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HomeMy WebLinkAbout2009 CON Ninyo & Moore - Brownfield Revolving Loan FundAGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND NINYO & MOORE GEOTECHNICAL AND ENVIRONMENTAL CONSULTANTS TO SERVE AS "QUALIFIED ENVIRONMENTAL PROFESSIONAL" FOR THE CITY'S BROWNFIELD REVOLVING LOAN PROGRAM FOR A PERIOD OF FIVE YEARS NOT TO EXCEED $30,000 THIS AGREEMENT is entered into this 20th day of October 2009, by and between the CITY OF NATIONAL CITY, a community development commission (the "CITY"), and NINYO & MOORE GEOTECHNICAL AND ENVIRONMENTAL CONSULTANTS, an environmental consultant (the `CONSULTANT"). RECITALS WHEREAS, the CITY has been awarded a $1 million grant by the United States Environmental Protection Agency ("EPA") to establish a Revolving Loan Fund for the remediation of eligible properties contaminated with hazardous wastes; and WHEREAS, the EPA requires that grantees retain a Qualified Environmental Professional ("QEP") to oversee remediation projects where the State will not serve as the lead regulator and oversight authority; and WHEREAS, the CITY conducted a competitive Request for Qualifications process in keeping with federal procurement standards and has determined that the CONSULTANT is an environmental consultant 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 as set forth in the attached 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 CONSULTANT 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 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 10% from the base amount. 3. PROJECT COORDINATION AND SUPERVISION. Patricia Beard 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. Steve Beck thereby is designated as the Project Director for the CONSULTANT. 4. COMPENSATION AND PAYMENT. The compensation for the CONSULTANT 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 $30,000 (the Base amount) without prior written authorization from the Executive Director. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit "A" as determined by the 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 furnishing 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. This agreement shall be in effect until October 30, 2014. 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. 2 C ty's Standard Agreement - May 2008 revision 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. 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 employees 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. 3 C.ty's Standard Agreement — May 2008 revision 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, 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 ensure 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 14, 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. 4 C,tv:s Standard Agreement - May 2008 revis:nn 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. 15. INDEMNIFICATION AND HOLD HARMLESS. The CONSULTANT agrees to defend, indemnify, and hold harmless the Community Development Commission of the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable 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 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 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 occurrencel$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. 5 Ciy's Standard Agreement - May 2008 revision 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. 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 National City Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California 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 National City 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 $10,000 must 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 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 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 bome 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, Califomia, 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. 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. 6 City s Standard Agreement — May 20CR revision 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. 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 Tess 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 7. 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, retum receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To the CITY: To the CONSULTANT: Patricia Beard, Redevelopment Manager Community Development Commission of the City of National City 1243 National City Boulevard National City, CA 91950-4301 Steve Beck, Principal Ninyo & Moore Geotechnical and Environmental Consultants 5710 Ruffin Road San Diego CA 92123 Telephone 858-576-1000 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 7 City's Standard Agreement - r.tay 2008 revision 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. 