HomeMy WebLinkAbout2009 CON Ninyo & Moore - Materials Testing Services Capital Improvement ProjectsAGREEMENT
BY AND BETWEEN
THE CITY OF NATIONAL CITY
AND
NINYO & MOORE
THIS AGREEMENT is entered into this 20`h day of October, 2009, by and
between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and Ninyo &
Moore, (the CONSULTANT).
RECITALS
WHEREAS, the CITY desires to employ a CONSULTANT to provide
geotechnical materials testing services for city projects.
WHEREAS, the CITY has determined that the CONSULTANT is a materials
testing firm and is qualified by experience and ability to perform the services desired by the
CITY, and the CONSULTANT is willing to perform such services.
NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS
FOLLOWS:
1. ENGAGEMENT OF CONSULTANT. The CITY hereby agrees to engage
the CONSULTANT and the CONSULTANT hereby agrees to perform the services hereinafter
set forth in accordance with all terms and conditions contained herein.
The CONSULTANT represents that all services required hereunder will be
performed directly by the CONSULTANT or under direct supervision of the CONSULTANT.
2. SCOPE OF SERVICES. The CONSULTANT will perform services on an
on -call basis. The scope of work will be defined for each project in accords with Exhibit A.
The CONSULTANT 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 CITY may unilaterally, or upon request from the CONSULTANT, from time to time
reduce or increase the Scope of Services to be performed by the CONSULTANT under this
Agreement. Upon doing so, the CITY and the CONSULTANT 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 5% from the base amount.
3. PROJECT COORDINATION AND SUPERVISION.
Barbara Tipton hereby is designated as the Project Coordinator for the CITY and
will monitor the progress and execution of this Agreement. The CONSULTANT shall assign a
single Project Director to provide supervision and have overall responsibility for the progress
and execution of this Agreement for the CONSULTANT. Jeffrey Kent, P.E., G.E., thereby is
designated as the Project Director for the CONSULTANT.
4. COMPENSATION AND PAYMENT. The compensation for the
CONSULTANT shall be based on actual work requested and performed, not -to -exceed
$150,000.00. 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 CONSULTANT 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 fumishing of copies to the CITY, if requested.
5. ACCEPTABILITY OF WORK. The City shall decide any and all
questions which may arise as to the quality or acceptability of the services performed and the
manner of performance, the acceptable completion of this Agreement and the amount of
compensation due. In the event the CONSULTANT and the City cannot agree to the quality or
acceptability of the work, the manner of performance and/or the compensation payable to the
CONSULTANT in this Agreement, the City or the CONSULTANT shall give to the other written
notice. Within ten (10) business days, the CONSULTANT and the City shall each prepare a
report which supports their position and file the same with the other party. The City shall, with
reasonable diligence, determine the quality or acceptability of the work, the manner of
performance and/or the compensation payable to the CONSULTANT.
6. LENGTH OF AGREEMENT. Work to begin upon receipt of signed
agreement from the CITY and terminates on October 6, 2010.
7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda,
Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the
CONSULTANT 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 CONSULTANT hereby
assigns to the CITY and CONSULTANT 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 CONSULTANT shall,
upon request of the CITY, execute any further document(s) necessary to further effectuate this
waiver and disclaimer.
The CONSULTANT agrees that the CITY may use, reuse, alter, reproduce,
modify, assign, transfer, or in any other way, medium or method utilize the CONSULTANT' s
written work product for the CITY' s purposes, and the CONSULTANT expressly waives and
disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to
intellectual property and artistic works.
Any modification or reuse by the CITY of documents, drawings or specifications
prepared by the CONSULTANT shall relieve the CONSULTANT 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.
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Clty's Standard Agreement - June 2008 revision
8. INDEPENDENT CONSULTANT. 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 CONSULTANT nor the
CONSULTANT'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 CONSULTANT and
the CONSULTANT'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 CONSULTANT and its employees. Neither this Agreement nor any
interest herein may be assigned by the CONSULTANT without the prior written consent of the
CITY. Nothing herein contained is intended to prevent the CONSULTANT from employing or
hiring as many employees, or subCONSULTANTs, as the CONSULTANT
may deem necessary for the proper and efficient performance of this Agreement. All
agreements by CONSULTANT with its SUBCONSULTANT(s) shall require the
subCONSULTANT to adhere to the applicable terms of this Agreement.
