soil, including equipment, labor, travel, and expendables is $9,350. If the excavated volume exceeds 10 cubic yards of soil, then an additional $3,300 may apply. Task 4-Soil Sampling, Testing, and Analyses Soil samples from the excavation site will be collected and submitted to a state -certified analytical mobile laboratory on -site. The reason for the mobile laboratory is so that analysis can be expedited and soil disposed of at the appropriate landfill as soon as possible. The excavation site is part of the public use; therefore any activity that will expedite site closure will minimize impact of potential hazards to the public. Soil 3 samples will be analyzed according to EPA Method 8015 for total petroleum hydrocarbons as diesel (TPH-d). RORE personnel will determine the exact number of samples on -site based upon the contaminated area. A mobile lab can handle up to 16 soil samples in a given day. Cost for a mobile lab is for analysis of up to 16 samples. For a total of sixteen samples, the lump sum cost for soil sampling and mobile laboratory analyses ($1,750) and site supervision for two days by RORE personnel is estimated at $1,850. In addition, RORE will collect representative backfill material and conduct a Standard Proctor Test and verify field compaction. The estimated cost for this activity, which includes labor for sample collection, testing, field observation for two days, is $2,200. Therefore, the lump sum cost for Task 4, including equipment, labor, analyses, and expendables, is $5,800. Task 5-Backfill and Disposal of Excavated Soil The excavated area will be backfilled and compacted with existing clean soil (as deemed fit) and/or % rock fill material. The cost for backfill is included as part of Task 3. The contaminated soil will be characterized and subsequently disposed off -site at a state - approved waste disposal landfill facility, depending upon soil sampling data. Based upon the estimate of 10 cubic yards of soil and landfill, the overall disposal cost could range between $1,500 and $3,000. Task 6-Site Closure Report RORE will prepare a detailed report that documents the field activities, soil sampling data, UST removal and disposal, and conclusions and recommendations for the work elements. The report will include site identification, site plan, sampling procedures, laboratory analytic reports, field work summary, waste manifests, conclusions and recommendations, and figures detailing UST site and soil sample locations. The estimated lump sum cost to prepare and submit two copies of the report, including labor, materials, and copying costs is $2,500. PROJECT ASSUMPTIONS 1. All corrective action measures will follow the corrective action procedures, guidelines, and engineering controls described in the County of San Diego SAM Manual. 2. The Underground Storage Tank Unauthorized Release Report was submitted to DEH by the Client, as requested by DEH. 3. Excavation conditions are normal. If excessive rock, concrete and/or rebar, sub flooring or foundations, high water table, perched water and/or free product, unknown 4 utility lines, structural footings, or caving of side walls are encountered, then additional costs may apply. 4. Following excavation removal, the area needs to be resurfaced with landscaping. 5. Soil sampling can be done in the excavations by sloping the sides back. 6. Excavated soil will be stockpiled on -site for no more than 72 hours, or until the soil analysis results are obtained, whichever is faster. 7. Work will be performed during normal business days and hours; additional charges may apply for work on weekends and holidays. 8. One copy of the final report will be submitted to the Client and one copy to the DEH. 9. This cost proposal includes no more than two meetings with client; each meeting is scheduled to last one hour. PROJECT SCHEDULE AND COST SUMMARY TASK NUMBER TIME FOR COMPLETION ESTIMATED COST ($) ACTIVITY 1 Project Management N/A 1,990 2 Site -Specific Health & Safety Plan, Work Plan 2 weeks 2,750 3 Excavation and Removal of Contaminated Soil (10 cubic yards) 1-2 days 9,350* 4 Soil Sampling, Testing, Analyses, Compaction Testing and Verification 2-3 days 5,800 5 Disposal 1-2 days 1,500** 6 Site Closure Report 2 weeks 2,500 TOTAL 23,890 * Estimate based upon volume of 10 cubic yards of excavation and removal ** Estimate based upon using San Diego landfill as the disposal site for contaminated soil if you have any questions regarding this proposal, please contact me at 858-483-8625, ext. 12. We look forward to hear from you, and we look forward to get this project site closed! As always, thanks so much! Sincerely, Gita Murthy, Ph.D. Project Director 5 City of National City, California COUNCIL AGENDA STATEMENT MEETING DATE November 15, 2005 5 AGENDA ITEM NO. ITEM TITLE Resolution awarding a contract to RORE Environmental Science and Engineering in the amount of $23,890 for preparing a subsurface site assessment and implementing remediation per requirements of the County of San Diego Department of Environmental Health (DEH) at the Police Station located at 1200 National City Boulevard. PREPARED BY Stephen Kirkpatrick DEPARTMENT Engineering EXT. 4380 EXPLANATION See attached Explanation. ( Environmental Review MIS Approval Financial Statement Approved By: /1' 54 Funds are available in account number 196-409-500-598-1156. Financ erector Account No. STAFF RECOMMENDATION Adopt the Resolution._42 (,I BOARD / COMMISSION RECOMMENDATION N/A ATTACHMENTS ( Listed Below ) 1. Resolution 2. RORE Contract cos- 67 Resolution No. C0PO7Y A-200 (Rev. 7/03) EXPLANATION The underground diesel fuel tank located on the north side of the Police Station was recently removed as required by the San Diego County