HomeMy Public PortalAboutAgreement_ 2018-06-30 to 2019-06-30_Nino and Moore_Environmental Site Assessment_18-063CAGREEMENT COVER SHEET - CXo G
Type of Contract
RConsultant Services +Professional Services F] Public Works Other:
Meeting Date of Approval (Only If Applicable)
JULIE 11 , 2tIE>
Date
Contact Information
Name of Company: fi mN p N11717gEL
Address: 1415 cloy tpp Sco
lwwlNE , CA ftolb
Contact Person: WCUEL CUSNNtY1—
Phone Number:
Email:
Scope (Type of Project)
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Term of Contract
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Beginning Date Contract Completion Date
Contract Reviewed By
City Manager [] Department Director City Attorney No Changes to the Template
F1 Administrative Services Director ❑ Other:
Insurance
Additional Insured Endorsement Cancellation Provision General/Auto/Workman Comp.
Expiration Date: Notes: ��Sr
Date
FIRST AMENDMENT TO
AGREEMENT FOR SERVICES
by and between
CITY OF TEMPLE CITY
and
NINYO & MOORE
Dated June 20, 2018
FIRST AMENDMENT TO AGREEMENT FOR SERVICES
This First Amendment to the Agreement ("First Amendment"), which is dated for•
reference as indicated on the cover page, is hereby entered into by and between the City of
Temple City, a California charter city ("City"), and Ninyo & Moore, a California corporation
("Service Provider"), as follows:
RECITALS
A. City and Service Provider entered in a $24,700 agreement for services on August 21,
2017 ("Agreement"). The Agreement provides that Service Provider will prepare a
hazardous building material survey and oversee the proper removal of said materials from
the buildings located at 5922 and 5934 Primrose Ave (APNs 8587-014-904, -905).
B. Pursuant to formal Council action on June 19, 2018, City and Service Provider entered
into a contractual first amendment to the Agreement at an added cost of $7,233 (or a total
contract amount not to exceed $31,933). This First Amendment authorizes Service
Provider to perform a Phase I environmental site assessment for APN 8587-014-904 at a
cost not to exceed $4,330, and provides a contingency amount of $2,907 for any
unforeseen but required environmental work, e.g. a Phase II environmental site
assessment. Furthermore, this amendment extends duration of the Agreement from June
30, 2018 to June 30, 2019 to allow completion of all outstanding work items.
C. This First Amendment also amends Sections 16 and 17 of the Agreement to respectively
modify indemnification terms and certain language related to insurances to better comply
with standards required of City by its insurers.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the promises made and recited herein, the
parties do hereby enter into this First Amendment, which modifies and amends the Agreement as
follows:
1. AMENDMENT. The Agreement is hereby modified and amended as follows:
SECTION 1. TERM OF AGREEMENT: Subject to the provisions of Section 20
"Termination of Agreement" of this Agreement, the Term of this Agreement is until June
30, 2019 commencing on the date first ascribed above.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT: Subject to any
limitations set forth in this Agreement, City agrees to pay Service Provider the amounts
specified in Exhibit "B" "Compensation" and made a part of this Agreement by this
reference. The total compensation, including reimbursement for actual expenses, shall not
exceed thirty one thousand nine hundred thirty three dollars ($31,933) unless additional
compensation is approved in writing in accordance with Section 26 "Administration and
Implementation" or Section 28 "Amendment" of this Agreement.
-2-
EXHIBIT "A". SCOPE OF WORK: Added language, i.e.:
As it pertains
to APN 8587-014-904
or "site",
Service
Provider shall conduct a Phase I
environmental
assessment, of which a
scope is
provided
below.
1. In accordance with ASTM International (ASTM) 2013 guidance (Designation No.
E1527-13) and the United States Environmental Protection Agency Standards and
Practices for All Appropriate Inquires (AAI), Service Provider shall provide City a
questionnaire or interview for the following information:
• Information regarding environmental cleanup liens or activity and use limitations
associated with the site;
• An opinion regarding the relationship of the purchase price to the fair market
value of the site;
• A statement of commonly known information about the site; and
• A statement of any specialized knowledge or experience on the part of City.