9. CONTROL. Neither the CITY nor its officers, agents or employees shall
have any control over the conduct of the CONSULTANT or any of the CONSULTANT's
employees except as herein set forth, and the CONSULTANT expressly agrees not to represent
that the CONSULTANT or the CONSULTANT's agents, servants, or employees are in any
manner agents, servants or employees of the CITY, it being understood that the
CONSULTANT, its agents, servants, and employees are as to the CITY wholly independent
CONSULTANTs and that the CONSULTANT's obligations to the CITY are solely such as are
prescribed by this Agreement.
10. COMPLIANCE WITH APPLICABLE LAW. The CONSULTANT, 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 CONSULTANT, and each
of its subCONSULTANTs, shall obtain and maintain a current City of National City business
license prior to and during performance of any work pursuant to this Agreement.
11. LICENSES, PERMITS. ETC. The CONSULTANT represents and
covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that
are legally required to practice its profession. The CONSULTANT represents and covenants
that the CONSULTANT shall, at its sole cost and expense, keep in effect at all times during the
term of this Agreement, any license, permit, or approval which is legally required for the
CONSULTANT to practice its profession.
12. STANDARD OF CARE.
A. The CONSULTANT, 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 CONSULTANT'S trade or profession currently practicing under
similar conditions and in similar locations. The CONSULTANT shall take all special precautions
necessary to protect the CONSULTANT's employees and members of the public from risk of
harm arising out of the nature of the work and/or the conditions of the work site.
B. Unless disclosed in writing prior to the date of this agreement, the
CONSULTANT warrants to the CITY that it is not now, nor has it for the five (5) years preceding,
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C.y's Standard Agreement - June 2008 reels on
been debarred by a governmental agency or involved in debarment, arbitration or litigation
proceedings concerning the CONSULTANT's professional performance or the furnishing of
materials or services relating thereto.
C. The CONSULTANT is responsible for identifying any unique
products, treatments, processes or materials whose availability is critical to the success of the
project the CONSULTANT 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 CONSULTANT has notified the CITY otherwise, the CONSULTANT 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 CONSULTANT to use due
diligence under this sub -paragraph will render the CONSULTANT 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.
13. NON-DISCRIMINATION PROVISIONS. The CONSULTANT 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 CONSULTANT 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 CONSULTANT 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.
14. CONFIDENTIAL INFORMATION. The CITY may from time to time
communicate to the CONSULTANT certain confidential information to enable the
CONSULTANT to effectively perform the services to be provided herein. The CONSULTANT
shall treat all such information as confidential and shall not disclose any part thereof without the
prior written consent of the CITY. The CONSULTANT 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 CONSULTANT, hereafter disclosed in publicly available sources of
information; (iii) is already in the possession of the CONSULTANT without any obligation of
confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONSULTANT 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 CONSULTANT 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
CONSULTANT 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.
CONSULTANT shall be liable to CITY for any damages caused by breach of this
condition, pursuant to the provisions of Section 14.
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City's Standard Agreement — June 2008 revision
15. INDEMNIFICATION AND HOLD HARMLESS. The CONSULTANT
agrees to defend, indemnify, and hold harmless the City of National City, its officers and
employees, against and from any and all liability, Toss, damages to property, injuries to, or death
of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable
attomeys' 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 CONSULTANT's
negligent performance of this Agreement.
16. WORKERS' COMPENSATION. The CONSULTANT 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 attomey'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 CONSULTANT under this Agreement.
17. INSURANCE. The CONSULTANT, at its sole cost and expense, shall
purchase and maintain, and shall require its SUBCONSULTANTS, when applicable, to
purchase and maintain throughout the term of this agreement, the following insurance policies:
® A. If checked, Professional Liability Insurance (errors and omissions) with
minimum limits of $1,000,000 per occurrence.
