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HomeMy Public PortalAbout10 8.H. Approve a Budget appropriation for the 5922 Primrose Avenue PropertyAGENDA ITEM 8.H. MANAGEMENT SERVICES DEPARTMENT MEMORANDUM DATE: December 3, 2013 TO: The Honorable City Council FROM: Jose E. Pulido, City Managert?f M~/. By: Giselle Corella, Executive Assistant to the City Manag ~ ' SUBJECT: APPROVE A BUDGET APPROPRIATION OF $26,175 FROM THE ECONOMIC DEVELOPMENT RESERVE TO COMPLETE AN APPRAISAL AND ALL ENVIRONMENTAL SITE ASSESSMENT WORK FOR THE 5922 PRIMROSE AVENUE PROPERTY RECOMMENDATION: The City Council (Council) is requested to approve a budget appropriation of $26,175 from the City's Economic Development Fund Reserve to complete an appraisal and all Environmental Site Assessment (ESA) work for the 5922 Primrose Avenue property (Primrose Property). BACKGROUND: 1. On October 4, 2011, the City hired RBF Consulting to prepare a parking plan that addresses real and perceived parking shortages in the downtown area . 2. On June 5, 2012, Council approved Ordinances 12-953 and 12-955 estab li shing an economic development fund which among ot her things, allows the City to acquire, dispose and remediate properties for economic development pu rposes (e.g., a public parking lot). 3. In June 2012, Council approved an $8 million Economic Development Fund Reserve (ED Reserve) for activities pursuant to the City's Economic Development Ordinance. To date, the following expenditures have been made: Rosemead Boulevard Enhancement Project $1,000,000 and 5800 Temple City Blvd. $1,050,000. 4. On November 20, 2012, after numerous workshops invo lving the commun ity and City commissions, Council adopted the Comprehensive Downtown Parking Strategic Plan, a toolbox of recommended parking strategies for imp lementation over the short-and long-term. Of these recommendations, the acquisition of 5922 City Council December 3, 2013 Page 2 of 4 Primrose Avenue was identified as an opportunity site for future downtown parking supply, given its location adjacent to the Las Tunas corridor. 5. On May 13, 2013, the owner of 5922 Primrose Avenue solicited the City's interest to purchase the property; City staff had not previously contacted the owner regarding the potential for purchasing the property. 6. On May 21, 2013, Council (in closed session) discussed the purchase of 5922 Primrose Avenue, and gave direction to the City Manager and City Attorney. 7. In June 2013, Council approved the Fiscal Year (FY) 2013-14 City Budget. Council appropriated Economic Development Fund Reserve monies for the following projects: General Plan Update $750,000; Las Tunas/Rosemead Specific Plan $650,000; Economic Development Strategy Implementation $25,000; and Five- Year Strategic Plan $40,000. Given these projects, the June 2014 Economic Development Fund Reserve balance is estimated at $4.485 million. 8. In June 2013, City representatives (i.e., City Manager and City Attorney) and the property owner negotiated terms and conditions for the property acquisition as contained in the Draft Purchase and Sale Agreement. 9. On July 1, 2013, Council gave further direction to the City Manager to include a $25,000 budget appropriation to move forward with an appraisal and environmental review of the Primrose Property. 10. From July to October 2013, City representatives and the property owner further negotiated terms and conditions for the property acquisition as contained in the Purchase and Sale Agreement. 11. On October 8, 2013, the City Manager solicited proposals from environmental sciences consultants to perform a Phase I ESA for the Primrose Property for the lump sum of $11 ,975 (Attachment "A"). 12. On October 28, 2013, the City Manager executed a Consultant Services Agreement with Ninyo & Moore Geotechnical and Environmental Sciences Consultant (Ninyo & Moore) to perform a Phase I ESA for a lump sum of $11,975 for the Primrose Property (Attachment "B"). In accordance with City policy the purchases of supplies, equipment, or services and sales of personal property of an estimated value in an amount more than $5,000 but less than $25,000 may be made by the purchasing officer (i.e., City Manager) in the open market without observing the procedure prescribed in section 2511 (TCMC 2509). 13. On November 4, 2013, Ninyo & Moore commenced Phase I ESA work for the Primrose Property. City Council December 3, 2013 Page 3 of 4 14. On November 18, 2013, Ninyo & Moore completed Phase I ESA work for the Primrose Property and submitted the completed Phase I ESA deliverable to the City Manager. Upon completion of the Phase I ESA, Ninyo & Moore identified that the site was used as agricultural land for approximately ten years and advised that further due diligence may be necessary through a Limited Phase II ESA. Staff informed the City Engineer of Ninyo & Moore's recommendation for a Limited Phase II ESA. After discussion with Ninyo & Moore and review of the Phase I ESA, the City Engineer concurred with pursuing Limited Phase II ESA work and requested that Ninyo & Moore submit a proposal and fee schedule to complete a Limited Phase II ESA. 15. On November 25, 2013, Ninyo & Moore submitted a proposal and fee schedule to complete a Limited Phase II ESA for a lump sum of $11,000 (Attachment "C"). ANALYSIS: Over the past year as opportunities have arisen, staff has been diligent in implementing recommendations of the Downtown Parking Strategic Plan. Purchasing the Primrose property now, at a time when real estate prices are relatively low, presents a viable and timely opportunity to provide for more public parking in the near future. Furthermore, given the Primrose Property is adjacent to a City owned building and parking lot, purchasing it could allow the City to assemble the properties for a future public parking structure-a recommendation identified in the Downtown Parking Strategic Plan. The City is currently in escrow and in the process of completing the purchase of the Primrose Property. "Best practice" cities perform environmental site assessments (i.e., Phase I and Phase II if needed) as part of their due diligence for property acquisitions. After completion of the Phase I ESA, Ninyo & Moore notified the City that the Primrose Property was agricultural land lor ten years. Due to the use of the site from approximately 1928 through 1938 (and the building structures have been present on the site since 1942) Ninyo & Moore has advised that further due diligence may be needed through a limited Phase II ESA. In contrast to a full Phase II ESA, a limited Phase II ESA only includes a shallow subsurface investigation to evaluate the potential presence of organochlorine pesticides (OCPs), and metal concentrations of arsenic and lead. Although the use of the Primrose Property was primarily residential since 1942, in a "good faith" effort to protect the City from future liabilities, the City has opted to further its due diligence through a Limited Phase II ESA. At the July 151 City Special City Council meeting, Council gave direction to include a $25,000 budget appropriation to complete appraisal and all environmental site assessment work. However, due to the findings of the Phase I ESA, an additional $1,175 is needed to complete all appraisal and environmental site assessment work. By formally approving the budget appropriation of $26,175 in open session, the City will be able to authorize Ninyo & Moore to expand their services to include limited Phase II City Council December 3, 2013 Page 4 of 4 ESA work, thus, moving the City forward in implementing recommendations of the Downtown Parking Strategic Plan. CONCLUSION: The City Council is requested to approve a budget appropriation of $26,175 from the Economic Development Fund to complete all environmental site assessment work. FISCAL IMPACT: Given the listed projects (i.e., Rosemead Boulevard Enhancement Project, 5800 Temple City Bvd., etc.) that are in the pursuit of economic development, the June 2014 Economic Development Fund Reserve balance is estimated at $4.485 million. Should the Council approve use of funds to complete the appraisal and all environmental site assessment work for the Primrose Property, the adjusted ED Reserve balance (including the purchase of the Primrose Property at $1.25 million) at fiscal year-end is projected at $3.208 million. Because monies were appropriated for the purchase of the Primrose Property from the Economic Development Fund Reserve, costs associated for additional environmental site assessment work to complete the Limited Phase II ESA are recommended to come from the same funding source. ATTACHMENTS: A. Ninyo & Moore Phase I ESA Proposal and Fee Schedule B. Ninyo & Moore Consultant Services Agreement C. Ninyo & Moore Limited Phase II ESA Proposal and Fee Schedule ATTACHMENT "A" PROPOSAL TO PROVIDE PHASE I ENVIRONMENTAL SITE ASSESSMENT, HAZARDOUS BUILDING MATERIAL SURVEY, AND ABATEMENT SPECIFICATIONS 5922 PRIMROSE AVENUE TEMPLE CITY, CALIFORNIA 91780 PREPARED FOR : City of Temple City 9701 La s Tunas Drive Temple City, California 91780 PREPARED BY: Ninyo & Moore Geotechnica l and Environmenta l Sciences Consu ltants 475 Goddard, Suite 200 Irv in e, Cal iforn ia 92618 October 8, 2013 Proposal No . P-16174 H5 Godanre. Swre 200 • lrw1E'. CahforniO 926 18 • Prone (949 )753-7070 • Fax 1949)75.!-7071 s..nDI"JJ -lrv.c"' • lm~IM • ~hoCli.·Y!'oOn<}1 • O..kJ.1"<l • Sanfi<WlSCO • <..tn Jo><: • ~1Uilll>l'l·l<> Los V<-ga> • f'hotno. • ltnon • l'tscott Va•ey • o.nvtr • HoWon ~~I(ID90 &/(t_OOre ~~~ Gt'OtechnJcal and Env.ronmcnt<tl S<J~·nws Consulr<~nl~ Ms. Giselle Corella City of Temple City 9701 Las Tunas Drive Temple City, California 91780 Subject: Dear Ms. Corella: Proposal to Provide Phase I Environmental Site Assessment. Hazardous Bui lding Material Survey, and Abatement Specifications 5922 Primrose Avenue Temple City, California 91780 October 8, 2013 Proposal No . P-16174 Ninyo & Moore is pleased to provide this proposa l to conduct a Phase I Environmental Site Assessment (ESA), Hazardous Bui lding Material Survey, and Abatement Specifications for the site at 5922 Primrose Avenue , Temple City, California. We understand the property is a multi-unit apartment complex with an additiona l garage structure. The purpose of the proposed scope of services is to perform env ironmental due diligence of the property. As your environmental consu ltant, Ninyo & Moore will provide responsive service in an efficient and cost-effective manner, with the standard of quality for which we are known. Ninyo & Moore, a California Corporation, is a minority- owned business enterprise, mu ltid iscip linary consulting firm with a 26-year history of providing Phase I and II ESAs, hazardous building materials re lated services, along with a broad range of other environmental consulting services. Our team offers the City several essentia l advantages: • A proven track record in the timely, cost-effective completion of hundreds of environmenti:ll studies • Successful past performance of Phase I and Phase II ESA Services for Economic Development Agencies throughout California and the Southwestern United States • A project team of dedicated , skilled staff with the necessary field experience and knowledge of applicable regulatory issues, and the management and communication skills necessary for the successful completion of all project elements Ninyo & Moore appreciates this opportunity to be of service to Temp le City. If you have any questions or comments regarding this cost estimate, please call either of the undersigned at your convenience . Sincerely, NINYO & MOORE Michael S. Cushner, CAC Project Environmental Scientist MSC/JJRINA/DLR/sc David L. Richter Principal Environmental Scientist 4 75 Goddard. !.\JIIC ZOO • lrvrne. Ca:1fomaa 92618 • f'hone (949) 753-7070 • Fax (949) 753· 707 1 Sc"!n Dego • h•Jf'l(! • l.m MJrle's • R.lnctlc.> CucJf'!"''C.ng.a • Odkldna 5.ln Ffaf'J(iKo • S..n lch<' • WrNt'IC'II!o las V~J! • l'llc>t'!"' • Tuc on • fl"""" Va:Jey • O.rM'f • HOUSIOO 5922 Primrose Avenue Temple City, California TABLE OF CONTENTS October 8, 2013 Proposal No. P-16174 Page FIRM PROFILE ................................................................................................................................................ 1 Qualifications and Experience of Project Team ............................................................................................ 2 PROJECT UNDERSTAND ING .......................................................................................................................... 