Department of Environment Health. The tank was removed because it did not meet current standards for underground fuel tanks. Specifically, it did not have secondary containment for the tank and associated piping. As directed by the DEH, the City conducted soil testing of the area surrounding the tank at the time of its removal. The soil testing revealed that there was a diesel fuel discharge to the soil. The extent of the discharge is unknown. This contract with RORE will assess the extent of the discharge and, working with DEH, implement the appropriate remedial action. This tank was used to store fuel for the Police Station emergency generator and was installed as part of the PD construction project in 1992. Although the tank sat full, the fuel has really only been used to perform routine maintenance on the generator. A 55-gallon a day tank has been installed instead of the underground tank. This is enough fuel to run the generator for more than 24 hours. RORE Environmental Science & Engineering was selected by the Community Development Commission through the Request for Qualification process appropriate for selecting a professional service. City staff is "piggy -backing" on that selection process and recommending that the contract be awarded to RORE based upon their qualifications. RESOLUTION 2005 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AWARDING A CONTRACT TO RORE ENVIRONMENTAL SCIENCE AND ENGINEERING, INC. IN THE AMOUNT OF $23,890, FOR PREPARING A SUBSURFACE SITE ASSESSMENT AND IMPLEMENTING REMEDIATION PER REQUIREMENTS OF THE COUNTY OF SAN DIEGO DEPARTMENT OF ENVIRONMENTAL HEALTH (DEH) AT THE POLICE STATION LOCATED AT 1200 NATIONAL CITY BOULEVARD WHEREAS, the underground diesel fuel tank located on the north side of the Police Station located at 1243 National City Boulevard was recently removed as required by the San Diego County Department of Environmental Health (DEH) because it did not meet current standards for underground fuel tanks. Specifically, it did not have secondary containment for the tank and associated piping; and WHEREAS, because soil testing of the area surrounding the tank at the time of removal revealed a diesel fuel discharge to the soil, the extent of which is unknown, the DEH requires the City to prepare a subsurface site assessment and implement appropriate remedial action; and WHEREAS, through the Request for Qualification process, the Community Development Commission of the City of National City (CDC) has contracted with RORE Environmental Science and Engineering, Inc. for on -call environmental consulting services; and WHEREAS, staff desires to piggy -back on CDC's selection process and award the contract to prepare a subsurface site assessment and implement appropriate remediation to RORE Environmental Science and Engineering, Inc.; and WHEREAS, pursuant to Section 12.60.220(D) of the National City Municipal Code, the Purchasing Agent may dispense with the requirements of the bidding process when the City Council determines that due to special circumstances, it is to the City's best interest to purchase a commodity or enter into a contract without compliance with the bidding procedure; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby finds that special circumstances exist and awards the contract to prepare a subsurface site assessment and implement remediation at the Police Station located at 1200 National City Boulevard, per requirements of the County of San Diego Department of Environmental Health to: RORE ENVIRONMENTAL SCIENCE AND ENGINEERING, INC. BE IT FURTHER RESOLVED by the City Council of the City of National City that the Mayor is hereby authorized to execute a contract between RORE Environmental Science and Engineering, Inc. and the City of National City to prepare a subsurface site assessment and implement remediation at the Police Station located at 1200 National City Boulevard, per requirements of the County of San Diego Department of Environmental Health. Said contract is on file in the office of the City Clerk. --- Signature Page to Follow --- Resolution No. 2005 — November 15, 2005 Page 2 PASSED and ADOPTED this 15th day of November, 2005. Nick Inzunza, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND RORE Environmental Science & Engineering THIS AGREEMENT is entered into this 15 day of November, 2005, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and Rore Environmental Science & Engineering, a private company (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires to employ a CONTRACTOR to provide a subsurface site assessment per requirements of the County of San Diego Department of Environmental Health (DEH) at 1200 National City Blvd., City of National City (DEH File No. H32234-002). WHEREAS, the CITY has determined that the CONTRACTOR is a Environmental Science & Engineering Company and is qualified by experience and ability to perform the services desired by the CITY, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CITY 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 CITY for such services, except as authorized in advance by the CITY. The CONTRACTOR shall appear at meetings cited in Exhibit " A "to keep staff and City Council advised of the progress on the project. The CITY 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 CITY and the CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a Revised April 2005 corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 10% from the base amount. 3. PROJECT COORDINATION AND SUPERVISION. Steve Kirkpatrick hereby is designated as the Project Coordinator for the CITY 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 CONTRA- CTOR. Gita Murthv 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 Coordinator. 