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HomeMy WebLinkAbout2009/03/24 Item 11 CITY COUNCIL AGENDA STATEMENT ~\~ C1lYOF ~ CHUlA VISTA ITEM TITLE: SUBMITTED BY: REVIEWED BY: 3/24/09, Item-1..L- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AGREEMENTS BETWEEN THE CITY Al'ID (A) NTh'YO & MOORE GEOTECHNICAL & ENVIRONMENTAl SCIENCES CONSULTANTS, (B) MACTEC ENGINEERING AL'ID CONSUL TING, INC., (C) NOVA ENGINEERING MID Er-iVIRONNfENTAL, LLC., AND (D) SOUTHERL"f CALIFORL'-il.A. SOIL & TESTING, INC. TO PROVIDE ON-CALL GEOTECHN1CAL, STORL\lI WATER MONITORING, MATERIALS TESTING AL'ID SPECIAL INSPECTION CONSULTING SERVICES FOR VARIOUS CAPITAL INIPROVEwfENT PROJECTS (CIP~THER CITY PROJECTS DIRECTOR OF PUBLIC WORK ,....... CITY MAt"fAGER <> I ~ r:::r- ;.....;--- ASSISTA.NT CITY MANAGER 7 ) 4/5THS VOTE: YES 0 NO [g] SUMMARY The construction of public works infrastructure improvements and buildings require the use of quality materials .and construction methods to assure longevity and usefulness. In an effort to ensure that the City continues to obtain quality improvements, materials testing, geotechnical engineering, storm water monitoring and special inspection services for projects built with both public and private funds, on December 26 2008, an RFP was issued.for such services. Several proposals were received arid through the consultant selection processes for this service, staff has . negotiated proposed contracts with the following: 1. Ninyo & Moore - San Diego, CA 2. MacTec - San Diego, CA 3. Nova Engineering and Environmental- San Diego, CA 4. Southern California Soil & Testing - San Diego, CA These companies will provide on-call Materials Testing, Geotechnical and Building Special Inspection Consulting Services from April 1, 2009 to December 31, 2010, with options to extend the agreements for two additional years without going through the Consultant selection process as outlined in the City's Municipal Code. 11-1 3/24/09, Item~ Page 2 of 4 ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section l5060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION The constmction of public works infrastmcture improvements requires the use of quality materials and construction methods to assure their longevity and usefulness. In order to verify that materials used in City projects meet .the City's specifications, certifications are obtained from manufacturers and material suppliers and supplemental testing is required on a project-by-project basis. Geotechnical analysis is often required to aid in the design and construction processes and, ultimately, to avoid costly construction changes due to unknown subsurface soil conditions. Specialized inspection requiring lCBO certification is required by the Building Department for various building components to assure proper construction methods and materials are utilized. The National Pollutants Discharge Elimination System (NPDES) General Construction Permit requires that the City samples and test storm water for compliance. The City does not have the staff or the equipment to perform this highly specialized testing, engineering, and inspection work. In order to perform this work in-house, the City would be required to purchase very expensive equipment and materials and would need to hire four to six full-time personnel certified and qualified to perform highly-specialized building component inspections, to operate a laboratory, and to perform field testing and sampling in a timely and efficient manner. Further, the laboratory and field operations would have to be overseen at least part-time by a Registered Professional Engineer with laboratory experience, who would also be required to review, sign, and certify all test reports. Therefore, it is much more practical and feasible to hire consultants on an as-needed basis. Staff recommends entering into agreements With the Consultants stated above based upon the volume and scope of upcoming City infrastructure and building projects. The services to be provided by the consultants have been obtained from various consultants since about 1990 and have increased the City's ability to assure the use of quality materials in its projects. Consultant Selection Process Per the consultant selection procedures, as outlined in the City's Municipal Code, a Request for Proposal (RFP) was issued. Eight responses to the RFP were received on January 13, 2009 from the following consultants: Southern California Soil & Testing - San Diego, CA Ninyo & Moore - San Diego, CA Kleinfelder, Inc. - San Diego, CA 11-2 3/24/09, Item~ Page 3 of 4 Leighton Consulting, Inc. - Sari. Diego, CA Nova Engineering and Environmental- San Diego, CA MacTec - San Diego, CA Geocon Incorporated - San Diego, CA Christian Wheeler Engineering - San Diego CA A Selection Committee was formed which was comprised of the following City personnel: Silvester Evetovich, Principal Civil Engineer (Public Works) Gordon Day, Sr. Building Project Manager (Public Works) Roberto Yano, Sr. Civil Engineer (Public Works) . The Committee evaluated and rated Consultants based on their proposals. The following are the results of the Selection Committee's analysis in final rank order: 1. Ninyo & Moore - San Diego, CA 2. MacTec - San Diego, CA 3. Nova Engineering and Environmental- San Diego, CA 4. Southern California Soil & Testing - San Diego, CA Agreement - Scope of Services/F eeslTerm The extent of these services will be determined on a project-by-project basis and will cover public projects and, on occasion, private projects in which the results of laboratory tests submitted by developers and contractors must be independently verified. The fees for these services will be based on standard schedules of fees. Overall personnel rates and materials testing fees are comparable for the majority of the services that will be required during the terms of the agreements (See Exhibits B, C, D, E of agreements for rates). Awarding contracts to all selected Consultants will allow City staff to obtain the best budget proposals for any type oJ project. Staff estimates that during the initial term of the contract, each consultant will provide materials testing and geotechnical engineering services on an intermittent basis at a cost not-to-exceed $500,000 per consultant. Since all services are provided on an on- call, as-needed basis, the total compensation will be controlled by the actual services needed, and as determined by the City's Project. Each of the proposed agreements includes provisions for a two-year extension of the agreement (January I, 2011 to December 31, 2012) by mutual consent of both parties, which would include the possible renegotiation of fees. If the consultants' work continues to be satisfactory and staff is able to reach agreement with all of the consultants on terms for a proposed extension, then staff will retum to Council at the appropriate time in the future for approval to extend said agreement for two additional years. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section l8704.2(a)(l) is not applicable to this decision. 11-3 3/24/09, Item~ Page 4 of 4 FISCAL IMPACT The approval of tonight's resolution will not authorize the expenditure of any additional funds. All funding for the consultants' service will be from funds already allocated for eIP projects or would be reimbursable to the City from Developer deposits. vVhile there is no direct impact to the general fund presently, there does exist the possibility that a CIP that is all or partly funded from the general fund could utilize the services contemplated by these contracts and thus causing a general fund impact. ATTACHMENTS 1. Ninyo & Moore Agreement 2. MacTec Agreement 3. Nova Engineering and Environmental 4. Southern California Soil & Testing Prepared by: Roberro Yano, Department of Public Works iV[:IGeneral ServiceslGS Administration ICouncil AgendalMaterials Testing Consultants 200912009-Al! 3-materia! testing - au! .doc 11-4 RESOLUTION NO. 2009- RESOLUTION APPROVING AGREEMENTS BETWEEN THE CITY AL'\JD (A) NINYO & MOORE GEOTECHNICAL & ENVIRONMENTAL SCIENCES CONSULTANTS, (B) MACTEC ENGlJ'IEERING AND CONSUL TING, INC., (C) NOVA ENGINEERING AL'\JD ENVIRONMENTAL, LLC., AND (D) SOUTHERJ.'