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 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 Government 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. ❑ 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. 8 City's Standard Agreement - May 2008 revision 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY NINYO & MOORE GEOTECHNICAL AND ENVIRONMEit L CONSULTANTS orrison, Mayor APPROVED AS TO FORM: George H. Eiser, III Legal Counsel By: Steve Beck, P.G. 4375 Principal By: ( C. Wood Hays Principal 9 City's Standard Agreement — May 2008 revision Client#: 704 NINYOMOOR1 ACORD,. CERTIFICATE OF LIABILITY INSURANCE 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 DATE (MMIDD/YY) I 10/06/09 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 INSURERA American Automobile Ins. Co. INSURERB Fireman's Fund Insurance Co. INSURER : Lexington Ins. Co. INSURER D INSURER E. COVERAGES THE ANY MAY POLICIES. INSR LTR POLICIES REQUIREMENT, PERTAIN. 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. NOTWITHSTAND.NG MAY BF ISSUED OR 0= SUCH TYPE OF INSURANCE - POLICY NUMBER POLICY EFFECTIVE DATE IMM/DD/YY) POLICY EXPIRATION DATE (MMIDO/YYI LIMITS A GENERAL LIABILITY . MZG80911156 10/03/09 10/03/10 EACH OCCURRENCE S1,000,000 X COMMERCIAL GENERAL UABIUTV FIRE DAMAGE (Any one(re) S1,000,000 -_J CLAIMS MADE X OCCUR _ Ma.)EXP IAny one person) S10,000 X Contractual PERSONA- &ADVINJURY 11,000,000 X !RR Cont CG2417 GENERAL AGGREGATE S2,000,000 GENL AGGREGATE LIMIT APPLIES PER: PRODUCTS :COMP/CP AGO $2,000,000 POLICY I X 1 ,Pjr7 I X LOC A AUTOMOBILE LIABILITY MZG80911156 10/03/09 10/03/10 COMBINED S:NGLE L'MIT X ANY AUTO (Ea ecadenl) S1,000,000 . AIL OWNED AUTOS — `:SCHEDULED BODILY INJURY AUTOS (Perpersnn) S X HIRED AUTOS BODILY INJURY X NON -OWNED AUTOS (Per acddon') PROPERTY DAMAGE (Per accident) GARAGE LIABILITY AUTO ONLY • EA ACCIDENT S ANY AUTO OTHER THAN EA ACC S AUTO ONLY AGG S B EXCESS LIABILITY CGX71476790 110/03/09 10/03/10 EACH OCCURRENCE s9,000,000 _ _ X OCCUR r CLAIMS MADE AGGREGATE s9,000,000 S DEDUCTILLE $ . RETENTION S S A WORKERS COMPENSATION AND WZP80973506 05/01/09 05/01/10 X ITWOU'T�LIS. L I EH EMPLOYERS' LIABILITY ...._-- ._ E.L EACH ACCIDENT S1,00 0,000 E.L. DISEASE - EA EMPLOYEE, S1,000,000 I E L. C:SEASE -POLICY LIMIT • Si,000,000 C DTHER Professional 013001489 10/03/09 ; 10/03/10 $5,000,000 per Claim & Contractors $5,000,000 Annl Aggr. Pollution Liab. DESCRIPTION OF OPERATIONSILOCATWNSNEHICLESIEXCLUSIONS ADDED BY ENDORSEMENTISPECIAL 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 ADDrfl NAL INSURED; INSURER LETTER CANCELLATION City of National City Engineering Department Attn: Mauro Nebreja 1243 National City Blvd. National City, CA 91950 SHOULD ANYOF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION GATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL IO DAYS WRITTEN NOTICE TOTHE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO D0 SOSH ALL IMPOSE NO OBLIGATION OR LIABILITY OF ANYKIND UPON THE INSURER,ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE o ACORD CORPORATION 1988 ACORD 25-S (7/97)1 of 1 #M259476 DAC Exhibit A Role and Costs for Qualified Environmental Professional For EPA Revolving Loan Fund Grant The QEP will serve as a member of the City's RLF team, coordinating and overseeing environmental projects and advising the City on regulatory matters. The QEP will assist the City in determining site eligibility per EPA requirements, review applicant remediation plans and regulator directives, review public comments on remediation plans, as applicable, oversee remediation projects from the City's perspective and may, in some cases, direct remediation projects. The QEP will serve as a valuable expert consultant to help the City ensure that funded remediation projects arc conducted in accordance with state and federal environmental standards and improve the environmental health of the community. The QEP will also assist the City by providing advice to RLF staff and loan applicants about cost-effective means of achieving regulatory closure for hazardous and petroleum contaminated sites. Please see Exhibit A, continued on next page for the schedule of rates. Community Development Department of the City of National City USEPA Brownfields Revolving Loan Fund Grant Proposal No. P-8551 September 10, 2009 SCHEDULE OF FEES HOURLY CHARGES FOR PERSONNEL Principal Engineer/Geologist/Environmental Scientist $ 154 Senior Engineer/Geologist/Environmental Scientist $ 