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HomeMy WebLinkAbout2012 CON D-Max Engineering - Storm Water Pollution Prevention Plans SWPPPAGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND D-MAX ENGINEERING, INC. This Agreement, is entered into this 17th day of April, 2012, by and between the City of National City, a municipal corporation (the "CITY"), and D-Max Engineering, Inc. (the "CONSULTANT"). RECITALS WHEREAS, the CITY and the CONSULTANT entered into an Agreement by and between the City of National City and D-Max Engineering, Inc., on June 21, 2011, (the "Agreement") through the adoption of City of National City Council Resolution No. 2011-124, wherein the CONSULTANT agreed to provide engineering, environmental services and assistance with implementation of the National Pollutant Discharge Elimination System ("NPDES") per requirements; and WHEREAS, D-Max Engineering is currently under contract to assist the City to comply with the NPDES and the City's Jurisdictional Urban Runoff Management Program, which includes inspection and reporting to the Regional Water Quality Control Board, (RWQCB); and, WHEREAS, D-Max Engineering, Inc. has intimate knowledge of the RWQCB policies and procedures and is knowledgeable of the City and its practices; and WHEREAS, certain Capital Improvement Projects require the preparation of a Storm Water Pollution Prevention Plan (SWPPP) by a Qualified SWPPP Developer (QSD); and WHEREAS, D-Max Engineering, Inc. has a QSD on staff and can prepare required SWPPPs as needed; and, WHEREAS, the Request for Proposal issued on March 16, 2011 included a request to provide engineering, environmental services and assistance with implementing the City's National Pollutant Discharge Elimination System (NPDES) Program, and there is no additional benefit in going out for an additional request for proposal for this environmental issue; and WHEREAS, time is of the essence in preparing the SWPPP; and WHEREAS, certain Capital Improvement Projects that will be utilizing Tax Increment and/or 2001 Tax Allocation Bond funding, and may require the preparation of SWPPPs by a QSD; and WHEREAS, pursuant to and consistent with the Cooperation Agreement for Commission's Payment of Certain Costs by and between the City of National City -1- City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects and the Community Development Commission of the City of National City adopted on February 15, 2011 ("Cooperation Agreement"), the City is undertaking development of the following Capital Improvement Projects: 8th Street Corridor Smart Growth Revitalization/Safe Routes to School, 8th Street Safety Enhancements, Highland Avenue Corridor Safety enhancements, D Avenue Community Corridor/12th Street & D Avenue Roundabout, Coolidge Avenue Community Corridor/Safe Routes to School, 4th Street Community Corridor, Las Palmas Park Improvements, Kimball Park Improvements, Aquatic Center, some of which may require the preparation of a SWPPP by a QSD, on behalf of the Community Development Commission; and WHEREAS, said Cooperation Agreement does not constitute a pledge of the use of General Funds for the Capital Improvement Projects but rather obligates the use of non -General Funding such as 2011 Tax Allocation bonds and/or Tax Increment funding. NOW, THEREFORE, THE PARTIES HERETO 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 prepare Storm Water Pollution Prevention Plans (SWPPPs), assist with preparation and filing of Notices of Intent and other environmental services required for Capital Improvement Projects. The scope of work will be defined for each project and will be outlined on the individual proposal submitted as time of the request. 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 Officer for the CITY and will monitor the progress and execution of this Agreement. The CONSULTANT - 2 - City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONSULTANT. Arsalan Dadkhah 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 a total of $100,000.00. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished and satisfactorily 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. CONSULTANT acknowledges and accepts that CITY is undertaking the Capital Improvement Projects pursuant to its obligations set forth in the Cooperation Agreement by and between the City of National City and the Community Development Commission of the City of National City, and that CITY is not committing its general funds to payment for these services, but rather the 2011 Tax Allocation Bond proceeds and/or tax increment funds, and/or funds. 