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HomeMy Public PortalAboutAgreement_2013-10-28_Ninyo and MooreCONSULTANT SERVICES AGREEMENT By and Between THE CITY OF TEMPLE CITY, a municipal corporation NINYO & MOORE GEOTECHNICAL AND ENVIRONMENTAL SCIENCES CONSULTANTS RN #483 8-695 8 3 880 vl -1- AGREEMENT FOR CONSULTANT SERVICES BETWEEN THE CITY OF TEMPLE CITY, CALIFORNIA AND NINYO & MOORE GEOTECHNICAL AND ENVIRONMENTAL SCIENCES CONSULTANTS This Agreement for Consu day of (? C , 2013 by and b ("City") and NINYO & MOORE CONSULTANTS, an "S" Corpoi hereinafter individually referred t "Parties." tatrt Services ("Agreement") is entered into as of this 2 3� tween the City of TEMPLE CITY, a municipal corporation GEOTECHNICAL AND ENVIRONMENTAL SCIENCES it ("Consultant"). City and Consultant are sometimes aS "Party" and hereinafter collectively referred to as the RECITALS A. City has sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Section 2 of this Agreement. B. Consultant, following submission of a proposal or bid for the performance of the services defined and described particularly in Section 2 of this Agreement, was selected by the City to perform those services. C. Pursuant to the City of Temple City's Municipal Code, City has authority to enter into this Consultant Services Agreement and the City Manager has authority to execute this Agreement. D. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Section 2 of this Agreement and desire that the terms of that performance be as particularly defined and described herein. OPERATIVE PROVISIONS NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows: SECTION 1. TERM OF AGREEMENT. Subject to the provisions of Section 20 "Termination of Agreement" of this Agreement, the scope of services set forth in Exhibit "A" "Scope of Services" shall be completed pursuant to the schedule specified in Exhibit "A." Should the scope of services not be completed pursuant to that schedule, the Consultant shall be deemed to be in Default of this Agreement pursuant to Section 21 of this Agreement. The City, in its sole discretion, may choose not to enforce the Default provisions of this Agreement and may instead allow Consultant to continue performing the scope of services until such services are complete. RN#4838-6958-3880 v1 _ 1 _ SECTION 2. SCOPE OF SERVICES. Consultant agrees to perform the services set forth in Exhibit "A" "Scope of Services" and made a part of this Agreement. SECTION 3. ADDITIONAL SERVICES. Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to or outside of those set forth in this Agreement or listed in Exhibit "A" "Scope of Services," unless such additional services are authorized in advance and in writing by the City Council or City Manager of City. Consultant shall be compensated for any such additional services in the amounts and in the manner agreed to by the City Council or City Manager. SECTION 4. COMPENSATION AND METHOD OF PAYMENT. (a) Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in Exhibit `B" "Compensation" and made a part of this Agreement. The total compensation, including reimbursement for actual expenses, shall not exceed eleven thousand, nine hundred seventy five dollars ($11,975), unless additional compensation is approved in writing by the City Council or City Manager. (b) Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month. The invoice shall detail charges by the following categories: labor (by sub -category), travel, materials, equipment, supplies, and sub -consultant contracts. Sub -consultant charges shall be detailed by the following categories: labor, travel, materials, equipment and supplies. City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are iu compliance with the provisions of this Agreement. In the event that no charges or expenses are disputed, the invoice shall be approved and paid according to the terms set forth in subsection (c). In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. (c) Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, City will use its best efforts to cause Consultant to be paid within forty-five (45) days of receipt of Consultant's correct and undisputed invoice. (d) Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant. SECTION 5. INSPECTION AND FINAL ACCEPTANCE. City may inspect and accept or reject any of Consultant's work under this Agreement, either during performance or when completed. City shall reject or finally accept Consultant's work within sixty (60) days after submitted to City. City shall reject work by a timely written explanation, otherwise Consultant's work shall be deemed to have been accepted. City's acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud. Acceptance of any of Consultant's work by City shall RN #4838-6958-3880 v1 .2- not constitute a waiver of any of the provisions of this Agreement including, but not limited to, sections 16 and 17, pertaining to indemnification and insurance, respectively. SECTION 6. OWNERSHIP OF DOCUMENTS. All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Consultant in the course of providing any services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Consultant. Upon completion, expiration or termination of this Agreement, Consultant shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents. If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Consultant in the course of providing any services pursuant to this Agreement, Consultant's guarantees and warrants related to Standard of Performance and found in Section 9 of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents. SECTION 7. CONSULTANT'S BOOKS AND RECORDS. (a) Consultant shall maintain any and all documents and records demonstrating or relating to Consultant's performance of services pursuant to this Agreement. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to City pursuant to this Agreement. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Consultant pursuant to this Agreement. Any and all such documents or records shall be maintained for three years from the date of execution of this Agreement and to the extent required by laws relating to audits of public agencies and their expenditures. (b) Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Consultant's address indicated for receipt of notices in this Agreement. (c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Consultant's business, City may, by written request, require that custody of such documents or records be given to the City and that such documents and records be maintained by the requesting party. Access to such documents and records shall be granted to City, as well as to its successors -in -interest and authorized representatives. RN 84838-6958-3880 v] _ 3 _ SECTION 8. STATUS OF CONSULTANT. (a) Consultant is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Consultant shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this AGREEMENT or is otherwise expressly conferred in writing by City. (b) The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant's officers, employees, or agents are in any manner officials, officers, employees or agents of City. (c) Neither Consultant, nor any of Consultant's officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City's employees. Consultant expressly waives any claim Consultant may have to any such rights. SECTION 9. STANDARD OF PERFORMANCE. Consultant represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the services required under this Agreement in a thorough, competent and professional manner. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. In meeting its obligations under this Agreement, Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to those required of Consultant under this Agreement. If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Consultant in the course of providing any services pursuant to this Agreement, Consultant's guarantees and warranties related to Standard of Performance shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents. SECTION 10, COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES. Consultant shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Consultant shall obtain any and all licenses, permits and authorizations necessary to perform the services set forth in this Agreement. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Consultant to comply with this section. R1V #4838-6958-3880 v1 _4- SECTION 11. PREVAILING WAGE LAWS It is the understanding of City and Consultant that California prevailing wage laws do not apply to this Agreement because the Agreement does not involve any of the following services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, "construction" includes work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work. SECTION 12. NONDISCRIMINATION. Consultant shall not discriminate, in any way, against any person on the basis of race, color, religious creed, national origin, ancestry, sex, age, physical handicap, medical condition or marital status in connection with or related to the performance of this Agreement. SECTION 13. UNAUTHORIZED ALIENS. Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City. SECTION 14. CONFLICTS OF INTEREST. (a) Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant's performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. (b) City understands and acknowledges that Consultant is, as of the date of execution of this Agreement, independently involved in the performance of non -related services for other governmental agencies and private parties. Consultant is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. (c) City understands and acknowledges that Consultant will, perform non -related services for other governmental agencies and private parties following the completion of the scope of work under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section. RIV #4838-6958-3880 vi .5- SECTION 15. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law. (b) Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered 'voluntary" provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorneys fees, caused by or incurred as a result of Consultant's conduct. (d) Consultant shall promptly notify City should Consultant , its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. SECTION 16. INDEMNIFICATION. (a) Indemnification for Professional Liability. Where the law establishes a professional standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents ("Indemnified Parties") from and against any and all losses, liabilities, damages, costs and expenses, including attorney's fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or sub -consultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement. (b) Indemnifi cation for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorneys fees and costs, court costs, RN#4838-6958-3880 v1 _ 6 _ interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or sub -contractors of Consultant. (c) General Indemnification Provisions. Consultant agrees to obtain executed indemnity Agreements with provisions identical to those set forth here in this section from each and every sub -contractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this Agreement or this section. (d) Limitation of Indemnification. Notwithstanding any provision of Yhis Section 16 [Indemnification] to the contrary, design professionals are required to defend and indemnify the City only to the extent permitted by Civil Code Section 2782.8, which limits the liability of a design professional to claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the design professional. The term "design professional," as defined in Section 2782.8, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code. (e) The provisions of this section do not apply Yo claims occurring as a