3 SCOPE OF SERVICES I APPROACH ................................................................................................................ 3 Phase I ESA ............................................................................................................................................. 4 Hazardous Building Material Survey (HBMS) ............................................................................................... s Abatement Specifications .......................................................................................................................... 6 Abatement Cost Estimate .......................................................................................................................... 6 Possible Phase II En vironmental Site Assessment ....................................................................................... 6 Litigation Support ...................................................................................................................................... 7 SCHEDULE ..................................................................................................................................................... 7 COST ESTIMATE ............................................................................................................................................. 8 Attachments Schedu le of Fees Work Authorization and Agreement P·16174.doc 5922 Primrose Avenue Temple City, California FIRM PROFILE Octob er 8, 2013 Proposal No. P-16174 Ninyo & Moore Geotechnical and Environmental Sciences Consultants , a multidisciplinary professional services firm, was establi shed in 1986 to provide clients with the environmental and . sacrament geotechnical consulting expertise required to address today's oakta n San Francisco comple x issues. We assist go vernment and private sector clients Los Angeles.~ -C!!!=I•"""''taf developing and implementing innovative solutions to Irvin environmental challenges. A California corporation, we provide services to a diverse client base from 15 office s. We are financially stable and sol vent, and are profitable , growing , and without long-term debt. Ninyo & Moore has an excellent Dun & Bradstreet rating and our clients are well-protected by our high quality work , financial re source s, and excellent in surance coverage. Ninyo & Moore is a 99-percent Minority Owned Business Enterprise. by The Ninyo & Moore team has extensive experience performing Environmental Site Assessments (ESAs) and Asbestos Containing Materials (ACMs) and Lead-Based Paint (LBP) Surveys in support of demolition and renovation transportation projects. The following examples are highlighted in our experience section: • Ninyo & Moore recently (2013) provided similar scope of services for the City of Temple City for the previous Mortuary Property at 5800 Temple City Boulevard . A Phase I ESA, a Limited Phase II ESA , a Hazardous Building Materials Survey (HBMS), and Abatement Specifications were performed or prepared for the property. • At the municipal level, we have performed Phase I and II ESAs for road widening and community redevelopment projects in the cities of Los Angeles, Carson , Lynwood, Inglewood, and other municipalities, as well as performed HBMSs which include ACM, LBP, and miscellaneous waste s in cluding universal wastes, in support of building improvements or demolition of public structures. In addition, Ninyo & Moore has recently been selected to perform similar environmental services for the Temple City Un ified School Distri ct. • At the county level, we have completed Phase I and II ESA projects for the Los Angeles County Metropolitan Transit Authority, the Orange County Transporta tion Authority, Riverside County Transportation Commiss ion , and the Metropolitan Transit Development Board. We have performed ACM and LBP surveys in support of building impro vements for public structures for many counties throughout California. • For large scale infrastructure projects, we have performed ACM and LBP surveys for the Alameda Corridor Transportation Authority (ACTA) rail corridor linking the Ports and the City of Los Angeles. Pre-demolition surveys were performed on over 30 properties acquired by ACTA to assess the presence and quantities of these materials. The reports and abatement specifications prepared by Ninyo & Moore were provided to State-licensed abatement contractors for mitigation. Ninyo & Moore provided site monitoring, including air sampling and clearance inspections of removal activities, on many of the projects. • For private sector clients we have completed Pha se I and II ESAs for property transactions, site renovations , and site demolitions . This includes ACM and LBP surveys for projects consisting of 30 ,000-to 250 ,000-square-foot buildings for architectural firms in support of building renovations for a well -kno wn retail chain. P-16174.doc l(lngo &lft.&ore 5922 Primrose Avenue Temple City, California October 8, 2013 Proposal No. P-16174 • At the state level, we have ongoing on-call contracts with several regions of the California Department of Transportation to provide environmental services in conjunction with highway improvement projects and public buildings throughout California. We have also provided on-call hazardous materials services including HBMS, abatement specifications, and abatement monitoring , for state buildings for the last 12 years for the Ca liforni a Department of General Services. Qualifications and Experience of Project Team Our in-house project team for the requested environmental serv ices has proven experience and expertise in all critical areas of the scope of services, and offers full-service capabilities to meet the project requirements and objectives. The high quality of Nin yo & Moore's services and overall professionalism are widely recognized in the industry. Our firm consists of over 400 professionals comprising a we ll-in tegrated team with broad environmental and geotechnical experience. Our environmental specialists have experience in Phase I and II ESAs, HBMS, regulatory issues, hazardous waste management, and remedial action planning and design. For this submittal, Ninyo & Moore has designated David L. Richter, Principal Environmental Scientist for Ninyo & Moore 's Irvine Environmental Division, as Principal-in -Charge. Mr. Richter's professional experience includ es performing surface and subsurface ESAs, supervising and conducting soil, groundwater, material s and vapor sampling programs, managing and conducting contaminated site remediation and permitting projects, and conducting special project work plan development, implementation , and management. He also has experience in environmental sciences aspects of commercial, industrial, airport, highway, financial, legal, and governmental projects. Other experience includes site assessment investigations for real estate transactions, management of projects involving expert witness opinion formulation and testimony, and underground tank specification preparation and installation /re moval/abandonment permitting. Mr. Richter leads administrative and technical teams to high levels of performance and client satisfaction. Mr. Michael Cushner, Certified Asbestos Consultant (CAC), will serve as Project Manager. Mr. Cushner will provide technical guidance, schedule and budgetary control, and administrative assistance for the duration of the project. Other project management responsibilities will include: • Attending project meetings • Esta blishing and monitoring the project budget • Reviewing project results and developing conclusions and recommendations • Preparing weekly progress reports • Supervising field activities • Providing project oversight to see that project objectives are successfully attained P-16174.doc 2 59 22 Primrose Avenue Temple City, California • Planning project task s October 8, 201 3 Proposal No. P-16174 Mr. Michael Cushner is a California Division of Occupational Safety and Health (DOSH) CAC, and California Department of Public Health (CDPH) certified Lead In Construction Inspector/Asse ssor. As a project manager, Mr. Cushner has extensive experience providing Phase I ESAs and HBMSs , designing hazardous material abatement specifications, abatement monitoring, indoor air quality and mold investigations for commercial and industrial properties , and designing asbesto s operations and maintenance plans. Mr. John Jay Roberts, PG, Certifi ed Engin eering Geologist (CEG), will serve as Technical Advisor. Mr. Roberts is a Senior Geologist with Ninyo & Moore , and has extensive experience providing environmental and geotechnical inve stig ations for commercial and industrial properties, as well as ESAs including Phase I ESAs, preliminary environmental assessments, supplemental site investigations , removal action work plans , removal action work plans, remedial action plans, and operations and maintenance plans. PROJECT UNDERSTANDING The property is at 5922 Primrose Avenue, Temple City, California. The property is on the eastern side of Primrose Avenue and has two structures and landscaping on an appro ximately 9,073 square foot lot. One of the structures is a 4- unit, one level apartment building totaling an approximate 2,296-square foot area . The second structure is a garage totaling an approximate 483-square foot area. The estimated construction date of the structures is 1942. The apartment building is currently occupied. The City of Temple City Council has entered into an agreement to purchase the property. The future use of the property is planned to be a parking lot and will require the demolition of the site structures. Depth to groundwater at the site is expected to be about 180 to 200 feet below ground surface. SCOPE OF SERVICES I APPROACH The scope of services is to provide an environmental due diligence review of the property in the form of Phase I ESA, HBMS, and abatement specifications. If the results of the Phase I ESA indicate the need for additional assessment , a proposal for a Phase II ESA will be provided. A phased app roach is the most cost effective manner to provide environmental due diligence that meets the requirements of ASTM International (ASTM) Standard 1527-05 and "All Appropriate Inquiry (AAI)" per 40 Code of Federal Regulations (CFR) Part 312. The results of the Phase I ESA would dictate th e scope of services of the Phase II ESA. Ninyo & Moore will prepare an appropriate proposal for Phase II ESA scope of services to investigate Recognized Environmental Conditions (RECs) identified in the Phase I ESA and will P·16174.doc 3 5922 Primrose Avenue Temple City, California October 8, 2013 Proposal No. P-16174 be submitted with the Phase I ESA. Other environmental con sulting services that may be necessary for the project include: • Site remediation and/or abatement cost estimating • Litigation support/expert witness services The follow sections provide descriptions of the environmental services provided by Ninyo & Moore that may be required for this project. Phase I ESA The proposed scope of services for the Phase I ESA will be conducted in accordance with the ASTM Standard Practice E 1527-05. 