HomeMy Public PortalAboutC-16-011 - MRS Environmental, Inc. Amendment No. 2, On-Call Environmental ConsultingAMENDMENT NO.2
TO AGREEMENT FOR CONTRACT SERVICES
THIS AMENDMENT TO THE AGREEMENT FOR CONTRACT SERVICES
("Amendment No. 2") by and between the CITY OF CARSON, a California municipal
corporation ("City") and MRS Environmental, Inc., a California corporation ("MRS
Environmental" or "Consultant"), is effective as of the 18th day of October, 2020, except as
otherwise provided with respect to specific provisions herein ("Effective Date").
RECITALS
A. City and Marine Research Specialists, a California corporation ("Marine Research
Specialists") entered into that certain Agreement for Contractual Services dated October 18,
2016 ("Agreement") whereby Marine Research Specialists agreed to provide on-call
environmental consulting services for a three-year term and a contract sum not -to -exceed
$750,000 for all three years, $250,000 annually, with City options to extend the term for up to
two additional one-year periods.
B. Effective October 1, 2019, City and MRS Environmental entered into
Amendment No. l to the Agreement to: (1) exercise the City's first one-year option to extend the
Term of the Agreement until October 18, 2020; (2) increase the Contract Sum by $250,000, for a
not -to -exceed amount of $1,000,000; and (3) clarify that Section III of Exhibit "C," "Schedule of
Compensation," is not applicable to the Agreement because the 10 % retention requirement is
not applicable to on-call services.
C. Marine Research Specialists desires and intends to assign all of its rights,
interests, duties and obligations under the Agreement to MRS Environmental, and MRS
Environmental sees fit to assume the same, effective July 1, 2017. To that end, Marine Research
Specialists sent a signed letter to the City's Community Development Director dated September
22, 2020, stating that the Agreement should be assigned to MRS Environmental effective July 1,
2017, and that such assignment includes all assumptions of rights/interests/duties under the
Agreement. The letter further stated that with the assignment, there will be no change in the
people assigned to perform the contract services since the beginning of the Agreement. The letter
was signed by Dr. Douglas Coats, the corporate officer of Marine Research Specialists who had
executed the Agreement on behalf of Marine Research Specialists (the "Letter").
D. Section 4.5 of the Agreement provides, in pertinent part, that "neither this
Agreement nor any interests herein may be transferred, assigned, conveyed, hypothecated or
encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise,
without prior written approval of City." Accordingly, the Letter itself does not effectuate an
assignment or transfer of any interest in the Agreement, because prior City approval is required
for any assignment or transfer of the Agreement or any interest therein. As such, the Agreement,
absent an amendment providing retroactive authorization, does not permit an assignment or
transfer from Marine Research Specialists to MRS Environmental that is effective as of July 1,
2017. However, the City is amenable to the requested assignment, as is MRS Environmental.
Therefore, the City and MRS Environmental now see fit to enter into this Amendment No. 2 to
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add an exception to Section 4.5 of the Agreement to authorize an assignment and assumption of
Marine Research Specialists' rights, interests, duties and obligations under the Agreement to
MRS Environmental, effective as of July 1, 2017, and Marine Research Specialists
acknowledges and consents to same. Furthermore, and notwithstanding the effective date of the
assignment and assumption, MRS Environmental sees fit to take sole and full responsibility for
all potential liabilities that would otherwise accrue to Marine Research Specialists as the
consultant under the Agreement, including but not limited to those arising from or related to the
period of time and services rendered between the effective date of the Agreement and the
effective date of the assignment and assumption.
E. The high volume of development projects in the City necessitates the continued
use of Consultant's on-call environmental consulting services to ensure development projects
comply with CEQA requirements.
F. Over the first four years of the term of the Agreement, the annual not -to -exceed
$250,000 component of the Contract Sum was generally a fair estimate of the annual
compensation to be paid Consultant. However, due to the fluctuations in the cost to the City in
any given year, the restrictions of the annual not -to -exceed $250,000 amount create difficulties
in administering the Agreement. Additionally, the City desires to exercise its second one-year
option to extend the Term of the Agreement, and anticipates that the City's demand for
Consultant's on-call environmental consulting services during the second one-year extension
period may cause the compensation for said period to exceed $250,000. The considerations
necessitate an increase of $350,000 to the Contract Sum in connection with the exercise of the
City's second option to extend.
