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HomeMy WebLinkAbout2006 CON Tetra Tech - Engineering Inspection Highland Ave Phase 1AGREEMENT BY AND BETWEEN ENGINEERING lit. THE CITY OF NATIONAL CITY AND TETRA TECH INC. 2C0b JAN 23 A 2: I b THIS AGREEMENT is entered into this 7th day of February, 2006, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and Tetra Tech Engineering Inc. (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires to employ a CONTRACTOR to perform inspection services for the Highland Avenue Medians Phase I - 8th St. to 16th St. Improvements, Specification No. 05-05. WHEREAS, the CITY has determined that the CONTRACTOR is a firm specializing in inspection work, 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 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. Alberto Griego, Associate Engineer -Civil, 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 CONTRACTOR. Brad Nguyen, P. E., Project Manager 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 amounts described in the professional fees section of the attached 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. The length of this agreement shall be (180) one hundred and eighty working days from the date the agreement is entered. Therefore the final report shall be submitted no later than Thursday, October 26, 2006 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 documcnt(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 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. 2 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 terns 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 City of National City business license prior to and during performance of any work within the City. 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 3 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. 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 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 4 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 indemnify and hold harmless the City of National City, its officers, employees, and appointed volunteers against and from any and all liability, loss, defense cost, 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 acts, errors or omissions or other wrongful conduct 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. 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: VI 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 and annual aggregate, covering all bodily injury and property damage arising out of its operation under this Agreement. D. Workers' compensation insurance covering all of CONSULTANT's employees. 5 E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and appointed 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 ten (10) days if cancellation is for nonpayment of premiums. 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 Agreement. H. Any aggregate insurance limits must apply solely to this Agreement. 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. 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 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 and the amount of controversy does not exceed $25,000, 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 that does not exceed $25,000 and which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration 6 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. 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: 7 To the CITY: Stephen M. Kirkpatrick City Engineer City of National City 1243 National City Boulevard National City, CA 91950 To the CONTRACTOR: C. Howard Arnold Divisional Vice -President Tetra Tech Inc. 10815 Rancho Bernardo Rd. Ste. 200 San Diego, CA 92127 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 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. 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. 8 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 following Exhibits attached hereto are hereby incorporated herein by this reference for all purposes. ■ Exhibit A — Scope of Services and Fee Schedule 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. 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY By:ii Stephen . Kirkpat City En a neer APPROVED AS TO FORM: George H. Eiser, III City Attorney TETRA TECH ENGINEERING INC. (Two signatures required) By: By: (Name) (Title) (Title) 10 EXHIBIT "A" 11 TETRA TECH, INC. December 16, 2005 Mr. Albert Griego Engineering Department City of National City 1243 National City Boulevard National City, CA 91950 Reference: Proposal for Inspection Services for the Highland Avenue Medians Phase I — 8ta to 16th Street Improvements, Spec. No. 05-05 Dear Mr. Griego: Tetra Tech, Inc. is pleased to submit our proposal to provide inspection services for the Highland Avenue Medians Phase I Project. Tetra Tech's experience in providing inspection services for municipalities as well as previous experience with the City makes us well qualified for the project. Mr. Brad Nguyen will serve as Project Manager. He is a Registered Civil Engineer, and will be responsible of supervising the inspection services and the adequacy of the background and experience of the inspector. As Construction Inspector, we currently have many qualified candidates for the position. Mr. John Quenga may be available depending on the start date of the job and his availablity, but the City will have the opportunity to select one of many qualified inspectors provided by Tetra Tech for the job. The selected inspector will