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 ha zardous 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 occupant(s) of the site. A "user questionnaire" will be submitted to the "user" of 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). P-16174.doc 4 5922 Primrose Avenue Temple City, Ca lifornia October 8, 2013 Proposal No. P-16174 • If provided by the cli ent, review lease and title records for the site to eval uate 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. • Revie w federal, state, and local regulatory agency databases for the site and for properties located within the approxim ate distances specified by ASTM Standard Practice E1527 -05. The purpose of this review is to eva luate the possible env ironmental impact to the site from current or historical on-and off-site activities. Databases will identify location s 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 wi ll rely on the database service to conform to ASTM requirements for currency of the information. • Review reasonably ascertainab le 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 Bu ilding Department, County of Los Angeles Building Department, Cal ifornia Reg iona l Water Qual ity Contro l Board, and other agencies, as appropriate. Based on inform ation 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 find ing s of the Phase I ESA and providing opinions and conclus ion s regarding possible environmental impacts at the site . Color photographs and figures will be provided in the report. Hazardous Building Material Survey (HBMS) Because structures wi ll 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 bu il ding materials associated with site structures prior to demo lition or renovation. In addition to asbestos, our survey wi ll identify other typical hazardous materials found in buildings, including LBP, and miscellaneous hazardous materials such as PCB conta ining materials (fluorescent light ballasts, transformers), wastes regu lated under the Universal Waste Rule (fluorescent light bulbs, high intensity light bu lbs, thermostat switches [possible mercury and/or batteries]), emergency lighting and exit signs (possible le ad acid or other metal conta inin g batteries or tritium), and heating, ventilat ion, and air conditioning and refrigeration systems which can conta in chlorofluorocarbons [CFCs]. Any conta in ers of unknown materials observed at the sites will be inc luded in the inventory. If requested by the client, Ninyo & Moore will perform a hazardous materials survey of the referenced site according to the following proposed scope of work: • A Ca lifornia DOSH CAC or DOSH Site Surveillance Technician from Ninyo & Moore will direct an asbestos survey of the two structures within the property. The survey will consist of a visua l assessment of potentia lly ACMs, establish ing 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 Nat ional Vo lun tary Laboratories Accred it ation Program certified laboratory. Information acquired during the survey wi ll be recorded on field forms including chain of custody records and sampler, site address , homogeneous areas, sample locations, mater ial 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 P-16174.d oc 5 5922 Primrose Avenue Temple City, California October 8, 2013 Proposal No. P-16174 an X-Ray Florescence (XRF) ana lyze r. The XRF will be operated in accordance with the Performance Characteristic Sheet associated with the instrument. Testing of accessible pa inted surfaces will be patterned after the in spectio n 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 combinat ion " wil l be tested. A testin g comb in at ion is a unique comb in at ion of a room equivalent, build ing component, and substrate mate ria l. Mu ltip le readings will be co ll ected to resolve in cons istenc ies in the test results. If necessary, paint ch ip samp les will be co ll ected and subm itted to an ana lytical laboratory accredited in the EPA's National Lead Lab oratory Accreditat ion Prog ra m. Results of XRF and paint chip samp les will be recorded on field forms and will incl ude 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 conta iners of unknown materials observed at the sites will be included in the inventory. • The HBMS will be documented in a project report including fie ld procedures; sample descriptions, estimated quantities of hazardous materials, cond ition and locations of hazardous materials observed at the sites; laboratory reports; conclusions and recommendations. Abatement Specifications Based on the results of the HBMS, Ninyo & Moore will prepare abatement specifications for removal of hazardous building materials. The specification s will provide guidelines and instructions fo r the general and abatement contractors to follow for the handling of asbestos, lead containing materials, and miscellaneous hazardous building materials loca ted 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 equ ipment, disposal requirements , and close-out requ irements. The abatement specifications and HBMS will be provid ed to prospective abatement contractors to bid on abatement of hazardous building materia ls prior to building demolition. Abatement Cost Estimate To aid in property purchase negotiations, Ninyo & Moore has exper ienced cost estim ators to support Temple City by est im atin g the cost to abate hazardous building materials prior to site demolition . We call on the support of various specialty cont racto rs 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. Possible Phase II Environmental Site Assessment If needed, a scope of services and cost for the Phase II ESA would be developed to investigate REGs and /or areas of concern that are noted in the Phase I ESA. Ninyo & Moore can provide a full range of environmental in vest igation tools including soi l, soi l vapor, and groundwater samp lin g. Ninyo & Moore wi ll use the services of a state of Ca lifornia certified envi ronmental testing laboratory for eva luation of environmental sa mples. Ninyo & Moore also has a wide range of fie ld P·16174.doc 6 5922 Primrose Aven ue Temple City, Cal iforn ia October 8, 2013 Proposa l No . P-16174 instruments to co llect fie ld readings including a photo ioni zation detector, flame ion ization detector, landfill gas meter, summ a canisters, vacuum box, and vacuum pumps. Nin yo & Moore is certified by the City of Los Ange les Department of Buil ding & Sa fety to pe rform methane field surveys , and can design methane mitigation systems if it is found that methane is present at high concentrations at a site . Lit igation Support Ninyo & Moore prov id es litigation support for a large var iety of projects, inclu ding ESAs, fo rens ic eva lu ations, commercial, residential and municipa l developments, federal and military projects, and other publi c works proj ects. If req uested, we can provide th ese services to the City on a time-and:material s basis. Nin yo & Moo re has extensive experience providing defense and plaintiff expert witness services, in clud ing attend ing mediations and depositions, providing expert witn ess testimony, providing cons ultation serv ices, and directing the initial forensic eva luation wh ich may in volve site reconnaissance, subsurface exp loration, and geotechn ical laboratory testing. Senior Nin yo & Moore personne l frequently prov id e litigation and expert witness services . Our experienced expert witn esses have worked wi th attorneys representing developers , con tr actors , homeowners' assoc iations, and in dividua l property owners , as well as wi th mediato rs providing third party consultant testimony. Qua lifi cations of our experts in clud e: • Strong technical qualifications . Our experts have adva nced deg rees, cert ific ations and registrations, many years of experience, are published in their fi elds, and are held in esteem by their peers. • Credibility. Ou r experts are acti ve in the day -to-day pract ice of their trade, not ju st in forensic studies and co urt testimony. • Strongly impartial. Ou r serv ices are sought by both pl aintiff and defense attorneys. Our testimony is built on the stre ngths of a thorough and objective eva luati on. • Court presence. Our expe rts have exce ll ent co urtroom sk ill s, are skill ed in communication, and present a ca lm and pos itive demea nor. • Superior exhibits. Nin yo & Moore utili zes state-of-art comp uter equipment along with trained graph ic arti sts to pre se nt exce llent graphics for co urtro om presentations. Our presentat ion s have been a determining factor in many trials. SCHEDULE Following receipt of your wr itten authorization to proceed (ATP), Nin yo & Moore will commence services described herein. Nin yo & Moore will provide project services in accordance with the client and contractor's work schedule. Th e timeframe for comp letion of the different components of work that may be required for this project are as follows: • Phase I ESA-Three weeks from ATP P·16174 .doc 7 5922 Primrose Avenue Temp le Cit y, Ca lifornia • HBMS -Three weeks from date of provided field access • Ab atem ent Specifications -One week from subm ittal of the HBMS report • Abatement Cost Estimate -One week from submittal of the HBMS report COST ESTIMATE October 8, 201 3 Proposa l No . P-16174 Cost est imates prov id ed be low for the Phase I ESA , HBMS, Abatemen t Specifications, and Abatement Cost Estimate are firm fixed costs for the scope of serv ices indicated above. • Phase I ESA-$3,500 • HBMS-$6,000 • Abatement Specifi cations -$1,500 • Abate ment Cost Estimate -$975 Project Total-$11 ,975 Phase II ESA-If neede d, a separate Phase II ES A scope of serv ices proposal will be developed by Ni nyo & Moore, based on the results of the Phase I ESA. The cost for the Pha se II ESA wi ll be in accordance with the attached Schedule of Fees. Li ti gation Suppo rt -Expert witn ess/liti gation support will be prov ided on a tim e and materials basis based on the attac hed Schedule of Fees . P·16 174.doc 8 5922 Primrose Avenue Temple City, California HOURLY CHARGES FOR PERSONNEL SCHEDUlE OF FEES October 8, 2013 Proposal No. P-16174 Principal Engineer/Geologist/Environmental Scientist .... Senior Engineer/Geologist/Environmental Scientist .. .................................................................................. $ t54 Senior Project Engineer/Geologist/Environmental Scientist ... Project Engineer/Geologist/Environmental ScientisL .. Senior Staff Engineer/Geologist/Environmental Scientist ... Staff Engineer/Geologist/Environmental Scientist. .. GIS Analyst.. Field Operations Manager ... Supervisory Technician .. Nondestructive Examination Technician, UT, MT, LP .. Senior Field/Laboratory Technician .. Field/Laboratory Technician .. ACI Concrete Technician .. Concrete/Asphalt Batch Plant Inspector .... Special Inspector (Concrete, Masonry, Steel, Welding, and Fireproofing( ... T echnicallllustrator/CAD Operator ... Geotechnical/Environmental/Laboratory Assistant ..... Information Specialist .. Data Processino, Technical Editino, or Reproduction ... OTHER CHARGES Expert Witness Testimony .. Concrete Coring Equipment (includes one technician) .. PID/FID Usage .... Anchor load test equipment (includes technician) .. . ......................................... $ 148 . ....................................... $ 145 . ............................................... $ 142 $ 128 $ 120 $ 120 $ 95 . ....... $ 86 .. .............................................. $ 85 . .......................................... $ 79 .. ........................................................ $ 79 . ........................... $ 79 $ 79 $ 79 $ 78 $ 66 .. ................................................... $ 66 . ......................................... $ 58 $ 400 /hr $ 160 lhr $ 120 /day $ 89 lhr Hand Auger Equipment... . . ....... . ..................................................................... . $ 55 /day Inclinometer Usage . Vapor Emission Kits .. Level D Personal Protective Equipment (per person per day) ..... . Rebar Locator (Pachometer) .. Nuclear Density Gauge Usage ........................................... . Field Vehicle Usage ..... Direct Project Expenses .. . . .... .. ..................................................................................... .,. Laboratory testinq, qeophysical equipment, and other special equipment provided upon request. NOTES (Field Services) $ 32 /hr $ 30 /kit $ 25 lpld $ 22 /hr $ 12 lhr $ 10 lhr Cost plus 15% For field and laboratory technicians and special inspectors, regular hourly rates are charged during normal weekday construction hours. Overtime rates at 1.5 times the regular rates will be charged for work performed outside normal construction hours and all day on Saturdays. Rates at twice the regular rates will be charged for a!l work in excess of 12 hours in one day or on Sundays and holidays. Lead time for any requested service is 24 hours. Field Technician rates are based on a 4-hour minimum. Special inspection rates are based on a 4-hour minimum for the first 4 hours and an 8-hour minimum for hours exceeding 4 hours. Field personnel are charged portal to portaL INVOICES Invoices will be submitted monthly and are due upon receipt A service charge of 1.0 percent per month may be charged on accounts not paid within 30 days. TERMS AND CONDITIONS The terms and conditions of providing our consulting services include our limitation of liability and indemnities as presented in Ninyo & Moore's Work Authorization and Agreement. P-16174.doc C8 WORK AUTHORIZATION AND AGREEMENT Please Sign and Return One Copy to: NINYO & MOORE 475 Goddard, Suite 200 Irvine, California 92618 PROJECT NO. P-16174 1. PROJECT ADDRESS: 5922 Primrose Avenue, Temple City, California 91780. 2. PROJECT DESCRIPTION: Phase I Environmental Site Assessment, Hazardous Building Material Survey, and Abatement Specifications. 3. SCOPE OF STUDY: Please refer to proposal dated October 8, 2013. 4. FEE: $11,975 (Eleven Thousand Nine Hundred Seventy-Five Dollars -lump Sum). 