B. Automobile insurance covering all bodily injury and property damage
incurred during the performance of this Agreement, with a minimum coverage of $1,000,000
combined single limit per accident. Such automobile insurance shall include owned, non -owned,
and hired vehicles ("any auto").
C. Commercial general liability insurance, with minimum limits of $1,000,000
per occurrence/$2,000,000 aggregate, covering all bodily injury and property damage arising
out of its operations under this Agreement.
D. Workers' compensation insurance in an amount sufficient to meet
statutory requirements covering all of CONSULTANT'S employees and employers' liability
insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be
endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided
prior to commencement of work under this Agreement.
E. The aforesaid policies shall constitute primary insurance as to the CITY,
its officers, employees, and volunteers, so that any other policies held by the CITY shall not
contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior
written notice to the CITY of cancellation or material change.
F. Said policies, except for the professional liability and workers'
compensation policies, shall name the CITY and its officers, agents and employees as
additional insureds, and separate additional insured endorsements shall be provided.
G. If required insurance coverage is provided on a "claims made" rather than
"occurrence" form, the CONSULTANT shall maintain such insurance coverage for three years
after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date
must be on or before the date of this Agreement.
H. Any aggregate insurance limits must apply solely to this Agreement.
Insurance shall be written with only Califomia 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
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Cdy's Standard Agreerrert — June 2008 revision
approved by the City's Risk Manager. In the event coverage is provided by non -admitted
"surplus lines" carriers, they must be included on the most recent Califomia List of Eligible
Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements.
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 CONSULTANT 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.
K. All deductibles and self -insured retentions in excess of S10,000 muss be
disclosed to and approved by the CITY.
18. 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 ertitled 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 judgment or award. Attorney's fees to the
prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's
fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual
amount of attorney's fees incurred by the prevailing party.
19. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this
Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute
by mediation in San Diego, Califomia, in accordance with the Commercial Mediation Rules of
the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of
mediation shall be borne equally by the parties. Any controversy or claim arising out of, or
relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be
settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration
Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the
parties, and a judgment thereon may be entered in any court having jurisdiction over the subject
matter of the controversy. The expenses of the arbitration shall be bome equally by the parties
to the arbitration, provided that each party shall pay for and bear the costs of its own experts,
evidence and attomeys' fees, except that the arbitrator may assess such expenses or any part
thereof against a specified party as part of the arbitration award.
20. 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 CONSULTANT. During said 60-day period the CONSULTANT 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
CONSULTANT 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 CONSULTANT as provided for herein.
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City's Standare Ageement — June 2303 revision
D. In the event of termination, all finished or unfinished Memoranda Reports,
Maps, Drawings, Plans, Specifications and other documents prepared by the CONSULTANT,
whether paper or electronic, shall immediately become the property of and be delivered to the
CITY, and the CONSULTANT 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 CONSULTANT'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 CONSULTANT; (2) a
reorganization of the CONSULTANT for the benefit of creditors; or (3) a business
reorganization, change in business name or change in business status of the CONSULTANT.
21. 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 ovemight mall, the business day following its deposit in such ovemight
mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if
the address is outside the State of California) after the date of deposit in a post office, mailbox,
mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if
given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or
(v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand,
direction or other communication delivered or sent as specified above shall be directed to the
following persons:
To CITY:
To CONSULTANT:
City of National City
Maryam Babaki, Director of Development Services
1243 National City Blvd
National City, CA 91950
Ninyo & Moore
Attn: Jeffrey Kent, P.E., G.E.
5710 Ruffin Road
San Diego, CA 92123
Notice of change of address shall be given by written notice in the manner
specified in this Section. Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given shall be deemed to constitute receipt of the
notice, demand, request or communication sent. Any notice, request, demand, direction or other
communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-
eight (48) hours by letter mailed or delivered as specified in this Section.