2. City shall conduct a review of recorded land title and lien records for the site, or
engage a title company to review such records. Relevant information, if discovered by
City, must be provided to Service Provider,
3. As it pertains to the Phase I environmental site assessment, Service Provider shall
• Purchase and review environmental lien records for the site for evidence of
environmental liens and/or activity and use limitations;
• If provided by City, review ownership records for the site to evaluate probable
past site uses and the possible impact on the current environmental status of the
site;
• Review readily available maps
and reports pertaining to
the site (City is
requested
to provide copies of documents
in its possession);
• Conduct interviews with property representatives, if readily available, regarding
the enviromnental status of the site;
• Perform a site reconnaissance to visually observ
e areas of possibly contaminated
surficial soil or surface water, improperly stored hazardous materials, possible
sources of polychlorinated biphenyls, and possible ranks of contamination from
activities at the site and adjacent properties;
•4 Review readily available local regulatory agency files for the site with r,quests
made to: LA County Department of Health Services, the local Air Quality
-3-
Management District, local fire and building departments, and other agencies
depending on site history and conditions (e.g. the California Regional Water
Quality Control Board and State of California Department of Toxic Substances
Control);
• Review available regulatory agency databases for the site and for properties
located within a specified radius of the site to evaluate potential impacts (e.g,
known hazardous waste sites, landfills, leaking underground storage tanks,
facilities that store or dispose of hazardous materials, etc.);
• Review readily available historical documents including aerial photographs,
Sanborn Insurance maps, local building department records, reverse city
directories and topographic maps as appropriate; and
• Prepare the Phase I ESA report for the site (with color photographs) that
documents findings, and provides opinions and recommendations regarding any
environmental impacts.
Service Provider
shall complete
the above tasks by
July 13, 2018 at a cost not to
exceed $4,330.
4. Provide additional environmental reviews as needed at a cost not to exceed $2,907,
and only after receiving written approval by City.
SECTION 16. INDENINiFICATION. This section is amended to read as follows:
(a) Indemnification for Professional Liability. Where the law establishes a
professional standard of care for Service Provider's services, to the fullest extent
permitted by law, Service Provider shall indemnify, protect, defend and hold
harmless City and any and all of its officials, employees and agents ("Indemnified
Parties") from and against any and all liability (including liability for claims,
suits, actions, arbitration proceedings, administrative proceedings, regulatory
proceedings, losses, expenses or costs of any kind, whether actual, alleged or
threatened, including attorneys' fees and costs, court costs, interest, defense costs,
and expert witness fees) arise out of, are a consequence of, or are in any way
attributable to, in whole or in part, any negligent or wrongful act, error or
omission of Service Provider, or by any individual or entity for which Service
Provider is legally liable, including but not limited to officers, agents, employees
or sub -Service Providers of Service Provider, in the performance of professional
services under this Agreement.
(b) Indemnification for Other than Professional Liability. Other than in the
perfornrance of professional services and to the full extent permitted by law,
Service Provider shall indemnify, protect, defend and hold harmless City, and any
and all of its employees, officials and agents from and against any liability
(including liability for claims, suits, actions, arbitration proceedings,
administrative proceedings, regulatory proceedings, losses, expenses or costs of
-4-
any kind, whether actual, alleged or threatened, including attorneysfees and
costs, court costs, interest, defense costs, and expert witness fees), where the same
arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by Service Provider or by any individual
or entity for which Service Provider is legally liable, including but not limited to
officers, agents, employees or sub -Service Providers of Service Provider.
(c) Indemnification from Sub -Service Providers. Service Provider agrees to obtain
executed indemnity agreements with provisions identical to those set forth in this
section from each and every Sub -Service Provider or any other person or entity
involved by, for, with or on behalf of Service Provider in the performance of this
Agreement naming the Indemnified Parties as additional indemnitees. In the
event Service Provider fails to obtain such indemnity obligations from others as
required herein, Service Provider agrees to be fully responsible according to the
terms of this section. Failure of City to monitor compliance with these
requirements imposes no additional obligations on City and will in no way act as
a waiver of any rights hereunder. This obligation to indemnify and defend City as
set forth herein is binding on the successors, assigns or heirs of Service Provider
and shall survive the termination of this Agreement or this section.
