HomeMy Public PortalAbout10) 7F First Amendment to Agreement with Ninyo and MooreMANAGEMENT SERVICES DEPARTMENT
M EMORANDUM
DATE: December 4, 2018
TO: The Honorable City Council ·
FROM: Brian Haworth, Assistant to the City Manager
By: Tinny Chan , Management Analyst
AGENDA
ITEM 7.F.
SUBJECT: FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT
NO. 17-021 WITH NINYO AND MOORE
RECOMMENDATION:
The City Council is requested to:
1. Authorize the City Manager to execute a contractual first amendment with Ninyo and
Moore Geotechnical and Environmental Consultants for abatement monitoring
services with a total contract amount not to exceed $27,000 (Attachment "A"); and
2. Appropriate $2 ,300 from CIP No. 12: Primrose Properties Demolition to Fund 01-910-
42-4231: Professional Services .
BACKGROUND:
1. In August 2017, the City Manager entered into a $24,700 professional services
agreement with Ninyo and Moore to assess and monitor the removal of hazardous
materials from four City-owned buildings at 5922 and 5934. Primrose Ave.
2. In October 2017, Ninyo and Moore completed a hazardous materials survey for the
Primrose buildings\ which were built between 1939 and 1953. Findings concluded
the predominate presence of asbestos and lead-based paint-materials typically
found in buildings constructed prior to 1978.
3 . In October 2018, Council authorized demolition of the Primrose buildings through a
$120,200 contract with American Wrecking, Inc. Among other items , the project
scope entailed contractor removal of the survey's identified hazardous materials
prior to demolition. These activities were to be monitored by Ninyo and Moore to
ensure third -party oversight and contractor compliance with applicable
environmental regulations .
City Council
December 4, 2018
Page 2 of 2
4. In November 2018, demolition activities concluded at the Primrose properties.
Although the project remained on-schedule, additional asbestos material was
discovered in the attic of one building. This unforeseen circumstance required
Ninyo and Moore to provide 12 hours of material abatement and removal
monitoring-or $2,300 in additional work over their initial $24,700 contract.
ANALYSIS:
The requested contract amendment aligns with the City's purchasing policy, which
requires the City Manager to receive formal Council approval on professional services
agreements that exceed costs of $24,999. In this case, the $2,300 in added services
triggers the threshold, increasing Ninyo and Moore's total contract amount to $27,000.
Please note that staff authorized Ninyo and Moore to complete the additional work, as
environmental regulations require the timely removal of exposed and disturbed
asbestos material. If this work were stalled to schedule tonight's Council action, it would
have delayed demolition activities by at least three weeks. This would have also
resulted in project costs overruns, as well as potential contractual non-compliance
issues by both the City and its demolition contractor, American Wrecking, Inc.
Authorization to execute the requested contract amendment compensates Ninyo and
Moore for their added services. No other contract amendments are required as all
project-related abatement and monitoring activities are complete.
CITY STRATEGIC GOAL:
Actions contained in this report align with the City's strategic goal of good governance.
FISCAL IMPACT:
None. Funds to compensate Ninyo and Moore for their added services are available in
CIP No. 12: Primrose Properties Demolition.
ATTACHMENTS:
A. First Amendment to Professional Services Agreement: Ninyo and Moore
RIV#4840-l328-257l vi
FIRST AMENDMENT TO
AGREEMENT FOR SERVICES
by and between
the
CITY OF TEMPLE CITY
and
NINYO AND MOORE
Dated December 5, 2018
ATTACHMENT A
FIRST AMENDMENT TO AGREEMENT FOR SERVICES
This First Amendment to the Agreement ("First Amendment"), which is dated for
reference as indicated on the cover page, is hereby entered into by and between the CITY OF
TEMPLE CITY, a California charter city ("City"), and Ninyo and Moore, a California
corporation ("Service Provider"), as follows:
RECITALS
A. City and Service Provider entered in a $24,700 agreement for services on August 21,
2017 ("Agreement"). The Agreement provides that Service Provider will prepare a
hazardous building materials survey and oversee the proper removal of such materials
from City-owned buildings located at 5922 and 5934 Primrose Ave (APNs 8587-014-
904, -905).
B. On December 5, 2018, City and Service Provider entered into this First Amendment to
the Agreement so that Service Provider can oversee the proper removal of additional
hazardous building materials at an added compensation of $2,300 (or a total contract
amount not to exceed $27,000). Furthermore, this First Amendment extends duration of
the Agreement from June 30, 2018 to December 31, 2018 so that the Service Provider
can close out pending contractual work items.
C. This First Amendment also amends Sections 16 and 17 of the Agreement to respectively
modify indemnification terms and certain language related to insurances to better comply
with standards required of City by its insurers.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the promises made and recited herein, the
parties do hereby enter into this First Amendment, which modifies and amends the Agreement as
follows:
1. AMENDMENT. The Agreement is hereby modified and amended as follows:
SECTION 1. TERM OF AGREEMENT: Subject to the provisions of Section 20
"Termination of Agreement" of this Agreement, the Term of this Agreement is until
December 31, 2018 commencing on the date first ascribed above.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT: Subject to any
limitations set forth in this Agreement, City agrees to pay Service Provider the amounts
specified in Exhibit "B" "Compensation" and made a part of this Agreement by this
reference. The total compensation, including reimbursement for actual expenses, shall not
exceed twenty-seven thousand dollars ($27,000) unless additional compensation is approved
in writing in accordance with Section 26 "Administration and Implementation" or Section 28
"Amendment" of this Agreement.