22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT
OBLIGATIONS. During the term of this Agreement, the CONSULTANT 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 CONSULTANT also agrees not to specify any product, treatment,
process or material for the project in which the CONSULTANT has a material financial interest,
either direct or indirect, without first notifying the CITY of that fact. The CONSULTANT shall at
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City Standard Agreement —June 2008 rev.s,on
all times comply with the terms of the Political Reform Act and the National City Conflict of
Interest Code. The CONSULTANT 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 CONSULTANT
has a financial interest as defined in Govemment Code Section 87103. The CONSULTANT
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.
E If checked, the CONSULTANT shall comply with all of the reporting
requirements of the Political Reform Act and the National City Conflict of Interest Code.
Specifically, the CONSULTANT shall file a Statement of Economic Interests with the City Clerk
of the City of National City in a timely manner on forms which the CONSULTANT shall obtain
from the City Clerk.
The CONSULTANT 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
CONSULTANT.
23. MISCELLANEOUS PROVISIONS.
A. Computation of Time Periods. If any date or time period provided for in
this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such
date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a
Saturday, Sunday or federal, state or legal holiday.
B. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which, together, shall constitute but one
and the same instrument.
C. Captions. Any captions to, or headings of, the sections or subsections of
this Agreement are solely for the convenience of the parties hereto, are not a part of this
Agreement, and shall not be used for the interpretation or determination of the validity of this
Agreement or any provision hereof.
D. No Obligations to Third Parties. Except as otherwise expressly provided
herein, the execution and delivery of this Agreement shall not be deemed to confer any rights
upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto.
E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are
hereby incorporated herein by this reference for all purposes.
F. Amendment to this Agreement. The terms of this Agreement may not be
modified or amended except by an instrument in writing executed by each of the parties hereto.
G. Waiver. The waiver or failure to enforce any provision of this Agreement
shall not operate as a waiver of any future breach of any such provision or any other provision
hereof.
H. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
I. Entire Agreement. This Agreement supersedes any prior 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
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City's Standard Agreement - June 2008 revis on
and negotiation of this Agreement, (iii) each such party has consulted with or has had the
opportunity to consult with its own, independent counsel and such other professional advisors
as such party has deemed appropriate, relative to any and all matters contemplated under this
Agreement, (iv) each party and such party's counsel and advisors have reviewed this
Agreement, (v) each party has agreed to enter into this Agreement following such review and
the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are
to be resolved against the drafting party shall not apply in the interpretation of this Agreement,
or any portions hereof. or any amendments hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first above written.
CITY OF NATIONAL CITY
By:
Ron Morrison, Mayor
APPROVED AS TO FORM:
George H. Eiser, III
City Attorney
NINYO & MOORE
(Corporation - signatures of two corporate officers)
(Partnership - ono signature)
(Sole proprietorship one signature)
By:
9
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City's Standard Agreement - June 2008 revision
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EXHIBIT "A"
-
The City will request various geotechnical materials testing services for the duration of this
agreement. For each request, Consultant shall submit a cost proposal for the particular
project/service consistent with hourly rates provided in Consultants response to the City's initial
Request for Proposal for On -Call Engineering Services.
• Projects may vary in scope and magnitude. The City is not obligated to contract all the
soil and material engineering and testing services to the retained consultant.
• A minimum of twenty-four (24) hour notice will be given, by the City, at the time of a
request for service. This notice will cover all the necessary office work required to be
performed prior to field work. Firms should be capable of providing requested services
within twenty-four (24) hours after receipt of request. City may cancel a request for
service at least two hours prior to the selected time without being subject to any changes.
Soils and materials testing work will be accomplished according to the Project Drawing
and Specifications, which may include San Diego Area Regional Standard Drawings,
Standard Specifications for Public Works Construction, and Caltrans Standard
Specifications and Drawings, and all other codes and practices applicable to material
testing governing a particular project.
All reports and pertinent data obtained under the agreement between the City and the
Consultant shall be the property of the City and may not be used or reproduced in any
form without the explicit written permission of the City. Compaction tests results should be
available in the field at the time of testing on projects where previous sampling for
maximum densities curves has been obtained. In any case, compaction test results shall
be available no later than the next working day. Formal reports should be prepared and
submitted as soon as the segment of the work is completed or when requested by the
City.