G. Accordingly, City and Consultant now desire to amend the Agreement a second
time, to: (1) effectuate the assignment to, and assumption by, MRS Environmental, of the rights,
interests, duties and obligations of Marine Research Specialists under the Agreement, with the
express acknowledgement and consent of Marine Research Specialists, effective as of July I,
2017; (2) exercise the City's second one-year option to extend the Term of the Agreement so that
the Agreement expires on October 18, 2021; (3) increase the Contract Sum by $350,000, for a
not -to -exceed amount of $1,350,000, to enable the City to continue to use Consultant's on-call
environmental consulting services until October 18, 2021; and (4) eliminate the annual not -to -
exceed amount of $250,000. City and Consultant also hereby desire to ratify and reaffirm the
continuous and uninterrupted term of the Agreement commencing from October 18, 2016, and
continuing through the Effective Date of this Amendment No. 2.
TERMS
1. Recitals. The foregoing recitals are true and correct, and are incorporated herein
by reference.
2. Contract Changes. The Agreement is amended as provided herein, with new text
identified in bold italics and deleted text in .
A. Section 2.1, "Contract Sum," is hereby amended as follows:
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01007 0005?667694 5
"Subject to any limitations set forth in this Agreement, City agrees
to pay Consultant the amounts specified in the "Schedule of
Compensation" attached hereto as Exhibit "C" and incorporated
herein by this reference. The total compensation, including
reimbursement for actual expenses, shall not exceed One Million
Three Hundred Fifty Thousand Dollars (51,350,000) One Nfilliee
Dellem �., 1,000,000) for the entire Term,, and shat, net a „a T.,..,
Handtt:d -ir-.I '- .easand Dellafs ($250,000) .s. a4y (the
"Contract Sum"), unless additional compensation is approved
pursuant to Section 1.8."
B. Section 3.4, "Term," is hereby amended as follows:
"Unless earlier terminated in accordance with Article 7 of this
Agreement, this Agreement shall continue in full force and effect
until completion of the services but not exceeding five (5) 4)
years from the date hereof, except as otherwise provided in the
Schedule of Performance (Exhibit "D" ). The City shall hm,e the
right but net dhe -Abligatien, in its sole diser-etien, to extend the
C. Section 4.5, "Prohibition Against Subcontracting or
Assignment," is hereby amended, effective July 1, 2017, to read in its
entirety as follows:
"The experience, knowledge, capability and reputation of
Consultant, its principals and employees were a substantial
inducement for the City to enter into this Agreement. Therefore,
Consultant shall not contract with any other entity to perform in
whole or in part the services required hereunder without the
express written approval of the City. In addition, neither this
Agreement nor any interest herein may be transferred, assigned,
conveyed, hypothecated or encumbered voluntarily or by operation
of law, whether for the benefit of creditors or otherwise, without
the prior written approval of City. Transfers restricted hereunder
shall include the transfer to any person or group of persons acting
in concert of more than twenty five percent (25%) of the present
ownership and/or control of Consultant, taking all transfers into
account on a cumulative basis. In the event of any such
unapproved transfer, including any bankruptcy proceeding, this
Agreement shall be void. Notwithstanding the foregoing, and as a
sole exception thereto, pursuant to the request, acknowledgment
and consent of Marine Research Specialists, a California
corporation ("Marine Research'q, City approves of the transfer
(Le., assignment and assumption) of the rights, interests, duties,
and obligations of Marine Research under this Agreement to
01007.4005667694 5
"MRS Environmental, Ina, a California corporation" ("MRS'),
and MRS agrees to assume the same, effective July 1, 2017 (the
"Transfer Date'). In connection therewith, City and MRS agree
that, commencing from and after the Transfer Date, MRS shall
assume and be solely and fully responsible for all liabilities
(known or unknown, suspected or unsuspected) of the consultant
under this Agreement. Additionally, and notwithstanding the
Transfer Date, MRS represents and warrants to City that it will
and does assume and take sole and full responsibility for all
liabilities (known or unknown, suspected or unsuspected) of the
consultant under this Agreement arising from or related to the
period of time and services performed between the date of
effectiveness of this Agreement and the Transfer Date, even
though such liabilities would or may otherwise be the
responsibility of Marine Research. No approved transfer shall
release the Consultant or any surety of Consultant of any liability
hereunder without the express consent of City."