\J CALIFORNIA SOIL & TESTING, INC. TO PROVIDE . ON-CALL GEOTECHNICAL, STORt\1 WATER MONITORING, MATERIALS TESTING AL'\JD SPECIAL INSPECTION CONSULTING SERVICES FOR VARIOUS CAPITAL IMPROVEMENT PROJECTS (CIP) OR OTHER CITY PROJECTS WHEREAS, City requires materials testing, geotechnical engineering, storm water monitoring and special inspection services for projects built with both public and private funds; and WHEREAS, the City does not have the staff or the equipment to perform this highly specialized testing, engineering, and inspection work; and WHEREAS, on December 26,2008, an RFP was issued for such services; and WHEREAS, on January 13,2009 eight proposals were received as follows: a. Southern California Soil & Testing - San Diego, CA b. Ninyo & Moore - San Diego, CA c. Kleinfelder, Inc. - San Diego, CA d. Leighton Consulting, Inc. - San Diego, CA e. Nova Engineering and Environmental - San Diego, CA f. MacTec - San Diego, CA g. Geocon Incorporated - San Diego, CA h. Christian Wheeler Engineering - San Diego CA; and and WHEREAS, The committee evaluated and rated Consultants based on their proposals; 11-5 . WHEREAS, The following are the results of the Selection Committee's analysis in final rank order: 1. Ninyo & Moore ~ San Diego, CA 2. MacTec - San Diego, CA 3. Nova Engineering and Environmental- San Diego, CA 4. Southern California Soil & Testing - San Diego, CA WHEREAS, the extent of these services will be determined on a project-by-project basis and will cover public projects and, on occasion, private projects in which the results of laboratory tests submitted by developers and contractors must be independently verified; and WHEREAS, awarding contracts to all selected Consultants will allow City staff to obtain the best budget proposals for any type of project; and WHEREAS, each of the proposed agreements includes prOVlSlons for a two-year extension of the agreement (January 1, 2011 to December 31, 2012) by mutual consent of both parties, which would include the possible renegotiation of fees; and WHEREAS, the Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section l5060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve agreements between the City of Chula Vista and (a) Ninyo & Moore Geotechnical & Environmental Sciences Consultants, (b) MacTec Engineering and Consulting, Inc., (c) Nova Engineering and Environmental, LLC., and (d) Southern California Soil & Testing, Inc. to provide on-call geotechnical, storm water monitoring, materials testing and special inspection consulting services required for various Capital Improvement Projects (CIP) or other City projects. Presented by Approved as to form by Richard Hopkins Director of Public Works ~~~~ D1~v?y City Attorney 11-6 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FOR.tYf BY THE CITY ATTOR.l"lEY'S OFFICE AND WILL BE FOR.tYlALL Y SIGNED UPON .APPROY - BY :FRE CIJY COuN<tIL // I ,/; j/ . / 0/IA / Bart c. Miesfeld I City Attorney Dated: 3 Agreement between the City of Chula Vista and Ninyo & Moore Geotechnical & Environmental Sciences Consultants, to conduct on call Geotechnical, Storm Water Monitoring, Materials Testing and Special Inspection Consulting Services 11-7 Parties and Recital Page(s) Agreement between City ofChula Vista and Ninyo & Moore Geotechnical & Environmental Sciences Consultants, To conduct on call Geotechnical, Storm WaterMonitoring, Materials Testing And Special Inspection Consulting Services This agreement ("Agreement"), dated for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1, is between the City-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A, Paragraph 4, as Consultant, whose business form is set forth on Exhibit A, Paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6 ("Consultant"), and is made with reference to the following facts : Recitals \VHEREAS, the City has a Capital Improvement Program ("CIF") for various projects located in the City, and, \VHEREAS, the City has the need for on call Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services during saidCIP projects' design and construction phases; and, WHEREAS, A Request for Proposal ("RFP") was issued with a due date of January 13, 2009; and, \VREREAS, on said date, the City of Chula Vista received eight (8) proposals from firms interested in providing said consultant services; and, \VHEREAS, after the City completed their review ofthe proposals for all eight firms, the Ctty selected Ninyo & Moore Geotechnical & Environmental Sciences Consultants, as one of four Consultant to provide the services necessary; and, WHEREAS, Ninyo & Moore Geotechnical & Environmental Sciences Consultants, as an on call consultant, prior to commencing work on a particular CIF project ("Project") on which the City desires its services, shall be issued a task order; and WHEREAS, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; (End of Recitals. Next Page starts Obligatory Provisions.) K:IENGlNEER IMaterial testingININYOlart-final-Ninyo.doc Page 1 11-8 NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: All of the Recitals above are hereby incorporated into this Agreement. ARTICLE L CONSuLTANT'S OBLIGATIONS A. General 1. General Duties. Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties". 2. Scope of Work and Schedule. In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibii: A, Paragraph 8, entitled "Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence ofLhis Agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, terminate this Agreement. 1. Reduclions in Scope 0/ frorl. City may independently, or upon request from Consultant, from time to time, reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. 11. Addilional Services. In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph IO(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. 3. Task Orders. Consultant shall not commence work on a Project unless and until the City has issued a written "Task Order" for that Project. No costs incurred on a Project prior to the issuance of a Task Order shall be recoverable by Consultant under this Agreement. 4. Standard of Care. The Consultant expressly warrants that the work to be performed pursuant to this Agreement, whether Defined Services or Additional Services, and the Task Orders shall be performed in accordance with the standard of care ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. Page 2 K:\ENGIt-iEER\Material testing\NINYO\an- final-Ninyo .doc 11-9 1. IYO ff'aivero/SiaJ?clanlo/Care. Wl1ere approval by City or other agencies as may be applicable is required, it is understood to be conceptual approval only and does not relieve the Consultant of responsibility for complying with all laws, codes, industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Consultant or its subcontractors. B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the Consultant must comply with the federal or state law and implementing regulations. No provision of the Agreement requires the Consultant to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of federal, state, territorial, or local law, regulation, or ordinance. If compliance with any provision of the Agreement violates or would require the Consultant to violate any law, the Consultant agrees to notify City immediately in writing. Should this occur, the City and the Consultant agree that they will make appropriate arrangements to proceed with or, if necessary, terminate the Project, or portions thereof, expeditiously. 1. Subcontractors. Consultant agrees to take appropriate measures necessary to ensure that all Project participants, such as subcontractors, comply with all applicable laws, regulations, ordinances, and policies, whether federal, state, or local, affecting performance of the Defined Services for a Project. In addition, if a subcontractor is expected to fulfill any responsibilities of the Consultant under this Agreement, the Consultant shall assure that the subcontractor carries out the Consultant's responsibilities as set forth in this Agreement. C. Insurance 1. General. Consultant must procure and maintain, during the period of performance of this Agreement, policies of insurance from insurance companies to protect against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the Agreement and the results of that work by the Consultant, his agents, representatives, employees or subcontractors and provide documentation of same prior to commencement of work. 2. Minimum Scope of Insurance. Coverage must be at least as broad as: 1. COL. Insurance Services Office Commercial General Liability coverage (occurrence Form CG0001). 