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 CITY. 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 CITY and for furnishing of copies to the CITY, 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 CITY for use with respect to this Project, and shall be turned over to the CITY upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONTRACTOR hereby assigns to the CITY and CONTRACTOR 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 CITY's prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONTRACTOR agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium or method utilize the 2 Revised April 2005 CONTRACTOR's written work product for the CITY'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. Any modification or reuse by the CITY 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 CITY, or for any liability to the CITY should the documents be used by the CITY 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. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employee of the CITY and are not entitled to any of the rights, benefits, or privileges of the CITY's employees, including but not limited to retirement, 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 CITY 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 CITY. 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 CITY 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 CITY, it being understood that the CONTRACTOR, its agents, servants, and employees are as to the CITY wholly independent contractors and that the CONTRACTOR's obligations to the CITY 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 3 Revised April 2005 City of National City business license prior to and during performance of any work pursuant to this Agreement. 10. LICENSES, PERMITS. ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, 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 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 CONTRACTOR'S trade or profession currently practicing under similar conditions and in similar locations. 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. Unless disclosed in writing prior to the date of this agreement, the CONTRACTOR warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings 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 CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CITY otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CITY for any increased costs that result from the CITY'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 shall 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 4 Revised April 2005 places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 13. CONFIDENTIAL INFORMATION. The CITY 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 CITY. 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 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 CITY. 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 CITY 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 defend, indemnify, and hold harmless the City of National City, its officers and employees, 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, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, 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, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY 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. 5 Revised April 2005 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. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include non -owned vehicles. C. 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. D. Workers' compensation insurance covering all of CONTRACTOR's employees. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. F. Said policies, except for the professional liability and worker's compensation policies, shall name the CITY and its officers, agents and employees as additional insureds. G. 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 Agree- ment. ment. H. Any aggregate insurance limits must apply solely to this Agree - I. 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 City's Risk Manager. J. 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 CITY'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 CITY 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. 6 Revised April 2005 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 judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY 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 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 CITY. Termination without cause shall be effective only upon 60- day's 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 CITY 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 CITY. 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 CITY, 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 CITY by the CONTRACTOR'S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 6. E. The CITY 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. Revised April 2005 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: To the CITY: Steve Kirkpatrick, City Engineer City of National City 1243 National City Boulevard National City, CA 91950-4301 To the CONTRACTOR: Gita Murthv. Ph.D Rore Environmental Science & Engineering 1640 Collinawood Drive San Diego, CA 92109-2239 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 errtity whose interests conflict in any way with those of the City of National City. 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 CITY 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 CITY in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it 8 Revised April 2005 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 CITY. 