5. PORTION OF FEE IN ADVANCE OF WORK: None. 6. CLIENT: CITY OF TEMPLE CITY 9701 las Tunas Drive Temple City, California 91780 CONTACT: Ms. Giselle Corella 7. STATEMENT TO BE SENT TO: CLIENT PHONE: 626-285-2171, ext. 2322 PHONE: 626-285-2171, ex!. 2322 CONDITIONS OF AGREEMENT BETWEEN CLIENT AND NINYO & MOORE This AGREEMENT is made by and between: NINYO & MOORE GEOTECHNICAL AND ENVIRONMENTAL SCIENCES CONSULTANTS, hereinafter referred to as CONSULTANT, and CITY OF TEMPLE CITY, hereinafter referred to as CLIENT This AGREEMENT between the parties consists of these TERMS, the attached Proposal identified as Project No. P-16174 dated October 8, 2013, and any exhibits or attachments noted in the Proposal. Together, these elements will constitute the entire AGREEMENT superseding any and all prior negotiations, correspondence, or agreements either written or oral. Any changes to this AGREEMENT must be mutually agreed to in writing. STANDARD OF CARE CLIENT recognizes that subsurface conditions may vary from those observed at locations where borings, surveys, or explorations are made, and that site conditions may change with time. Data, interpretations, and recommendations by CONSULTANT will be based solely on information available to CONSULTANT. CONSULTANT is responsible for those data, interpretations, and recommendations, but will not be responsible for other parties' interpretations or use of the information developed. Services performed by CONSULTANT under this AGREEMENT are expected by CLIENT to be conducted in a manner consistent with the level of care and skill ordinarily exercised by members of the environmental sciences profession practicing contemporaneously under similar conditions in the locality of the project. It is important to recognize that even the most comprehensive scope of services may fail to detect environmental liabilities on a particular site. Therefore, CONSULTANT cannot act as an insurer and cannot "certify" that a site is free of environmental contamination. Under no circumstance is any warranty, express or implied, made in connection with the providing of environmental sciences consulting services. SITE ACCESS AND SITE CONDITIONS CLIENT will grant or obtain free access to the site for all equipment and personnel necessary for CONSULTANT to perform the work set forth in this agreement. CLIENT will notify any and all possessors of the project site that CLIENT has granted CONSULTANT free access to the site. Client will protect all property, inside and out, including all plants and landscaping. CONSULTANT will take reasonable precautions to reduce the potential for damage to the site, but it is understood by CLIENT that, in the normal course of work, some damage may occur and the correction of such damage or alteration is not part of this AGREEMENT unless so specified in the ProposaL CLIENT is responsible for accurately delineating the locations of all subterranean structures and utilities. CONSULTANT will take reasonable precautions to avoid known subterranean structures, and CLIENT waives any claim against CONSULTANT, and agrees to defend, indemnify and hold CONSULTANT harmless from any claim or liability for injury or loss, including costs of defense, arising from damage done to subterranean structures and utilities not identified or accurately located. In addition, CLIENT agrees to compensate CONSULTANT for any time spent or expenses incurred by CONSULTANT in defense of any such claim, with compensation to be based upon CONSULTANT's prevailing fee schedule and expense reimbursement policy. P-16174 W.doc 09/06 CONTAMINATED MATERIALS In performing environmental, hydrologic, or hydrogeologic services, CONSULTANT may excavate or otheiWise come in contact with hazardous materials. CLIENT represents that CLIENT has informed CONSULTANT of the presence of any known hazardous materials. CLIENT recognizes that a project site containing hazardous materials may not perform as anticipated by CLIENT, even though CONSULTANT's services are performed with currently acceptable levels of care and skill. Further, CLIENT acknowledges that, while necessary for site exploration, commonly used exploration methods such as drilling borings and excavating trenches involve an inherent risk. For example, exploration on a project site containing contaminated materials may result in inducing cross-contamination and/or other negative effects. Unanticipated hazardous materials may be encountered in an area where there is no reason to believe they could or should be present. CONSULTANT and CLIENT agree that the discovery of unanticipated hazardous materials may make it necessary for CONSULTANT to take immediate measures to protect health and safety. CLIENT agrees to compensate CONSULTANT for any equipment decontamination or other costs arising out of the discovery of hazardous materials. CONSULTANT agrees to notify CLIENT when hazardous materials or suspected hazardous materials are encountered. CLIENT agrees to make any disclosures required by law to the appropriate governing agencies. CLIENT also agrees to hold CONSULTANT harmless for any and all consequences of disclosures made by CONSULTANT which are required by governing law. In the event that the project site is not owned by CLIENT, CLIENT recognizes that it is CLIENT's responsibility to inform the property owner of the discovery of hazardous materials or suspected hazardous materials. Notwithstanding any other provision of the AGREEMENT, CLIENT waives any claim against CONSULTANT and, to the maximum extent permitted by law, agrees to defend, indemnify, and save CONSULTANT harmless from any claim, liability, and/or defense cost for injury or loss arising from CONSULTANT's discovery of hazardous materials or suspected hazardous materials, including, but not limited to, any costs created by delay of development projects and any cost associated with possible reduction of the property's value. CLIENT will be solely responsible for the ultimate disposal of any materials secured by CONSULTANT which are found to be contaminated. Such materials include, but are not limited to, drilling mud, soil, groundwater, and other materials removed from excavations. Contaminated materials will be placed in suitable storage containers, labeled, and left on site. SAMPLE DISPOSAL CONSULTANT will dispose of soil, rock, and water samples collected for analyses approximately thirty (30) days after the laboratory analysis report date. Further storage or transfer of samples can be made at CLIENT's expense upon CLIENT's prior written request. BILLING AND PAYMENT CLIENT will pay CONSULTANT in accordance with the procedures indicated in the Proposal and its attachments. Invoices will be submitted to CLIENT by CONSULTANT, and will be due and payable upon presentation. If CLIENT objects to all or any portion of any invoice, CLIENT will so notify CONSULTANT in writing within fourteen (14) calendar days of the invoice date, identify the cause of disagreement, and pay when due that portion of the invoice not in dispute. The parties will immediately make every effort to settle the disputed portion of the invoice. In the absence of written notification described above, the balance as stated on the invoice will be paid. Invoices are delinquent if payment has not been received within thirty (30) days from date of invoice. CLIENT will pay an additional charge of three quarters of a percent (.75) per month (or the maximum percentage allowed by law, whichever is lower) on any delinquent amount, excepting any portion of the invoiced amount in dispute and resolved in favor of CLIENT. Payment thereafter will first be applied to accrued interest and then to the principal unpaid amount. All time spent and expenses incurred (including any attorney's fees) in connection with collection of any delinquent amount will be paid by CLIENT to CONSULTANT per CONSULTANT's current fee schedules. In the event CLIENT fails to pay CONSULTANT within sixty (60) days after invoices are rendered, CLIENT agrees that CONSULTANT will have the right to consider the failure to pay the CONSULTANT's invoice as a breach of this AGREEMENT and CONSULTANT may cease work on the project. At CONSULTANT's option, CONSULTANT may waive said major breach upon payment by CLIENT of all arrearages and outstanding invoices. TERMINATION This AGREEMENT may be terminated by either party seven (7) days after written notice in the event of any breach of any provision of this AGREEMENT or in the event of substantial failure of performance by either party, or if CLIENT suspends the work for more than three (3) months. In the event of termination, CONSULTANT will be paid for services performed prior to the date of termination plus reasonable termination expenses, including, but not limited to, the cost of completing analyses, records, and reports necessary to document job status at the time of termination. P-16174 W.doc 09/06 2 RISK ALLOCATION Many risks potentially affect CONSULTANT by virtue of entering into this AGREEMENT to perform professional consu lting services on behalf of CLIENT. The principal risk is the potential for human error by CONSULTANT. For CLIENT to obtain the benefit of a fee whic h includes a nominal allowance for dealing with CONSULT ANT's liability, CLIENT agrees to limit CONSULT ANT's liability to CLIENT and to all other parties for claims arising out of CONSULTANT's performance of the services described in th i s AGREEMENT. The aggregate liability of CONSULTANT will not exceed $50,000 for negligent professional acts , errors, or omissions , including attorney's fees and costs which may be awarded to the prevai ling party, and CLIENT agrees to indemnify and hold harm less CONSULTANT from and against all liabilities in excess of the monetary limit established above . Limitations on liability and indemnities i n this AGREEMENT are business understandings between the parties vo l untarily and knowingly entered into , and shall apply to all theories of recovery including, but not lim ited to, breach of contract, warranty , tort (including negligence), strict or statutory li abil ity, or any other cause of action, except for willfu l mi sconduct o r gross negligence. The parties also agree that CLIENT wi ll not seek damages in excess of the limitat ions indirectly through suits w ith othe r parties who may join CONSULTANT as a third-party defendant. Parties means CLIENT and CONSU LTANT and their officers , employees , agents , affiliates, and subcontractors. Both CLIENT and CONSULTANT agree that they will not be liable to each other, under any circumstances, for special, indirect, consequential , or punitive damages arising out of or related to this AGREEMENT. INDEMNIFICATION If any claim is brought against CONSU LTANT, its employees, agents and subcontractors and /or CLIENT by a thi rd party, relating in any way to the Services, the contribution and indemnification rights and obligations of CONSU LTANT and Client , subject to the paragraph titled "Risk Allocation" above , such claim shall be determined as follows: 1. If any negligence, breach of contract, or w illfu l misconduct of CONSULTANT ca used any damage, injury , or l oss cla imed by the third party, then CONS ULTANT and CLIENT shall each indemnify the other against any loss or judgment on a compa rative reasonabi lity basis under comparative negligence principles (CLIENT responsibility to i nclude that of its agents, employees , and other contractors); and 2. Un less CONSULTANT was li ab le for neg ligence, breach of contract, or willful misconduct which in w ho le o r in part, caused the damage, injury, or loss asserted in the third party claim, CLIENT shall indemnify CONS ULTANT aga inst the claim , l iability, loss, legal fees , consulting fees , and other costs of defense reasonably incurred . DISPUTES RESOLUTION If a dispute at law arises from matters related to the services provided under this AGREEMENT and that dispute requ ires litigation, then : 1. The claim will be brought and tried in judicia l jurisdiction of t he court of the county where CONSULTANT's principa l place of business is located and CLIENT waives the right to re move the actio n to any other county or judicial jurisdiction , and ; 2 . The prevai ling party will be entitled to recovery of all reasonable costs incurred , i ncluding staff time, court costs , attorneys' and expert witness fees, and other claim-related expenses . GOVERNING LAW AND SURVIVAL If any of the provisions contained in this AGREEMENT are held illegal, inva lid, o r unenfo rceable , the enforceab il ity of the remain i ng provisions