Hours shall be determined by the City Engineer. The City will schedule work on a prior
day basis, with the expectation of availability of a technician not more than one availability
of a technician not more than one hour later than the desired time. When necessary and
where possible, the City will coordinate work to allow the use of a single technician, but is
under no obligation to do so. The City may schedule or reschedule work on the same
basis. The City will not be liable for any tests where cancellation occurs at least two hours
prior to the scheduled time.
• The testing services shall be provided efficiently and in timely fashion. All material testing
services will be performed on the basis of a standard schedule of fees which shall be
valid for the life of the contract.
City of National City
As -Needed Matenal testing Services
Pioposal No. P-8557
August 25, 2009
SCHEDULE OF FEES FOR LABORATORY TESTING
Laboratory Test, Test Designation, and Price Per Test
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19
Afingo *nor
1,K-two-nee I Ift,^Ny I 1.1rmnanlettt
City of National City
As -Needed Ivlatenal Testing Services
Proposal No. P 8552
August 25. 2009
Section 7 SCHEDULE OF FEES
HOURLY CHARGES FOR PERSONNEL
Principal Engrwer!Geologist'Envimnnienlal Scientist.... ..... ...... S 139
Senior Engireer!Geologist!Environmental Scientist ......... ..... .__ . S 133
Senior Project Engineer;GeologistEnvironmental Scientist S 127
Project EngineeiGeoiogisUEnwronmental Scientist._. .. S 123
Senior Staff Engine nGeoologistiEnvironrnental Scientist S 109
Staff Engineer!Geologist'Environmental Scientist...
GIS Analyst.
Field Operations Manager . .
Supervisory Technician'
Nondestructive 1 xarnination technician, 11 I . L4I 11"
Pull test Technician and I gwprnent'..
Senior f reld't ahoratrry Technician'.
Ewld l dbxratory Technician' ...........
ACI Concrete Technician'...... _ . . .
Concrete/Asphalt Batch Plant Inspector
Special Inspector, Reinforced Concrete' .
Special Inspector, Pre stressed Concrete'
Special Inspector. Reinforced Masonry'
Special Inspector. structural Sleet'..
Special Inspector, Welding. AIMS" ..
Special Inspector, Fireproofing'
Technical IllustratorCAD Operator
GeotechnicatEnvironmeota1'Laboratory Assistant
Information Specialist..
Data Processing. Technical f diting. or Reproduction
$ 96
S 96
S 87
S 8/
S 8/
S 8/
S 77
S 71
5 77
c 77
5 77
5 //
5 i/
S 77
S 77
5 77
S G9
5 53
$ 52
5 44
OTHER CHARGES
Expert Witness testimony $ 400ahr
Concrete Col nq Equipment (includes one technician $ 145 ;hr
Special Preparation of Standard Test Specimens . $ 64;hr
Inclinometer Usage ..
Vapor Emission Kits ....
Rebar Locator (Pachometer) ... .
Nuclear Density Gauge Usage
f meld Vehicle Usage
Direct Project Expenses
..................................... .......
Laboratory testing, geophysical equipment. and other special equipment provided upon request
S 32,h:
S 30/lot
$ 10:hr
$ 9,hr
S 8'hr
Gust plus 15 %
NOTES (Field Services)
For field and laboratory technicians and special nspectors, regular hourly rates are charged during normal weekday construction hours. Ovei-
tune rates at 1 5 times the regular rates will be charged for woik performed outside normal construction hours dud dII day on Saturdays. Rates
at twice the regular rates will be charged for all woik in excess of 12 hours in one day or on Sundays and holidays. Lead time for any re
quested service is 24 hours. Field Technician rates are based on a 2-hour minimum Special inspection rates are based on a 4 hour minimum
for the first 4 hours and an 8 hour minimum for hours exceeding 4 hours. Field personnel are charged portal to portal
'Indicates rates Thal are based on Prevailing I/Vage Deleuninalion made by the State of California, Director of Industrial Relations on a semi
annual basis Our rates will be adjusted in conjunction with the increase in the Prevailing Wdge Determination during the life of the project.
INVOICES
Invoices will be submitted monthly and are due upon receipt. A service charge of 1 0 percent per month may be charged on accounts not paid
within 30 days.