be responsible in performing the inspection services. Tetra Tech has performed previous inspection tasks for the City and is familiar with the City's inspection requirements and procedures. The following is a detailed Scope of Work that is based upon the City's anticipated need for this project: SCOPE OF WORK The inspection services shall be provided in accordance with the City of National City's construction administration procedures. Tetra Tech shall meet with the City staff and obtain the documents that need to be used during construction inspection. The proper forms shall be used for providing daily reports, payroll log sheets, interviews, etc. I0815 Rancho Bernardo Rd, i LI gyp. f A 9/i Tel 858,673.5505 F 6 3.41 www ce h.com TETRA TECH, INC. Mr. Albert Griego City of National City December 16, 2005 Page 2 The major inspection services can be outlined as follows: 1. Daily Construction Inspection shall be required for comprehensive compliance with the contract documents. 2. The Construction Inspector shall attend the pre -construction conference. 3. The construction inspection shall include the preparation of daily reports. The daily reports are to include a listing of the men and equipment on site and the work completed each day. The daily report shall follow the City's standard format. 4. Every Friday the Construction Inspector shall prepare summary report of work completed during the week. This report shall be in sufficient detail to allow comparison to Contractor's weekly submittal of required 15-day look ahead schedule. 5. The Construction Inspector will also assist the City's Project Manager as required to determine percentage of work completed for reconciling progress payments. Daily reports shall include all information necessary to determine quantity of work complete according to categories listed on bid sheet for items other than the construction work items. The work shall be compared against the required submittal of contractor's schedule of values breakdown. The inspector shall review and pre -approved the Contractor's progress estimates based on the completed work in the field prior to submittal of the invoices by the Contractor. The inspector shall complete the payroll employee log sheets based on the listing of the men worked on the job site daily. 6. Attendance at weekly meetings with the Contractor by the Construction Inspector will be required. The meetings will be held on the construction site. City representative will request to have random meetings during the construction period with the City regarding the payrolls and other items on the work progress. 7. The Construction Inspector performing the inspection services shall be under the supervision of a Registered Civil Engineer employed by Tetra Tech. The adequacy of the background and experience of the inspector to perform the inspection services as required will he the responsibility of the Registered Engineer. 8. The inspector will he required to direct project management type issues/inquiries to the City's Project Manager. EXHIBIT "A" Page 2 of 4 Tt TETRA TECH, INC. Mr. Albert Griego City of National City December 16, 2005 Page 3 FEE ESTIMATE We have attached our hourly fee estimate to complete these services similar to previous inspection services contract with the City. The fee estimate is based on a 180 calendar day construction contract. Tetra Tech will be providing the inspection on the median curbing and paving. The City will have a separate consultant to inspect the landscaping. Therefore, we estimate 800 hours (or 100 working days) for our part of the inspection. We are excited at the prospect of providing these services to the City of National City and look forward to continuing working with you on this most important project. Please contact me at (858) 673-5505 if you have any questions. Sincerely, Brad Nguyen, Project Manager EXHIBIT "A" Page 3 of 4 FEE PROPOSAL CITY OF NATIONAL CITY INSPECTION SERVICES FOR THE HIGHLAND AVENUE MEDIANS PHASE I - 8TH TO 16TH STREET IMPROVEMENTS SPEC. NO. 05-05 PREPARED BY: TETRA TECH, INC. DATE: December 16, 2005 PROJ MGR CONST INSP WORD PROC TOTAL LABOR HOURS TOTAL LABOR COSTS DIRECT COSTS TOTAL COST $150.00 $89.00 $60.00 INSPECTION SERVICES 1 Daily Construction Inspection (100 working days x 8hrs = 800 hrs) 800 800 $71,200 $1,500 $72,700 2 Pre Job Walk and Job Closeout (1 days prejob and 2 days jobcloseout) 16 24 40 $4,536 $4,536 3 RCE Supervision 24 12 36 $4,320 $4,320 SUBTOTAL 40 824 12 876 S80,056 S1,500 S81,556 TOTAL NOT TO EXCEED AMOUNT $81,556 -13 0 National City Highland Avenue Phase I Fee 1 RESOLUTION NO. 2006 - 14 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY ENGINEER TO EXECUTE AN AGREEMENT WITH TETRA TECH ENGINEERING, INC. TO PROVIDE ENGINEERING INSPECTION SERVICES IN THE NOT TO EXCEED AMOUNT OF $81,556 FOR THE HIGHLAND AVENUE MEDIANS PHASE I, 8TH STREET TO 16TH STREET IMPROVEMENT PROJECT WHEREAS, the City desires to employ a contractor to perform engineering inspection services for the Highland Avenue Medians Phasel, 8th Street to 16th Street Improvement Project; and WHEREAS, the Engineering Department has determined that Tetra Tech Engineering, Inc. is qualified by experience and ability to perform such services for the City, and is willing to perform such services in the not to exceed amount of $81,556; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that the Mayor is hereby authorized to execute an Agreement with Tetra Tech Engineering, Inc. to provide engineering