will not be impaired. Risk a ll ocation and indemnities w ill survive termination or failu re of this AGREEMENT for any cause. The parties have read, or had the opportunity to read , the foregoing, including a ll attachments , addendums, and exhibits hereto, have had an opportunity to discuss the same, understand completely the terms, and will ing ly enter into this AGREEMENT which w ill become effective on the date signed below by CLIENT. Printed Name of Client or Authorized Agent Signature of C lient or Authorized Agent WvUt~ David L. Richter, Principal Environmental Scientist P-16 174 W.doc 09106 Date 10/08/13 Date PM :MSC 3 ATTACHMENT "B" CONSULTANT SERVICES AGREEMENT By and Between THE CITY OF TEMPLE CITY, a municipal corporation and NINYO & MOORE GEOTECHNICAL AND ENVIRONMENTAL SCIENCES CONSULTANTS RT¥#4838-6958-3880 vl -1- AGREEMENT FOR CONSULTANT SERVICES BETWEEN THE CITY OF TEMP.LE CITY, CALIFOR1"1IA AND NINYO & MOORE GEOTECHNICAL AND ENVIRONMENTAL SCIENCES CONSULTANTS This Agreement for Consultant Services ("Agreement") is entered into as of this Z $ ft. day of C e. t . , 2013 by and between the City of TEMPLE CITY, a municipal corporation ("City") and NINYO & MOORE GEOTECHNICAL AND ENVIRONMENTAL SCIENCES CONSULTANTS, an "S" Corporation ("Consultant"). City and Consultant are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the ''Parties.n RECITALS ···A: City has sought; by issnance·ofaRequcst forProposalsor 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 perfonn 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 fonnalize 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 PROVISlONS NOW, THEREFORE, i11 consideration of the mutual promises and covenants mad<, 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 Cons11ltant to continue performing the scope of services until such services are complete. RIV #483&~6958-3.880 vl - 1 - SECTION2. SCOPE OF SERVICES. Consultant agrees to perform the services set forth in Exhibit "A" "Scope of Services" and made a part of this Agreement. SECTION3. 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 fmth 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 fumish 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 in compliance with ll1e provisions of this Agreement. In the event that no charges or expenses are disputed, tl1e 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, tl1e original invoice shall be returned by City to Consultant for conection and rcsubmission. (c) Except t~s to any charges for work performed or expenses incnned by Cous\!!t!'!Pt which are disputed by City, City will usc 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 tlus Agreement shall not be deemed to waive any defects in work performed by Consultant. SECTIONS. INSPECTION AND FINAL ACCEPTANCE. City may inspect and accept or reject any of Consultant's work under this Agreement, ei thor during pcrfom1ance 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 mistalces as amount to fraud. Acceptance of any of Consultant's work by City shall RIV #4SJ8-69SS-3B80 vi -2- not constitute a waiver of any of the provisions of this Agreement including, bufnotlimited tb, sections 16 and 17, pertaining to indemnification and insurance, respectively, SECTION6. OWNERSHIP OF DOCUMENTS. All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discov~ed by Consultant in the course of providing any services pursqant 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 tiles, 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, suneys, reports, data, notes, computer files, files or other docmnents 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 Perforn1ance 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, SECTION7. CONSULTANT'S BOOKS AND RECORDS. (a) Consultant shall maintain any and all documents and records demonstrating or relating to Consultant's pcrfonnancc of services pursuant to this Agreement Consultant shall maintain any and all ledgers, books of aecmmt, invoices, vouchers, c~ncclcd checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements chmgcd to City pursuant to this Agreement Any and all such documents or records shall he 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 ]Jy 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 ofsuch 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 th)s 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 terminatfon 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 pany, Access to such documents and records shall be granted to City, as well as to ,jts successors-in-interest and authorized representatives, RJV #4838-6958-3880 vl - 3 - SECTIONS. 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, sh;:tll l!.ave 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 Qr in !\llY 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 mayotherwise accrue to City's employees. Consultant expressly waives any claim Consultant may have to any such rights. SECTION9. STANDARD OF PERFORMANCE. Consultant represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the services required nnder this Agreement in a thorough, competent and professional manner. Consultant shall at all times faithfully, competently !lnd to the best of its ability, experience and talent, perform all services described herein, 1n 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 (o 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, stndies, surveys, report'S, data, notes, computer files, files or other. documents prepared, developed .or. discovered by Consnitantin .. the .course of providing any services pursuant to this Agreement, Consnltant's guarantees .and Watmnties related to Standard of Performance shall not extend to such nse 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 Cm1sultant to comply with this section. RTV #4838-6958-3880 vl -4- SECTION 11. PREVAILING WAGE LAWS It is the understanding of City and Consultant that Califomia 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 Califomia Labor Code or regulations promulgated thereunder: Construction, alteration, demolition,. installation, or repair work perfonned bll 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 limite:d 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 pmfonnance ofthis Agreement, SECTION 13. UNAUTHORIZED ALIENS. Consultant hereby promises and agrees to comply with all of the provisions ofthe Federal Immigration and Nationality Act, 8 U.S,C.A. §§ 1!01, £.1 ~ .• 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 reimbmse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, inCluding attorney{ fees, incurred by City. SECTION14. 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, whiGh 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 Consult~mt fitrther covenants that in the perfonnan9e of tl:lisAgree!IleJ1l,]l() 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 tinles avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the pcrfonnauc,e 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 govcmmental agencies and private parties. Consultant is tmaware of any .stated position of City relative to such projects. Any futme position of City on such projects shall not be considered a conf1ict ofinterest for purposes of this section, · (c) City understands and acknowledges that Consultant will, perfonn non-related services for other govemmental agencies and private parties following the cmnpletion of the &cope of work under this Agreement Any such futme service shall not be considered a conflict of interest for purposes of this section, RIV #4838-6958-3880 vl - 5 - SECTION IS. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work product produced by Consultant in'perf01mance of tbis Agreement shall be considered confidential, unless such infom1ation is in tbe public domain or already known to Consultant Consultant shall not release 'or disclose anY such infonnation or work product to persons or entities other than City without prior. written authorization from tbe City Mamger, 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 deposition~, response to interrogatories or other information concerning the work perfmmed under tbis Agreement. Response to a subpoena or court order shall not be considered "voluntary" provi<,lt;dConsultant 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 iademnity from Consultant for ·any· damages, costs· ·and fees, · including attorneys fees, caused by or inccmed 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, subpo.ena, notice of deposition, request for documents, intcnogatories, request for admissions or otller. discovery request, court order or subpoena from any party regarding this Agreement and. the work performed thereunder. City retains the rigbt, 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. SECTION16. INDEMNIFICATION. (a) Indenmification for Professional Liabllitv. Where the law establishes a professional standard of care for. Consultant's Services, to the fullesLextent.permitted bylaw, Consultant shall indemnify, protect, defend and hold hannless City and any and all of its officials, employees and agents ("Indemnified Parties") from and ag;iiast 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 sh<41 bear the legal liability thereof) in the perfom1ance of professional services under this Agreement. (b) Indemnification for Other than Professional Liability. Other than in tlle performance of professional services and to tbe full extent pem1itted by law, Consultant shall iadenmify, 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 ldnd, whether actual, alleged or threatened, including attorneys fees and costs, co.urt costs, R1V#4838-6958-3880 vl -6- iJ;lterest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are iJ;l 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, ll;lcluding .hut not limited to officers, agents, employees or sub-contractors of Consultant. {c) General Indemnification Provisions. Consultant agrees to obtain execllted indemnity Agreements with provisions identical to those set forth here in this sectlori fi:om 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 indenmify and defend City as set forth here is binding on the successors, assigns or heirs of Consultant and shall survive the termination of thiS Agreetnenn:>r this section. (d) Limitation of Indemnification. Notwithstanding any provision of this Section 16 [lridehlllificatioh] to the contrary, design professionals ate required to defend and ilidemnifythe 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, pert&in 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, liccnsedlandsoape atchitec!s, 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 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. Consultant 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 arc 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 expe1tise 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 assigJJ or transfer this Agreement or any portlon 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 -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 Agre;oment. City acknowledges, however, that Consultant, in the performance ofJts d1:1tie.s 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 fhe services required nnder this Agreement Consultant shall notifY City of any changes in Consultant's staff and subcontractors, if any, assigned to perform fhe services required under this Agreement, prior to .and during any such performance. SECTION20. TERMINATION OF AGREEMENT. (a) City may terminate this Agreement, with or wifhout cause, at ary 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 Consultart or City fail to perform any material obligation nnder. this Agreement, then, in addition to any other remedies, either Consultant, or City may tenninate this Agreement immediately upon written notice. (d) Upon tem1ination of this Agreement by either Consultant or City, all property belonging exclusively to City which is in Consultant's possession sh.all be returned to City, Consultant shall furnish to City a final invoice for work performed and expenses incuned 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 forfh in Section 4 ofthis Agreement. SECTION21. DEFAULT. h1 the event that Consultant is in default under the terms ofthisAgreement,the Cityshiill 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 Consulta.ntmay cure fhe default. This timeframe is presumptively thirty (30) days, but may be extended, 'fhough not reduced, if circumstances warrant. During the period of time that Consultant is in default; the City shall hold all invoices and shall, when fhe default is cured, proceed with payment on fhe invoices. In the altemative, fhe 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 dej'au1t, the City may take necessary steps to terminate fhis 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. RIV#48~8-6958-38SO vl -8- SECTION22. EXCUSABLE DELAYS. Consultant shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to pcrfom1 due to caLtses 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 govemments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, &nd lJnusua11y severe weather. The tenn and price of this Agreement s.hall be equitably adjusted for any delays due to such causes. SECTION23. COOPERATION BY CITY. All public information, data, reports, records, and maps as are. existing ')nd availl\ble·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 furnished to Consultant in every reasonable way ·to facilitate, without undue delay, the work to be performed under this Agreement. SECTION24. NOTICES. All notices required or permitted to be given under this Agreement shall be in writing aud shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows: To City: To Consultant: City of Temple City Attn: City Manager 970 I Las Tunas Dr. Temple City, CA 91780 Ninyo &Moore Geotechnical and Environmental Sciences Consultants · · Attn: 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 ofthe same in the custody of the United States Postal Service. SECTION25. 