11 Auto. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). 111. Ire. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. K:\ENGINEER'u'vlaterial tes,ingINIl'iY Olat,- final-Ninyo .doc Page 3 11-10 IV. E&:O. Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. 3. Minimum Limits of Insurance. Contractor must maintain limits no less than those included in the table below: i. General Liability: $1,000,000 per occurrence for bodily injury, personal injury, (Including (including death), and property damage. If Commercial General operations, Liability insurance with a general aggregate limit is used, either products and the general aggregate limit must apply separately to this completed project/location or the general aggregate limit must be twice the operations, as required occurrence limit. aoplicable) ii. Automobile $1,000,000 per accident for bodily injury, including death, and Liability: property damage. iii. Workers' Statutory Compensation $1,000,000 each accident Employer's $1,000,000 disease-policy limit Liability: $1,000,000 disease-each employee iv. Professional $1,000,000 each occurrence Liability or Errors $2,000,000 policy aggregate & Omissions Liability: 4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. 5. Other Insurance Provisions. The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: 1. Additional /nstl/"eds. City ofChula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect all policies of insurance, including those with respect to liability arising out of automobiles o'0lned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the contractor's Page 4 K:\ENGINEER \iv!aterial testing\NINYO\att- final-Ninyo .doc 11-11 insurance using ISO CG 2010 (11185) or i!s equivalem. Spec:ifically, the endorsement must not exclude Products/Completed Operations coverage. 11. .Primary /rsz/TC7J7ce. The Consul!ant's General Liabili!y insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volumeers. Any insurance or self-insurance maintained by the City, i!S officers, officials, employees, or volunteers is wholly separate from the insurance of the contrac!or and in no way relieves the contractor from its responsibility to provide msurance. iii. Cancdlation. The insurance policies required must be endorsed to state that coverage will not be canceled by either party, except after thirty (30) days' prior written notice to the City by cenified mail, return receipt requested. iv. Acl/ve J\leg/;gence. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insureds in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. v. fraiver 0/ Suorogation. Consultant's insurer will provide a W'aiver of Subrogation in favor of the City for each required policy providing coverage for the term required by this Agreement. 6. Claims Forms. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: 1. /?etro IJale. The "Retro Date" must be shown, and must be before the date of the contract or the beginning of the contract work. I!. A:fainlenance and Eviclence. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after compietion ofthe contract work. iii. Cancdlalion. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum offive (5) years after completion of contract work. IV. Copies. A copy of the claims reporting requirements must be submitted to the City for review. K:\ENGINEER 'u'v[aterial testing\NINYO\att- final-Ninyo .doc Page 5 11-12 7. Acceptability of Insurers. Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers ("LESLI") with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. 8. Verification of Coverage. Consultant shall furnish the City with original certificates and amendatory endorsements affecting coverage required by Section C. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the contract requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. 9. Subcontractors. Consultants must include all subconsultants as insureds.under its policies or furnish separate certificates and endorsements for each subconsultant. All coverage for subconsultants is subject to all of the requirements included in these specifications. 10. Not a Limitation of Other Obligations. Insurance provisions under this Article shall not be construed to limit the Consultant's obligations under this Agreement, including Indemnity. D. Security for Performance I. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, htto://W\V'.v.fms.treas.gov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required. Form must be satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Exhibit A, Paragraph 18. 2. Letter of Credit. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable lener of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, Page 6 K:\ENGINEER IJ\llaterial testingININYOlat:- fina!-N inyo .doc 11-13 statincr that the Consultant is in breach ofthe terms of this Agreement. The letter of o _ credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Exhibit A, Paragraph 18. 3. Other Security. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such other security therein listed in a fOrm and amount satisfactory to the Risk Ma11ager or City Attorney. E. Business License. Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. ARTICLE II. CITY OBLIGATIONS A. Consultation and Cooperation. City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained for each Task Order, and to provide direction and guidance to achieve the objectives of this Agreement and the Task Order. The City shall permit access to its office facilities, files and records by Consultp.nt throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 9, and with the further understanding that delay in the provision of these materials beyond thirty (30) days after authorization to proceed, shaH constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation. 1. Follo\ving Receipt of Billing. Upon receipt ofa properly prepared billing from Consultant submitted to the City periodicaHy as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shaH compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph la, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 11. 2. Supporting Information. Any billing submitted by Consultant shall contain sufficient information as to the propriety of the billing, including properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature of the charges to the Project in order to permit the City to evaluate that the amount due and payable thereunder is proper, and such billing shall specificaHy contain the City's account number indicated on Exhibit A, Paragraph 17(C) to be charged upon making such payment. . K:IENGli'<'EER'u'v1aterial testinglNINYOlatt- final-Ninyo .doc Page 7 11-14 3. Exclusions. In determining the amount of the compensation City will exclude any cost 1) incurred prior to the effective date of this Agreement; 2) arising out of or related to the errors, omissions, negligence or acts of willful misconduct of the Consultant, its agents, employees, or subcontractors. 1. E170rs and OmIssions. In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted ifthere were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 4. Payment Not Final Aporoval. The Consultant understands and agrees that payment to the Consultant for any Project cost does not constitute a City final decision about whether that cost is allowable and eligible for payment under the Project and does not constitute a waiver of any violation of Consultant of the terms ofthe Agreement. The Consultant acknowledges that City will not make a final determination about the eligibility of any cost until the final payment has been made on the Project or the results of an audit of the Project requested by the City has been completed, whichever occurs latest. If City determines that the Consultant is not entitled to receive any portion of the compensation due or paid, City will notify the Consultant in writing, stating its reasons. The Consultant agrees that Project closeout will not alter the Consultant's responsibility to return any funds due City as a result of later refunds, corrections, or other similar transactions; nor will Project closeout alter the right of City to disallow costs and recover funds provided for the Project on the basis of a later audit or other review. 