inspection services for the Highland Avenue Medians Phase 1, 8th Street to 16th Street Improvement Project. Said Agreement is on file in the Office of the City Clerk. PASSED and ADOPTED this 7th day of February, 2006. Nick Inzunza, Mayor ATTEST: 11 Micaelj el R. Da la, Ci y 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 February 7, 2006, by the following vote, to -wit: Ayes: Councilmembers Inzunza, Morrison, Natividad, Parra, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: NICK INZUNZA Mayor of the City of National City, California City C erk of the City o National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2006-14 of the City of National City, California, passed and adopted by the Council of said City on February 7, 2006. City Clerk of the City of National City, California By: Deputy AEETING DATE City of National City, California COUNCIL AGENDA STATEMENT February 7, 2006 AGENDA ITEM NO. 10 / ITEM TITLE A resolution approving a Agreement with Tetra Tech Engineering, Inc. to provide the City with engineering inspection services in the "Not to Exceed" amount of $81,556 for the Highland Avenue Medians Phase I - 8th St. to 16th St. Improvements, Specification No. 05-05, and authorizing the City Engineer to execute the agreement. (Funding for this project is provided by the National City Community Development PREPARED BY Commission.) DEPARTMENT Alberto Griego Engineering 4386 EXPLANATION See attached Environmental Review Financial Statement X N/A This agreement is for a "Not to Exceed" amount of $81,556. Funding is available through Community Development Commission Account Number 900210. Wecount No. STAFF RECOMMENDATION fl� a Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION N/A ATTACHMENTS ( Listed Below) Resolution No. _()() 62 - / V 1. Resolution 3. Exhibit "A" proposal for Inspection Services 2. Proposed Supplemental Agreement A-200 (9/80) RE: A resolution approving a Supplemental Agreement with Tetra Tech Engineering, Inc. to provide the City with engineering inspection services in the "Not to Exceed" amount of $81,556 for the Highland Avenue Medians Phase I — 8th St. to 16th St. Improvements, Specification No. 05-05, and authorizing the City Engineer to execute the agreement. (Funding for this project is provided by the National City Community Development Commission.) On September 9, 2004 the City of National City issued a Request for Qualification seeking three Civil Engineering Consultants to perform Civil Engineering Services for the various Capital Improvement Projects. We received statements from eight qualified firms of which Tetra Tech was selected as one of the most qualified by experience and ability to perform the required services. On April 5, 2005 the City Council issued resolution No. 2005-64 authorizing the Mayor *to execute a multiyear contract with this company. On December 20, 2005, by resolution No. 2005-268, the City Council awarded a contract to Portillo Concrete, Inc. for the Highland Avenue Medians Phase I — 8th St. to 16th St. Improvements, Specification No. 05-05. Staff has considered that Tetra Tech Inc. can provide the inspection services for this project during construction.. Recently, Tetra Tech completed the inspection of the National City Street Resurfacing Program FY 03-04, Miscellaneous Concrete Improvements Project and the National City Blvd. 7th to 12th St. Improvements. Tetra Tech is familiar with the City's inspection requirements. The engineering services will include the daily general inspection activities. Based upon the staffs request, Tetra Tech has a proposed plan, outlined in Exhibit "A" of the supplemental agreement, to perform the required services. This scope of work is consistent with the City's inspection needs. The work can be accomplished through a Supplemental Agreement to the existing "As -needed" contract. The final scope of work is attached as part of the Supplemental Agreement that is being presented to the Council for approval. The fee for performing the work per the cost proposal is a "Not to Exceed" amount of $ 81,556. RESOLUTION NO. 2006 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY ENGINEER TO EXECUTE AN AGREEMENT WITH TETRA TECH ENGINEERING, INC. TO PROVIDE ENGINEERING INSPECTION SERVICES IN THE NOT TO EXCEED AMOUNT OF $81,556 FOR THE HIGHLAND AVENUE MEDIANS PHASE I, 8TH STREET TO 16TH STREET IMPROVEMENT PROJECT WHEREAS, the City desires to employ a contractor to perform engineering inspection services for the Highland Avenue Medians Phasel, 8th Street to 16th Street Improvement Project; and WHEREAS, the Engineering Department has determined that Tetra Tech Engineering, Inc. is qualified by experience and ability to perform such services for the City, and is willing to perform such services in the not to exceed amount of $81,556; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that the Mayor is hereby authorized to execute an Agreement with Tetra Tech Engineering, Inc. to provide engineering inspection services for the Highland Avenue Medians Phase I, 8th Street to 16th Street Improvement Project. Said Agreement is on file in the Office of the City Clerk. PASSED and ADOPTED this 7th day of February, 2006. 