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 June 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. -3- City of National City/D-Max Engineering. Inc. SWPPP Development Coop Agmt/ Bond Projects 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 CM 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 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 -4- City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 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, been debarred by a govemmental agency or involved in debarment, arbitration or litigation proceedings conceming 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 Eater 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. -5- City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 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. 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 attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone -6- City of National City/D-Max Engineering. Inc. SWPPP Development Coop Agmt / Bond Projects 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 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 -7- City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 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 Agree- ment. I. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. 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 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 $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 attomeys' 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, 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 -8- City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 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. 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 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 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: -9- City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects To CITY: To CONSULTANT: City of National City Stephen Manganiello, City Engineer 1243 National City Blvd National City, CA 91950 Arsalan Dadkhah, President 7220 Trade Street 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 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. SPECIAL LIMITED OBLIGATION. Consultant acknowledges and agrees that recovery of any damage claim by the Consultant against the City or any liability or financial obligation of the City pursuant to this Agreement and the ancillary agreements and documents is and shall be a special limited obligation, payable - 10 - City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects solely from payments made to the City by either the Community Development Commission of the City of National City or its successor known as the Successor Agency to the Community Development Commission as the National City Redevelopment Agency [collectively, the Agency] and is not and shall not be a pledge of or obligation payable through the City's general fund or any other funds of the City. Nothing in this Agreement or any ancillary agreements or documents shall require or be deemed to require the City to expend or commit to expend monies from its general fund to satisfy any of the obligations set forth in this Agreement or any ancillary agreement or document. In the event the City does not have the funds to fulfill any financial obligation under this Agreement or any ancillary agreement or document, which is subiect to its foregoing limitation, it shall not be considered a default or a material breach under this Agreement or under such ancillary agreement or document. 24. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Entire Agreement. This Agreement supersedes any prior agree- ments, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an -11- City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 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. By: CITY OF NATIONAL CITY on Morrison, Mayor S TO FORM: C'='udia Gacit '-'Silva City Attorney D-MAX ENGINEERING, INC. - 12 - By: Arsalan Dadkhah President By: John Quenzer Secretary City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects ACCORD D CERTIFICATE OF LIABILITY INSURANCE DATE(MM/OD/YYYY) 12/28/2011 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER Cavigrlac & Associates 450 B Street, Suite 1800 San Diego, CA 92101-8005 License No. 0A99520 NAMEACT : Certificate Department PHONE FAX Ext): 619-234-6848 (PJC No1:619-234-8601 E-MAILo. ADDRESS:certificates@cavignac.com CUSTOMER CUSTOMER ID it: DMAXE-1 INSURER(S) AFFORDING COVERAGE NAIC # INSURED D-MAX Engineering, Inc. 7220 Trade Street, Suite 119 San Diego, CA 92121 United States INSURER A: TRAVELERS PROP CAS CO OF AMER INSURER B : CATL IN INS CO 25674 19518 INSURER C: INSURER 0 : INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 105506 REVISION NUMBER: 168001 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS INSR LTRINSR TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP WVD POLICY NUMBER (MMIDD/YYYY) (MM/DD/YYYY) LIMITS A GENERAL X LIABILITY COMMERCIAL GENERAL LIABILITY I X OCCUR 6907350L622 1/1/2012 1/1/2013 EACH OCCURRENCE PRS (Ea PREEMMIESES (Ea occurrence) $ 1,000,000 $ 1, 000, 000 CLAIMS -MADE MED EXP (Any one person) $ 10, 000 X Contractual Liab. PERSONAL &ADV INJURY $ 1,000, DOC X