TERMS AND CONDITIONS
The terms and conditions of providing our consulting services include our limitation of I. hrl,ty and indemnities as presented in Ninyo k
Moore s Work Authonration and Agreement
18
*ago, /More
t Whence 14Ualay 1 C n,nm!twvwt
Client#: 704
NINYOMOOR1
ACORD,. CERTIFICATE OF LIABILITY INSURANCE
DATE (MM/DDTYY)
10/14/09
PRODUCER
Dealey, Renton & Associates
P. O. Box 12675
Oakland, CA 94604-2675
510 465-3090 Christine Silan
INSURED
Ninyo & Moore Geotechnical &
Environmental Sciences Consultants
5710 Ruffin Road
San Diego, CA 92123
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
INSURERS AFFORDING COVERAGE
INSURER A. American Automobile Ins. Co.
INSJRLR O. Fireman's Fund Insurance Co.
INSURER C Lexington Ins. Co.
INSURER C
INSURER C
COVERAGES
THE POLICIES
ANY REQUIREMENT.
MAY PERTAIN,
POLICIES.
INSR
LTR
OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE
THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS
AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
NOTWITHSTANDIN
MAY BE SSUED OR
OF SUCH
- -
TYPE OF INSURANCE
POLICY EFFECTIVE
POLICY NUMBER DATE IMMIQD/YYI
;POLICY EXPIRATION !
DATE (MM/DD/Y.0 • LIMITS
A IGENERAL LIABIUTY
MZG80911156
10/03/09
10/03/10
. EACH OCCURRENCE
. S1,000,000
,X CO IERCLAI..GLNEkAL LIABILITY
FIRE DAMAGE (My cneTel
I/1,000,000
CLAMS MADE X; OCCUR
MED EXP;Any wm mewl) I S10,000
X Contractual
PERSONAL d ACV INJURY
b1,000,000
X RR Cont CG2417
GENERAL AGGRE(AlE
s2000000
GENT AGGREGATE LIMIT PER' POI ICY X I PR
0. 1 x LOC
JCCT
'PRODUCTS-COMP;OP AGG
..._
$2,000,000
A
AUTOMOBILE
LIABILITY MZG80911156 10/03/09
10/03/10
COMBINED SINGLE LIMIT
X
ANY AUTO
IEa aceJder.0
S1,000,000
ALL OWNED AUTOS
BODILY INJURY
S
SCHEDULED AUTOS
(Per person)
X HIRED AUTOS
BODILY INJURY S
X NON -OWNED AUTOS
(PefauAenl)
PROPER rY DAMAGE
• (Per accident)
$
GARAGE LIABILITY
AU IO ONLY - EA ACCIDENT
t
S
ANY AUTO
OTHER THAN EA ACC _ $ ...
AUTO ONLY'. AGG
$
B . EXCESS LIABILITY
CGX71476790 10/03/09 10/03/10 EACH OCCURRENCE
$9,000,000
XI
OCCUR CLAIMS MADE
AGGREGATE
s9,000,000
$
I DEDUCTIBLE
S
RETENTION $
S
A ' WORKERS COMPENSATION AND
WZP80973506
05/01/09 05/01/10
X WC STATTJ• 10T/,
TCRY LIMPS ER
EMPLOYERS' LIABILITY
E.L. EACH ACCIDENT
S1i000,000
E.L. DISEASE - EA EAIPL OYEE
Si 000,000
E.L. DiSEASE. • POLICY LIMIT
$1,000,000
C OTHER Professional
013001489
10/03/09 10/03/10 $5,000,000 per Claim
I& Contractor's
65,000,000 Annl Aggr.
Pollution [lab.
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS
GENERAL LIABILITY POLICY EXCLUDES CLAIMS ARISING OUT OF THE PERFORMANCE OF PROFESSIONAL
SERVICES.
REF: ALL OPERATIONS OF THE NAMED INSURED. GENERAL LIABILITY/AUTOMOBILE
LIABILITY ADDITIONAL INSURED: City of National City.