1. Consullanl S Obltgalionlo Fay. Upon notification to the Consultant that specific amounts are owed to City, whether for excess payments or disallowed costs, the Consultant agrees to remit to City promptly the amounts owed, including applic'able interest. ARTICLE III. ETHICS A. Financial Interests of Consultant 1. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney. 2. No Participation in Decision. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall nOl make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or Page 8 K:\EN Grr.'EER IMaterial ,esting\''iINY O\att- final-N in yo. doc 11-15 has reason to know Consultant has a fmancial interest other than the compensation promised by this Agreement. 3. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would cont1ict with Consultant's duties under this agreement. 4. Promise Not to Acquire Conflictim Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. 5. Dutv to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. 6. Specific Warranties A!l:ainst Economic Interests. Consultant warrants, represents and agrees: t. That neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter ofthe Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14. 11. That no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for twelve months thereafter. iii. That Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for nvelve months after the expiration of this Agreement, except with the written permission of City. IV. That Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party that may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. K:\EN G INEER IMaterial testinglNINYOlatt- final-Ninyo .doc Page 9 11-16 IV. LIQUIDATED DAl\1.A.GES A. Application of Section. The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. . 1. Estimating Damages. It is acknowledged by both parties that time is ofthe essence in the completion ofthis Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. 2. Amount of Penal tv. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess ofthe time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 ("Liquidated Damages Rate"). 3. Request for Extension of Time. ..If the performance of any act required of Consultant is directly prevented or delayed by reason of strikes, lockouts, labor disputes, unusual governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other causes beyond the reasonable control of the Consultant, as determined by the City, Consultant shall be excused from performing that act for the period of time equal to the period of time of the prevention or delay. In the event Consultant claims the existence of such a delay, the Consultant shall notify the City's Contract Administrator, or designee, in writing of that fact within ten (10) calendar days after the beginning of any such claimed delay. Extensions of time will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress ofthe work. ARTICLE V. INDEJ\trNIFICATION A. Defense, Indemnity, and Hold Harmless. 1. General Requirement. Except for liability for Professional Services covered under Article V, Section (A)(2), Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Consultant, its officials, officers, employees, agents, and contractors, arising out of or in connection with the performance of the Defined Services or this Agreement. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole ,villful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in Page 10 K:IENGfNEER I.t'vlaterial testinglNfNYOlan- [nal-Ninyo .doc 11-17 combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. 2. Professional Services. For those professionals wbo are required to be licensed by the state (e.g. architects, landscape architects, surveyors and engineers) ("Design Professionals"), Design Professionals shall defend, indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or relating to any negligence, errors or omissions, recklessness, or willful misconduct of Design Professional, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Design Professional's Services. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the ac1:ive or passive negligent acts or omissions of the Design Professional, its employees, agents or officers, or any third party. The Design Professional's duty to indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. This section tn no way alters, affects or modifies the Design Professional's obligation and duties under this Agreement. 3. Costs of Defense and A\vard. Included in the obligations in Sections 1 and 2, above, is the Consultant's obligation to defend, at Consultant's own cost, expense and risk, any and all aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, LtS directors, officials, officers, employees, agents and/or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expense and cost incurred by each of them in connection therewith. 4. Insurance Proceeds. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, and/or volunteers. j. Declarations. Consultant's obligations under Article V shall not be limited by any prior or subsequent declaration by the Consultant. 6. Enforcement Costs. Consultant agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Article V. 7. Survival. Consultant's obligations under Article V shall survive the termination of this Agreement. ARTICLE VI. TERtvITNATION OF AGREEMENT K:\ENGlNEER\Material testing\NINYO\att- final-Ninyo .doc Page 11 11,..18 A. Termination for Cause. If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or un[mished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option ofthe City, become the property of the CiLY, and Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement and less any damages caused City by Consultant's breach, for any work satisfactorily completed on such documents and other materials up to the effective daLe of Notice of Termination;. B. Termination of Agreement for Convenience of City. City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all fmished and unfinished documents and other materials described hereinabove shall; at the option of the City, become City's sole and exclusive property. Ifthe Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement, for any satisfactory work completed on such documems and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. ARTICLE VII. RECORD RETEl'mON AND ACCESS A. Record Retention. During the course of the Project and for three (3) years following completion, the Consultant agrees and to maintain, intact and readily accessible, all data, documents, reports, records, contracts, and supporting materials relating to the Project as City may require. B. Access to Records of Consultant and Subcontractors. The Consultant agrees to permit, and require its subcontractors to permit City or its authorized representatives, upon request, to inspecL all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Contractor and its subcontractors pertaining to the Project. C. Project Closeout. The Consultant agrees that Project closeout does not alter the reponing and record retention requiremems ofthis Agreement. ARTICLE VIII. PROJECT COivlPLETION, AlTDIT, AND CLOSEOUT A. Project Completion. Within ninety (90) calendar days following Project completion or termination by CITY, the Consulcant agrees to submit a final certification of Project expenses and audit reports, as applicable. Page 12 K:IENG INEER IMaterial testinglc'lINYOlatt- final -Ninyo .doc 11-19 B. Audit of Consultants. The Consultant agrees to have performed financial and compliance audits the City may require. The Consultant also agrees to obtain any other audits required by City. The Consultant agrees that Project closeout will not alter the Consultant's audit responsibilities. Audit costs are allowable Project costs. C. Project Closeout. Project closeout occurs when City notifies the Consultant that City has closed the Project, and either forwards the final payment or acknowledges that the Consultant has remitted the proper refund. The Consultant agrees that Project closeout by City does not invalidate any continuing requirements imposed by the Agreement or any unmet requirements set forth in a written notification from City ARTICLE VIII. MISCELLANeOUS PROVISIONS A. Assignability. The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. I. Limited Consent. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subconsultants identified thereat as "Permitted Subconsultants". B. Ownership, Publication, Reproduction and Use of Material. All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. C. Independent Contractor. City is interested only in the results obtained and Consultant shall perform as an independent contr,actor with sole comrol of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, independent contractors and shall not be deemed to be employees of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsib Ie for the payment of same and shall hold the City harmless with regard thereto. 1. Actions on Behalf of Citv. Except as City may specify in writing, Grantee shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever, as an Page 13 K:\ENGrNEERIMarerial restingl.c"iINYOlatt-final-Ninyo.doc 11-20 agent or otherwise. Grantee shall have no authority, express or implied, to bind City or its members, agents, or employees, to any obligation whatsoever, unless expressly provided in this Agreement. 2. No Obligations to Third Parties. In connection with the Project, the Consultant agrees and shall require that it's agents, employees, subcontractors agree that the City shall not be responsible for any obligations or liabilities to any third party, including its agents, employees, subcontractors, 'or other person or entity that is not a party to this Agreement. Notwithstanding that the City may have concurred in or approved any solicitation, subagreement, or third party contract at any tier, neither City shall have any obligations or liabilities to such other party. D. Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. E. Administration of Contract. Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 12, as said party's contract administrator who is authorized by said party to represent them in' the routine administration of this agreement. F. Term. This Agreement shall terminate when the Parties have complied with all executory provisions hereof. G. Attorney's Fees. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. H. Statement of Costs. In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 1. Consultant is Real Estate Broker and/or: Salesman. If the box on Exhibit A, Paragraph 15 is marked, the Consultant andlor their principals is/are licensed with t.'1e State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their princi pals are licensed real estate brokers or salespersons. Page 14 K:\EN GINcER IMaterlal testing\NINYOIatt- final-NInyo .doc 11-21 J. Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. K. Integration. This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. L. Capacity of Parties. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. . M. Governing LawNenue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. (End of page. Next page is signature page.) K:\ENGfNEER\Material testing\NINYO\an- final-Nlnyo .doc Page 15 11-22 Signature Page to Agreement between City of Chula Vista and Ninyo & Moore Geotechnical & Environmental Sciences Consultants, To conduct on call Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services IN WITNESS WHEREOF, City and Ninyo & Moore Geotechnical & Environmental Sciences Consultants have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: City of Chula Vista Dated: By: Cheryl Cox, Mayor Attest: Donna Norris, City Clerk Approved as to form: Bart Miesfeld, City Attorney Ninyo & Moore Geotechnical & Environmental Sciences Consultants, Dated: B~~~ ilfark Culhoerl, ?E. ?rinclj7a1 Engi'7eer By: /'Z,-./ ~./It.r!. i:, /J~/,JJ bYlt' l1eer' . [Name of Person, Title] Exhibit List to Agreement (X) Exhibit A. Page 16 K:IEN GINEER IMaterial testinglNINYOlatt- final-Ninyo .doc 11-23 K:\ENGIl'I"EERIMaterial testinglJ"iINYOlatt- final-Ninyo .doc Page 17 11-24 Exhibit A to Agreement between CityofChula Vista and Ninyo & Moore Geotechnical & Environmental Sciences Consultants, To conduct on call Geotechnical, Storm Water Monitoring, Materials Testing And Special , Inspection Consulting Services 1. Effective Date of Agreement: Same as fmal City signature on page 15 ofthis agreement. 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation ofthe State of California ) Redevelopment Agency ofthe City of Chula Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: , a [insert business form] ("City") 3. Place 0 f Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Consultant: Ninyo & Moore Geotechnical & Environmental Sciences Consultants 5710 Ruffin Road San Diego CA 92123-1013 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership (X) Corporation Page 18 K:\ENG[]\J"EER \i'vlaterial testing\"'1NYO\att- final-Ninyo.doc 11-25 6. Place of Business, Telephone and F<L,( Number of Consultant: 5710 Ruffin Road San Diego CA 92123-1013 Voice Phone (858) 576-1000 Fax Phone (858) 974-6989 7. General Duties: Consultant shall provide Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services at the direction and to the satisfaction of the City Engineer at construction sites and facilities designated by the City of Chula Vista. The Consultant shall provide: A. Materials testing laboratory facilities staffed with personnel qualified to perform sampling arid testing of portland cement concrete, soils, treated soils, crushed aggregate base, bituminous materials, and other building materials, as required. The materials testing laboratory must have a documented Quality Assurance Program (QAF) in conformance with Chapter 16 of the CAL TRANS Local Assistance Procedures Manual. The Consultant shall also provide a copy of the QAP on a yearly basis. B. Geotechnical/soil engineering services for City-funded projects during earthwork construction operations, including geotechnical/soils engineering observations during site preparation for placement of fill and construction of sub-drainage systems. C. Personnel that are experienced in the testing of materials used in the construction of public works facilities and familiar with the San Diego Area Regional Standard Drawings, the Green Book and Chapter 17 ofthe 2001 California Building Code. The City shall have the right to make a determination as to the qualifications of individual personnel and shall have the right to require substitution of non-qualified individuals with qualified personnel at any time. Personal assigned to City Of Chula Vista projects shall obtain approval from the City on an annual basis. The Consultant's QAF must include procedures and policies in which personnel are certified to perform the materials testing and sampling requested by City. D. Materials Testing, Geotechnical and Building Special Inspection Page 19 K:\EN G INEER\Material tes,ing\NINYOIatt- final-Ninyo .doc 11-26 Consulting Services in response to the City's request at the times and locations as determined by the City Engineer. The City shall make requests for services with 24 hours notice. E. A documented internal laboratory QAP for all required laboratory analyses and procedures. All reference standards and equipment calibrations shall be traceable to the National Institute of Standards and Technology. F. Assurances that all samples are logged and traceable in personal, lab, times, tests, results and disposal. G. Assurances that all instruments and devices to be utilized in field and laboratory analyses are properly maintained and calibrated in accordance with the Consultant's QAP. H. Provide the City of Chula Vista with all original data, reports, records, etc. of field and laboratory analyses, as well as certified copies of all calibration and maintenance records on an annual basis. Further, the Consultant shall maintain copies of all records related to field and laboratory testing performed under the contract for a minimum of five years from the date of the sample, measurement, report, etc. This period may be extended during the course of any unresolved litigation or when requested by the Ciry of Chula Vista. 1. Billing forms and procedures used shall be acceptable to the City and shall include all test results reports billed during that period. 