Separation of Insureds GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY X Fie,: LOC PRODUCTS - COMP/OP AGG $ 2, 000, 000 $ A AUTOMOBILE X LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS BA69241.251 1/1/2012 1/1/2012 COMBINED SINGLE LIMIT (Ea accident) $ 1, 000, 000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ $ UMBRELLA LIAB EXCESS LIAB O OCCUR CLAIMS -MADE EACH OCCURRENCE $ AGGREGATE $ DEDUCTIBLE RETENTION $ $ $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY y / N ANY PROPRIETOR/PARTNER/EXECUTIVE! OFFICER/MEMBER EXCLUDED? (Mandatory In NH) If yes, describe under DESCRIPTION OF OPERATIONS below N / A UB5527Y628 1/1/2012 1/1/2013 X WCSTATU- OTH- TORY LIMITS ER E.L. EACH ACCIDENT $ 1,000,000 - - -- — -- -- E. L. DISEASE - EA EMPLOYEE $ 1,000, 000 E.L. DISEASE - POLICY LIMIT I $ 1,000,000 B Professional Liability AED985360113 1/1/2012 1/1/2013 Ea Claim $1,000,000 Aggregate $2,000,000 DESCRIPTION OF OPERATIONS f LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) RE: Storm Water Services. The City of National City, its elected officials, officers, agents, and employees are additional insured with respect to general liability per attached & auto liability per policy form. Waiver of Subrogation applies to workers compensation per attached. CERTIFICATE HOLDER CANCELLATION City of National City 1243 National City Blvd. National City, CA 91950-4397 United States SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Dorothy Amundson ACORD 25 (2009/09) © 1988-2009 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Page 2 of 5 EXIGIS - CAVIGNAC & ASSOCIATES 168001 POLICY NUMBER: 6807350L622 COMMERCIAL GENERAL LIABILITY DATE ISSUED: 1/1/2012 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED (ARCHITECTS, ENGINEERS AND SURVEYORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM SCHEDULE NAME OF PERSON(S) OR ORGANIZATION(S): PROJECT/LOCATION OF COVERED OPERATIONS: PROVISIONS A. The following is added to WHO IS AN INSURED (Section II): The person or organization shown in the Schedule above is an additional insured on this Coverage Part, but only with respect to liability for "bodily injury", "property damage" or "personal injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: a. In the performance of your ongoing operations; b. In connection with premises owned by or rented to you; or c. In connection with "your work" and included within the "products - completed operations hazard". CGD3820907 Such person or organization does not qualify as an additional insured for "bodily injury", "property damage", or "personal injury" for which that person or organization has assumed liability in a contract or agreement. The insurance provided to such additional insured is limited as follows: d. This insurance does not apply to the rendering of or failure to render any "professional services". e. The limits of insurance afforded to the additional insured shall be the limits which you agreed in that "contract or agreement requiring insurance" to provide for that additional insured, or the limits shown in the Declarations for this coverage part, whichever are less. This endorsement does not increase the limits of insurance stated in the 2007 The Travelers Companies, Inc. Page 1 of 2 Includes the copyrighted material of Insurance Services Office, Inc., with its permission Page 3 of 5 LIMITS OF INSURANCE (Section III) for this coverage part. B. The following is added to paragraph a. of 4. Other Insurance in COMMERCIAL GENERAL LIABILITY CONDITIONS (Section IV): However, if you specifically agree in a "contract or agreement requiring insurance" that, for the additional insured shown in the Schedule, the insurance provided to that additional insured under this Coverage Part must apply on a primary basis, or a primary and non-contributory basis, this insurance is primary to other insurance that is available to such additional to such additional insured which covers such additional insured as a named insured, and we will not share with the other insurance, provided that: (1) The "bodily injury" or "property damage" for which coverage is sought occurs; and (2) The "personal injury" for which coverage is sought arises out of an offense committed; after you have entered into that "contract or agreement requiring insurance" for such additional insured. But this insurance still is excess over valid and collectible other insurance, whether primary, excess, contingent or on any other basis, that is available to the additional insured when the additional insured is also an additional insured under any other insurance. C. The following is added to Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us in CGD3820907 COMMERCIAL GENERAL LIABILITY CONDITIONS (Section IV): We waive any rights of recovery we may have against the additional insured shown in the Schedule above because of payments we make for "bodily injury", "property damage" or "personal injury" arising