CERTIFICATE HOLDER
ADDITIONAL INSURED; INSURER LETTER:
CANCELLATION
City of National City
Engineering Department
Attn: Mauro NebreJa
1243 National City Blvd.
National City, CA 91950
SHOULD ANYOF TH E ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
DATE THEREOF, THE ISSUING INSURER WIItO( Q *X11* TO MAIL30 -_ DAYS WRITTEN
NOTICE TOTH E CERTIFICATE HOLDER NAM ED TOTHE LE Frant1Ua71DrBBL7000QQb(MI(K
INCIPOWNIOSIMOIRKKIIIIMIXIAIDUattOKICABOBOURDIRMICXXX
AUTHORIZED REPRESENTATIVE
ACORD 25-S (7/97)1 of 1
#M259476
DAC € ACORD CORPORATION 1988
DESCRIPTIONS (Continued from Page 1)
GENERAL LIABILITY/AUTOMOBILE LIABILITY ADDITIONAL INSURED: City of
National City, its officers, employees, and volunteers.
Insurance is primary per policy form.
Waiver of Subrogation applies to Commercial General Liability, Automobile
Liability and Workers Compensation.
AMS 25.3 (07/97) 2 of 2 #M259476
POLICY NUMBER: MZG80911156 COMMERCIAL GENERAL LIABILITY
CG 20 10 07 04
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - SCHEDULED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person(s)
Or Organziation(s):
Locatlon(s) Of Covered Operations
City of National City
Engineering Department
Attn: Mauro Nebreja
1243 National City Blvd.
National City, CA 91950
REF: ALL OPERATIONS OF THE NAMED
INSURED. GENERAL LIABILITY
ADDITIONAL INSURED: City of
National City.
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
A. Section II - Who Is An Insured is amended to
include as an additional insured the person(s) or
organization(s) shown in the Schedule, but only
with respect to liability for "bodily injury", "property
damage" or "personal and advertising injury"
caused, in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your
behalf;
in the performance of your ongoing operations for
the additional insured(s) at the location(s) desig-
nated above.
B. With respect to the insurance afforded to these
additional insureds, the following additional exclu-
sions apply:
This insurance does not apply to "bodily injury" or
"property damage" occurring after:
1. All work, including materials, parts or equip-
ment furnished in connection with such work,
on the project (other than service, mainte-
nance or repairs) to be performed by or on
behalf of the additional insured(s) at the loca-
tion of the covered operations has been com-
pleted; or
2. That portion of "your work" out of which the
injury or damage arises has been put to its
intended use by any person or organization
other than another contractor or subcontrator
engaged in performing operations for a
principal as a part of the same project.
CG 20 10 07 04 Copyright, ISO Properties, Inc., 2004
Page 1 of 1
UNIFORM
WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT
This endorsement changes the policy to which it is attached effective on the inception date of the policy unless a different
date is indicated below.
(The following "attaching clause" needs to be completed only when this endorsement is issued subsequent to preparation of the policy.)
This endorsement forms a part of Policy No. WZP80973506
Issued to: Ninyo & Moore Geotechnical &
By: American Automobile Ins. Co.
Premium (if any) TBD
We have a right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our
right against the person or organization named in the Schedule. (This agreement applies only to the extent that you
perform work under a written contract that requires you to obtain this agreement from us).
You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work
described in the Schedule.
The additional premium for this endorsement shall be 2-5% of the California workers compensation premium otherwise
due on such remuneration.
Person or Organization
City of National City
Engineering Department
Attn: Mauro Nebreja
1243 National City Blvd.
National City, CA 91950
WC 04 03 06
(Ed. 4-84)
Schedule
Job Description
REF: ALL OPERATIONS OF THE NAMED
INSURED. City of National City.
