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HomeMy WebLinkAbout2010 CON CDC City of National City - 835 Bay Marina Drive / Sub-GrantGRANT SUB -RECIPIENT AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND COMMUNITY DEVELOPMENT COMMISSION THIS AGREEMENT is entered into this 6th day of July, 2010, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "CDC"). RECITALS WHEREAS, the CITY has been granted $1,000,000 by the United States Environmental Protection Agency ("EPA") to assist with the remediation of properties contaminated with hazardous materials and/or petroleum; and WHEREAS, the CDC owns a contaminated property located at 835 Bay Marina Drive and has applied to use said grant funding for necessary remediation; and WHEREAS, the EPA has determined that the site and CDC are eligible to use a sub -grant of up to $200,000 from the City's grant funds to perform said remediation. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. CITY FUNDING TO CDC. The CITY hereby agrees to sub -grant an amount not to exceed $200,000 to the CDC for remediation of hazardous and petroleum substances on the CDC -owned site at 835 Bay Marina Drive and the CDC hereby agrees to perform the services hereinafter set forth in accordance with all terms and conditions contained herein. The CDC represents that all services required hereunder will be performed by qualified licensed contractor(s) subject to a competitive recruitment encouraging disadvantaged businesses to apply per EPA regulations and a CDC -approved Agreement approved by the CDC Attorney and Board in a public meeting. 2. SCOPE OF SERVICES. The CDC and its CONTRACTOR will perform services as set forth in the attached Exhibit "A" and per a work plan approved by a qualified government regulator in order to accomplish the remediation. Remediation activities will be overseen and regulated by the San Diego County Department of Environmental Health. 3. PROJECT COORDINATION AND SUPERVISION. Patricia Beard is designated as the Grant Coordinator for the CITY and will monitor the progress and execution of this Agreement. Colby Young is designated as the Project Manager for the CDC. 4. COMPENSATION AND PAYMENT. The total cost for all work described in Exhibit "A"shall not exceed $200,000. Compensation will be provided as reimbursement against invoices CDC receives for qualified work under the grant. The CDC will provide a copy of the invoices to the City and the funds shall be drawn down electronically from EPA for deposit with the CDC. 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 CDC shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY and for furnishing of copies to the CITY, if requested. 5. LENGTH OF AGREEMENT. The project shall be complete by or before 6:00 p.m. on July 6, 2011. 6. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CDC or its contractors for this Project, whether paper or electronic, shall remain the property of the CDC but should remain available for inspection by the CITY and/or EPA for three years following the termination of this grant Agreement. 7. COMPLIANCE WITH APPLICABLE LAW. The CDC 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 CDC shall comply with Davis Bacon wage requirements of the federal government and the City will monitor CDC for compliance. 8. LICENSES, PERMITS, ETC. The CDC represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to complete the remediation project. 9. INDEMNIFICATION AND HOLD HARMLESS. The CDC agrees to defend, indemnify, and hold harmless the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CDC's negligent performance of this Agreement. 10. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 2 Grant Sub -recipient Agreement Between City and CDC 11. TERMINATION. A. This Agreement may be terminated with cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to the CDC. During said 60-day period the CDC 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 CDC 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 cause shall be effected by delivery of written Notice of Termination to the CDC 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 CDC and its CONTRACTOR(S), whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CDC 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 CDC's breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 6. 12. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: To CONTRACTOR: Chris Zapata, City Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 Brad Raulston, Executive Director National City CDC 1243 National City Boulevard National City CA 91950 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 3 Grant Sub -recipient Agreement Between City and CDC 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. 13. 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. 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. [signature page follows] 4 Grant Sub -recipient Agreement Between City and CDC IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY By: COMMUNITY DEVELOPMENT COMMISSION By: Ron Morrison, Mayor xecutive Director PROVED AS TO FORM: laudia Acting Cit A1J'.rney 5 Grant Sub -recipient Agreement Between City and CDC EXHIBIT "A" Site Assessment Report Olson Property Site Assessment February 2010 6.0 CONCLUSIONS AND RECOMMENDATION The objectives of the SA were to assess areas with potential environmental issues previously identified by SECOR (2004), and to collect data on areas where no previous assessments had been conducted. RORE reviewed all available previous environmental reports and developed a SA Workplan aimed at achieving these goals. The results of the SA activities are summarized as follows: • Due to consistent arsenic concentrations in soil above Residential and Industrial RSLs, it is believed that detected concentrations below 11 mg/kg are a result of background soil conditions. The concentration of 11 mg/kg represents the upper range of background arsenic in soil for Southern California (Bradford, 1996). • No soil contamination was identified in the entire northeastern portion of the SA area, where soil borings were advanced on grid spacing. TPH-g, d, mo, and VOC detections were all near or below laboratory detection limits and arsenic was the