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HomeMy WebLinkAbout2013 CON Sterns Conrad and Schmidt dba SCS Engineers - Environmental ConsultingAGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND STEARNS, CONRAD AND SCHMIDT, CONSULTING ENGINEERS, INC. (DBA SCS ENGINEERS) THIS AGREEMENT is entered into this 18th clay of March, 2013, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and Stearns, Conrad and Schmidt, Consulting Engineers, Inc. (DBA SCS Engineers), an environmental consultants and contractors firm (the "CONSULTANT"). RECITALS WHEREAS, the CITY desires to employ a CONSULTANT to provide environmental services. WHEREAS, the CITY has determined that the CONSULTANT is qualified by experience and ability to perform the services desired by the CITY, and the CONSULTANT is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONSULTANT. The CITY agrees to engage the CONSULTANT, and the CONSULTANT agrees to perform the services set forth here in accordance with all terms and conditions contained herein. The CONSULTANT represents that all services shall be performed directly by the CONSULTANT or under direct supervision of the CONSULTANT. 2. SCOPE OF SERVICES. The CONSULTANT will perform environmental services as set forth and described in the attached Exhibit "A", The CONSULTANT shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CONSULTANT shall appear at meetings specified in Exhibit "A" to keep staff and City Council advised of the progress on the Project. The CITY may unilaterally, or upon request from the CONSULTANT, from time to time reduce or increase the Scope of Services to be performed by the CONSULTANT under this Agreement. Upon doing so, the CITY and the CONSULTANT agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 15% from the base amount. 1 City's Standard Agreement —201 I revision 3. PROJECT COORDINATION AND SUPERVISION. Barbara A. Tipton hereby is designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONSULTANT shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONSULTANT. Daniel Johnson thereby is designated as the Project Director for the CONSULTANT. 4. COMPENSATION AND PAYMENT. The compensation for the CONSULTANT shall be based on monthly billings covering actual work performed as described in Exhibit "A". The total cost for all work in Exhibit "A", shall not exceed the amount of $24,712. without prior written authorization from the City Engineer. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit "A", as determined by the CITY. The CONSULTANT shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred, and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY, and for furnishing of copies to the CITY, if requested. 5. ACCEPTABILITY OF WORK. The City shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In the event the CONSULTANT and the City cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT in this Agreement, the City or the CONSULTANT shall give to the other written notice. Within ten (10) business days, the CONSULTANT and the City shall each prepare a report which supports their position and file the same with the other party. The City shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT. 6. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement expires upon completion of tasks listed in Exhibit "A", but no later than March 18, 2014. 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications, and other documents prepared by the CONSULTANT for this Project, whether paper or electronic, shall become the property of the CITY for use with respect to this Project, and shall be turned over to the CITY upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONSULTANT hereby assigns to the CITY, and CONSULTANT thereby expressly waives and disclaims any copyright in, and the right to reproduce, all written material, drawings, plans, specifications, or other work prepared under this Agreement, except upon the CITY'S prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONSULTANT 2 City's Standard Agreement —201 t revision 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 CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the CONSULTANT nor the CONSULTANT'S employees are employees of the CITY, and are not entitled to any of the rights, benefits, or privileges of the CITY'S employees, including but not limited to retirement, medical, unemploy- ment, 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(S) 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 or the CONSULTANT'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY, it being understood that the CONSULTANT its agents, servants, and employees are as to the CITY wholly independent CONSULTANT, 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 3 City's Standard Agreement —201 I revision of its SUBCONSULTANT(S) 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 governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONSULTANT'S professional performance or the furnishing of materials or services relating thereto. C. The CONSULTANT is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONSULTANT has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONSULTANT has notified the CITY otherwise, the CONSULTANT warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONSULTANT to use due diligence under this sub -paragraph will render the CONSULTANT liable to the CITY for any increased costs that result from the CITY'S later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 13. NON-DISCRIMINATION PROVISIONS. The CONSULTANT shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONSULTANT will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONSULTANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 4 City's Standard Agreement —2011 revision 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 whomsoever, resulting from or arising out of the CONSULTANT'S negligent performance of this Agreement. The indemnity, defense and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term 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. 