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 CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 21 by the CONTRACTOR. 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 are 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 agree- ments, 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. Revised April 2005 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY Rore Environmental Science & Engineering (Corporation - signatures of two corporate officers) (Partnership - one signature) (Sole proprietorship - one signature) By: By: �--- Nick Inzunza, Mayor (Name) APPROVED AS TO FORM: CGu (Title) By: George H. Eiser, 111 (Name) City Attorney G F O % ��xti,•�' (Title) ENVIRONMENTAL SCIENCE & ENGINEERING 1640 Collingwood Drive • San Diego. California 92109-2239 • 858.483.8625 • Fax 858.483.4583 • www.roreinc.com September 28, 2005 Mr. Stephen Kirkpatrick City Engineer City of National City, Engineering Department 1243 National City Blvd. National City, CA 91950-4301 RE: Proposal to Conduct a Subsurface Site Assessment Per Requirements of the County of San Diego Department of Environmental Health (DEH) at 1200 National City Boulevard, City of National City (DEH File No. H32234-002) Dear Mr. Kirkpatrick: Per your request and based upon the required action measures requested by the County of San Diego DEH (letter dated September 13, 2005), RORE is pleased to submit the scope of work and cost proposal for work to be performed at the above -referenced site. BACKGROUND The site is located at 1200 National City Blvd., City of National City. It is currently occupied by the City of National City's Police Department. A 500-gallon diesel underground storage tank (UST) that was located by the driveway entrance to the Police Department was removed on August 2, 2005. The tank was empty when it was removed by ACE Excavating and Environmental Services, Inc. After removal, the area was backfilled with excavated soil, and paved with asphalt. RORE collected two soil samples from the area surrounding the UST, as directed by the County of San Diego DEH Inspector. The results from the soil analysis indicated a release of diesel. Following submission of laboratory data to DEH on August 25, 2005, a Notice of Responsibility dated September 13, 2005 was issued to the City of National City, from DEH that listed specific initial corrective action measures. These measures include: 1. Maintenance of the unauthorized release site in a manner that does not create public health, safety, and environmental hazards. 2. Removal of as much of the hazardous substance from the underground tank system as is necessary to prevent further release to the environment. 3. Investigation of the unauthorized release and prevention of further migration of the released substance into the environment. 4. Remedy of hazards posed by contaminated soils that are exposed or excavated as a result of release confirmation, site investigation, or abatement activities. 5. Submission of all available information relevant to the underground tank site and the unauthorized release, including the nature and estimated quantity of release, and current or potential off -site impacts on land uses, water wells/resources, subsurface utilities, etc. OBJECTIVES Based upon background information above, RORE's objectives are to: 1. Excavate the area, which contained the 500-gallon UST. 2. Remove the concrete base upon which the UST rested and export concrete off -site. 3. Excavate approximately ten cubic yards of apparent diesel -contaminated soil based upon the sample result and location within the area. 4. Stockpile contaminated soil on -site and cover with visqueen for subsequent loading. 5. Collect confirmatory soil samples to ensure that the site is devoid of contamination. If confirmatory soil samples do not meet the DEH threshold level for residual contamination, excavate additional diesel -contaminated soil and resample area for further confirmation. Please note that the excavation area will be fenced off and protected from public per county -approved traffic permit requirements. 6. Backfill and compact the excavated area with existing clean soil as deemed fit and/or'/4 rock fill material. 7. Haul and dispose of the excavated soil to the appropriate landfill, 8. Prepare a site closure report documenting all field activities and laboratory analyses. 9. Request a Site Closure Status from the DEH. PROPOSED SCOPE OF SERVICES To meet the objectives, RORE will execute the following tasks: Task 1-Project Management, including Meetings with Client Project Management includes two meetings with the client, one meeting with DEH, regular communication with client and sub -contractor, subcontractor management, schedule and coordination with contractor and client, project quality and cost control monitoring, and cost review and invoice generation. 2 The lump sum cost for project management, including labor, materials, travel, and expendables, is $1,990. Task 2-Site-Specific Health & Safety Plan and Work Plan to Excavate Soil RORE will prepare a Site -Specific Health & Safety Plan and a Work Plan to remove the contaminated soil as required by DEH. These plans will be prepared according to DEH Site Assessment and Mitigation (SAM) guidelines (2005) and submitted to DEH for approval prior to field activities. A Health and Safety Plan for field activity and field personnel at the site will be prepared. The plan will include potential physical and chemical hazards that may impact personnel during excavating, sampling, and hauling activities. The plan will also include appropriate protective equipment and emergency response procedures for the anticipated site -specific hazards. The Work Plan will summarize the specific tasks designed to achieve the