(d) Limitation of Indemnification. Notwithstanding any provision of this section to
the contrary, design professionals are required to defend and indemnify the City
only to the extent permitted by Civil Code Section 2782.8, which limits the
liability of a design professional to claims, suits, actions, arbitration proceedings,
administrative proceedings, regulatory proceedings, losses, expenses or costs that
arise out of, pertain to, or relate to the negligence, recklessness, or willful
J misconduct of the design professional. The term "design professional," as
defined in Section 2782.8, is limited to licensed architects, licensed landscape
architects, registered professional engineers, professional land surveyors, and the
business entities that offer such services in accordance with the applicable
provisions of the California Business and Professions Code.
(e) City's Negligence. The provisions of this section do not apply to claims
occurring as a result of City's sole negligence. The provisions of this section shall
not release City from liability arising from gross negligence or willful acts or
omissions of City or any and all of its officials, employees and agents.
SECTION 17. IN
SURANCE. This section is amended to read as follows:
Service
Provider agrees to obtain and maintain in full force and effect during the
term of this Agreement the insurance policies set forth in Exhibit "C" "Insurance" and
made a part of this Agreement. All insurance policies shall be subject to approval by
City as to form and content. These requirements are subject to amendment or waiver if
so approved in writing by the City Manager. Service Provider agrees to provide City
with copies of required policies upon request.
-5-
2. GENERAL PROVISIONS.
2.1 Remainder Unchanged. Except as specifically modified and amended in this
First Amendment, the Agreement remains in full force and effect and binding
upon the parties.
2.2 Integration. This First Amendment consists of pages 1 through 6 inclusive,
which constitute the entire understanding and agreement of the parties and
supersedes all negotiations or previous agreements between the parties with
respect to all or any part of the transaction discussed in this First Amendment,
2.3 Effective Date. This First Amendment shall not become effective until the date it
has been formally approved by the City Council and executed by the appropriate
authorities of the City and Service Provider,
2.4 Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this First Amendment,
2.5 References. All references to the Agreement include all their respective terms
and provisions. All defined terms utilized in this First Amendment have the same
meaning as provided in the Agreement, unless expressly stated to the contrary in
this First Amendment,
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to
the Agreement on the date and year first written above.
-6-
ATTEST:
B .,�. ,
Peggy Kuo, City Clerk
APPROVED AS TO FO
Eric S. Vail, City ttorney
CITY:
THE CITY OF TEMPLE CITY
By:
Bryan Cook, City Manager
SERVICE PROVIDER: Ninyo &Moore
Name: Nancy Anglin
Title: Principal Engineer
(2"a signature required if Corporation, Incorporation or Limited Liability Corporation)
By:
Name: R. Scott Kurtz
Title: Director, Environmental Sciences
NOTE: SERVICE PROVIDER'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 SERVICE PROVIDER'S BUSINESS ENTITY.
-7-
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF��7ra�c�g )
On (�rc;�s-)is 20)S
before me, K Li n A A Cet Yson-, 1\( a'taYtl evb 1 l C
Dale Name And Title Of Officer (e.g. "Jane Den, Notary Public')
personally appeared
who proved to me on the basis of satisfactory evidence to
be the person(k whose name) is/ara subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in his/her/tom authorized capacity(i�,
and that by his/her/their signature() on the instrument the
person(s�or the entity upon behalf of which the person()
acted, executed the instrument.
unAer PENALTY OF PE
I certify RJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
M. LINDA CARSON
Commission N2138681 WITNESS my hand and official seal.
Notary Public • California i
Crimp County
M domm. Ea Ins Jan 25, 20209
Though this section
is optional,
completing
this information can deter alternation of the document or fraudulent
reattachment of this
form to an
unintended
document.