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 TETRA TECH INC. THIS AGREEMENT is entered into this 7th day of February, 2006, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and Tetra Tech Engineering Inc. (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires to employ a CONTRACTOR to perform inspection services for the Highland Avenue Medians Phase I — 8th St. to 16th St. Improvements, Specification No. 05-05. WHEREAS, the CITY has determined that the CONTRACTOR is a firm specializing in inspection work, 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 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. Alberto Griego, Associate Engineer -Civil, 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 CONTRACTOR. Brad Nguyen, P. E., Project Manager 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 amounts described in the professional fees section of the attached 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. The length of this agreement shall be (180) one hundred and eighty working days from the date the agreement is entered. Therefore the final report shall be submitted no later than Thursday, October 26, 2006 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 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. 2 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, arid 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 City of National City business license prior to and during performance of any work within the City. 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 3 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. 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 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 4 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 indemnify and hold harmless the City of National City, its officers, employees, and appointed volunteers against and from any and all liability, loss, defense cost, 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 acts, errors or omissions or other wrongful conduct 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. 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: M 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 and annual aggregate, covering all bodily injury and property damage arising out of its operation under this Agreement. 5 employees. D. Workers' compensation insurance covering all of CONSULTANT's E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and appointed 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 ten (10) days if cancellation is for nonpayment of premiums. 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 Agreement. H. Any aggregate insurance limits must apply solely to this Agreement. 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. 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 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 and the amount of controversy does not exceed $25,000, 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 6 breach thereof that does not exceed $25,000 and 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 Agr''eement 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. 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, 7 request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To the CITY: Stephen M. Kirkpatrick City Engineer City of National City 1243 National City Boulevard National City, CA 91950 To the CONTRACTOR: Jim Jaska President Tetra Tech Inc. 10815 Rancho Bernardo Rd. Ste. 200 San Diego, CA 92127 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 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. 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. 8 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 following Exhibits attached hereto are hereby incorporated herein by this reference for all purposes. ■ Exhibit A — Scope of Services and Fee Schedule 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. 1. 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. 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY TETRA TECH ENGINEERING INC. (Two signatures required) By: By: Stephen M. Kirkpatrick, (Name) City Engineer APPROVED AS TO FORM: By: George H. Eiser, III City Attorney (Title) (Title) (Name) 1.4 10 EXHIBIT "A" 11 TETRA TECH, INC. December 16, 2005 Mr. Albert Griego Engineering Department City of National City 1243 National City Boulevard National City, CA 91950 Reference: Proposal for Inspection Services for the Highland Avenue Medians Phase I — 8"' to 16th Street Improvements, Spec. No. 05-05 Dear Mr. Griego: Tetra Tech, Inc. is pleased to submit our proposal to provide inspection services for the Highland Avenue Medians Phase I Project. Tetra Tech's experience in providing inspection services for municipalities as well as previous experience with the City makes us well qualified for the project. Mr. Brad Nguyen will serve as Project Manager. He is a Registered Civil Engineer, and will be responsible of supervising the inspection services and the adequacy of the background and experience of the inspector. As Construction Inspector, we currently have many qualified candidates for the position. Mr. John Quenga may be available depending on the start date of the job and his availablity, but the City will have the opportunity to select one of many qualified inspectors provided by Tetra Tech for the job. The selected inspector will be responsible in performing the inspection services. Tetra Tech has performed previous inspection tasks for the City and is familiar with the City's inspection requirements and procedures. The following is a detailed Scope of Work that is based upon the City's anticipated need for this project: SCOPE OF WORK The inspection services shall be provided in accordance with the City of National City's construction administration procedures. Tetra Tech shall meet with the City staff and obtain the documents that need to be used during construction inspection. The proper forms shall be used for providing daily reports, payroll log sheets, interviews, etc. 10815 Rancho Bernardo Road, Suite 200, San Diego, CA 92127 Tel 858.673.5505 Fax 858.673.1610 www.tetratech.com TETRA TECH, INC. Mr. Albert Griego City of National City December 16, 2005 Page 2 The major inspection services can be outlined as follows: 1. Daily Construction Inspection shall be required for comprehensive compliance with the contract documents. 