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. SECTION26. 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 RIV #4838~6958-3880 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 ofthe City Council. SECTION 27. BINDING EFFECT. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the pmiies. SECTION2&. MODIFICATION OF AGREEMENT. No amendment to or modification of tl1is 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, SECTION29. WAIVER. Waiver by any.par!yto. this Agreement ofany term, coudition, .... or, .... c.OvenanLoLthis Agreement shall not constitute a waiver of any other tenn, condition, or covenant Waiver by any pa!iy of any breach of the provisions of this Agreement shall not constitute a waiver ofany other provision nor a waiver of any subsequerJt breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not co.nstitute a waiver of any of the provisions of this Agreement. SECTION30. LAW TO GOVER.l\1; VENUE. This Agreement shall be interpreted, construed md 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, Califomia. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of Califomia, 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 proceeditig shall he entitled to an award of reasonable attomey's fees, costs a11d expenses, in addition .lo any other relief to which it may be entitled. SECTION 32. ENTIRE AGREEMENT. This Agreement, including the attached Exhibits "A" througl1 "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 shj.temeuts, representations or other Agreements, whether oral or written, made b.y any pmiywhich are not etnbodied 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 autl10rized representatives. SECTION33. SEVERABILITY. lUV #4K3S-6958-3880 vl -I 0- If any te1m, condition or covenant of this Agreement is declared or detennill.ed by a11Y qourt 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 t!rst-above written. ATTEST: Peggy Kiw' City Clerk APPROVED AS TO ~~ _,:;:·-· By:~~ Eric S. Vail City Attorney CITY OF TEMPLE CITY -~ By: '[/;" J osc Pull,City Manager NOTE: CONSUJ~TANT'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR Rrv #4838-6958-3880 vl -1 I - OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER'S BUSINESS ENTITY. RN :#4838-6958-3880 vi -12- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF David L, Richter i-On 25 ·Oct., 20l3 before me, M. Linda ·Carson , personally appeared Nancy ·Jmglin , proved to me on the basis of satisfactory evidence to be the person(s) whose names(s)-4s1are subscribed to the--within instrument and acknowledged to me that !~they executed the same in~t.heir authorized capacity(ies), an.d that by ~their signature(s) on the instrument the person(s), or the entity upon behalf Of which the ·person(s) acted, execUted the instrument. 1 certifY under PENALTY OF PERJURY under the laws of the State of California that the ·foregoing paragraph -1s true and correct. WITNESS my hand and official seal. Signature: OPTIONAL Though the data below is not required by law, it may prove valu.."lble to persons relying on the Qocument and could prevent fraudul.ent reattachment of this fonn CAPACITY CLAIMED BY SIGNER 0 INDIVIDUAL 0 CORPORATE OFFICER 0 0 0 0 0 TITLE(S) PARTNcR(S) 0 LIM!TW 0 GENERAL ATTORNEY-IN-FACT TRUSTEE(S) GUARDIAN/CONSERVATOR OTHER __________ _ SIGNER IS REPRESENTING: (NAME OF PERSON(S) ORENTITY(IES)) R!V #4838-6958-38&{) v l DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATe OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE EXIDBIT "A" SCOPE OF SERVICES I. Consultant will pel'form the following Services: 6876 vl Phase IESA The proposed scope of services for the Phase I ESA will be conducted in accordimce with the ASTM Standard Practice El527-05. 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 list>:d herein. • Review background information, including parcel infonnation, physical setting information (e.g. topographic maps, geologic maps), and documentation provided by the client for the site. · · · · • Perform a site recmmaissance 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 fi:om activities conducted at the site and adjacent properties. Features will be shown on a site map to be included in the report. We \Vill 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 infonnation pertaining to the site and nearby properties, which may include the following: previous environmental reports, aerial photographs, historical street directories, Sanbom© fire inswance maps, and/Qr 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 usefi.rl 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 occupant(s) of the site. A "user questionnaire" will be submitted to the "user" of RN #4838-6958-3 880 vI A-1 6876 v1 the Phase I ESA report (the client) with brief questions regarding knowledge of environmental issues at the site (c. g., potential environmental liens, activity and use limitations, commonly !mown 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 siie, • Review federal, state, and local regulatory agency databases for the site and for properties located within the approximate distances specified by AST'Iv! Standard Practice El527- 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, pe1mitted facilities that utilize underground storage tanlcs, and facilities that use, store, or dispose of hazardous materials. We ir1tend to use an electronic database service to provide a repolt summarizing information from the required records, ru1d will rely on the database service to conform to ASTMreq\lirements for currency ofthe inf()fiilation. • 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 0pinjons a)ld 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 CoastAir 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 ha)':ardous materials fotmd in buildings, including LBP, and miscclla~eolls 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 (possihle lead acid or other metal containing batteries or tritium)., and heating, vcmtilation, and air conditioning and rllfrigeration 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 RJ\1 #4838-6958-3880 vl A-2 client, Ninyo & Moore will perform a hazardous materials survey of the referenced site ac.cording to the following proposed scope of work: 68'16 vl • A California DOSH CAC or DOSH Site Surveillance Technician from Ninyo & Moore will direct an asbestos survey of the two structures within the propertjt. The survey wili 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.llt a National Vollmtary Laboratories Accreditation Program certified laboraiory. Infmmation acquired during the survey will be recorded on field forms including chain of custody records and sampler, site address, homogeneous areas, sample locations, materi(ll 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 b. c .. s<;J"e.ened for lead content with an :X::R'!Y l'lorescence, (XRI') 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 eqnivalent, building component, and substrate material. Multiple readings will be collected to resolve inconsistencies in tbe test results. If necessary, paint chip samples will be collected and ~ubmitted to .an analytical laboratory accredited in the EPA's National Lead Laboratory Accreditation Program. Results ofXRF and paint chip samples will be recorded on field forms· and Will include the location, building component, substrate, and condition and quantiW of LBP detected. • A survey will be perfonned of both the interiors and exterior areas of the structures for mis.c.ellaneous hazardous mater.ials, including. but not limited. to .. PCB .. con !(lining 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 wiii 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. RIV'-#4838-6958~3880 vl A-3 fi87£ vl Abatement Specifications Based on the results of the HBMS, Ninyo & Moore will prepare abatement specifications for removal of hazardous building materials. The specifications will provide guidelines and instructions for the general and abatement contractors to follow for tht> ha11dling of asbestos, lead containing materials, and miscellaneous hazardous building materials located within site stmctures. The specifications will provide contractor licensing and certification t\lquirements, removal and protection methods, regulatory requirements, submittals, engineering controls and equipment, personal protective equipment, disposal requirements, and close-out requirelnents. 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 abatehazardous building materials prior tosite demolition. We call on the support of various specialty contractors ~that operate ~fu 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 timcframc for completion of the different components of work that may be required for this project are as follows: · .Phase I ESA-Three weeks from ATP HBMS -Three weeks fi·om date of provided field access Abatement Specifications-One week fi·om submittal of the HBMS report Abat.ement Cost Estimate -One week fi·om 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 tixed costs for the scope of services indicated above. Phase I ESA-$3,500 HBMS-$6,000 Abatement Speci11cations-$1,500 Abatement Cost Estimate-$975 Project Total-$11,975 RI¥#4838~6958-3880 vl A-4 6876 Vl VI. AMENDMENT The Scope of Services, including services, work products, and personnel, are subject to change by mutual Agreement. In !be absence of mutual Agreement regarding the need to change any aspects of performance, Consultant shall comply with the Scope of Services as i11dicated above. RfV#4838-6958-38&0 vl A-5 EXHIBIT "B" COMPENSATION I, Consultant shall use the following rates to complete the following Servi.ces: A. Phase I Environmental Site Assessment $3 500 B. Hazardous Building Material Survey (HBMS) $6.000 C. Abatement Specifications $1500 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. Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate. 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 totalcompensation for the Services shall not exceed $11,975 as [lrovidedin Section 4 of this Agreement. RIV #4838~6958-3880 v l B-1 EXHIBIT "C" INSURANCE A. Insurance Requirements. Consultant shall provide and maintain insurance, acceptable to the City Manager or City Counsel, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may mise from or in connection with the performance of the work hereunder by Consultm1t, it$ agents, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Consultm1t shall provide the following scope a11d limits of insurance: I. Minimum Scope oflnsuranoe. Coverage shall be at least as broad as: (!) Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001). (2) Insurance Services Office form number CA 0001 (Ed. f/87) covering Automobile Liability, including code l "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 Consulta11t 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, Consnltmt shall annually and upon request of the City submit written evidence of this c.ontinuons 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 lin:rits set fm1h ~ov~ · RIV #4838-6958-3880 vi C-1 (3) Workers' Compensation and Employer's Liability: Workers' Compensation as required by the Labor Code of the State of California and Employers Liability limits of notless 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 tbe following provisions: 1. All Policies. Each insurance policy n<quired by tbis. 