CAPACITIES) CLAIMED BY SIGNERSDOCU
)
Signer's Name:
❑ Individual
❑ Corporate Officer
Titles)
❑ Partner(s) ❑ Limited
❑ General
El Attorney -In -Fact
❑ Trustee(s)
LlGuardian/Conservator
❑ Other:
Signer is representing:
Name Of Persons) Or Entily(ies)
DESCRIPTION OF ATTACHED MENT
Title or Type of Document
Number O(Pages
Signers) Other Than Named Above
A notary public
or other officer completing this certificate
verifies only the identity
of the individual who signed
the document to
which this certificate is attached and not
the truthfulness, accuracy,
or validity of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COUNTY OF LAGS -ANGEL -9S C),- a•„ab-p
On lsr � `6 - 201
before me, M, Li r,�A C
is
personally appeared • 5 cot F (C , t L
Name of Signer(s)
M. LINDA CARSON
Commission F 2138681
iNotary Public • California
=6SAIA
Orange County
Comm. Ex fres Jan 25,202
who proved to me on the basis of satisfactory evidence to
be the person(K whose name(* is/are subscribed to the
within instrument and acknowledged to me that he/ehetthey
executed the same in his/her/their authorized capacity(ie),
and that by hisfher/their signature(g) on the instrument the
person(„ or the entity upon behalf of which the person(V
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
OPTIONAL
Though this section
is optional,
completing
this information can deter alternation of the document or fraudulent
reattachment of this
form to an
unintended
document.
CAPACITIES) CLAIMED BY SIGNERS)
Signer's Name:
❑ Individual
❑ Corporate Officer
Tille(s)
❑ Partner(s) ❑ Limited
❑ General
❑ Attorney -In -Fact
❑ Trustee(s)
11 Guard ian/Conservator
11Other:
Signer is representing:
Name Of Persons) Or Entity(ies)
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document
Number OF Pages
Date Of Document
Signers) Other Than Named Above
N;W919 Moore
Geotechalcal & Environmental Sciences Consultants
March 30. 2018
CERTIFICATE OF THE ASSISTANT SECRETARY
TO WHOM IT MAY CONCERN:
I hereby certify that I am the duly qualified and acting Assistant Secretary of Ninyo &Moore, a
California Corporation. The following is a true excerpt from the Minutes of the Ninyo & Moore
Board of Directors meeting held on June 24, 1999:
15. Empowerment of Executive Officers:
Many clients have requested letters of authorization prior to accepting the signatures of
Principals on contractual documents. To clarify this situation, we hereby incorporate the
following statement into the bylaws of the Corporation:
"RESOLVED, that the Corporation recognizes those employees appointed as Principals
(including Division Managers) as Executive Officers of the Corporation, and empowers
them to represent the Corporation in this legal capacity."
The
resolution is in conformity with the Articles of Incorporation
and bylaws
of the Corporation,
has
never been modified or repealed, and is now in full force and
effect.
Under this resolution, Nancy Anglin, Principal Engineer of our Irvine, California office, is
empowered to bind the Corporation.
NINYO & MOORE
Elaine O. Autus
Assistant Secretary
5710 Ruffin Road � San Diego, California 92123 p. 858.576.1000 � �rwm.ninyoandmome.com
Geotechnical & Environmental Sciences Consultants
June 21.2018
CERTIFICATE OF THE ASSISTANT SECRETARY
TO WHOM IT MAY CONCERN:
I hereby certify that I am the
duly qualified and
acting Assistant
Secretary of Ninyo &Moore,
a
California Corporation. The
following is a true
excerpt from the
Minutes of the Ninyo
& Moore
Board of Directors meeting held on June 24, 1999:
15. Empowerment of Executive Officers:
Many clients have requested letters of authorization prior to accepting the signatures of
Principals on contractual documents. To clarify this situation, we hereby incorporate the
following statement into the bylaws of the Corporation:
"RESOLVED, that the Corporation recognizes those employees appointed as Principals
(including Division Managers) as Executive Officers of the Corporation, and empowers
them to represent the Corporation in this legal capacity."
The
resolution is in conformity with the Articles
of Incorporation
and bylaws
of the Corporation,
has
never been modified or repealed, and is now in full force and
effect.
Under this resolution, R. Scott Kurtz, Director of Environmental Sciences of our Irvine, California
office, is empowered to bind the Corporation.
NINYO & MOORE
6.
Elaine O. Autus
Assistant Secretary
5710 Ruffin Road � San Diego, California 92123 ( p. 858.576.1000 � www.n inyoandmome.com
EXHIBIT "C"
INSURANCE
A. Insurance Requirements. Service Provider shall provide and maintain insurance, acceptable to
the City, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or
damages to property which may arise from or in connection with the performance of the Services by Service
Provider, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M.
Best's rating is an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or
larger).