2. The Construction Inspector shall attend the pre -construction conference. 3. The construction inspection shall include the preparation of daily reports. The daily reports are to include a listing of the men and equipment on site and the work completed each day. The daily report shall follow the City's standard format. 4. Every Friday the Construction Inspector shall prepare summary report of work completed during the week. This report shall be in sufficient detail to allow comparison to Contractor's weekly submittal of required 15-day look ahead schedule. 5. The Construction Inspector will also assist the City's Project Manager as required to determine percentage of work completed for reconciling progress payments. Daily reports shall include all information necessary to determine quantity of work complete according to categories listed on bid sheet for items other than the construction work items. The work shall be compared against the required submittal of contractor's schedule of values breakdown. The inspector shall review and pre -approved the Contractor's progress estimates based on the completed work in the field prior to submittal of the invoices by the Contractor. The inspector shall complete the payroll employee log sheets based on the listing of the men worked on the job site daily. 6. Attendance at weekly meetings with the Contractor by the Construction Inspector will be required. The meetings will be held on the construction site. City representative will request to have random meetings during the construction period with the City regarding the payrolls and other items on the work progress. 7. The Construction Inspector performing the inspection services shall be under the supervision of a Registered Civil Engineer employed by Tetra Tech. The adequacy of the background and experience of the inspector to perform the inspection services as required will be the responsibility of the Registered Engineer. 8. The inspector will be required to direct project management type issues/inquiries to the City's Project Manager. TETRA TECH, INC. Mr. Albert Griego City of National City December 16, 2005 Page 3 FEE ESTIMATE We have attached our hourly fee estimate to complete these services similar to previous inspection services contract with the City. The fee estimate is based on a 180 calendar day construction contract. Tetra Tech will be providing the inspection on the median curbing and paving. The City will have a separate consultant to inspect the landscaping. Therefore, we estimate 800 hours (or 100 working days) for our part of the inspection. We are excited at the prospect of providing these services to the City of National City and look forward to continuing working with you on this most important project. Please contact me at (858) 673-5505 if you have any questions. Sincerely, Brad Nguyen,`)} Project Manager FEE PROPOSAL CITY OF NATIONAL CITY INSPECTION SERVICES FOR THE HIGHLAND AVENUE MEDIANS PHASE I - 8TH TO 16TH STREET IMPROVEMENTS SPEC. NO. 05-05 PREPARED BY: TETRA TECH, INC. DATE: December 16, 2005 PROJ MGR CONST INSP WORD PROC TOTAL LABOR HOURS TOTAL LABOR COSTS DIRECT COSTS TOTAL COST $150.00 $89.00 $60.00 INSPECTION SERVICES 1 Daily Construction Inspection (100 working days x 8hrs = 800 hrs) 800 800 $71,200 $1,500 $72,700 2 Pre Job Walk and Job Closeout (1 days prejob and 2 days jobcloseout) 16 24 40 $4,536 $4,536 3 RCE Supervision 24 12 36 $4,320 $4,320 SUBTOTAL 40 824 12 876 $80,056 $1,500 $81,556 TOTAL NOT TO EXCEED AMOUNT $81,556 National City Highland Avenue Phase I Fee 1 12/16/2005 City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 April 26, 2006 C. Howard Arnold Divisional Vice President Tetra Tech Engineering Inc. 10815 Rancho Bernardo Rd. Suite 200 San Diego, CA 92127 Project: National City — Highland Avenue Medians Phase I — 8th Street to 16th Street improvements, Resolution No. 2006-14. Dear Mr. Arnold: On February 7, 2006, the City Council of the City of National City passed and adopted Resolution No. 2006 - 14, awarding a contract in the amount of $81,556 to Tetra Tech Engineering, Inc. We are pleased to enclose one fully executed original contract and one certified copy of the Resolution for your records. Should you have any questions, please contact Mr. Stephen Kirkpatrick, City Engineer at (619) 336-4380. Michael R. Dalla City Clerk MRD Enclosure cc: Engineering File C2006-3 ® Recycled Paper ENTRY LICENSE AND INDEMNITY AGREEMENT THIS ENTRY LICENSE AND INDEMNITY AGREEMENT (the "Agreement") is made and entered into effective as of the 14th day of November, 2006, by and between the PARKING AUTHORITY OF THE CITY OF NATIONAL CITY ("LICENSOR") and Plaza Bonita II LP, a Delaware limited partnership ("LICENSEE"). RECITALS A. LICENSOR is the owner of that certain real property (the "Property") located in the City of National City, County of San Diego, State of California, as shown on the attached Exhibit "A", and as described in the attached Exhibit `B", which are incorporated herein by reference. B. LICENSF.F is the owner of a certain parcel of land at the Westfield Plaza Bonita. C. LICENSEE intends to perform grading operations on the Property after obtaining LICENSOR'S permission to do so, as part of the enlarged parking lot for the expansion of the Westfield Plaza Bonita. D. LICENSOR and LICENSEE are in the process of negotiating a long-term lease of the Property or purchase of the Property. E. LICENSOR is willing to grant a license to LICENSEE to enter upon the Property to perform grading activities. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: AGREEMENT 1. Grant of License. LICENSOR hereby grants to LICENSF.F (and LICENSF.F'S agents, employees, contractors and subcontractors) a revocable license to enter upon the Property for the purpose of performing grading activities provided (i) LICENSF.F provides LICENSOR one (1) Business Day or more prior notice before entering upon the Property, (ii) that in conducting all such activities, LICENSEE complies with all applicable laws and regulations and obtains and maintains the insurance coverage set forth in Section 2 below, (iii) prior to entering the Property, LICENSEE shall disclose to the City Engineer of the City of National City the extent and specific location of LICENSEE'S activities, and obtain the written consent of the City Engineer to engage in such activities, and (iv) prior to entering the Property, LICENSEE shall obtain a grading permit and all other required permits and approvals from the City of National City. 1 Entry License and Indemnity Agreement Parking Authority of the City of National City 2. Indemnity and Insurance. a. Disclaimer of Liability. LICENSOR shall not at any time be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of LICENSEE' s construction, maintenance, repair, use, operation, condition or dismantling of the Property ("LICENSEE'S WORK") except to the extent caused by LICENSOR' s negligence or willful misconduct. b. Indemnification. LICENSEE shall, at its sole cost and expense, defend, indemnify and hold harmless LICENSOR and its officials, boards, commissions, employees and agents (hereinafter referred to as "indemnitees"), from and against: i. Any and all liability, obligation, damages, penalties claims, lien, costs, charges, losses and expenses including without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants, which may arise out of or be in any way connected with LICENSEE'S WORK or LICENSFE's failure to comply with any federal, sate or local statute, ordinance or regulation. ii. LICENSEE's obligations to indemnify indemnitees under this Agreement shall not extend to claims, losses, and other matters covered hereunder to the extent such claims arise out of the negligence or willful misconduct of one of more indemnitees. c. Assumption of Risk. LICENSEE undertakes and assumes for its officers, agents, affiliates, contractors and subcontractors and employees (collectively "LICENSEF" for the purpose of this section), all risks of dangerous conditions, if any, on or about the Property, and LICENSEE hereby agrees to indemnify and hold harmless LICENSOR against and from any claim asserted or liability imposed upon the Indemnitees for personal injury or property damage to any person (other than from Indemnitee's gross negligence or willful misconduct) arising out of LICENSEE's WORK, or LICENSEE's failure to comply with any federal, state or local statute, ordinance or regulation. d. Defense of LICENSOR. In the event any action or proceeding shall be brought against LICENSOR by reason of any matter for which LICENSOR is indemnified hereunder, LICENSEE shall, upon notice from LICENSOR, at LICENSEE's sole cost and expense, resist and defend the same; provided however, that LICENSEE shall not admit liability in any such matter on behalf of LICENSOR without written consent of LICENSOR and provided further that LICENSOR shall not admit liability for, nor enter into any compromise or settlement of, any claim for which it is indemnified hereunder, without the prior written consent of LICENSF.F. e. Notice, Cooperation and Expenses. LICENSOR shall give LICENSEE prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this paragraph. Nothing herein shall be deemed to prevent LICENSOR from cooperating with LICENSEE and participating in the defense of any litigation by LICENSOR's own counsel. 2 Entry License and Indemnity Agreement Parking Authority of the City of National City f. Insurance. During the term of the Agreement, LICENSEE shall maintain, or cause to be maintained, in full force and affect and at its sole cost and expense, the following types and limits of insurance: i. Worker's compensation insurance meeting applicable statutory requirements. ii.. Comprehensive commercial general liability insurance with minimum limits of Two Million Dollars ($2,000,000) as the combined single limit for each occurrence of bodily injury, personal injury and property damage. The policy shall provide blanket contractual liability insurance for all written contracts, and shall include coverage for products and completed operations liability, independent contractor's liability; coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage. iii. Automobile liability insurance covering all owned, hired, and non - owned vehicles in use by LICENSEE, its employees and agents, with personal protection insurance and property protection insurance to comply