148 Senior Project Engineer&GedogisVEnvironmental Scientist.. $ 145 Certified Asbestos Consultant $ 120 Project Engineer/Geologist/Environmental Scientist $ 142 Senior Staff Engineer/Geologist/Environmental Scientist $ 128 Staff Engineer/Geologist/Environmental Scientist $ 120 GIS Analyst $ 120 CSSTIILIA2/LPM3 5 110 Technical Illustrator/CAD Operator S 78 Information Specialist $ 66 Data Processing, Technical Editing, or Reproduction $ 58 ENVIRONMENTAL FIELD EQUIPMENT/CONSUMABLES PID/FID Usage 5 120 /day 4-Gas Monitor S 95 /day Hand Auger Kits $ 55 /day Level C Personal Protective Equipment (person/day [old]) $ 55 /p/d Level D Personal Protective Equipment (person/day [p/d] $ 25 /p/d Mileage° $ .505 /mi OTHER CHARGES Direct Project Expenses Cost plus 15 % Laboratory testing, geophysical equipment, and other special equipment provided upon request. 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. 1. CSST = Certified Site Surveillance Technician 2. LPM = Lead Project Monitor 3. LIA = Lead Inspector/Assessor 4. Vehicle mileage charge will be adjusted to reflect the current Internal Revenue Service rate. 5710 Ruffin Road San Diego. Califomia 92123 (858) 576-1000 1 fekiPairefars Client#: 704 NINYOMOOR1 ACORD. CERTIFICATE OF LIABILITY INSURANCE DATE (MOONY) 10/12/09 PRODUCER Dealey, Renton & Associates P. O. Box 12675 Oakland, CA 94604-2675 510 465-3090 Christine Silan 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 INSURED Ninyo & Moore Geotechnical & Environmental Sciences Consultants 5710 Ruffin Road San Diego, CA 92123 INSURER A. American Automobile Ins. Co. INSURER B. Fireman's Fund Insurance Co. INSURER c. Lexington Ins. Co. INSURLR D. INSURER E: COVERAGES THE ANY MAY POLICIES. 1NSR LTRDATE POLICIES REQUIREMENT, PERTAIN. OF INSURANCE LISTED BELOW HAVE BEE.\ ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED .NOTWITHSTANDING 1ERM OR CONDITION OF ANY CONTRACT OR OTHER COCUMEN- WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEROIN IS SUBJECT TO ALL THE TERMS EXCLUSIONS AND CONDITIONS Or SUCH AGGREGATE LIMITS SHOWN MAY ILAVE SEEN REDUCED BY PAID CLAIMS. TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE RAMIE/DM) POLICY EXPIRATION DATE IMM/DD/YYI LIMITS A GENERAL LIABILITY MZG80911156 10/03/09 X COMMERCIAL GE ERAL LIABILITY . I CLAIMS MADE f X OCCUR X Contractual X RR Cont CG2417 GFYI AGGREGATE LIMIT APPLIES 'ER: IPOLICY I X SOT 1 X I IOC 10/03/10 EACH OCC,.RRENCE 51,000,000 FIRE DAMAGE (Any cnefire) $1,000,000 MED EXP (Any one person) $10,000 PERSCNAL & ADV INJURY GENERAL AGGREGATE PRODUC'S - COMP'OP AGG S1,000,000 s2,000,000 S2,000,000 A AUTOMOBILE LIABILITY ANY AUTO At L OWNED AUTOS SCHEDULED AUTOS )TIRED AUTOS NON -OWNED AUTOS MZG80911156 10/03/09 10/03/10 COMBINED Ea acci�entS�NGLE LIMIT 151,000,000 S X X X BODILY INJURY (Per person) BODILY INJURY iPer acadert) PROPERTY DAMAGE t per acdden:) 5 ' GARAGE LIABILITY ANY AUTO AUTO ONLY - CA ACCIDENT OIHERT-AN EA ACC AUTOCNLY- AGG $ 5 5 B EXCESS LIABILITY X OCCJR 7 CI AIMS MADE — DEDUCTIELE RETENTION S CGX71476790 10/03/09 10/03/10 EACH CCCURRENCE s9,000,000 ;AGGREGATE $9,000,000 $ 5 5 A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY WZP80973506 105/01/09 05/01/10 X IWC s1Al D- . OT- IUKYLIMIS EK E L. EACH ACCICENT C L. DISEASE -CA EMPLOYEE 51,000,000 51,000,000 F 1 71SFASF - POI ICY I IMIT S1,000,000 C OTHER Professional 013001489 10/03/09 Contractor's ollution Liab. 10/03/10 55,000,000 per Claim $5,000,000 Annl Aggr. DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS GENERAL LIABILITY POLICY EXCLUDES CLAIMS ARISING OUT OF THE PERFORMANCE OF PROFESSIONAL SERVICES. REF: Brownfield Revolving Loan Program. (See Attached Descriptions) CERTIFICATE HOLDER AD D IT1CNAL INSURED; INSURER LETTER: CANCELLATION City of National City Attn: Patricia Beard 1243 National City Blvd. National City, CA 91950-4301 SHOULD ANYOF THE ABOVE DESCRIBED FOLIC TES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF. THE ISSUING INSURER WIURTIM AXglA TOMAIL30 DAYS WRITTEN NOTICE TOTHE CERTIFICATE HOLDERNAMED TOTHE LE FTJ9IDrJ<lD( Opp00t160( ?IRDg90NCX0Di RKR0111111R KIMOEMIDOUNDOBOMOSEXIMX11300XR1I11010:60FX 7e0t739e117Joo9ot AUT HORIZED REPRESENTATNE ACORD 25-S (7/97)1 of 2 #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 CG20100704 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): City of National City Attn: Patricia Beard 1243 National City Blvd. National City, CA 91950-4301 Location(s) Of Covered Operations REF: Brownfield Revolving Loan Program. GENERAL LIABILITY ADDITIONAL INSURED: City of National City, its officers, employees, and volunteers. 