Only the following "marked" requirements are applicable and Service Provider shall provide the following
scope and limits of insurance:
1. Minimum Scoue of Insurance. Coverage shall be at least as broad as:
Commercial General Liability. Insurance Services Office form Commercial General Liability coverage
(Occurrence Form CG 0001),
Automobile Liability. Service Provider shall maintain automobile insurance at least as board as
Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities
of the Service Provider arising out of or in connection with work to be performed under this Agreement,
including coverage for any owned, hired, non -owned or rented vehicles.
Workers' Compensation. Workers' Compensation Insurance (Statutory Limits) and Employer's
Liability Insurance as required by the Labor Code of State of California covering all persons providing
Services on behalf of the Service Provider and all risks to such persons under this Agreement.
Professional (Enors and Omissions) Liability. Professional liability insurance appropriate to the Service
Provider's profession. This coverage may be written on a "claims made" basis, and must include
coverage for contractual liability. The insurance must be maintained for at least three (3) consecutive
years following the completion of Service Provider's services or the termination of this Agreement.
During this additional three (3) year period, Service Provider shall annually and upon request of the City
submit written evidence of this continuous coverage.
Service Provider shall maintain professional liability insurance that covers the Serv
ices to be performed
in connection with this Agreement. Any policy inception date, continuity date, or retroactive date must
be before the effective date of this agreement and Service Provider agrees to maintain continuous
coverage through a period of no less than three years after completion of the services required by this
agreement.
1. Minimum Limits of Insurance. Service Provider shall maintain limits of insurance no
less than:
(1) Commercial General Liability. $1,000,000 per occurrence, $2,000,000 general
aggregate for bodily injury, personal injury and property damage.
(2) Automobile Liability. No less than $1,000,000 combined single limit for each
accident.
(3) Workers' Compensation. Workers' Compensation as required by the Labor Code
of the State of California of not less than $1,000,000 per occurrence and Employer's Liability Insurance with
limits of at least $1,000,000.
(4) Professional Liability. $1,000,000 per claim and in the aggregate.
B. Other Provisions. Insurance policies required by this Agreement shall contain the following
provisions:
1. All Policies. Each insurance policy required by this Agreement shall be endorsed and
state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement,
reduced in coverage or in limits except after 30 days' prior written notice by certified mail, return receipt
requested, has been given to City.
2, Commercial General Liability and Automobile Liability Coverages.
(1) City, and its respective elected and appointed officers, officials, and employees
and volunteers are to be covered as additional insureds as respects: liability arising out of activities Service
Provider performs; products and completed operations of Service Provider; premises owned, occupied or used
by Service Provider; or automobiles owned, leased, hired or borrowed by Service Provider. 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) Service Provider's insurance shall apply separately to each insured against whom
claim is made or suit is brought, except with respect to the limits of the insurer's liability.
(3) Requirements of specific coverage features or limits contained in this Section are
not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally
provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as
it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Service Provider maintains higher limits than the minimums
shown above, the Agency requires and shall be entitled to coverage for the higher limits maintained by the
Service Provider. Any available insurance proceeds in excess of the specified minimum limits of insurance and
coverage shall be available to the Agency.
(4) Coverage provided by the Service Provider shall be primary and any insurance or
self-insurance or maintained by Agency shall not be required to contribute to it. The limits of insurance
required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella
or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a
primary and non-contributory basis for the benefit of Agency before the Agency's own insurance or self-
insurance shall be called upon to protect is as a named insured.
(5) Any failure to comply with the reporting or other provisions of the insurance
policies, including breaches of warranties, shall not affect coverage provided to City, and its respective elected
and appointed officers, officials, employees or volunteers.
3. Workers' Compensation 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 Service Provider.
C. Other Requirements, Service Provider agrees to deposit with City, at or before the effective date
of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this
contract have been complied with. The City may require that Service Provider furnish City with copies of
original endorsements effecting coverage required by this Exhibit "C". 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. Service Provider shall furnish certificates and endorsements from each sub -Service
Provider identical to those Service Provider provides.
2. Any deductibles or self-insured retentions must be declared to and approved by City. At
the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as
respects City or its respective elected or appointed officers, officials, employees and volunteers or the Service
Provider shall procure a bond guaranteeing payment of losses and related investigations, claim administration,
defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to
limit Service Provider's liability hereunder nor to fulfill the indemnification provisions and requirements of this
Agreement.
Primrose Properties