with the provisions of state law with minimum limits of Two Million Dollars ($2,000,000) as the combined single limit for each occurrence for bodily injury and property damage. iv. At the start of and during the period of any construction, builders all-risk insurance, together with an installation floater or equivalent property coverage covering cables, materials, machinery and supplies of any nature whatsoever which are to be used in or incidental to the installation of improvements. v. All policies other than for Worker's Compensation shall be written on an occurrence and not on claims made basis. vi. The coverage amounts set forth above may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. vii. LICENSEE shall furnish certificates of insurance to LICENSOR before LICENSEE enters the Property. g. Named Insureds. All policies, except for worker's compensation policies, shall name LICENSOR and its officials, boards, commissions, employees, agents and contractors, as their respective interests may appear, as additional insureds (herein referred to as the "Additional Insureds"). h. Evidence of Insurance. Certificates of Insurance of each insurance policy required to be obtained by LICENSF.F in compliance with this paragraph, along with written evidence of payment of required premiums shall be filled and maintained with LICENSOR annually during the term of the Agreement. LICENSEE shall 3 Entry License and Indemnity Agreement Parking Authority of the City of National City immediately advise LICENSOR of any claim or litigation that may result in liability to LICENSOR. i. Cancellation of Policies of Insurance. All insurance policies maintained pursuant to this Agreement shall contain the following endorsement: "At least thirty (30) days' prior written notice shall be given to Licensor by the insurer of any intention not to renew such policy or to cancel, replace or materially alter same, such notice to be given by registered mail to the parties named in this paragraph of the Agreement." j. Insurance Companies. All insurance shall be affected under valid and enforceable policies, insured by insurers licenses to do business by the State of California or surplus carriers on the State of California Insurance Commissioner's approval list of companies qualified to do business in the State of California. All insurance carriers and surplus line carriers shall be rated A+ or better by A.M. Best Company, or as otherwise approved by LICENSOR's Risk Manager. k. Deductibles. All insurance policies may be written with deductibles, not to exceed $50,000 unless approved in advance by LICENSOR. LICENSEE agrees to indemnify and save harmless LICENSOR, the indemnitees and Additional Insureds from and against the payment deductible and from the payment of any premium on any insurance policy required to be furnished by the Agreement. 1. Contractors. LICENSEE shall require that each and every one of its contractors and their subcontractors who perform work on the Property to carry, in full force and effect, workers' compensation, comprehensive commercial general liability and automobile liability insurance coverages of the type which LICENSEE is required to obtain under the terms of this paragraph with appropriate limits of insurance. m. Review of Limits. Once during each calendar year during the term of this Agreement or any renewal thereof, LICENSOR may review the insurance coverages to be carried by LICENSEE. If LICENSOR determines that higher limits of coverage are necessary to protect the interests of LICENSOR or the Additional Insureds, LICENSEF shall be so notified and shall obtain the additional limits of insurance at its sole cost and expense. 3. Utilities and Services. LICENSEE shall pay direct to the public utility company providing all services and utilities provided to the Property and separately metered or sub - metered, including without limitation, water, electricity, gas, sewer service and telephone service. 4. Taxes. LICENSEE recognizes and understands that this Agreement may create a possesory interest subject to property taxation and that LICENSEE may be subject to the payment of property taxes levied on such interest. LICENSEE further agrees to pay any and all property taxes, if any, assessed during the term of this Agreement pursuant to Section 107 and 4 Entry License and Indemnity Agreement Parking Authority of the City of National City 107.1 of the Revenue and Taxation Code against LICENSEE's possesory interest in the Agreement. 5, 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. 6. Notices. All notices required hereunder shall be in writing, and shall be delivered as follows: with a copy to: To LICENSOR: Stephen Kirkpatrick City Engineer City of National City 1243 National City Boulevard National City, California 91950-4301 To LICENSEE: c/o Westfield, LLC 11601 Wilshire Boulevard, 12th Fl. Los Angeles, California 90025 Attention: Vice President Development — Plaza Bonita Westfield, LLC 11601 Wilshire Boulevard, 12th Fl. Los Angeles, California 90025 Attention: Office of Legal Counsel 7. Attorneys' Fees. In the event that any party hereto institutes an action or proceeding for a declaration of the rights of the parties under this Agreement, for injunctive relief, for an alleged breach or default of, or any other action arising out of this Agreement, or the transactions contemplated hereby, or in the event any party is in default of its obligations pursuant thereto, whether or not suit is filed or prosecuted to final judgment, the non -defaulting party or prevailing party shall be entitled to its actual attorneys' fees and to any court costs incurred, in addition to any other damages or relief awarded. 