out of "your work" on or for the project, or at the location, shown in the Schedule above, performed by you, or on your behalf, under a "contract or agreement requiring insurance" with that additional insured. We waive these rights only where you have agreed to do so as part of the "contract or agreement requiring insurance" with that additional insured entered into by you before, and in effect when, the "bodily injury" or "property damage" occurs, or the "personal injury" offense is committed. D. The following definition is added to DEFINITIONS (Section V): "Contract or agreement requiring insurance" means that any contract or agreement under which you are required to include the person or organization shown in the Schedule as an additional insured on this Coverage Part, provided that the "bodily injury" and "property damage" occurs, and the "personal injury" is caused by an offense committed. a. After you have entered into that contract or agreement; b. While that part of the contract or agreement is in effect; and c. Before the end of the policy period. 2007 The Travelers Companies, Inc. Page 2 of 2 Includes the copyrighted material of Insurance Services Office, Inc., with its permission Page 4 of 5 WORKERS COMPENSATION AND EMPLOYERS LIABILITY POLICY ENDORSEMENT WC 99 03 76 (00) POLICY NUMBER: UB5527Y628 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA (BLANKET WAIVER) We have the 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. 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 % of the California workers' compensation premium otherwise due on such remuneration. Schedule Person or Organization Job Description ANY PERSON OR ORGANIZATION FOR WHICH THE NAMED INSURED HAS AGREED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER. Page 5 of 5 RESOLUTION NO. 2012 — 86 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH D-MAX ENGINEERING, INC., FOR THE NOT TO EXCEED AMOUNT OF $100,000 TO PREPARE STORM WATER POLLUTION PLANS, ASSIST WITH FILING OF NOTICES OF INTENT, AND PROVIDE ENVIRONMENTAL SERVICES FOR CAPITAL IMPROVEMENT PROJECTS WHEREAS, the City desires to employ a contractor to prepare storm water pollution plans, assist with filing of Notices of Intent, and provide environmental services for capital improvement projects; and WHEREAS, the City has determined that D-Max Engineering, Inc., is a professional engineering and environmental consulting firm, and is qualified by experience and ability to perform the services desired by the City, and D-Max Engineering, Inc. is willing to perform such services for the not -to -exceed amount of $100,000. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby authorizes the Mayor to execute an agreement with D-Max Engineering, Inc. in the amount of $100,000 to prepare storm water pollution plans, assist with filing of Notices of Intent, and provide environmental services for capital improvement projects. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 17th day of April, 20 on Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk PROVED `TO FORM: Gacitu : • ilva City Attorney Passed and adopted by the Council of the City of National City, California, on April 17, 2012 by the following vote, to -wit: Ayes: Councilmembers Morrison, Natividad, Rios, Sotelo-Solis, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California A4"116JA P41/46 City Jerk of the City o National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2012-86 the City of National City, California, passed and adopted by the Council of said City on April 17, 2012. City Clerk of the City of National City, California By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT 4111 ITEM TITLE: Resolution of the City Council of National City approving an Agreement between the City and D-Max Engineering, Inc. for the not to exceed amount of $100,000 for preparation of Storm Water Pollution Prevention Plans, Assist with filing of Notices of Intent and provide Environmental Services for Capital Improvement Projects. (Funded by various CIP projects) MEETING DATE: April 17, 2012 AGENDA ITEM NO. 7 PREPARED BY: Barby Tipton PHONE: 4583 EXPLANATION: See attached DEPARTMENT: Development Services/Ehgineering APPROVED B3 kiliz2}.43:44CA FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. Various funding sources for CIP Projects APPROVED: This Agreement is for the "Not to Exceed" amount of $100,000 for services on an as needed basis ). ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adopt the Resolution BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: 1. Explanation 2. Agreement 3. Resolution �. (\,G\\cr E Explanation: Some of the City's Capital Improvement Projects (CIPs) that are funded by Tax Increment and/or the 2011 Tax Allocation Bond may require a Storm Water Pollution Prevention Plans (SWPPP). The General Construction Permit requires that SWPPP be prepared by a Qualified SWPPP Developer (QSD). The Capital Improvement projects that may require a SWPPP, include: 8th Street Corridor Smart Growth Revitalization/Safe Routes to School, 8th Street Corridor Safety Enhancements, Highland Avenue Corridor Safety Enhancements, D Avenue Community Corridor/12`h Street & D Avenue Roundabout, Coolidge Avenue Community Corridor/Safe Routes to School, 4th Street Community Corridor, Las Palmas Park Improvements, Kimball Park Improvements Aquatic Center. Our current on -call Environmental Consultant, D-Max Engineering, has a QSD on staff and can prepare required SWPPP's as needed. Further, the Request for Proposal issued on March 16, 2011 included a request to provide engineering, environmental services and assistance with implementing the City's National Pollutant Discharge Elimination System (NPDES) Program, and there is no additional benefit in going out for an additional request for proposal for this environmental issue. Additionally, time is of the essence in preparing SWPPP's. In accordance with the Cooperation Agreement for Commission's Payment of certain costs by and between the City of National City and the Community Development Commission of the City of National City adopted on February 15, 2011 the City is undertaking development of the above listed projects, which may require the preparation of a SWPPP by a QSD. The Cooperation Agreement does not constitute a pledge of the use of General Funds for the Capital Improvement Projects, but rather obligates the use of non -General Funding, such as Tax Increment and/or the 2011 Tax Allocation Bonds. We are requesting that Council approve this Agreement with D-Max, Engineering, Inc. that would allow staff to use the consultant to prepare SWPPPs and provide environmental services on an as needed basis for the Capital Improvement Projects mentioned above that have been identified and appropriated with Tax Increment and/or 2011 Tax Allocation BondsThe Agreement is for the "Not to Exceed" amount of $100,000 for services on an as needed basis, and various Capital Improvement Projects funds will pay for these services. 1 AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND D-MAX ENGINEERING, INC. This Agreement, is entered into this 17th day of April, 2012, by and between the City of National City, a municipal corporation (the "CITY"), and D-Max Engineering, Inc. (the "CONSULTANT"). RECITALS WHEREAS, the CITY and the CONSULTANT entered into an Agreement by and between the City of National City and D-Max Engineering, Inc., on June 21, 2011, (the "Agreement") through the adoption of City of National City Council Resolution No. 2011-124, wherein the CONSULTANT agreed to provide engineering, environmental services and assistance with implementation of the National Pollutant Discharge Elimination System ("NPDES") per requirements; and WHEREAS, D-Max Engineering is currently under contract to assist the City to comply with the NPDES and the City's Jurisdictional Urban Runoff Management Program, which includes inspection and reporting to the Regional Water Quality Control Board, (RWQCB); and, WHEREAS, D-Max Engineering, Inc. has intimate knowledge of the RWQCB policies and procedures and is knowledgeable of the City and its practices; and WHEREAS, certain Capital Improvement Projects require the preparation of a Storm Water Pollution Prevention Plan (SWPPP) by a Qualified SWPPP Developer (QSD); and WHEREAS, D-Max Engineering, Inc. has a QSD on staff and can prepare required SWPPPs as needed; and, WHEREAS, the Request for Proposal issued on March 16, 2011 included a request to provide engineering, environmental services and assistance with implementing the City's National Pollutant Discharge Elimination System (NPDES) Program, and there is no additional benefit in going out for an additional request for proposal for this environmental issue; and WHEREAS, time is of the essence in preparing the SWPPP; and WHEREAS, certain Capital Improvement Projects that will be utilizing Tax Increment and/or 2001 Tax Allocation Bond funding, and may require the preparation of SWPPPs by a QSD; and WHEREAS, pursuant to and consistent with the Cooperation Agreement for Commission's Payment of Certain Costs by and between the City of National City -1- City of National City/D-Max Engineering, Inc, SWPPP Development Coop Agmt / Bond Projects 2 and the Community Development Commission of the City of National City adopted on February 15, 2011 ("Cooperation Agreement"), the City is undertaking development of the following Capital Improvement Projects: 8th Street Corridor Smart Growth Revitalization/Safe Routes to School, 8th Street Safety Enhancements, Highland Avenue Corridor Safety enhancements, D Avenue Community Corridor/12th Street & D Avenue Roundabout, Coolidge Avenue Community Corridor/Safe Routes to School, 4th Street Community Corridor, Las Palmas Park Improvements, Kimball Park Improvements, Aquatic Center, some of which may require the preparation of a SWPPP by a QSD, on behalf of the Community Development Commission; and WHEREAS, said Cooperation Agreement does not constitute a pledge of the use of General Funds for the Capital Improvement Projects but rather obligates the use of non -General Funding such as 2011 Tax Allocation bonds and/or Tax Increment funding. NOW, THEREFORE, THE PARTIES HERETO 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 prepare Storm Water Pollution Prevention Plans (SWPPPs), assist with preparation and filing of Notices of Intent and other environmental services required for Capital Improvement Projects. The scope of work will be defined for each project and will be outlined on the individual proposal submitted as time of the request. 