only metal that exceeded the residential RSL. As discussed previously, the arsenic concentration is likely attributed to background soil concentrations. • The analytical results from soil sample DP-3 at 30-32 feet bgs (at or below groundwater) were found to be below the EPA SSLs for protection of groundwater. Therefore, an impact to groundwater is unlikely as a result of on -site metals concentrations in soil. As discussed previously, the arsenic concentration is likely attributed to background soil concentrations. • The results of the SA identified an area of soil likely impacted by petroleum and metals. The impacted area consists of shallow soil (<5 feet bgs) in the vicinity of borings DP-24, DP-25, and DP-26 and soil boring B6 previously advanced by SECOR in 2004. The estimated area of impacted soil is approximately 250 cubic yards (Figure 3). Excavation and off -site disposal of the impacted soil are recommended. • VOC contamination was not detected in samples collected from what appeared to be the saturated zone during the SA, indicating an off -site VOC contamination source to the northeast is not likely. Soil sampling results across the site do not indicate a VOC contamination source on the property. Low -concentration VOC groundwater concentrations detected in MW-1, -2, and -3, are therefore likely the result of either a very localized historic source which is degrading over time, or the result of off -site groundwater contamination coming from directions other than the northeast. Additional sampling of the three existing monitoring wells is recommended to further evaluate contaminant trends over time. If groundwater contamination appears to be increasing, other off -site contaminant sources could be evaluated. • Following excavation and disposal of the impacted soil, a limited risk analysis should be conducted to confirm that residual contamination will not pose any health risk to public and/or construction crews during the planned development of the site for commercial/industrial use. RORE, Inc. Page 13 RESOLUTION NO. 2010 — 159 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY ACCEPTING A SUB -GRANT AGREEMENT IN AN AMOUNT NOT TO EXCEED $200,000 BETWEEN THE CITY OF NATIONAL CITY AND THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY FOR REMEDIATION OF HAZARDOUS MATERIALS AND PETROLEUM ON THE CDC -OWNED PROPERTY LOCATED AT 835 BAY MARINA DRIVE, AND AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE SAID AGREEMENT WHEREAS, on October 1, 2009, the United States Environmental Protection Agency ("EPA") granted the City of National City a $1,000,000 grant to establish a Revolving Loan Fund for the remediation of properties contaminated with hazardous materials and/or petroleum; and WHEREAS, under the Grant, eligible non-profit organizations can be provided sub -grants for remediation of eligible sites by eligible owners; and WHEREAS, the Community Development Commission of the City of National City (CDC) owns a contaminated property located at 835 Bay Marina Drive, and the City has applied to the EPA to use said grant funding for necessary remediation of the CDC property; and WHEREAS, the EPA has determined that the site and CDC are eligible for a sub - grant of up to $200,000 from the grant funds provided to the City to perform said remediation. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby accepts the Grant and authorizes the Executive Director to execute an Agreement between the City of National City and the Community Development Commission of the City of National City for a sub -grant in an amount not to exceed $200,000 for remediation of hazardous materials and petroleum on the CDC -owned property located at 835 Bay Marina Drive. Said Agreement is on file in the office of the City Clerk. ATTEST: PASSED and ADOPTED this 6th day of July, 201 Brad Raulston, Secretary Ron Morrison, Chairman " OVED� 1 dia G. Si Acting City A S TO FORM: Passed and adopted by the Community Development Commission of the City of National City, California, on July 6, 2010, by the following vote, to -wit: Ayes: Commissioners Morrison, Sotelo-Solis, Van Deventer, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Community Development Commission Secretary, Community Develop ent Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2010-159 of the Community Development Commission of the City of National City, California, passed and adopted on July 6, 2010. Secretary, Community Development Commission By: Deputy CITY OF NATIONAL CITY, CALIFORNIA a °' a • 3g COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT 1-el -a 5 MEETING DATE: July 6, 2010 AGENDA ITEM NO.4t ITEM TITLE: Resolution accepting a grant and authorizing the Executive Director to execute a Sub -grant Agreement not to exceed $200,000 from the City of National City for the remediation of hazardous materials and petroleum on property at 835 Bay Marina Drive (funding from US Environmental Protection Agency). PREPARED BY: 'Patricia Beard' PHONE: 4255I EXPLANATION: DEPARTMENT: R 6pment Division APPROVED On October 1, 2009 the US Environmental Protection Agency ("EPA") granted the City $1,000,000 with which to establish a Revolving Loan Fund for remediation of sites contaminated with hazardous materials and/or petroleum. Under terms of the EPA grant, eligible non-profit organizations can be provided sub -grants for remediation of eligible sites by eligible owners. During demolition activities at the CDC -owned site (formerly housing Quonset huts), unexpected contamination was discovered. Upon investigation it was determined that it will cost roughly $115,000 to remediate the site prior to any redevelopment. The EPA has reviewed the eligibility of the site and the CDC and has approved the City's request to sub -grant up to $200,000 for the necessary remediation. If approved by the City, this would be the first use of the Revolving Loan Fund grant and save the CDC in excess of $100,000 in local tax revenues. —his resolution would authorize the Executive Director to execute the Sub -grant Agreement. FINANCIAL STATEMENT: ACCOUNT NO. 511-409-500-598-3846..1 ENVIRONMENTAL REVIEW: Not applicable, ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: psEs‘)-c‘01-1 No. a0\0-\Sc1