objectives and will describe field activities, methodologies for sample collection, laboratory analyses required to test soil samples for contamination and for disposal at a landfill. The Lump sum cost for preparing the Plans, including labor, materials, travel, and expendables, is $2,750. Task 3-Excavation and Removal of Contaminated Soil Underground Service Alert will be notified as required by State law so that all public utilities are identified and marked. Safety barricades around the excavation site and a chain -link fence and storm water control measures will be implemented. The asphalt surface material will then be saw cut, demoed, and removed. A subcontractor, ACE Excavating and Environmental Services, Inc. will be used for these required services. It is estimated that 10 cubic yards of contaminated soil will be excavated. Excavated soil will be stockpiled and left inside the Police Department (just south of the wall) for no more than 72 hours, pending laboratory data. The lump sum cost for excavated and removal of contaminated soil, including equipment, labor, travel, and expendables is $9,350. If the excavated volume exceeds 10 cubic yards of soil, then an additional $3,300 may apply. Task 4-Soil Sampling, Testing, and Analyses Soil samples from the excavation site will be collected and submitted to a state -certified analytical mobile laboratory on -site. The reason for the mobile laboratory is so that analysis can be expedited and soil disposed of at the appropriate landfill as soon as possible. The excavation site is part of the public use; therefore any activity that will expedite site closure will minimize impact of potential hazards to the public. Soil 3 samples will be analyzed according to EPA Method 8015 for total petroleum hydrocarbons as diesel (TPH-d). RORE personnel will determine the exact number of samples on -site based upon the contaminated area. A mobile lab can handle up to 16 soil samples in a given day. Cost for a mobile lab is for analysis of up to 16 samples. For a total of sixteen samples, the lump sum cost for soil sampling and mobile laboratory analyses ($1,750) and site supervision for two days by RORE personnel is estimated at $1,850. In addition, RORE will collect representative backfill material and conduct a Standard Proctor Test and verify field compaction. The estimated cost for this activity, which includes labor for sample collection, testing, field observation for two days, is $2,200. Therefore, the lump sum cost for Task 4, including equipment, labor, analyses, and expendables, is $5,800. Task 5-Backflll and Disposal of Excavated Soil The excavated area will be backfilled and compacted with existing clean soil (as deemed fit) and/or'/< rock fill material. The cost for backfill is included as part of Task 3. The contaminated soil will be characterized and subsequently disposed off -site at a state - approved waste disposal landfill facility, depending upon soil sampling data. Based upon the estimate of 10 cubic yards of soil and landfill, the overall disposal cost could range between $1,500 and $3,000. Task 6-Site Closure Report RORE will prepare a detailed report that documents the field activities, soil sampling data, UST removal and disposal, and conclusions and recommendations for the work elements. The report will include site identification, site plan, sampling procedures, laboratory analytic reports, field work summary, waste manifests, conclusions and recommendations, and figures detailing UST site and soil sample locations. The estimated lump sum cost to prepare and submit two copies of the report, including labor, materials, and copying costs is $2,500. PROJECT ASSUMPTIONS 1. All corrective action measures will follow the corrective action procedures, guidelines, and engineering controls described in the County of San Diego SAM Manual. 2. The Underground Storage Tank Unauthorized Release Report was submitted to DEH by the Client, as requested by DEH. 3. Excavation conditions are normal. If excessive rock, concrete and/or rebar, sub flooring or foundations, high water table, perched water and/or free product, unknown 4 utility lines, structural footings, or caving of side walls are encountered, then additional costs may apply. 4. Following excavation removal, the area needs to be resurfaced with landscaping. 5. Soil sampling can be done in the excavations by sloping the sides back. 6. Excavated soil will be stockpiled on -site for no more than 72 hours, or until the soil analysis results are obtained, whichever is faster. 7. Work will be performed during normal business days and hours; additional charges may apply for work on weekends and holidays. 8. One copy of the final report will be submitted to the Client and one copy to the DEH. 9. This cost proposal includes no more than two meetings with client; each meeting is scheduled to last one hour. PROJECT SCHEDULE AND COST SUMMARY TASK NUMBER ACTIVITY TIME FOR COMPLETION ESTIMATED COST ($) 1 Project Management N/A 1,990 2 Site -Specific Health & Safety Plan, Work Plan 2 weeks 2,750 3 Excavation and Removal of Contaminated Soil (10 cubic yards) 1-2 days 9,350* 4 Soil Sampling, Testing, Analyses, Compaction Testing and Verification 2-3 days 5,800 5 Disposal 1-2 days 1,500** 6 Site Closure Report 2 weeks 2,500 TOTAL 23,890 * Estimate based upon volume of 10 cubic yards of excavation and removal ** Estimate based upon using San Diego landfill as the disposal site for contaminated soil If you have any questions regarding this proposal, please contact me at 858-483-8625, ext. 12. We look forward to hear from you, and we look forward to get this project site closed! As always, thanks so much! Sincerely, Gita Murthy, Ph.D. Project Director 5 