5 City's Standard Agreement —201 1 rev,son 17. INSURANCE. The CONSULTANT, at its sole cost and expense, shall purchase and maintain, and shall require its SUBCONSULTANT(S), when applicable, to purchase and maintain throughout the term of this Agreement, the following checked 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"). The policy shall name the CITY and its officers, agents and employees as additional insureds and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of $2,000,000 per occurrence and $4,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". 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. If CONSULTANT has no employees subject to the California Workers' Compensation and Labor laws, CONSULTANT shall execute a Declaration to that effect. Said Declaration shall be provided to CONSULTANT by CITY. 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 writ -ten notice to the CITY of cancellation or material change. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONSULTANT shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. G. Insurance shall be written with only California admitted companies that 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. H. 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. 6 Ciry's Standard Agreement -2011 revision I. 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 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 7 City's Standard Agreement —2011 revision 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: To CITY: Stephen Manganiello City Engineer Engineering Department City of National City 1243 National City Boulevard National City, CA 91950-4301 Phone: (619) 336-4380 Fax: (619) 336-4397 To CONSULTANT: Daniel E. Johnson Vice President, San Diego Manager SCS Engineers 8799 Balboa Avenue, Suite 290 San Deigo, CA 92123-1568 Phone: (858) 571-5500 x-234 Fax: (858) 571-5357 8 City's Standard Agreement —2011 revision 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 22 by the CONSULTANT. 23. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720,1720.2, 1720.3, 1720.4, and 1771. Consultant is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 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. 9 City's Standard Agreement —2011 revision 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. Audit. If this Agreement exceeds ten -thousand dollars ($10,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. J. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. K. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. L. 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. Signature Page to follow: 10 City's Standard Agreement —2011 revision CITY OF NATIONAL CITY By: Leslie Deese, City Manager LPPROVED AS TO FORM: 6�;tltii dia G!STh(a City A STEARNS, CONRAD AND SCHMIDT,CONSULTING ENGINEERS, INC. (Corporate. natures of two corporate officers) By: By: Daniel E. Joh Vice Preside Chuck Pryatel Vice President 11 Cay's Standard Agreement —2011 revision Environmental Consultants and Contractors SCS ENGINEERS 8799 Balboa Avenue Suite 290 San Diego, CA 92123 CONFIDENTIAL AND PRIVILEGED NOT TO BE DISCLOSED TO NON -CLIENT PARTIES Copyright 2013 SCS Engineers February 22, 2013 Proposal Number 010175213 Stephen Manganiello City Engineer City of National City Engineering Department 1243 National City Boulevard National City, CA 92121 858 571-5500 FAX 858-571-5357 wwwscse ng i n e e rs. com RE: Proposal to Conduct Groundwater Monitoring and Sampling and for Consulting Services Site: 1200 National City Boulevard DEH Case #: H32234-001 Dear Mr. Manganiello: SCS Engineers (SCS) is pleased to present this proposal (proposal) to perform groundwater monitoring and sampling at the above -referenced Site. In addition, SCS will provide other services, as more fully described below, to support and assist the City of National City (Client). Upon your authorization, this Proposal will serve as the basis for a contract (Contract) between SCS and the Client. This Proposal has been prepared based on our conversations and previous assessment and subsurface assessment activities conducted at the Site by SCS, as well as conversations with regulatory agency personnel and review of agency files and records. OBJECTIVES The objectives of this scope of services change are to: • Complete two groundwater monitoring events, which would provide data enabling us to: Further assess groundwater elevation, flow direction, and gradient at the Site. Assess whether phase -separated hydrocarbons (PSH) are present in the subsurface. Assess the concentrations of dissolved petroleum hydrocarbons and associated volatile organic compounds (VOCs) in groundwater beneath the Site. EXHIBIT "A" City of National City Proposal February 22, 2013 Proposal Number 010175213 Page 2 SCS Engineers - Assess whether the Site is a candidate for closure (e.g., an argument can be presented that the plume meets the criteria for "low threat"). • Attempt to rehabilitate monitoring well MW8, and if successful, add this well to the monitoring and sampling program. • Provide regulatory agency liaison, support, negotiation, and assistance, on an as -needed basis with the Regional Water Quality Control Board (RWQCB) and other assistance as directed by the Client. • Provide assistance and liaison with the Leaking Underground Storage Tank Cleanup Fund. SCOPE OF SERVICES The following is the scope of services developed to meet the objectives. TASK 1 WELL REHABILITATION SCS will obtain the appropriate contractor services to attempt to rehabilitate monitoring well MW8. This well is currently obstructed with asphalt. SCS will attempt to break up the asphalt and remove it from the well (e.g., with a vacuum truck). TASK 2 PREPARATION FOR FIELDWORK Preparation of Health and Safety Plan A health and safety plan for work conducted at the Site and workers within the exclusion zone is required pursuant to the regulations found in 29 Code of Federal Regulations (CFR) Part 1910.120 and California Code of Regulations (CCR), Title 8, Section 5192. Therefore, the health and safety plan for the Site will be updated for the proposed work scope, and will outline the potential chemical and physical hazards that may be encountered during drilling and sampling activities. The appropriate personal protective equipment and emergency response procedures for the anticipated site -specific chemical and physical hazards will be detailed in this plan. SCS and contracted personnel involved with the proposed field work will be required to read and sign this document in order to encourage proper health and safety practices. Preparation of Traffic Control Permit Application Because monitoring and sampling of three monitoring wells that are located in the street is proposed, a traffic control permit will be required. SCS will prepare and submit the necessary permit application and the appropriate fees to the City of National City. City of National City Proposal February 22, 2013 Proposal Number 010175213 Page 3 SCS Engineers Subcontractor Management The appropriate subcontractor services will be obtained such as traffic control, laboratory services, and other required contractor services. This task also includes time to coordinate and manage subcontractors, such as the analytical laboratory, secure the necessary specialized equipment, and prepare for field mobilization. This task includes obtaining traffic control permits and other subcontractor services for two groundwater monitoring events. TASK 3 GROUNDWATER MONITORING, SAMPLING, AND ANALYSIS Two rounds of groundwater monitoring and sampling will be conducted on a semi-annual basis. Depth -to -groundwater measurements will be taken. If phase -separated hydrocarbons (PSH) are present in a well, the PSH thickness will be recorded, and a groundwater sample will not be collected. The Site wells will be sampled using the low -flow method with the bladder pumps and tubing in each well. The sample will be collected after the groundwater quality meter has been disconnected from the tubing, and the sample will be decanted directly into appropriate, laboratory -supplied containers. All groundwater samples will be labeled and transported in an ice -packed cooler under chain -of -custody procedures to a state -accredited laboratory for the following analyses: e Total petroleum hydrocarbons as gasoline (TPHg) in accordance with California Department of Health Services Leaking Underground Fuel Tank (CA DHS LUFT) Method • Benzene, toluene, ethylbenzene, total xylenes (BTEX), methyl tertiary butyl ether (MTBE), di -isopropyl ether (DIPE), ethyl tertiary butyl ether (ETBE), amyl methyl ether (TAME), and tertiary butyl alcohol (TBA) in accordance with EPA Method 8260B. Purge water will be placed in appropriate 55-gallon drums, which will be labeled and left on -site pending receipt of analytical results and evaluation of disposal options. It is assumed that the well monitoring, purging, and sampling will be conducted by a two -person crew in two days. Groundwater Drum Disposal Groundwater generated from the purging and sampling activities will be disposed of at a permitted disposal facility. The groundwater disposal budget assumes the generation of seven 55-gallon drums of non -hazardous groundwater per event. In addition, the estimated budget includes the disposal of one drum of PSH and groundwater as hazardous waste. A technician will be on Site to supervise the disposal of the drums and sign the waste manifest as an agent for the client. City of National City Proposal February 22, 2013 Proposal Number 010175213 Page 4 SCS Engineers TASK 4 GROUNDWATER MONITORING REPORT PREPARATION AND EDF UPLOAD In accordance with RWQCB requirements, SCS will prepare and submit two reports (Reports) of our findings to the RWQCB. Each Report