result of City's sole negligence. The provisions of this section shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents. SECTION 17. INSURANCE. Consultant agrees in obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit "C" "Insurance" and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Consultant agrees to provide City with copies of required policies upon request. SECTION 18, ASSIGNMENT. The expert ise and experience of Consultant are material considerations for this Agreement. City has an interest in the qualifications of and capability of the persons and entities who will fulfill the duties and obligations imposed upon Consultant under this Agreement. In recognition of that interest, Consultant shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Consultant's duties or obligations under this Agreement without the prior written consent of the City Council. Any attempted assignment RN k4838-6958-3880 v] _ 7 _ shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including summary termination of this Agreement. City acknowledges, however, that Consultant, in the performance of its duties pursuant to this Agreement, may utilize subcontractors. SECTION 19. CONTINUITY OF PERSONNEL. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant's staff and subcontractors, if any, assigned to perform the services required under this Agreement. Consultant shall notify City of any changes in Consultant's staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance. SECTION 20. TERMINATION OF AGREEMENT. (a) City may terminate this Agreement, with or without cause, at any time by giving thirty (30) days written notice of termination to Consultant. In the event such notice is given, Consultant shall cease immediately all work in progress. (b) Consultant may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City. (c) If either Consultant or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Consultant, or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Consultant or City, all property belonging exclusively to City which is in Consultant's possession shall be returned to City. Consultant shall furnish to City a final invoice for work performed and expenses incurred by Consultant, prepared as set forth in Section 4 of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4 of this Agreement. SECTION 21, DEFAULT. In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to tenninate this Agreement under Section 20. Any failure on the part of the City to give notice of the Consultant's default shall not be deemed to result in a waiver of the City's legal rights or any rights arising out of any provision of this Agreement. R1V #4838-6958-3880 vl _ 8 - SECTION 22. EXCUSABLE DELAYS. Consultant shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Consultant. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes. SECTION 23. COOPERATION BY CITY. All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the work as outlined in the Exhibit "A" "Scope of Services," shall be tarnished to Consultant in every reasonable way to facilitate, without undue delay, the work to be performed under this Agreement. SECTION 24. NOTICES. All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows: To City: City of Temple City Attn: City Manager 9701 Las Tunas Dr. Temple City, CA 91780 To Consultant: Ninyo &Moore Geotechnical and Environmental Sciences Consultants Att n: David L. Richter, Principal 475 Goddard, Suite 200 Irvine, CA 92618 Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service. SECTION 25. AUTHORITY TO EXECUTE. The person or persons executing this Agreement on behalf of Consultant represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Consultant to the performance of its obligations hereunder. SECTION 26. ADMINISTRATION AND IMPLEMENTATION. This Agreement shall be administered and executed by the City Manager or his or her designated representative, following approval of this Agreement by the City Council. The City Manager shall have the authority to issue interpretations and to make minor amendments to this RN#4838-69583RR0 vl .9- Agreement on behalf of the City so long as such actions do not materially change the Agreement or make a commitment of additional funds of the City. All other changes, modifications, and amendments shall require the prior approval of the City Council. SECTION 27, BINDING EFFECT. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. SECTION 28. MODIFICATION OF AGREEMENT. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void. SECTION 29. WAIVER. Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. SECTION 30, LAW TO GOVERN; VENUE. This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of Los Angeles, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Los Angeles. SECTION 31. ATTORNEYS FEES, COSTS AND EXPENSES. In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled. SECTION 32. ENTIRE AGREEMENT. This Agreement, including the attached Exhibits "A" through "C", is the entire, complete, final and exclusive expression of the parties with respect to the matters addressed therein and supersedes all other Agreements or understandings, whether oral or written, or entered into between Consultant and City prior to the execution of this Agreement. No statements, representations or other Agreements, whether oral or written, made by any party which are not embodied herein shall be valid and binding. No amendment to this Agreement shall be valid and binding unless in writing duly executed by the parties or their authorized representatives. SECTION 33. SEVERABILITY. RN #4838-6958-3880 vl _ 1 � _ If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s). IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first -above written. ATTEST:. Peggy�� IvVr✓lJ City Clerk APPROVED AS TO FO By: Eric S. Vail City Attorney By: Jirx✓+of G. PvCJA4kr Its: f�At;Ae 0t1 CITY OF TEMPLE CITY By: Jose Pul , City Manager I: 1 � '■ NOTE: CONSULTANT'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE .ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR RN#4838-6958-3880 v1 - 11 - OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER'S BUSINESS ENTITY. RN#4838-6958-3880 v1 _ 12 _ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF David L. Richter On 25 Oct., 2013 before me, M. Linda carson , personally appeared Nancy Anglin proved to me on the basis of satisfactory evidence to be the person(s) whose names(s)tie/are subscribed to the within instrument and acknowledged to me that he4lielthey executed the same in.,kie,Lke>: their authorized capacity(ies), and that by hi%A4rei/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the. laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form CAPACITY CLAIM ED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER RN #4838-6958-3880 vl DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT ►11u1C • � _ TE OF DOCUMENT SIGNERS) OTHER THAN NAMED ABOVE EXHIBIT "A" SCOPE OF SERVICES I. Consultant will perform the following Services: Phase I ESA The proposed scope of services for the Phase I ESA will be conducted in accordance with the ASTM Standard Practice E1527-05. This standard has been modified by ASTM to comply with the United States Environmental Protection Agency (EPA) 40 CFR Part 312 titled "Standards and Practices for AAI," set forth in the Comprehensive Environmental Response, Compensation, and Liability Act. Our proposed scope for the Phase I ESA will include the activities listed herein. • Review background information, including parcel information, physical setting information (e.g, topographic maps, geologic maps), and documentation provided by the client for the site. • Perform a site reconnaissance to document potential hazardous materials handling, storage, and disposal practices. In addition, the site reconnaissance will document areas of possibly contaminated surficial soil or surface water, possible sources of polychlorinated biphenyls (PCBs), chemical -containing underground and aboveground storage tanks, and possible sources of contamination from activities conducted at the site and adjacent properties. Features will be shown on a site map to be included in the report. We will assume the site boundaries coincide with those identified on Assessor's Parcel Number maps. For budgeting purposes, we have assumed that all areas of the subject site will be made accessible and that the site reconnaissance will be conducted in one site visit. • Review publicly -available historical sources of information pertaining to the site and nearby properties, which may include the following: previous environmental reports, aerial photographs, historical street directories, Sanborn© fire insurance maps, and/or other sources. ASTM requires that "obvious uses" of the subject site be identified from the present back to the first developed use or back to 1950, whichever is earlier. • Review documents provided by the client. Examples of potentially useful documents that should be provided to the environmental professional, if available, include, but are not limited to: previously prepared environmental, geotechnical, and geologic reports, groundwater monitoring reports, site plans, plot plans, tenant lists, and correspondence with regulatory agencies regarding environmental issues. • Conduct interviews with representatives of the key site manager and current owner(s) and/or occupants) of the site. A "user questionnaire" will be submitted to the "user" of 6876 vl RN #4838-6958-3880 vl A-1 the Phase I ESA report (the client) with brief questions regarding knowledge of environmental issues at the site (e.g., potential environmental liens, activity and use limitations, commonly known information). • If provided by the client, review lease and title records for the site to evaluate probable past site uses and possible impacts on the current environmental status of the site. The client is requested to provide a recent title report and/or chain -of -title report for the site. • Review federal, state, and local regulatory agency databases for the site and for properties located within the approximate distances specified by ASTM Standard Practice E1527- 05. The purpose of this review is to evaluate the possible environmental impact to the site from current or historical on -and off-site activities. Databases will identify locations of known hazardous waste sites, landfills, LUST, permitted facilities that utilize underground storage tanks, and facilities that use, store, or dispose of hazardous materials. We intend to use an electronic database service to provide a report summarizing information from the required records, and will rely on the database service to conform to ASTM requirements for currency of the information. • Review reasonably ascertainable local regulatory agency files for the site. Requests may be made to the County of Los Angeles Department of Environmental Health, the County of Los Angeles Fire Department, the Temple City Building Department, County of Los Angeles Building Department, California Regional Water Quality Control Board, and other agencies, as appropriate. Based on information obtained from the environmental database report and site reconnaissance, selected files may also be reviewed, as appropriate, for properties of potential environmental concern in the site vicinity. • Prepare a report documenting the findings of the Phase I ESA and providing opinions and conclusions regarding possible environmental impacts at the site. Color photographs and figures will be provided in the report. Hazardous Building Material Survey (HBMS) Because structures will be demolished in the future, the South Coast Air Quality Management District will require an asbestos survey and abatement of regulated ACM. The purpose of the HBMS is to locate