8. Scope of Work and Schedule: A. Detailed Scope of Work: 1. Materials Testing The Consultant shall perform the required materials, soils, sampling, and inspection in accordance with test methods and standards established by the American Society for Testing and Materials (ASThl), the, State of California Department of Transportation (CaITrans), and the Environmental Protection Agency (EPA), as specified by the City Engineer. Subject to the provisions of section 11 below, the work shall be paid for on an hourly and unit price per test basis, which shall include all costs such as testing, reportS, report review, storing of specimens, and test cylinders, as listed in the fee schedule (Exhibit B) II. Geotechnical Engineering K:\ENGIl'iEER I!vlaterial testing\NINYO\att- final-Ninyo .doc Page 20 11-27 Consultant shall provide Geotechnical Engineering services for City projects during earthwork construction operations that the City Engineer determines are necessary to meet finished grades shown on the plans and cross-sections. Consultant shall provide geotechnical engineering observation during site preparation for placement of fill and construction of subdrains. Consultant shall make recommendations regarding the removal of unsuitable material for fills and methods of compaction based on previous geotechnical investigations and Consultant's observations. For test results that failed, Consultant shall provide analysis of the failure and a recommendation of possible solutions in the signed and stamped report. On test that paSsed, Consultant shall state so in the signed and stamped report provided to the City. Said reports shall include the appropriate specification next to the test results. Consultant's services will be on an as-needed basis. Subject to the provisions in section 11 below, payment shall be on an hourly and unit paid per test basis foreach City. III. Building Special Inspection The Consultant shall perform the required Building Special Inspection services inspection as directed by the City of Chula Vista in accordance with test methods and standards established by the American Society for Testing and Materials (ASTlYf), Chapter 17 of the 2001 California Building Code, the State of California Department of Transportation (CaITrans), and the Environmental Protection Agency (EPA), as specified by the City Engineer. The work shall be paid for on an hourly and unit price per test basis. Subject to the provision in section 11 below, the price per test shall include all associated costs such as testing, reports, report review, storing of specimens, and test cylinders, as listed in the fee schedule (Exhibit B) IV. Accounting and Billings Consultant shall provide separate invoices for each City project identified. Every invoice will list all work performed on project. Invoice shall show total amount billed to date for project, payments received, and amount due. All ;vork elements shall be itemized, i.e. tests performed, personnel charges/hours, equipment costs, etc. All re-test shall be identified and explained on the invoice. City shall be billed within four (4) weeks of work performance and shall include all test results reports billed during that period. Consultant shall only be paid for work done at the request of the City. If additional work is requested by others, Consultant shall obtain a verbal authorization from the City. In addition, the Consultant shall include on respective invoice the following documentation for said additional work: l)who requested the work, 2)who approved the work, 3)date of work, 4)who performe,d the work and 5)Tirne in and out. 6)total of exact hours worked The Consultant shall forfeit and will not receive payment for work performed and billed to City more than sixty (60) calendar days after performance of work. V. Personnel K:IENGINEER\ivlaterial testinglNINYOlatt- Einal-Ninyo .doc Page 21 11-28 Mr. Mark Cuthbert, P.E. shall serve as Project Manager and single point of contact for the City. The City shall reserve the right of refusing personnel assigned to a project by the Consultant. VI. Reports Consultant shall provide City with written reports on test results within 3- working days after completion of test results. Test results are to be fa.."Xed to FAX number directed by the City as soon as fInal test results are available. VII. Conflict of Interest Consultant shall not retain any clients who are doing work under permits or contractual agreements with the City of Chula Vista unless otherwise approved in writing by City Engineer. IX. Work not listed in Schedule If an occasion arises whereby the City requests work to be done which is not listed in this schedule, the price of providing this work shall be negotiated in good faith between the City and the Consultant. The negotiated price(s) shall not exceed the Schedule of Charges labeled as Exhibit B to this agreement between the City and Consultant. B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No.1: Deliverable No.2: Deliverable No.3: Deliverable No.4: D. Date for completion of all Consultant services: December 3 I, 2011. City has the option to extend this agreement for up to two additional years. Said extension shall be by mutual agreement between City and Consultant with out going through the City's Consultant selection Page 22 K:\ENGINEERu'vlaterial testing\Nlc,'YO\an- final-Ninyo .doc 11-29 process as outlined in the City's Municipal Code. The City Contract Administrator shall give notice of election to extend this agreement by sending notice by letter to Consultant not later than three months prior to expiration of the term. 9. Materials Required to be Supplied by City to Consultant: None 10. Compensation: A. ( ) Single Fixed Fee Arrangement. For performance of all of the DefIned Services by Consultant as herein required, City shall pay a single fIxed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: , payable as follows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City ifthe Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. ( ) Phased Fixed Fee .Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fIxed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to 'Consultant as to said Phase. K:\EN GI1'icER \Materia! testing\NTNYO\att- final.Ninyo .doc Page 23 11-30 Phase 1. 2. Fee for Said Phase $ $ $ ~ J. ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. [fthe Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed.in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or. such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours oftime spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (1) () Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant oftime and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) (X) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $500,000 ("Authorization Limit"), Consultant shall not be entitled to any additional compensation wichout further amhorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. See Exhibit B for wage rates. Page 24 K:IENGrNEERIMaterial testinglNINYOIatt- final-Ninyo .doc 11-31 ( ) Hourly rates may increase by 6% for services rendered after [month], 20 ---J if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement F or the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: () None, the compensation includes all costs. Cost or Rate $ $ $ $ $ $ . Cost Plus 15% Cost Plus 15% $ $ () Reports, not to exceed $ () Copies, not to exceed $ () Travel, not to exceed $ () Printing, not to exceed $ () Postage, not to exceed $ () Delivery, not to exceed $ (x) Outside Services: (x) Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ 12. Contract Administrators: City: Roberto Yano, Sr. Civil Engineer Public Services Building 476 Fourth Ave. Chu1a Vista, CA 91910 Telephone: (619) 476-2402. Fax: (619) 691-5171 Consultant: Mark Cuthbert, P.E. Ninyo & Moore Geotechnical & Environmental Sciences Consultants 5110 Ruffin Road San Diego CA 92123-1013 Voice Phone (858) 576-1000 Fax Phone (858) 974-6989 13. Liquidated Damages Rate: K:\ENGINEERIMaterial testingININYOlatt-final-Ninyo .doc Page 25 11-32 ( ) $ ( ) Other: per day. 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (X) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer ( ) Category No.1. Investments and sources of income. ) Category No.2. Interests in real property. ) Category No.3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. ) Category No.4. Investments in business entities and sources of income that engage in land development, construction or (he acquisition or sale of real property. ) Category No.5. Investments in business enti(ies and sources of income of the type which, within the past two years, have contracted with the City ofChula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or eqUipment. ) Category No.6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. ) Category No.7. Business positions. ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 15. ( ) Consultant is Real Estate Broker and/or Salesman Page 26 K:\ENG INEER \Material testing\NTNYO\att- final-Ninyo .doc 11-33 16. Permitted Subconsu1tants: None K:\ENG[i'iEER\.cvlaterial testinglNINYO\att- final-Ninyo.doc Page 27 11-34 1. Bill Processing: A. Consultant's Billing to be submitted for the following period oftirne: (X) Monthly ( ) Quarter! y ( ) Other: B. Day of the Period for submission of Consultant's Billing: ( ) First of the Month ( ) 15th Day of each Month (X) End of the Month ( ) Other: C. City's Account Number: 2. Security for Performance ( ) Performance Bond, $ ( ) Letter of Credit, $ ( ) Other Security: Type: Amount: $ ( ) Retention. Ifthis space is checked, then notwithstanding other provisions to the contrary requiring the paymem of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" umil the City determines that the Retention Release Event, listed below, has occurred: ( ) Retention Percentage: ( ) Retention Amount: $ % Retention Release Event: ( ) Completion of All Consultant Services ( ) Other: Page 28 K:IENGIl'-rEER IMaterial testinglNINYOlatt- tinal-Ninyo .doc 11-35 ~(~ R-~- January 13, 2009 Proposal No. P-B286 Proposal to Provide As-Needed Geotechnical, Storm Water Monitoring, Materials Testing, and Special Inspection Consulting Services 0lY OF CHULA VlS"J:.\ SCHEDULE OF FEES. (NON.PREVAILlNG WAGE RATES) HOURLY CHARGES FOR PERSONNEL Principal Engineer/Geologist/Environmental Scientist.................................................................................................................. $ 139 Senior Engineer/Geologist/Environmental Scientist..................................................................................................................... $ 133 Senior Project Engineer/Geologist/Environmental Scientist ................:........................................................................................ $ 127 Project Engineer/Geologist/Environmental Scientist...........,........................................................................................................ $ 123 Senior Staff Engineer/Geologist/Environmental Scientist......... .... ............. ......................... ...... ...... .......... .... .............. ............ ...... $ 109 Staff Engineer/Geologist/Environmental Scientist........................................................................................................................ $ 96 IS/G IS Specialist.................................... .................................................................................................................................... $ 96 Field Operations Manager. ......................... ...... ...... ..... ........ ......... .......... ................. .......... ............. ............ ........... ...................... $ 85 Supervisory Technician..................................................................................... ......................................................................... $ 85 Nondestructive Examination Technician, UT, MT, LP .................................................................................................................. $ 85 Pull Test Technician and Equipment........................................................................................................................................... $ 85 Senior Field/Laboratory Technician .... .................... .... ........ .... ......... ......... .... .............. ...... ................ .............. ...... ...... ......... ........ $ 69 Field/Laboratory T echn ician............................................................................................................................. .......................... $ 69 ACI Concrete Technician ................. ............. ...... ... ................... ......... .... ........ ............. ........................... .... ........ ... ............ .......... $ 69 Concrete/Asphalt Batch Plant Inspector... ............... ....... .............. ....................... ........... ...... ........... ........... ........................... ...... $ 69 Special Inspector, Reinforced Concrete ............ .......... ........... ............ .......... ......................... .......... ........ ............. ................ ....... $ 69 Special Inspector, Pre-stressed Concrete .......... ........ ...::. ....... ........ ......... ......... ............. .............. ............ ...... .......... ............ ....... $ 69 Special Inspector, Reinforced Masonry ......................................................................:................................................................ $ 69 Special Inspector, Structural Stee! . ..... ............... .... ............. ................. ...... ........ ............ ........ ........... ..... ................... ............ ...... $ 69 Special Inspector, Welding, AWS...... .......................... .......... .............. ..... ............................. .......... ........ ..... ....................... ........ $ 69 Special Inspector, Fireproofing......................................................................................................................... ........................... $ 69 Technical Illustrator/CAD Operator......................................................................................................................... ..................... $ 69 Geotechnical/EnvironmentallLaboratory Assistant...................................................................................................................... . $ 53 Information Specialist............................................................................................................................. ..................................... $ 52 Data Processing, Technica! Editing, or Reoroduction ................ ................................................................................................. $ 44 OTHER CHARGES Coring ,"Iachine Usage (includes technician)...... ............................................................................................................... $ 105/hr Special Preparation of Standard Test Specimens ........................... .................................................................................. $ 64/hr Steel and Concrete Specimen Pickup................................................................................................................................ $ 69/trip Inclinometer Usage ...... ........ ........... .......... .............. ..... ............ ..... ................... ...... ........ ..... ......... ............... ............ "'"'''' $ 32/hr Vapor Emission Kits.. ....... ....... ...... ............................. .............. ........ .......... ..... ............................... .......... ........... .... .......... $ 30/kit Rebar Locator (Pachometer) ... ...... ..... ....... .................... ....... ..... ......... .............. ................. .............. ..................... ............. $ 10 /hr Direct Project Expenses .............................................................................................................. .............................. Cost plus 15 % Laboratory testilig, geophysical equipment, and other special equioment provided upon request. NOTES (Field Services) Far field and laboratory technicians and special inspectors, regular houriy rates are charged during ncrmal weekday construction hours. Over- time 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 serfice is 24 hours. Field Technician rates are based on a 2.