D. The Agreement is hereby amended to change the name of the
Consultant such that the tern "Consultant," and all references to "Marine
Research Specialists [a California corporation]," as used in the
Agreement, shall be construed, commencing from and after July 1, 2017,
to mean and refer to "MRS Environmental, Inc., a California corporation."
E. Section VI of Exhibit C, "Schedule of Compensation," is hereby
amended as follows:
"The total compensation for the Services shall not exceed
Q50,000 annually, and will set exeeed- $1,350,000 $1,000,000 in
total, as provided in Section 2.1 of this Agreement_"
3. Continuing Effect of Agreement. Except as amended by this Amendment No. 2,
all provisions of the Agreement (as amended by Amendment No. 1) shall remain unchanged and
in full force and effect. From and after the date of this Amendment No. 2, whenever the term
"Agreement" appears in the Agreement, it shall mean the Agreement, as amended by this
Amendment No. 2 to the Agreement.
4. Affirmation of Agreement; Warranty Re Absence of Defaults. City and
Consultant each ratify and reaffirm each and every one of the respective rights and obligations
arising under the Agreement. Each party represents and warrants to the other that there have been
no written or oral modifications to the Agreement other than as provided herein. Each party
represents and warrants to the other that the Agreement is currently an effective, valid, and
binding obligation.
Consultant represents and warrants to City that, as of the date of this Amendment No. 2,
City is not in default of any material term of the Agreement and that there have been no events
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that, with the passing of time or the giving of notice, or both, would constitute a material default
under the Agreement.
City represents and warrants to Consultant that, as of the date of this Amendment No. 2,
Consultant is not in default of any material term of the Agreement and that there have been no
events that, with the passing of time or the giving of notice, or both, would constitute a material
default under the Agreement.
5. Adequate Consideration. The parties hereto irrevocably stipulate and agree that
they have each received adequate and independent consideration for the performance of the
obligations they have undertaken pursuant to this Amendment No. 2.
b. Authority. The persons executing this Amendment No. 2 on behalf of the parties
hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to
execute and deliver this Amendment No. 2 on behalf of said party, (iii) by so executing this
Agreement, such party is formally bound to the provisions of this Amendment No. 2, and (iv) the
entering into this Amendment No. 2 does not violate any provision of any other agreement to
which said party is bound.
[SIGNATURES ON FOLLOWING PAGE]
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01007.0005/667684.5
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 on
the date(s) and year(s) set forth below, with express intent that this Amendment No. 2 shall be
effective as of the Effective Date.
ATTEST:
r
D nesfa Gause-AlcYana, City Cler
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
;; -7 #- , �'�
i
Sunny K. Soltani, City Attorney
[BR.I]
CITY:
CITY OF CARSON, ni i l corporation
Alikobles, Ma or
Date: JVWEAV7}XA 10, 2020
CONSULTANT:
MRS ENVIRONMENTAL, INC., a California
corporatio
By:
Name: U l Fe' -mo' 7 -
Title: Vlei (0-V+f7fV-r
Date: 0 C4-0 2,7 , 2020
By:
N 6'mj C/,iqlck
Title: Ca��
Date: 2020
Address: 1306 Santa Barbara Street
Santa Barbara, CA 93101
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01007.0005/667694.5
ACKNOWLEDGED AND CONSENTED TO:
MARINE RESEARCH SPECIALISTS, a
California corporation
By. ger,
A zl. <V&
Douglas itoats, Vice President & Secretary
Address: 4744 Telephone Rd., Suite 3-315
Ventura, CA 93003-5258
Two corporate officer signatures required when Consultant is a corporation, with one signature required
from each or the following groups: 1) Chairman of the Board, President or any Vice President; and Z)
Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT'S
SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE
INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY.
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