SECTION 16. INDEMNIFICATION. This section is amended to read as follows:
RIV #4840-1328-2571 vi -2-
(a) Indemnification for Professional Liability. Where the law establishes a
professional standard of care for Service Provider's services, to the fullest extent
permitted by law, Service Provider shall indemnity, protect, defend and hold harmless
City and any and all of its officials, employees and agents ("Indemnified Parties") from
and against any and all 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, interest, defense costs, and expert witness fees) arise out of, are a
consequence of, or are in any way attributable to, in whole or in part, any negligent or
wrongful act, error or omission of Service Provider, or by any individual or entity for
which Service Provider is legally liable, including but not limited to officers, agents,
employees or sub-Service Providers of Service Provider, in the performance of
professional services under this Agreement.
(b) Indemnification for Other than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Service
Provider 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 tln·eatened,
including attorneys' fees and costs, court costs, 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 Service Provider or by any
individual or entity for which Service Provider is legally liable, including but not limited
to officers, agents, employees or sub-Service Providers of Service Provider.
(c) Indemnification from Sub-Service Providers. Service Provider agrees to obtain
executed indemnity agreements with provisions identical to those set forth in this section
from each and every Sub-Service Provider or any other person or entity involved by, for,
with or on behalf of Service Provider in the performance of this Agreement naming the
Indemnified Parties as additional indemnitees. In the event Service Provider fails to
obtain such indemnity obligations from others as required herein, Service Provider agrees
to be fully responsible according to the tetms 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 indemnity and defend
City as set forth herein is binding on the successors, assigns or heirs of Service Provider
and shall survive the termination of this Agreement or this section.
(d) Limitation of Indemnification. Notwithstanding any provision of this section 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, petiain 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
R1V #4840-1328-2571 v1 -3-
surveyors, and the business entities that offer such services in accordance with the
applicable provisions of the California Business and Professions Code.
(e) City's Negligence. The provisions of this section do not apply to 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. This section is amended to read as follows:
Service Provider agrees to 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. Service Provider agrees to provide City with copies of required policies
upon request.
2. GENERAL PROVISIONS.
2.1 Remainder Unchanged. Except as specifically modified and amended in
this First Amendment, the Agreement remains in full force and effect and binding upon the
parties.
2.2 Integration. This First Amendment consists of pages 1 through 6
inclusive, which constitute the entire understanding and agreement of the parties and supersedes
all negotiations or previous agreements between the parties with respect to all or any part of the
transaction discussed in this First Amendment.
2.3 Effective Date. This First Amendment shall not become effective until
the date it has been formally approved by the City Council and executed by the appropriate
authorities of the City and Contractor.
2.4 Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this First Amendment.
2.5 References. All references to the Agreement include all their respective
terms and provisions. All defined terms utilized in this First Amendment have the same meaning
as provided in the Agreement, unless expressly stated to the contrary in this First Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to
the Agreement on the date and year first written above.
RIV #4840-1328-2571 vi -4-
CITY:
THE CITY OF TEMPLE CITY
By:
rB'ry_a_n~Cno-o'k-,rC~ity~M'a_n_a_g-er ________ __
ATTEST:
Peggy Kuo, City Clerk
APPROVED AS TO FORM
Eric S. Vail, City Attorney
CONTRACTOR:
Ninyo and Moore
By: ___________ _
Name: ____________________ _
Title: ____________________ _
By: ___________ _
Name: ____________________ _
Title: ______________________ _
RIV #4840-1328-2571 vi -5-
NOTE: CONTRACTOR'S SIGNATURES SHALL BE DULY NOTARIZED, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE
REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO
CONTRACTOR'S BUSINESS ENTITY.
RIV #4840-1328-2571 vi -6-
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accurac , or valid it of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
)
)
On ________________ ~~-------------------------------------------'
before me, ---=--:----------------------------------------c----c-=cc-==---c-~--=--c-~cc'
Date Name And Title Of Officer (e.g.' Jane Doe, Notary Public')
personally appeared -------------------c==-==:-----------'
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies),
and that by his/her/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 of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent
reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S)
Signer's Name:
0 Individual
0 Corporate Officer
Title(s)
0 Partner(s)
0 Attorney-! n-F act
0 Trustee(s)
0 Guardian/Conservator
0 Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
0 Limited
o General
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document
Number Of Pages
Date Of Document
Signer(s) Other Than Named Above
A notaJy public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy, or validi of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
)
)
On----------------~=2=0 ________________________________________ ___
before me, -----o--c--------------------------------------c----c-c=c-=~-,---,--=--c-~-c·
Date Name And Tille Of Officer (e.g. "Jane Doe, Notary Public")
personally appeared ----------------------------~~:-:--;-~----------------~
Name of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies),
and that by his/her/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 of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent
reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S)
Signer's Name:
D Individual
D Corporate Officer
Title(s)
D Partner(s)
D Attorney-In-Fact
D Trustee(s)
D Guardian/Conservator
D Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
D Limited
D General
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document
Number Of Pages
Date Of Document
Signer(s) Other Than Named Above