ENVIRONMENTAL SCIENCE & ENGINEERING 1640 Collingwood Drive • San Diego, California 92109-2239 • 858.483.8625 • Fax 858.483.4583 • www.roreinc.com RORE, Inc. is a woman -owned emerging small business specializing in environmental science and engineering. Based in San Diego, CA, RORE is dedicated to providing outstanding customer service and quality in areas related to environmental engineering, assessment, restoration, hazardous and solid waste management, asbestos and lead -based paint assessments, innovative remediation technologies, health and safety, ergonomics, program management, construction management, and public outreach. RORE helps government and private sector clients achieve their goals and comply with environmental regulations by investigating, managing, mitigating, and resolving their environmental concerns. RORE personnel include qualified and experienced engineers, geologists, chemists, biologists, toxicologists, and risk assessors. These personnel are highly qualified to perform site assessments, feasibility studies, regulatory compliance, soil and groundwater remediation, hazardous waste management, health and safety training, and ergonomics training and workstation evaluations. RORE provides comprehensive environmental consulting to private and public sector clients. Services include site assessments, investigations, feasibility studies, and pilot tests, design of remediation systems, construction, operation and maintenance through case closure, and options for innovative and cost-effective remedial solutions. Other related services include: • Geotechnical and foundation engineering services • Civil and structural design and construction management • Underground storage tank (UST) testing and removal • Compliance of UST installation, operation and maintenance • Ground water resource studies • Asbestos and Lead -based paint Assessment • RCRA-permitting and Compliance -related work • Brownfields-related studies RORE has provided services all across the State of California ranging from Crescent City to National City. Our service areas can extend out to Nevada and Arizona as well! C2oQs--6-7 RESOLUTION 2005 — 245 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AWARDING A CONTRACT TO RORE ENVIRONMENTAL SCIENCE AND ENGINEERING, INC. IN THE AMOUNT OF $23,890, FOR PREPARING A SUBSURFACE SITE ASSESSMENT AND IMPLEMENTING REMEDIATION PER REQUIREMENTS OF THE COUNTY OF SAN DIEGO DEPARTMENT OF ENVIRONMENTAL HEALTH (DEH) AT THE POLICE STATION LOCATED AT 1200 NATIONAL CITY BOULEVARD WHEREAS, the underground diesel fuel tank located on the north side of the Police Station located at 1243 National City Boulevard was recently removed as required by the San Diego County Department of Environmental Health (DEH) because it did not meet current standards for underground fuel tanks. Specifically, it did not have secondary containment for the tank and associated piping; and WHEREAS, because soil testing of the area surrounding the tank at the time of removal revealed a diesel fuel discharge to the soil, the extent of which is unknown, the DEH requires the City to prepare a subsurface site assessment and implement appropriate remedial action; and WHEREAS, through the Request for Qualification process, the Community Development Commission of the City of National City (CDC) has contracted with RORE Environmental Science and Engineering, Inc. for on -call environmental consulting services; and WHEREAS, staff desires to piggy -back on CDC's selection process and award the contract to prepare a subsurface site assessment and implement appropriate remediation to RORE Environmental Science and Engineering, Inc.; and WHEREAS, pursuant to Section 12.60.220(D) of the National City Municipal Code, the Purchasing Agent may dispense with the requirements of the bidding process when the City Council determines that due to special circumstances, it is to the City's best interest to 'purchase a commodity or enter into a contract without compliance with the bidding procedure; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby finds that special circumstances exist and awards the contract to prepare a subsurface site assessment and implement remediation at the Police Station located at 1200 National City Boulevard, per requirements of the County of San Diego Department of Environmental Health to: RORE ENVIRONMENTAL SCIENCE AND ENGINEERING, INC. BE IT FURTHER RESOLVED by the City Council of the City of National City that the Mayor is hereby authorized to execute a contract between RORE Environmental Science and Engineering, Inc. and the City of National City to prepare a subsurface site assessment and implement remediation at the Police Station located at 1200 National City Boulevard, per requirements of the County of San Diego Department of Environmental Health. Said contract is on file in the office of the City Clerk. --- Signature Page to Follow --- Resolution No. 2005 — 245 November 15, 2005 Page 2 PASSED and ADOPTED this 15th day of November, 2005. Nick`ttzunza, Mayor ATTEST: 1 rV Mic ael R. Dalla City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney Passed and adopted by the Council of the City of National City, California, on November 15, 2005, by the following vote, to -wit: Ayes: Councilmembers, Morrison, Parra, Zarate. Nays: None. Absent: Inzunza, Natividad. Abstain: None. AUTHENTICATED BY: By: NICK INZUNZA Mayor of the City of National City, California A 4)1 City Clerk of the City o ational City, California Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2005-245 of the City of National City, California, passed and adopted by the Council of said City on November 15, 2005. City Clerk of the City of National City, California By: Deputy