will be prepared in general accordance with industry practices. The Report will include a description of the monitoring and sampling activities, a groundwater gradient map, a contaminant dissolved -phase distribution map, tables presenting groundwater elevation and dissolved concentrations from the most recent and past monitoring and sampling events, laboratory reports, and other support documentation. The Report will be peer reviewed and signed by a registered professional engineer or geologist. Appropriate steps will be taken to adhere to the state regulations pursuant to AB2886 by submitting the laboratory data and a electronic copy of the report to the State Water Resources Control Board in electronic delivery format at the same time that the written report is submitted to the RWQCB. TASK 5 REGULATORY AGENCY LIAISON AND SUPPORT We understand that this release case has been referred to the RWQCB for oversight. We also understand that there has been some confusion between this release case and a release from another UST formerly present at the Site where the Client has conducted assessment activities. This task provides time for SCS to conduct research and review the current status of the regulatory files, and to meet and interact with the RWQCB to clarify the regulatory requirements and plan a path to case closure. This task also includes time to conduct research and request files for other UST cases, as directed by the Client. TASK 6 CALIFORNIA UNDERGROUND STORAGE TANK CLEANUP FUND (CLEANUP FUND) ASSISTANCE SCS will assist in preparing and submitting a claim application to the Cleanup Fund. This involves the following: • Researching prior Site ownership • Researching UST information • File Review (if necessary) of San Diego County Department of Environmental Health (DEH) and/or Fire Department files to locate any and all permit information not available online. • Researching prior environmental information pertaining to the Site • Preparing a chronology of work done at the Site • Preparing an estimate of corrective action costs incurred, and those yet to be incurred City of National City Proposal February 22, 2013 Proposal Number 010175213 Page 5 SCS Engineers • Working with the Client to provide the required taxes and employee information to complete the application • Follow up with the DEH and/or the Client regarding historic environmental reports as necessary • Follow up with the Client and/or Cleanup Fund to ensure all questions have been answered and all required documentation has been submitted for their review of the claim • Follow up with the Cleanup Fund to provide additional documentation as necessary (after their review of the initial application submittal). • Please note the above Services described in this proposal are considered regulatory technical assistance costs (RTAC). The Cleanup Fund reimburses up to a maximum of $3,000.00 in eligible RTAC per claim. • Note that the UST Cleanup Fund deductible is generally $5,000-$10,000 for a Class B Claimant. TASK 7 PREPARATION OF CLOSURE REQUEST AND PROJECT MANAGEMENT As data allows, a closure request letter will be drafted and submitted to the RWQCB along with compiled data and other supporting documentation. This task will likely include the preparation of a spreadsheet and checklist which compares the Site conditions to the State Water Resources Control Board "Low Threat Closure Policy." In addition, this task includes limited time for overall project management. ESTIMATED BUDGET AND SCHEDULE We anticipate being able to start work on the project immediately upon receipt of the executed contractual documents specified on page seven. We estimate Tasks 1 and 2 of the project will take approximately 5 weeks to complete. Results from the initial field work should be available approximately 8 weeks from commencement of the project. A final completion report will be prepared and submitted to the RWQCB within 30 working days of the receipt of all laboratory data. Task Number Task Description Cost per Event Total Cost per Task 1 Well Rehabilitation NA $1,250 2 Preparation for Fieldwork $1,750 $3,500 3 Groundwater Monitoring and Sampling $4,358 $8,716 4 Report Preparation and EDF Upload $2,748 $5,496 City of National City February 22, 2013 Page 6 Proposal Proposal Number 010175213 SCS Engineer: Task Number Task Description Cost per Event Total Cost per Task 5 Regulatory Agency Liaison Support, and Research NA $2,000 6 Cleanup Fund Assistance NA $2,000 7 Preparation of Closure Request NA $1,500 Total Cost $24,462 Recommended Contingency $2,400 The estimated time and materials budget for the above described scope of work for two groundwater monitoring events and other consulting services is $24,712*. * Please allow for a possible 10 percent variance in the total estimated cost due to changed site conditions or unanticipated circumstances. The estimated budget includes limited time for project management activities, such as planning, client communication and liaison, project status updates, and budget and invoice review by the Project Manager. We propose to perform our services and invoice, in accordance with the Proposal, enclosed fee schedule, and conditions of service. Compensation described herein shall be subject to renegotiation, if authorization