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 Attn: Patricia Beard 1243 National City Blvd. National City, CA 91950-4301 WC 04 03 06 (Ed. 4-84) Schedule Job Description REF: Brownfield Revolving Loan Program. City of National City, its officers, employees, and volunteers. Countersigned by Authorized Representative RESOLUTION NO. 2009 — 248 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH NINYO & MOORE GEOTECHNICAL AND ENVIRONMENTAL IN THE NOT -TO -EXCEED AMOUNT OF $30,000 TO SERVE AS A "QUALIFIED ENVIRONMENTAL PROFESSIONAL" FOR THE CITY'S BROWNFIELD REVOLVING LOAN FUND PROGRAM FOR A PERIOD OF FIVE YEARS WHEREAS, the City of National City has been awarded a $1 million grant from the United States Environmental Protection Agency to establish a Brownfield Revolving Loan Fund ("RLF") Program for the remediation of eligible properties contaminated with hazardous materials: and WHEREAS, terms of the grant require the City to retain a Qualified Environmental Professional to oversee City RLF-funded remediation projects where regulatory oversight will be provided by the County or City: and WHEREAS, in compliance with procurement requirements for the grant, the City issued a competitive Request for Qualifications for said Qualified Environmental Professional, including an invitation to minority owned, women -owned, and disadvantaged businesses; and WHEREAS, Ninyo & Moore Geotechnical and Environmental Consultants responded to said Request for Qualifications and has been determined to be qualified by experience and ability to serve as Qualified Environmental Professional for the RLF Program for the not -to -exceed amount of $30,000 for a period of five years. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute an Agreement by and between the City of National City and Ninyo & Moore Geotechnical and Environmental Consultants in the not -to - exceed amount of $30,000 for a period of five years to provide services as a "Qualified Environmental Professional" to oversee remediation projects funded through the City's Brownfield Revolving Loan Fund Program. Said agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 20th day of October ' 009. on Morrison, Mayor ATTEST: APPROVED AS TO FORM: Michael R. Dalla, City Clerk 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, California /1 City Clerk of the City cif National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2009-248 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 00 - City of National City, California COUNCIL AGENDA STATEMENT 16 MEETING DATE October 20 2009 AGENDA ITEM NO. ITEM TITLE A resolution approving an Agreement with Ninyo & Moore Geotechnical and Environmental Consultants. to serve as "Qualified Environmental Professional" for the City's Brownfield Revolving Loan Fund Program for a period of five years not to exceed $30,000. PREPARED BY DEPARTMENT Patricia Beard ext 4255 C'o Redevelopment Divisio Redevelopment Manager EXPLANATION The City of National City was awarded a $1 million grant by the US Environmental Protection Agency ("EPA") in order to establish a Revolving Loan Fund ("RLF") to assist with eligible remediation projects on properties contaminated by hazardous materials. As part of the RLF grant requirements from EPA, the City must retain a Qualified Environmental Professional to provide oversight for remediation projects not overseen by a state agency. In compliance with EPA procurement requirements, the City conducted a competitive Request for Qualifications ("RFQ") process including an invitation to minority, women -owned and disadvantaged businesses. Ninyo & Moore Geotechnical and Environmental Consultants responded to the RFQ and is a qualified environmental professional firm, which received strong references during staff due diligence. Staff requests the City Council to consider approving an Agreement for QEP services for the RLF Program. \ Please see the attached Background Report for a thorough explanation. Environmental Review Not applicable. Financial Statement The contract is not to exceed $30,000 during the five year period of the RLF grant and will be paid using federal grant funds. Account No STAFF RECOMMENDATION Adopt the resolution. BOARD / COMMISSION RECOMMENDATION STRATEGIC GOAL: 2b) Aggressively seek funding from local, state and federal sources ATTACHMENTS 1. Background Report 2. Proposed Agreement Resolution No. 'lc' `' .4-C1.9I ,tiff¢ ATIONt }} 111 114.itiftt INCORPORATED October 26, 2009 Mr. Steve Beck 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. Della, CMC - City Clerk 619-336-4228 phone • 619-336-4229 fax On October 20th, 2009, Resolution No. 2009-248 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: Community Development Commission