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 Officer for the CITY and will monitor the progress and execution of this Agreement. The CONSULTANT - 2 - City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 3 shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONSULTANT. Arsalan Dadkhah 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 a total of $100,000.00. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished and satisfactorily 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. CONSULTANT acknowledges and accepts that CITY is undertaking the Capital Improvement Projects pursuant to its obligations set forth in the Cooperation Agreement by and between the City of National City and the Community Development Commission of the City of National City, and that CITY is not committing its general funds to payment for these services, but rather the 2011 Tax Allocation Bond proceeds and/or tax increment funds, and/or funds. 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 June 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. -3- City of National City/D-Max Engineering, Inc. SVVPPP Development Coop Agmt / Bond Projects 4 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. 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 - 4 - City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 5 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 CONSULTANTS 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. -5- City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 6 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. 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, 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 -6- City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 7 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 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 -7- City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 8 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 Agree- ment. I. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. 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 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 $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, 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 -8- City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 9 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. 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 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 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: -9- City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 10 To CITY: To CONSULTANT: City of National City Stephen Manganiello, City Engineer 1243 National City Blvd National City, CA 91950 Arsalan Dadkhah, President 7220 Trade Street 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 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. 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. SPECIAL LIMITED OBLIGATION. Consultant acknowledges and agrees that recovery of any damage claim by the Consultant against the City or any liability or financial obligation of the City pursuant to this Agreement and the ancillary agreements and documents is and shall be a special limited obligation, payable - 10 - City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 11 solely from payments made to the City by either the Community Development Commission of the City of National City or its successor known as the Successor Agency to the Community Development Commission as the National City Redevelopment Agency [collectively, the Agency] and is not and shall not be a pledge of or obligation payable through the City's general fund or any other funds of the City. Nothing in this Agreement or any ancillary agreements or documents shall require or be deemed to require the City to expend or commit to expend monies from its general fund to satisfy any of the obligations set forth in this Agreement or any ancillary agreement or document. In the event the City does not have the funds to fulfill any financial obligation under this Agreement or any ancillary agreement or document, which is subject to its foregoing limitation, it shall not be considered a default or a material breach under this Agreement or under such ancillary agreement or document. 