and quantify hazardous building materials associated with site structures prior to demolition or renovation. In addition to asbestos, our survey will identify other typical hazardous materials found in buildings, including LBP, and miscellaneous hazardous materials such as PCB containing materials (fluorescent light ballasts, transformers), wastes regulated under the Universal Waste Rule (fluorescent light bulbs, high intensity light bulbs, thermostat switches [possible mercury and/or batteries]), emergency lighting and exit signs (possible lead acid or other metal containing batteries or tritium), and heating, ventilation, and air conditioning and refrigeration systems which can contain chlorofluorocarbons [CFCs]. Any containers of unknown materials observed at the sites will be included in the inventory. If requested by the 68'76 vl RN #4838-6958-3880 vl A-2 client, Ninyo & Moore will perform a hazardous materials survey of the referenced site according to the following proposed scope of work: • A California DOSH CAC or DOSH Site Surveillance Technician from Ninyo oore will direct an asbestos survey of the two structures within the property. The survey will consist of a visual assessment of potentially ACMs, establishing homogenous sampling areas and sampling of suspect ACMs. Up to 75 bulk samples will be collected and will be analyzed by the EPA recommended method of Polarized Light Microscopy at a National Voluntary Laboratories Accreditation Program certified laboratory. Information acquired during the survey will be recorded on field forms including chain of custody records and sampler, site address, homogeneous areas, sample locations, material descriptions and conditions, quantities and sample numbers. • A LBP survey will be conducted by a CDPH certified lead inspector/risk assessor or CDPH lead sampling technician, for the two structures on the property. Accessible painted surfaces will be screened for lead content with an X -Ray Florescence (XRF) analyzer. The XRF will be operated in accordance with the Performance Characteristic Sheet associated with the instrument. Testing of accessible painted surfaces will be patterned after the inspection protocol in Chapter 7 of the Department of Housing and Urban Development guidelines. Painted and varnished surfaces in every "room equivalent" within the project scope of work, will be tested for the presence of LBP. At least one representative surface of each "testing combination" will be tested. A testing combination is a unique combination of a room equivalent, building component, and substrate material. Multiple readings will be collected to resolve inconsistencies in the test results. If necessary, paint chip samples will be collected and submitted to an analytical laboratory accredited in the EPA's National Lead Laboratory Accreditation Program. Results of XRF and paint chip samples will be recorded on field forms and will include the location, building component, substrate, and condition and quantity of LBP detected. • A survey will be performed of both the interiors and exterior areas of the structures for miscellaneous hazardous materials, including but not limited to PCB containing wastes, Universal Waste Rule regulated wastes, and CFC containing items. Any containers of unknown materials observed at the sites will be included in the inventory. • The HBMS will be documented in a project report including field procedures; sample descriptions, estimated quantities of hazardous materials, condition and locations of hazardous materials observed at the sites; laboratory reports; conclusions and recommendations. 687b vl RN H4838-6958-3880 vl A-3 6876 vl Abatement Specifications Based on the results of the HBMS, Ninyo & Moore will prepare abatement specifications fox removal of hazardous building materials. The specifications will provide guidelines and instructions for the general and abatement contractors to follow for the handling of asbestos, lead containing materials, and miscellaneous hazardous building materials located within site structures. The specifications will provide contractor licensing and certification requirements, removal and protection methods, regulatory requirements, submittals, engineering controls and equipment, personal protective equipment, disposal requirements, and close-out requirements. The abatement specifications and HBMS will be provided to prospective abatement contractors to bid on abatement of hazardous building materials prior to building demolition. Abatement Cost Estimate To aid in property purchase negotiations, Ninyo &Moore has experienced cost estimators to support Temple City by estimating the cost to abate hazardous building materials prior to site demolition. We call on the support of various specialty contractors that operate in the Los Angeles and Orange County areas, to provide project specific cost estimates for various components of hazardous building materials abatement services. SCHEDULE Following receipt of your written authorization to proceed (ATP), Ninyo & Moore will commence services described herein. Ninyo & Moore will provide project services in accordance with the client and contractor's work schedule. The timeframe for completion of the different components of work that may be required for this project are as follows: Phase IESA -Three weeks from ATP HBMS -Three weeks from date of provided field access Abatement Specifications - One week from submittal of the HBMS report Abatement Cost Estimate - One week from submittal of the HBMS report COST ESTIMATE Cost estimates provided below for the Phase I ESA, HBMS, Abatement Specifications, and Abatement Cost Estimate are firm fixed costs for the scope of services indicated above. Phase IESA - $3,500 HBMS - $6,000 Abatement Specifications - $1,500 Abatement Cost Estimate - $975 Project Total - $11,975 RN tl4838-6958-3880 vl A-4 6876 vl