5 Entry License and Indemnity Agreement Parking Authority of the City of National City 8. Binding on Successors. The terms and conditions herein contained shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties hereto. 9. Applicable Law. This Agreement shall be construed in accordance with the laws of the State of California. 10. Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect and shall in no way be impaired or invalidated, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent of the invalid or unenforceable provision. 11. Entire Agreement. This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof and cannot be amended or modified except by a written agreement, executed by each of the parties hereto. 12. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall, for pall purposes, be deemed an original and all such counterparts, taken together, shall constitute one of the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above. PARKING AUTHORITY OF THE Plaza Bonita II LP, a Delaware limited CITY OF NATIONAL CITY(LICENSOR) partnership Chris Zapata, Exec i ''rector APPROVED AS TO FORM: George H. Eiser, III, City Attorney By: Plaza Bonita GP LLC, a Delaware limited liability company, its general partner By: Westfield America Limited Partnership, a Delaware limited partnership, its sole member By: Westfield U.S. Holdings, LLC, a Delaware limited limb' y company, its general By: Name. Title: By: Rory A. packer Assi Title: (LICENSEE) 6 Entry License and Indemnity Agreement Parking Authority of the City of National City APN# 570-020-46 EXHIBIT B All that certain real property situated in the County of San Diego, State of California, described as follows: All that portion of Lot 10 of L. W. Kimball's Subdivision of parts of Quarter Sections 98, 99, 110 and 111 of National Ranch, in the City of National City, County of San Diego, State of California, according to Map thereof No. 63, and described in Deed to said County of San Diego recorded July 29, 1976 as File/Page No. 76-240241 in the Office of the County Recorder of said County, described as follows: Beginning at a point on the Northerly line of said Lot 10, said point being 20.00 feet Westerly, measured at right angles, of the centerline of the National City and Otay Railway (also known as the San Diego and Arizona Eastern Railway) right of way; Thence, along said Northerly line of Lot 10, South 71° 42' 30" West, 159.51 feet to the Northeasterly sideline of Plaza Bonita Road as dedicated by the San Diego County Board of Supervisors by Resolution dated March 19, 1985, Item No. 44, on file in the Office of the Clerk of said Board of Supervisors; Thence along said Northeasterly sideline, South 52° 56' 46" East, 353.29 feet to the Southwesterly sideline of said railway right of way; Thence along said Southwesterly sideline, North 26° 23' 42" West, 293.59 feet to the point of beginning. APN# 570-020-47 EXHIBIT B AM that certain real property situated in the County of San Diego, State of California, described as follows: All that portion of Lot 10 of L. W. Kimball's Subdivision of Parts of Quarter Sections 98, 99, 110 and 111 of Rancho De La Nacion, in the County of San Diego, State of California, according to Map thereof No. 63, filed in the Office of the County Recorder of said San Diego County, May 11, 1885, conveyed by deed from the San Diego and Arizona Railway Company, a Corporation, to A. B. Titus and recorded June 6, 1922 in Book 882, Page 406 of Deeds, filed in the Office of the County Recorder of San Diego County, and described as follows: That certain parcel of land located in the former railway right of way of the San Diego and South Eastern Railway Company, in the County of San Diego, State of California, described as follows: A strip of land 40 feet in width being 20 feet on each side of the center line of Tract of the former San Diego and Southeastern Railway Company's Sweetwater Branch, lying across the West 510 feet of Southeast Quarter of Quarter Section 110 of the Rancho De La Nacion, in the County of San Diego, State of California, according to map thereof by Morrill, filed in the Office of the County Recorder of said County, said strip of land being particularly described by a line running as follows: Commencing at a point on the North line of the Southeast Quarter of said Quarter Section 110, 993.82 feet from the Northeast corner thereof. Said point being also known as Engineer's Survey Station 66 plus 86.87 of said former center line of Tract. Thence South 71° 47' West along said North line 20.2 feet; Thence South 26° 24' East 459.6 feet; Thence on a curve concave to the left with a radius of 593.69 feet and tangent to the last described course a distance of 339.1 feet; Thence North 18° 14' West, 31.3 feet to a point known as Engineer Survey Station 74 plus 47.18 of said former center line of Tract; Thence continuing North 18° 14' West 33.1 feet; Thence on a curve concave to the right with a radius of 553.69 feet, and tangent to a line which bears North 54° 05" West 453.8 feet to a point on the North line of said Southeast Quarter; Thence South 71° 47' West 20.2 feet to the point of commencement. Excepting therefrom that portion conveyed to the County of San Diego by Grant Deed recorded April 24, 1981 as File no 1981-131523 of Official Records.