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 mall, return receipt requested, has been given to City. 2. General Liability and Automobile Liability Covetages. (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 bpnowed 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 ?gqinst whom claim is made or suit is brought, except with respect to. th\l li!llits of the insurer's liability. (4) Any failnre to comply with the reporting or other provisions of the policies including breaches of wan-antics 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 Rcguircments. Consultant agrees to deposit with City, at or before the effective date of this contract, certificates of insurance necessary to satisfy City that the RlV-#483&--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 QY 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 dednctibles or self-insl)fed retentions must be declar.ed to and approved by City. At the option of City, either the insurer shall reduce or eliminate such dcductibles 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 procuringof suchrequired policy or policie~ of insuranccshall notbe constmed to limit Consultant's liability hereunder nor to fulllll the indemn{fication provisiOns ·············.···········.······· and requirements of this A1,>reement. RN #483&~695·8~3880 vl C-3 ATTACHMENT "C" ~rm71[MmcdAJVIngo &~'Oo~e ~ Gcotclhntc<tl <~nd Enwonmcnral SocnlC's Cons~ilrantl Ms. Giselle Joyce B. Corella Executive Assistant to the City Manager City of Temple City 9701 Las Tunas Drive Temple City, Ca lifornia 91780 November 25, 2013 Proposal No. P-16236 Subject: Revised Proposal for Limi ted Phase II Env ironmental Site Assessment 5922 Primrose Avenue Temple City, Ca lifornia Dear Ms. Core ll a: In accordance with your request, Ninyo & Moore is pleased to provide this revised proposal to perform a Lim ited Phase II Environmenta l Site Assessment (ESA) at the above -referenced site. As you are aware, Ninyo & Moore is fam iliar with the site having conducted a Phase I ESA on beha lf of the city of Temple City in November of 2013. Although recognized environmental conditions were not identified in the Phase I ESA, further due dil igence by the city of Temple C ity is requested. The site was used as agricultura l land from at least 1928 through 1938, and the build ing structures have been present on the site since 1942. Ninyo & Moore recommends a shal low subsurface investigation be conducted at the site to eva luate the potential presence of organochlorine pestic ides (OCPs), and metal concentrations of arsenic and lead. Due to the depth to groundwater (approximate ly 200 feet be low ground surface [bgs]), groundwater will not be investigated. SCOPE OF SERVICES The environmenta l scope of services at the site will consist of the f ollowing tasks: • Coordination, Planning, and Preparation of a Health and Safety Plan -Coordination, planning, and a site-specific hea lth and safety plan, wh ich wi ll address worker safety as well as the safety of the genera l publ ic, will be prepared. Underground Service Alert will be contacted to mark the locat ions of underground utilities. • Subsurface Evaluation -The following tasks will be performed during the subsurface evaluation: o Soil Borings -Up to eight hand augered soil borings are proposed to be augered up 2.5 approximately feet bgs. Four borings wi ll be advanced in the vicin ity of each site .. li,n fJ:cyJ • ltw~c • los Mgd("S • Ri=.rcho Cll'.:d01ot"lt]J • Dakilllll.l Srn rra nu~o • $.-Jn k l\C' • \r).~r.Jinr.:l -10 1..-'~ ~·.tS .. fJKY.'nl~ • Tu..-~on • Fte:..ccrt Vtt:~cy • D::'f'<\iCf • HOU'iton 5922 Primrose Avenue Temple City, California November 22, 2013 Proposal No. P-16236 structure. The locations are presented on the attached figure but may be adjusted based on field observations. The locations adjacent to the garage structure will be concrete cored. Soil samples will be collected at the surface and at approximately 2.5 feet bgs. o After Sampling -The boring locations around the apartment building will be backfilled with the soil cuttings to their original grade. The borings around the garage structure will be backfilled with the soil cuttings and patched with concrete to their original grade. o Waste -Soil cuttings and wastewater will be used as backfill. • Laboratory Analyses -Selected soil samples will be analyzed for OCPs, and arsenic and lead by the United States Environmental Protection Agency Methods 8081A and 601 DB, respectively. The surface samples from the borings will be analyzed (8 samples). The 2.5-foot bgs samples will be held pending the result of the surface samples. Sample analyses will be performed by an Environmental Laboratory Accreditation Program certified analytical testing laboratory. Samples will be analyzed using a 48-hour turnaround time. • Report Preparation - A report documenting our field methodologies and findings for the site will be prepared. The report will include presentation of analytical results in tabular and graphic formats. If warranted by the results of the proposed Phase II ESA, our report will recommend additional subsurface assessment. FEE Our services will be performed for a lump sum fee of $11,000.00 (eleven thousand dollars). If additional services are needed, they will be charged in accordance with the rates in the attached Schedule of Fees. To authorize our services, please sign and return the attached Work Authorization and Agreement. ASSUMPTIONS This proposed scope of services and cost estimate assumes: • The client will arrange complete and unfettered access to the areas of interest during regular weekday business hours. • A brief site-specific health and safety plan will be prepared for the field activities described in the proposal in accordance with California Code of Regulations, Title 8, Section 5192 and 29 Code of Federal Regulations 1910.120. • Ninyo & Moore will not be responsible for damage to underground utilities that are not shown on plans provided to Ninyo & Moore or marked in the field by Underground Service Alert. • The estimated fee is based on the assumption that field work will take one day to complete. 2 5922 Primrose Avenue Temple City, California November 22, 2013 Proposal No. P-16236 • Proposed boring will be advanced using a hand auger to approximately 2.5 feet bgs or to refusal, whichever is encountered first. • Groundwater wil l not be encountered. • Laboratory services will be performed using 48-hour turnaround time. • If add itional analyses are needed, the client will be contacted for additional authorization. • Soi l cuttings w ill be backfilled into each boring location. • Completion of 4 of the bori ngs will be with concrete and 4 with soi l. Th is estimate does not include matching alternate surface materials . • No reports other than those described herein will be prepared. SCHEDULE Following receipt of your written authorization to proceed, Ninyo & Moore wi ll commence services described herein. We antici pate needing 10 working days following receipt of f inal laboratory resul ts to provide the report. We appreciate the opportunity to be of service to you on this project. Sincerely, NINYO & MOORE M ichael S. Cushner CAC Proj ect Environmental Scientist MSC/JJRINNsc Attachments: F igure 1 -Proposed Boring Locations Schedule of Fees Work Authorizat ion and Agreement Distribution: (1) Addressee (via e-mail) P-16236-rev.doc 3 ~~G,CEG Senior Geolog ist (' / - ,.....,.,., -:'!I '. ~ -. ·~~""I '••1 ·~-~ :~, .,., (~:. f~·~ ...... -~G~--..3--:. ~~~,;~..,.-. ' .. ... ·,.. . ,..,. .... ~ I~ l (.;.-• . ::::. , · .,_ ~ :"";;i ..., .'~ ··-~~MAND~R IN . ~?-i k' \ , ' \ . . t-J<!>Ou~E-' , .~ I •. I . "'• ~ \.., '\ ? I : . I •-' . \ • ~ • \ I • l J./ • ' .... . , ' .. ~ I ', ·;;,.·~· --::. ... / ;;;;,-,- : ~ -:-,. ~--• -.4: /~:..;..:1 .. --:-·~ ."',. _. ;":;~ ·c:rh ' I -"'' --· REFERENC E . G OOGLE EARTH IMAGERY. 20 13. N A SCALE IN FEET 0 100 200 NOTE : D IMENSIONS. OIRECriONS N<O LOCATIONS IIRCAPPROXIMATE PROJECT NO . P-162 36 DATE 11 113 LEGEND [:] SITE BOUNDARY 5922 STREET ADDRESS ~. PRO POSED BORING PROPOSED BORING LOCATIONS 5922 PRI MROSE AVENUE TEMPLE CITY, CALIFORNI A ... ·' .. \ ., FIGURE 1 5922 Primrose Avenue Temple City, California November 22, 2013 Proposal No. P-16236 SCHEDULE OF FEES HOURLY CHARGES FOR PERSONNEl Principal Engineer/Geologist/Environmental Scientist .. Senior Engineer/Geologist/Environmental Scientist. .. Senior Project Engineer/Geologist/Environmental Scientist ... Project Engineer/Geologist/Environmental Scientist .. Senior Staff Engineer/Geologist/Environmental Scientist .. Staff Engineer/Geologist/Environmental Scientist.. GIS Analyst .. Field Operations Manager .. Supervisory Technician. Nondestructive Examination Technician, UT, MT, LP .. Senior Field/Laboratory Technician .. Field/Laboratory Technician. ACI Concrete Technician .. Concrete/Asphalt Batch Plant Inspector ... Special Inspector (Concrete, Masonry, Steel, Welding, and Fireproofing) ... Technical Illustrator/CAD Operator. .. Geotechnical/Environmental/Laboratory Assistant .. Information Specialist.. Data ProcessinQ, Technical EditinQ, or Reproduction .. OTHER CHARGES Concrete Coring Equipment (includes one technician).. $ PID/FID Usage.. . ............................... $ Anchor load test equipment (includes technician) ....................................................................................... $ Hand Auger Equipment... ............................................................................... $ Inclinometer Usage . . ................................................................................................ $ Vapor Emission Kits.. . .................................................. $ Level D Personal Protective Equipment (per person per day) . .. ................................. $ Rebar Locator (Pachometer).. $ Nuclear Density Gauge Usage........ $ Field Vehicle Usage.. . ......................................................... $ $ 168 $ 164 $ 160 $ 156 $ 141 $ 128 $ 114 $ 104 $ 95 $ 95 $ 87 $ 87 $ 87 $ 87 $ 87 $ 86 $ 73 $ 73 $ 64 160 /hr 140 /day 97 /hr 65 /day 40 /hr 40 /kit 30 /p/d 30 /hr 15 /hr 12 /hr Direct Project Expenses.... Cost plus 15% Laboratory testing, geophysical equipment, and other special equipment provided upon request. NOTES (Field Services) For field and laboratory technicians and special inspectors, regular hourly rates are charged during normal weekday construction hours. Overtime rates at 1.5 times the regular rates will be charged for work performed outside normal construction hours and all day on Saturdays. Rates at twice the regular rates will be charged for all work in excess of 12 hours in one day or on Sundays and holidays. Lead time for any requested service is 24 hours. Field Technician rates are based on a 4-hour minimum. Special inspection rates are based on a 4-hour minimum for the first 4 hours and an 8- hour minimum for hours exceeding 4 hours. Field personnel are charged portal to portal. INVOICES Invoices will be submitted monthly and are due upon receipt. A service charge of 1.0 percent per month may be charged on accounts not paid within 30 days. TERMS AND CONDITIONS The terms and conditions of providing our consulting services include our limitation of liability and indemnities as presented in Ninyo & Moore's Work Authorization and Agreement. P-16236-rev.doc C10 WORK AUTHORIZATION AND AGREEMENT Please Sign and Return One Copy to: NINYO & MOORE 475 Goddard, Suite 200 hvine, California 92618 1. PROJECT ADDRESS: 5922 Primrose Avenue, Temple City, California. 2. PROJECT DESCRIPTION: Limited Phase II Environmental Site Assessment. 3. SCOPE OF STUDY: Please refer to proposal dated November 25, 2013. 4. FEE: $11 ,000 (Eleven Thousand Dollars-Lump Sum). 