VI. AMENDMENT The Scope of Seryices, including services, work products, and personnel, are subject to change by mutual Agreement. In the absence of mutual Agreement regarding the need to change any aspects of performance, Consultant shall comply with the Scope of Services as indicated above. RN #4838-6958-3880 vl A-5 EXHIBIT "B" COMPENSATION I. Consultant shall use the following rates to complete the following Services: A. Phase 1 Environmental Site Assessment $3.500 B. Hazardous Building_Material Survey (HBMS) $6,000 C. Abatement Specifications $1,500 D. Abatement Cost Estimate $975 II. The City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include: A. Linc items for all personnel describing the work perfonncd, the number of hours worked, and the hourly rate. C. Line B. Line items for all supplies properly charged to the Services. C. Line items for all travel properly charged to the Services. D. Line items for all equipment properly charged to the Services. E. Line items for all materials properly charged to the Services. F. Line items for all subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services. III. The total compensation for the Services shall not exceed $11,975 as provided in Section 4 of this Agreement. RN #4838-6958-3880 v] B-1 EXHIBIT "C" INSURANCE A. Insurance Requirements. Consultant shall provide and maintain insurance, acceptable to the City Manager or City Counsel, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Consultant, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than ANIL Consultant shall provide the following scope and limits of insurance: Minimum Scope of Insurance. Coverage shall be at least as broad as: (1) Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001). (2) Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to the written approval of the City. (3) Workers' Compensation insurance as required by the Labor Code of State of California and Employer's Liability insurance and covering all persons providing services on behalf of the Consultant and all risks to such persons under this Agreement. (4) Professional liability insurance appropriate to the Consultant's profession. This coverage may be written on a "claims made" basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to services performed under this Agreement. The insurance must be maintained for at least 3 consecutive years following the completion of Consultant's services or the termination of this Agreement. During this additional 3 -year period, Consultant shall annually and upon request of the City submit written evidence of this continuous coverage. 2. Minimum Limits of Insurance. Consultant shall maintain limits of insurance no less than: (1) General Liability: $1,000,000 general aggregate for bodily injury, personal injury and property damage. (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. A combined single limit policy with aggregate limits in an amount of not less than $2,000,000 shall be considered equivalent to the said required minimum limits set forth above. RN #4838-6958-3880 vl C-1 (3) WorkersCompensation and Employer's Liability: Workers' Compensation as required by the Labor Code of the State of California and Employers Liability limits of not less than $1,000,000 per accident. (4) Professional Liability: $1,000,000 per occurrence. B. Other Provisions. Insurance policies required by this Agreement shall contain the following provisions: 1. All Policies. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either party to this Agreement, reduced in coverage or in limits except after 30 days' prior written notice by Certified mail, return receipt requested, has been given to City. 2. General Liability and Automobile Liability Coverages. (1) City, and its respective elected and appointed officers, officials, and employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities Consultant performs; products and completed operations of Consultant; premises owned, occupied or used by Consultant ; or automobiles owned, leased, hired or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, or employees. (2) Consultant's insurance coverage shall be primary insurance with respect to City, and its respective elected and appointed, its officers, officials, employees and volunteers. Any insurance or self insurance maintained by City, and its respective elected and appointed officers, officials, employees or volunteers, shall apply in excess of, and not contribute with, Consultant's insurance. (3) Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (4) Any failure to comply with the reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to City, and its respective elected and appointed officers, officials, employees or volunteers. 3. Workers' Compensation and Employer's Liability Coverage. Unless the City Manager otherwise agrees in writing, the insurer shall agree to waive all rights of subrogation against City, and its respective elected and appointed officers, officials, employees and agents for losses arising from work performed by Consultant. C. Other Requirements. Consultant agrees to deposit with City, at or before the effective date of this contract, certificates of insurance necessary to satisfy City that the RN 9 4838-6958-3880 vl C-2 insurance provisions of this contract have been complied with. The City Attorney may require that Consultant furnish City with copies of original endorsements effecting coverage required by this Section. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time. 1. Consultant shall furnish certificates and endorsements from each subcontractor identical to those Consultant provides. 2. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. 3. The procuring of such required policy or policies of insurance shall not be construed to limit Consultant's liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement. RN #4838fi9583880 v] C-3