24. 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 ii 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 agree- ments, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an -11- City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects 12 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 D-MAX ENGINEERING, INC. By: Ron Morrison, Mayor Arsalan Dadkhah President APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney - 12 - BY: L -60. Oda By: , .Jofin Quenzer Secretary City of National City/D-Max Engineering, Inc. SWPPP Development Coop Agmt / Bond Projects ACORI7 CERTIFICATE OF LIABILITY INSURANCE DATE IMM,!DDIYYYY) 12/28/2011 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Cavignac & Associates 450 B Street, Suite 1600 San Diego, CA 92101-8005 License No. CA99520 INSURED D-MAX Engineering, Inc. 7220 Trade Street, Suite 119 San Diego, CA 92121 United States NACT NAME A:Certificate Department PHONE MX. No. Est): 619 234-6848 E-MAIL ADDRESS: certificates®cavignac.com FAX (AfX No): o19-234-8601 PRODUCER CUSTOMER ID #: DMAXE- 1 INSURERS) AFFORDING COVERAGE NAIC 0 INSURER A : TRAVELERS PROP CAS CO OF_AMER__ 7 7 Fi 14 INSURER B: CATLIN INS CO 19518 INSURER C INSURER 0 INSURER E INSURER F: COVERAGES CERTIFICATE NUMBER: 105506 REVISION NUMBER: 16800i THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP INSR., WVD POLICY NUMBER POLICY IMMIDO(VYYYI LIMITS A GENERAL X LIABILITY COMMERCIAL GENERAL LIABILITY [ X I OCCUR 6807350L622 1/1/2012 1/1/2013 EACH OCCURRENCE $ 1,000,000 DAMAGE TO RENTED PREMISES (Ea occurrence) $ 1, 000, 000 CLAIMS -MADE MED EXP (Any one person) S 10,000 X X GEN'L Contractual Liab. PERSONAL 8ADV INJURY $ '- ,000,000 Separation of Insureds GENERAL AGGREGATE 1$ 2,000,000 AGGREGATE LIMIT APPLIES PER: POLICY X JILT I 1 LOC PRODUCTS - COMP/OP AGG $ 2,000,000 $ A AUTOMOBILE X LIABILITY ANY AUTO BA8924L251 1/1/2012 1/1/2013 COMBINED SINGLELIMIT (Ea accidenl) $ 1,000,00 BODILY INJURY (Per person) $ BODILY INJURY (Per accidenl) $ PROPERTY DAMAGE (Per accident) $ $ UMBRELLA LIAB EXCESS LIAB _. OCCUR CLAIMS -MADE EACH OCCURRENCE $ AGGREGATE $ DEDUCTIBLE RETENTION $ $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y/N ANYPROPRIETORiPARTNERIEXECUTIVE OFFICER/MEMBER EXCLUDED? I ( (Mandatory in NH) If yes. describe under DESCRIPTION OF OPERATIONS below N/A UB5527Y628 1/1 /2012 1 /1/2013 X ORY LIMITS OTFR- .L E. EACH ACCIDENT $ 1,000, 000 E. L. DISEASE - EA EMPLOYEE $ 1, 000,000 E.L. DISEASE - POLICY LIMIT $ 1,000,000 B Professional Liability AE0985380113 1/1/2012 1/1/2013 Ea Cl. aim $1,000,000 Aggregate $2,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) RE: Storm Water Services. The City of National City, its elected officials, officers, agents, and employees are additional insured with respect to general liability per attached & auto liability per palicy form. Waiver cf Subrogation applies to workers compensation per attached. CANCELLATION City of National City 1243 National City Blvd. National City, CA 91950-4397 United States SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Dorothy Amundson 01988-2009 ACORD CORPORATION. All rights reserved. ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD EXIGIS - CAVIGNAC 8 ASSOCIATES 168001 Page 2 of 5 POLICY NUMBER: 68073501,622 COMMERCIAL GENERAL LIABILITY DATE ISSUED: 1/1/2012 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED (ARCHITECTS, ENGINEERS AND SURVEYORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM SCHEDULE NAME OF PERSON(S) OR ORGANIZATION(S): PROJECT/LOCATION OF COVERED OPERATIONS: PROVISIONS A. The following is added to WHO IS AN INSURED (Section II): The person or organization shown in the Schedule above is an additional insured on this Coverage Part, but only with respect to liability for "bodily injury", "property damage" or "personal injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: a. In the performance of your ongoing operations; b. In connection with premises owned by or rented to you; or c. In connection with "your work" and included within the "products - completed operations hazard". CGD3820907 Such person or organization does not qualify as an additional insured for "bodily injury", "property damage", or "personal injury" for which that person or organization has assumed liability in a contract or agreement. The insurance provided to such additional insured is limited as follows: d. This insurance does not apply to the rendering of or failure to render any "professional services". e. The limits of insurance afforded to the additional insured shall be the limits which you agreed in that "contract or agreement requiring insurance" to provide for that additional insured, or the limits shown in the Declarations for this coverage part, whichever are less. This endorsement does not increase the limits of insurance stated in the 2007 The Travelers Companies, Inc. Page 1 of 2 