5. PORTION OF FEE IN ADVANCE OF WORK: None. 6. CLIENT: CITY OF TEMPLE CITY 9701 Las Tunas Drive Temple City, California 91780 CONTACT: Ms. Giselle Joyce B. Corella 7. STATEMENT TO BE SENT TO: CLIENT PROJECT NO. P-16236 PHONE: 626-285-2171, ext. 2322 PHONE: 626-285-2171, ext. 2322 CONDITIONS OF AGREEMENT BETWEEN CLIENT AND NINYO & MOORE This AGREEMENT is made by and between: NINYO & MOORE GEOTECHNICAL AND ENVIRONMENTAL SCIENCES CONSULTANTS, hereinafter referred to as CONSULTANT, and CITY OF TEMPLE CITY, hereinafter referred to as CLIENT. This AGREEMENT between the parties consists of these TERMS, the attached Proposal identified as Project No. P-16236 dated November 25, 2013, and any exhibits or attachments noted in the Proposal. Tpgether, these elements will constitute the entire AGREEMENT superseding any and all prior negotiations, correspondence, or agreements either written or oral. Any changes to this AGREEMENT must be mutually agreed to in writing. STANDARD OF CARE CLIENT recognizes that subsurface conditions may vary from those observed at locations where borings, surveys, or explorations are made, and that site conditions may change with time. Data, interpretations, and recommendations by CONSULTANT will be based solely on information available to CONSULTANT. CONSULTANT is responsible for those data, interpretations, and recommendations, but will not be responsible for other parties' interpretations or use of the information developed. Services performed by CONSULTANT under this AGREEMENT are expected by CLIENT to be conducted in a manner ccnsistent with the level of care and skill ordinarily exercised by members of the environmental sciences profession practicing contemporaneously under similar conditions in the locality of the project. It is important to recognize that even the most comprehensive scope of services may fail to detect environmental liabilities on a particular site. Therefore, CONSULTANT cannot act as an insurer and cannot "certify" that a site is free of environmental contamination. Under no circumstance is any warranty, express or implied, made in connection with the providing of environmental sciences consulting services. SITE ACCESS AND SITE CONDITIONS CLIENT will grant or obtain free access to the site for all equipment and personnel necessary for CONSULTANT to perform the work set forth in this agreement. CLIENT will notify any and all possessors of the project site that CLIENT has granted CONSULTANT free access to the site. Client will protect all property, inside and out, including all plants and landscaping. CONSULTANT will take reasonable precautions to reduce the potential for damage to the site, but it is understood by CLIENT that, in the nonnal course of work, some damage may occur and the correction of such damage or alteration is not part of this AGREEMENT unless so specified in the Proposal. CLIENT is responsible for accurately delineating the locations of all subterranean structures and utilities. CONSULTANT will take reasonable precautions to avoid known subterranean structures, and CLIENT waives any claim against CONSULTANT, and agrees to defend, indemnify and hold CONSULTANT harmless from any claim or liability for injury or loss, including costs of defense, arising from damage done to subterranean structures and utilities not identified or accurately located. In addition, CLIENT agrees to compensate CONSULTANT for any time spent or expenses incurred by CONSULTANT in defense of any such claim, with compensation to be based upon CONSULTANT's prevailing fee schedule and expense reimbursement policy. P-16236 W·rev.doc 09/06 CONTAMINATED MATERIALS In performing environmental, hydrologic, or hydrogeologic services, CONSULTANT may excavate or otheiWise come in contact with hazardous materials. CLIENT represents that CLIENT has informed CONSULTANT of the presence of any known hazardous materials. CLIENT recognizes that a project site containing hazardous materials may not perform as anticipated by CLIENT, even though CONSULTANT's services are performed with currently acceptable levels of care and skill. Further, CLIENT acknowledges that, while necessary for site exploration, commonly used exploration methods such as drilling borings and excavating trenches involve an inherent risk. For example, exploration on a project site containing contaminated materials may result in inducing cross-contamination and/or other negative effects. Unanticipated hazardous materials may be encountered in an area where there is no reason to believe they could or should be present. CONSULTANT and CLIENT agree that the discovery of unanticipaled hazardous materials may make it necessary for CONSULTANT to take immediate measures to protect health and safety. CLIENT agrees to compensate CONSULTANT for any equipment decontamination or other costs arising out of the discovery of hazardous materials. CONSULTANT agrees to notify CLIENT when hazardous materials or suspected hazardous materials are encountered. CLIENT agrees to make any disclosures required by law to the appropriate governing agencies. CLIENT also agrees to hold CONSULTANT harmless for any and all consequences of disclosures made by CONSULTANT which are required by governing law. In the event that the project site is not owned by CLIENT, CLIENT recognizes that it is CLIENT's responsibility to inform the property owner of the discovery of hazardous materials or suspected hazardous materials. Notwithstanding any other provision of the AGREEMENT, CLIENT waives any claim against CONSULTANT and, to the maximum extent permitted by law, agrees to defend, indemnify, and save CONSULTANT harmless from any claim, liability, and/or defense cost for injury or loss arising from CONSULTANT's discovery of hazardous materials or suspected hazardous materials, including, but not limited to, any costs created by delay of development projects and any cost associated with possible reduction of the property's value. CLIENT will be solely responsible for the ultimate disposal of any materials secured by CONSULTANT which are found to be contaminated. Such materials include, but are not limited to, drilling mud, soil, groundwater, and other materials removed from excavations. Contaminated materials will be placed in suitable storage containers, labeled, and left on site. SAMPLE DISPOSAL CONSULTANT will dispose of soil, rock, and water samples collected for analyses approximately thirty (30) days after the laboratory analysis report date. Further storage or transfer of samples can be made at CLIENT's expense upon CLIENT's prior written request. BILLING AND PAYMENT CLIENT will pay CONSULTANT in accordance with the procedures indicated in the Proposal and its attachments. Invoices will be submitted to CLIENT by CONSULTANT, and will be due and payable upon presentation. If CLIENT objects to all or any portion of any invoice, CLIENT will so notify CONSULTANT in writing within fourteen (14) calendar days of the invoice date, identify the cause of disagreement, and pay when due that portion of the invoice not in dispute. The parties will immediately make every effort to settle the disputed portion of the invoice. In the absence of written notification described above, the balance as stated on the invoice will be paid. Invoices are delinquent if payment has not been received within thirty (30) days from date of invoice. CLIENT will pay an additional charge of three quarters of a percent (.75) per month (or the maximum percentage allowed by law, whichever is lower) on any delinquent amount, excepting any portion of the invoiced amount in dispute and resolved in favor of CLIENT. Payment thereafter will first be applied to accrued interest and then to the principal unpaid amount. All time spent and expenses incurred (including any attorney's fees) in connection with collection of any delinquent amount will be paid by CLIENT lo CONSULTANT per CONSULTANT's current fee schedules. In the event CLIENT fails to pay CONSULTANT within sixty (60) days after invoices are rendered, CLIENT agrees that CONSULTANT will have the right to consider the failure to pay the CONSULTANT's invoice as a breach of this AGREEMENT and CONSULTANT may cease work on the project. At CONSULTANT's option, CONSULTANT may waive said major breach upon payment by CLIENT of all arrearages and outstanding invoices. TERMINATION This AGREEMENT may be terminated by either party seven (7) days after written notice in the event of any breach of any provision of this AGREEMENT or in the event of substantial failure of performance by either party, or if CLIENT suspends the work for more than three (3) months. In the event of termination, CONSULTANT will be paid for services performed prior to the date of termination plus reasonable tennination expenses, including, but not limited to, the cost of completing analyses, records, and reports necessary to document job status at the time of tennination. P-16236 W-rev.doc 09/06 2 RISK ALLOCATION Many ris ks potentia lly affect CONSULTANT by virtue of entering into this AGR EEM ENT to perform professional consulting services on beha lf of CLI ENT . The principal risk is the potential for human error by CONSULTANT. For CLIENT to obtain the benefit of a fee wh ich includes a nominal allowance for dealing with CONSULTANT's liab ility, C LIENT agrees to limit CONS ULTANT's liability to CLIENT and to all other parties for claims arising out of CONSULTANT's performance of the services described in th is AGREEMENT. The aggregate liability of CONSULTAN T will not exceed $50,000 for negligent professiona l acts, errors, or omissions, including attorney's fe es and costs w hich may be awarded to the preva il ing party, and CLIENT agrees to indemnify and hold harmless CONSULTANT from and aga inst all lia bilities in excess of the monetary limit estab lished above . Limitations on liability a nd indemnities in this AGREEMENT are business understandings between the pa rt ies vo luntarily and know ing ly entered into , and sha ll apply to all theories of recovery including , b ut not limited to, breach of contract, warranty, tort (in clud ing negligence), strict or sta tutory liability, or any other cause of action , except for willful misconduct or gross negligence . The parties also ag ree that CLIENT will not seek damages in excess of the lim itations indirectly through suits with other parties w ho may j oin CONS ULTAN T as a third-party defendant. Parties means CLIENT and CONS ULTAN T and their officers, employees, agents, affiliates, and subcontractors. Both CLIENT and CONSULTANT agree that they w ill not be liable to each other, under any circumstances, for specia l , indirect , consequential, or punitive damages arising out of or rel ated to this AGRE EMENT. INDEMNIFICATION If any claim is brought again st CONSULTANT, its emp loyees, agents and subcontractors and/or CLIENT by a third party, relating in any way to the Services , the contribution and indemnification rights and obligations of CONSULTANT and Cli ent, subject to the pa ragraph tit led "Risk Allocation" above, such claim shall be determined as follows: 1 . If any negligence, breach of contract , or w illful miscondu ct of CONSULTANT caused any damage, inju ry, or loss claimed by the t hird party, th en CONSULTANT and CLIENT shall each indemnify the ot her aga in st any loss or judgment on a comparative reasonability basis under comparative negligence principles (CLIENT re spo nsib ility to inclu de that of its agents, employees, and other contractors); a nd 2. Unless CONSULTANT was liable for negligence , breach of contract, or willful misconduct w hich in whole or in part, caused the damage, injury, or loss asserted in the third party claim, CLIENT shall indemnify CONSULTANT against the claim, liability, loss, legal f ees, consulting fees, and other costs of defense reasonably incurred. DISPUTES RESOLUTION If a dispute at law arises from matters related to t he services provided under th is AGREEMENT and that dispute requires litigation , then: 1. The claim w ill be brought and tried in judicial jurisd iction of the court of the county w he re CONSULTANT's principal place of business is located and CLIENT wa ives the right to remove the action to any other county or judicial jurisdiction , and; 2 . The prevailing party wi ll be entitled to recovery of all rea sonable costs in curred, including staff time , co urt costs , attorneys' and expert w itn ess fees, and other cla im-related expenses. GOVERNING LAW AND SURVIVAL If a ny of the prov isio ns contained in this AGREEMENT are held ill egal , invalid, or unenforceable , the enforceability of the remaining provisions will not be imp aired. Ri sk allo cation and indemnities will survive termin ation or failure of this AGREEMEN T for any cause . The parties have rea d, or had the opportunity to read, the foregoing , including a ll attachments , addend ums , and ex hibits hereto, have had an opportunity to discuss the same, understand completely the terms, and willingly enter into this AGREEMEN T which will beco me effective on the date signed below by CLIENT. Printed Name of C li ent or Authorized Agent Sig nature of Client or Authorized Agent ~An~l Engln••• P-16236 W-rev.doc 09/06 3 Date 11/25/13 Date PM :M5C