Countersigned by
Authorized Representative
RESOLUTION NO. 2009 — 246
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH
NINYO & MOORE FOR THE NOT -TO -EXCEED AMOUNT OF $150,000 FOR A
ONE-YEAR PERIOD TO PROVIDE ON -CALL GEOTECHNICAL MATERIALS
TESTING SERVICES FOR VARIOUS CAPITAL IMPROVEMENTS PROJECTS
WHEREAS, the City of National City desires to employ a consultant to provide
Geotechnical Materials Testing Services for various Capital Improvements Projects for a period of
one-year; and
WHEREAS, it has been determined that Ninyo & Moore is a materials testing firm,
and qualified by experience and ability to perform the services desired by the City, and Ninyo &
Moore is willing to perform such services.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National
City hereby authorizes the Mayor to execute an agreement with Ninyo & Moore for the not -to -
exceed amount of $150,000 for a one-year period to provide on -call Geotechnical Materials Testing
Services for various Capital Improvements Projects. Said Agreement is on file in the office of the
City Clerk.
PASSED and ADOPTED this 20th day of October,.009.
Ron Morrison, Mayor
ATTEST:
J/
Mi hael R. Della, City Clerk
APPROVED AS TO FORM:
George H. Eiser, III
City Attorney
Passed and adopted by the Council of the City of National City, California, on October
20, 2009 by the following vote, to -wit:
Ayes: Councilmembers Morrison, Parra, Sotelo-Solis, Van Deventer, Zarate.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
Mayor of the City of National City, Califomia
City Clerk of the City 6f National City, California
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2009-246 of the City of National City, California, passed and
adopted by the Council of said City on October 20, 2009.
City Clerk of the City of National City, California
By:
Deputy
City of National City, California
COUNCIL AGENDA STATEMENT
MEETING DATE October 20, 2009
AGENDA ITEM NO.
14
ITEM TITLE Resolution of the City Council of National City approving a contract agreement between the City and
Ninyo & Moore for the Not -to -Exceed amount of $150,000 for a one year period to provide on -call geo-technical
materials testing services for various Capital Improvement Projects and authorizing the Mayor to execute the
agreement (Various Capital Improvement Project funds)
PREPARED BY Barby Tipton DEPARTMENT Development Services EXT. 4583
Engineering Division
EXPLANATION
The Engineering Division of Development Services solicited Request for Proposals (RFP) from professional firms
to provide geo-technical materials testing services for various Capital Improvement Projects for fiscal year 2009-
2010.
Four RFPs were received. The Engineering Division reviewed the proposals, taking into consideration, among
other things, the past performance history (if any), the type of services offered, and the cost to the City.
Two firms, Southern California Soils & Testing and Ninyo & Moore have been selected to provide the needed on -
call geo-technical materials testing services, with a not -to -exceed amount of $150,000 for a period of one year.
Southern California Soils & Testing had their contract approved at the Council meeting of October 6, 2009.
Adopting this Resolution will add Ninyo & Moore as the second firm to provide on -call geo-technical materials
testing services.
Supplements to the agreement will be processed to account for actual amounts and project(s) to be charged.
Environmental Review X N/A
MIS Approval
Financial Statement
Approved By:
V Finance Director
There is no financial impact at this time. As needed, any and or all CIP account numbers will be used to fund this
agreement, at which time a supplement to the agreement will be processed showing the actual amount and account
number to be charged. Account No.
STAFF RECOMMENDATIO
Adop esolution.
D / COMMISSION REC ENDATIO
N/A
ATTACHMENTS (Listed Below) Resolution No. '� c o G
1. Resolution
2. Contract Agreement
cmnvo
A-200 (Rev. 7103)
C A 11 F O,RN;I.A .
•
to
McoaPORA?ED
October 26, 2009
Mr. Jeffrey Kent
Ninyo & Moore
5710 Ruffin Road
San Diego, CA 92123
Dear Mr. Kent,
OFFICE OF THE CITY CLERK
1243 National City Blvd.
National City, California 91950
Michael R. Dalla, CMC - City Clerk
619-336-4228 phone • 619-336-4229 fax
On October 20th, 2009, Resolution No. 2009-246 was passed and adopted by the
City Council of the City of National City, authorizing execution of an agreement
with Ninyo & Moore.
We are enclosing for your records a certified copy of the above Resolution and a
fully executed original agreement.
Sincerely,
Michael R. Dalla, CMC
City Clerk
Enclosures
cc: Engineering Dept.