Includes the copyrighted material of Insurance Services Office, Inc., with its permission 15 Page 3 of 5 LIMITS OF INSURANCE (Section III) for this coverage part. B. The following is added to paragraph a. of 4. Other Insurance in COMMERCIAL GENERAL LIABILITY CONDITIONS (Section IV): However, if you specifically agree in a `contract or agreement requiring insurance" that, for the additional insured shown in the Schedule, the insurance provided to that additional insured under this Coverage Part must apply on a primary basis, or a primary and non-contributory basis, this insurance is primary to other insurance that is available to such additional to such additional insured which covers such additional insured as a named insured, and we will not share with the other insurance, provided that: (1) The "bodily injury" or `property damage" for which coverage is sought occurs; and (2) The "personal injury" for which coverage is sought arises out of an offense committed; after you have entered into that "contract or agreement requiring insurance" for such additional insured. But this insurance still is excess over valid and collectible other insurance, whether primary, excess, contingent or on any other basis, that is available to the additional insured when the additional insured is also an additional insured under any other insurance. C. The following is added to Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us in CGD3820907 COMMERCIAL GENERAL LIABILITY CONDITIONS (Section IV): We waive any rights of recovery we may have against the additional insured shown in the Schedule above because of payments we make for "bodily injury", "property damage" or "personal injury" arising out of "your work" on or for the project, or at the location, shown in the Schedule above, performed by you, or on your behalf, under a "contract or agreement requiring insurance" with that additional insured. We waive these rights only where you have agreed to do so as part of the "contract or agreement requiring insurance" with that additional insured entered into by you before, and in effect when, the "bodily injury" or "property damage" occurs, or the "personal injury" offense is committed. D. The following definition is added to DEFINITIONS (Section V): "Contract or agreement requiring insurance" means that any contract or agreement under which you are required to include the person or organization shown in the Schedule as an additional insured on this Coverage Part, provided that the "bodily injury" and "property damage" occurs, and the "personal injury" is caused by an offense committed. a. After you have entered into that contract or agreement; b. While that part of the contract or agreement is in effect; and c. Before the end of the policy period. 2007 The Travelers Companies, Inc. Page 2 of 2 Includes the copyrighted material of Insurance Services Office, Inc., with its permission 4 16 Page 4 of 5 WORKERS COMPENSATION AND EMPLOYERS LIABILITY POLICY ENDORSEMENT WC 99 03 76 (00) POLICY NUMBER: UB5527YG2E WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA (BLANKET WAIVER) We have the 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. 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 % of the California workers' compensation premium otherwise due on such remuneration. Schedule Person or Organization Job Description ANY PERSON OR ORGANIZATION FOR WHICH THE NAMED INSURED HAS AGREED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER. Page 5 of 5 17 RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH D-MAX ENGINEERING, INC., FOR THE NOT TO EXCEED AMOUNT OF $100,000 TO PREPARE STORM WATER POLLUTION PLANS, ASSIST WITH FILING OF NOTICES OF INTENT, AND PROVIDE ENVIRONMENTAL SERVICES FOR CAPITAL IMPROVEMENT PROJECTS WHEREAS, the City desires to employ a contractor to prepare storm water pollution plans, assist with filing of Notices of Intent, and provide environmental services for capital improvement projects; and WHEREAS, the City has determined that D-Max Engineering, Inc., is a professional engineering and environmental consulting firm, and is qualified by experience and ability to perform the services desired by the City, and D-Max Engineering, Inc. is willing to perform such services for the not -to -exceed amount of $100,000. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby authorizes the Mayor to execute an agreement with D-Max Engineering, Inc. in the amount of $100,000 to prepare storm water pollution plans, assist with filing of Notices of Intent, and provide environmental services for capital improvement projects. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 17th day of April, 2012. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney 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 D-Max Engineering Resolution No. 2012-86 Storm Water Pollution Plans Environmental Services for CIP Judy Hernandez (Engineering) Forwarded Copy of Agreement to Consultant