to proceed has not been given within 30 days of the date of the Agreement of Services. If we may assist you in any way, please do not hesitate to call our office at (858) 571-5500. We look forward to working with you on this important project. Sincerely, C`E' GINEERS Dar sE. Johnson ;r Vice President l Nihkj Senior Prpject`l rofe Enclosure Tom Wright, PG, CI-Ig Senior Project Professional City of National City Proposal February 22, 2013 Proposal Number 010175213 Page 7 SCS Engineers Upon acceptance and execution of this proposal, this document may serve as an Exhibit to the Contract between SCS and the Client. The Client should sign the two enclosed copies of the Proposal and return the signed documents to us. Upon our countersignature, one fully executed Proposal will be returned to you for your records. Signature of SCS Representative Signature of Client Representative Printed Name Printed Name Title Title Date Date City of National City Proposal February 22, 2013 Proposal Number 010175213 Page 8 SCS Engineers CONDITIONS OF SERVICE This Agreement for Services is based on, but not limited to, the following conditions: GENERAL CONDITIONS • Unscheduled delays due to rain, underground obstructions, additional regulatory compliance, additional work requests, and the like may result in additional costs, • Restrictions on the hours when work can be performed do not impact the proposed work progress. • Utility lines, piping, conduit, and underground obstructions are not located in the positions selected for the proposed boreholes. • No hazardous concentrations of chemicals will be encountered during the field program which will require immediate remedial activities. • The California Code of Regulations, Title 23, will serve as basis for procedures and guidelines, when appropriate, during the course of this investigation. In addition, Title 22 CCR will serve as the reference for determining what is a hazardous waste(s). • We would be pleased to perform services in addition to those described in this proposal. However, additional services that are requested that are not specifically outlined in this proposal will be billed to the Client as an additional cost per our Fee Schedule contained herein. We also respectfully request written notification of any additional tasks that you desire us to perform. CLIENT SERVICE SUPPORT • The Client will provide available reports (such as geotechnical and grading), maps, as -built drawings, and all other documentation regarding historical land usage and Site history, including, but not limited to, construction plans, subsurface investigations, geophysical studies, and copies of previous environmental studies. If "as builts" are not available or are inaccurate, SCS is not responsible for damages of any kind from this investigation to features including, but not limited to, subsurface structures, utilities, appurtenances, and improvements, including consequential damages. • The Client will provide ready access to the Site for field investigation purposes and access to water and power, if required. • The Client should recognize that the findings and conclusions of the limited technical report and related correspondence are based on the subsurface investigation conducted during this phased scope of services. The rendered interpretation of the City of National City Proposal February 22, 2013 Proposal Number 010175213 Page 9 SCS Engineers Site's condition is limited to the scope of this investigation. The presence of hazardous materials on the Site in areas neither investigated nor observed is not necessarily precluded. The Client is responsible for the storage and disposal of any soil and waste generated at the Site during the field activities. LEAKING UNDERGROUND STORAGE TANK TRUST FUND SCS agrees to provide the Client with necessary detailed invoices and backup to support claims made to the Cleanup Fund. For an additional fee, SCS will submit requests for reimbursement to the cleanup fund, including but not limited to the preparation of necessary spreadsheets and backup documentation. 7 ® A4C4:;•/?0 CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DDNYYY) 03/1920i3 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(les) 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 Aon Risk Insurance services West, Inc. Los Angeles CA Office 707 wilshire Boulevard Suite 2600 Los Angeles CA 90017-0460 USA CONTACT PHME ON No. Est): (866) 283-7122 FAX Nog (847) 953-5390 (NC.E E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC H INSURED SCS Engineers 3900 Kilroy Airport way, suite 100 Long Beach CA 90806-6816 USA INSURER A: Chartis specialty Insurance company 26883 INSURER e: Zurich American Ins Co 16535 INSURER C: INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 570049286639 REVISION NUMBER: 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. Limits shown are as requested INSR LTR TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER POLICY EFF--PBACYEXP- ((MLVDDM/YV'VVYY(( IJMM/DD LIMITS A GENERAL LIABILITY PROP17322480 03/31/2012 03/31/201 EACH OCCURRENCE $2,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED PREMISES (Ea occurrence) 51, 000, 000 CLAIMS -MADE I X I OCCUR MED EXP (Any one person) $5,000 PERSONAL 8ADV INJURY $2,000,000 GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG 52,000,000 POLICY II JECT I LOC B AUTOMOBILE LIABILITY BAP 8044405-18 03/31/2012 03/31/2013 COMBINED SINGLE LIMIT (Ea accident) $1,000,000 X ANY AUTO BODILY INJURY ( Per person) % ALL OWNED SCHEDULED A NON -OWNED AUTOS PROPERTY DAMAGE (Per accident) A UMBRELLALU(B X OCCUR PROU17322481 03/31/2012 03/31/2013 EACH OCCURRENCE $5,000,000 X EXCESS LIAB CLAIMS -MADE AGGREGATE $5,000,000 DED 'RETENTION B B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y/N WC283699901 04/01/2012 04/01/2012 04/01/2013 04/01/2013 X We STATU- TORY LIMITS ERA ANY PROPRIETOR I PARTNER I EXECUTIVE I N I NIA WC283700001 E.L. EACH ACCIDENT $1, OOO, OOO OFFICER/MEMBER EXCLUDED? (Myandatory in NH) describe E.L. DISEASE -EA EMPLOYEE $1, 000, 000 , under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $1, 000, 000 A Env Prof (E&0) PROP17322480 Prof/Poll Liab 03/31/2012 03/31/2013 Each Claim Aggregate $1,000,000 $1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space Is required) SCS Job No. 90000016.01 Task 0004, Police Station, 1200 National City Boulevard. The city of National city its elected officials, officers, agents and employees are included as Additional Insured with respect to the General Liability and Automobile Liability policies; and granted a waiver of Subrogation for workers' Compensation policy, as required by written contract, but limited to the operations of the Insured under said contract. CERTIFICATE HOLDER City of National City Attn: Elena Amaya 1243 National City Boulevard National City CA 91950 USA CANCELLATION 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 e.JV098 ✓L�bC✓ J1tdf6fa92ris e/ Tifr1xL14A !/Et06 ✓�C. ©1988-2010 ACORD CORPORATION. All rights reserved ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD Holder Identifier : ACG Certificate No : 570049286639 ENDORSEMENT This endorsement, effective 12:01 AM, 3/31/2012 Forms a part of Policy No: PROP 17322480 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED / PRIMARY COVERAGE ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL. GENERAL LIABILITY AND PROFESSIONAL LIABILITY POLICY In consideration of an additional premium of $Included it is hereby agreed that the following is included as an Additional Insured as respects Coverage A and B but only as respects liability arising out of your work for the Additional Insured by or for you. Additional Insured: BLANKET WHERE REQUIRED BY WRITTEN CONTRACT. This does not apply to bodily injury or property damage arising out of the sole negligence or willful misconduct of, or for defects in design furnished by, the Additional Insured. As respects the coverage afforded the Additional Insured, this insurance is primary and non-contributory, and our obligations are not affected by any other insurance carried by such Additional Insured whether primary, excess, contingent, or on any other basis. This endorsement does not increase the Company's limits of liability as specified in the Declarations of this policy. All other terms, conditions, and exclusions shall remain the same. 90667 (04/06) C12781 PAGE 1 OF 1 POLICY NUMBER: BAP 80 44 405 18 COMMERCIAL AUTO CA20480299 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED INSURED This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM GARAGE COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by this endorsement. This endorsement identifies person(s) or organization(s) who are Insureds" under the Who Is An insured Provision of the Coverage Form. This endorsement does not alter coverage provided in the Coverage Form. This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. SCHEDULE Name of Person(s) or Organization(s): ANY PERSON OR ORGANIZATION WITH WHOM YOU HAVE AGREED, THROUGH WRITTEN CONTRACT, AGREEMENT OR PERMIT, EXECUTED PRIOR TO ANY LOSS. (if no entry appears above, information required to complete this endorsement wit be shown in the Declarations as applicable to the endorsement) Each person or organization shown in the Schedule is an 'Insured" for Liability Coverage, but only to the extent that person or organization qualifies as an insured" under the Who Is An Insured Provision contained in Section 11 of the Coverage Form. CA 20 48 02 99 Copyright, Insurance Services Office, Inc., 1998 Page 1 of 1 ❑ Insured copy WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 00 03 13 (Ed. 4-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT 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. (this agreement applies only to the extent that you per- form work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule SCHEDULED PERSON OR ORGANIZATION WHERE REQUIRED BY WRITTEN CONTRACT TAisend orselnent changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement Is issued subsequent to preparationof the policy.) Endorsement Effective 04/01/2012 Policy No. WC283699901 Endorsement No. Insured Premium $ Insurance Company Zurich American Insurance Company WC 00 0313 (Ed. 4-84) Copyright 1903 Nalionat Council on Compensation teem -Aare. OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk SCS ENGINEERS (Stearns, Conrad & Schmidt Consulting Engineers dba SCS Engineers) Environmental Consulting Groundwater Monitoring & Sampling Judy Hernandez (Engineering) Forwarded Copy of Agreement to SCS Engineers