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. The Schedule 'of Charges ("Schedule") is not based upon any Prevailing Wage Determination or prevailing wage requirement under any federal or state law. In the event that it is determined by any federal, state or local agency, or any appropriate judicial or administrative body, that any of the services performed by Ninyo & Moore for its client's project are subject to the provisions of the Califomia Prevailing Wage Law [Cal. Lab. Code 91770 et seq.,j ("Code") and that Ninyo & Moore is required to pay a specified prevailing wage rate for all or any portion of such ser,ices, client agrees to pay the applicable wage rate differential for any past and future services, being defined as the additional amount that is paid to each applicable employee in' order to comply with the Code, in addition to an amount of ma~,.up on the applicable wage rate differential which is equal to the. same mark.up upon which the originally-billed wage rate was calculated. 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. 11-~ iyinuo&./V\oore ~{~ -.- Ii .... U January 13, 2009 Proposal No. P-8286 Proposal to Provide As-Needed Geotechnical, Storm Water Monitoring, Materials Testing, and Special Inspection. Consulting Services . 01Y OF (HUlA VISTA SCHEDULE OF FEES FOR LABORATORY TESTING Laboratory Test, Test Designation, and Price Per Test Soils Atterberg Umits. D 4318. CT 204............................................... $ Califomia Searing Ratio (CSR), D 1883......................................5 Chloride and Sulfate Ccntent. CT 417 & CT 422........................ $ Consclidation. D 2435. CT 219................................................... 5 Consolidation - Time Rate. D 2435. CT 219 .............................. 5 Direct Shear::' Remolded. D 3080........................,..................... 5 Direct Shear- Undisturbed. D 3080........................................... $ Durability Index. CT 229 ............................................................. 5 Expansicn Index. D 4829. USC 18-2.......................................... $ Expansion Potential (Method A). D 4548 .................................... $ Expansive Pressure (Method C). D 4548 .................................... 5 Geofabric Tensile and Elongation Test. D 4832.......................... $ Hydraulic Conductivity. D 5084................................................... 5 Hydrcmeter Analysis. D 422, CT 203 ......................................... 5 Moisture, Ash. & Organic Matter of Peat/Organic Scils............... 5 Mcisture Only, 0 2216. CT 226 .................................................. $ Moisture and Density. D 2937..................................................... 5 Parmeability. CH, D 2434. CT 220 ............................................. 5 oH and ,Resistivity, CT 643 ......................................................... 5 Prector Density D 1557, D 698, CT 216, &.................................5 AASHTO T-180 (Reck corrections add 580) R-vaiue. 02844, CT 301............................................................ 5 Sand Equivalent. D 2419, CT 217.......................................:...... $ Sieve Analysis, 0422, CT 202................................................... 5 Sieve Analysis, 200 Wash, D 1140, CT 202............................... 5 Scecific Gravity, D 854...............................................................5 Tnaxial Shear, CD, D 4767, T 297............................................. 5 Triaxial Shear, C.U.. w/pore pressure, D 4767, T 2297 per pl..... 5 . Tdaxial Si"',ear, C.U., w/o pore pressure, 0 4767, T 2297 per pt.. S Tnaxial Shear, U.U., D 2650....................................................... S Unconfined Compression, D 2166, T 208................................... S Wax Density, D 1188........................................................... ...... $ RoofinQ SUiit-up Roofing, oc1-cut sam pies, D 2829.................................. $ Roofing Materials Analysis, 02829.............................................5 Roofing Tile Aescrpticn, (set of 5), use 15-5 ............................. $ Roofin9 Tile Strength Test, (set of 5), USC 15-5......................... $ Masonrv Srick Absorption, 24-i1our submersion, C 67 .................,............ $ Brick Acscf']:ticn, 5-Mcur boiling, C 67...........,............................. S Srick Absorption, 7--day, C 67..................................................... 5 Srick Compression Test, C 67.................................................... S Brick Efflorescence, C 67............................................................ S Brick Modulus of P-upture, C 67.................................................. $ Brick Moisture as received, C 67..............:.................................. S 3rick Saturation Coefficient, C 67 ............................................... S Ccncrete Sieck Com Dression Test, 8x8x16, C 140..................... $ Concrete Bleck Conformance Package, C 90.... ....................... S Ccncrete Bleck Unear Shrinkage, C 426 .................................... $ Concrete Sieck Unit Weight and Absorpticn, C 140 ................... 5 Ceres, Compressicn or Shear Bend, CA Cede........................... $ Masonry Grout, 3><3x6 prism compressicn, USC 21-16..............$ Mascnr{ Mortar, 2x" cylincer compressicn, USC 21-16 ............. $ MasonrY Prism, half size, compression, USC 21-17................... $ 145 440 135 275 70 290 250 150 165 145 145 165 300 190 110 30 39 230 140 180 Concrete Cement Anaiysis Chemical and Physical, C 109.................................. $ 1,650 Compression Tests, 6x12 Cylinder, C 39 ............................................. $ 22 Concrete Mix Design Review, Jcb Spec............................................... $ 140 Concrete Mix Design, perTrial Satch, 6 cylinder, ACI.......................... $ 750 Concrete Cores, Compression (excludes samDling), C 42.................... $ 55 Drying Shrinkage, C 157 ...................................................................... $ 250 Flexural Test, C 78 ............................................................................... $ 50 Flexural T""t, C 293 ............................................................................. 5 55 Flexural Test, CT 523 ........................................................................... S 60 GunitelShotcrete, Panels, 3 cut cores per panel and test. ACI ............ $ 250 Joesite Testing Laecrarory................................................................:... Quote Lightwejght Concrete Fill, Compression, C 495.................................... S 40 Petrographic Analysis, C 856 ............................................................... S 1 100 Splitting Tensiie SL"ef1gth, C 496........................................................... S '80 Reinforcina and Structural Steel Fireprocfing Density Test, USC 7-6..................................,................... $ 55 Hardness Test. Rockwell, A-370 .......................................................... $ 50 High Strength Belt, Nc1 & Washer Confcrmance, set. ~.-32................. S 120 Mechanically Spliced Reinforcing Tensile Test, ACI............................. S 95 Pre-5tress Strand (7 wire), A 416......................................................... $ 140 Chemical Anaiysis, A-36, A-615........................................................... S 120 Reiniorclng Tensile or Bend up to No. 11, A 615 & A 706................... 5 50 Stn.!ctural Steei Tensile Test: Up to 200,000 Ibs. (machining extra), A 370 .................................................................... $ 70 Welded Reinforcing Tensile Test Up to No. 11 ban, ACI.................... $ 55 250 90 110 90 90 390 330 190 140 100 90 Asohalt Concrete Asphalt Mix Design, Caltrans........... ................................ ................... S 2.200 Asphalt Mix Desi9n Review, Job Spec ................................................. $ 150 Extraction, % Asphalt, including Gradation, D 2172, CT 310 ............... $ 215 Film StnpDing, CT 302 ......................................................................... $ 1eO Hveem Stability and Unit Weight CTM or ASTM, CT 366................... $ 195 Marshall Stability, Flow and Unit Weight, T-245................................... $ 215 Maximum Tnecretlcal Unit Weight, D 2041.......................................... S 120 Swell, CT 305....................................................................................... $ 165 Unit Wejght sample crcere, D 2726, CT 308 ........ ......................... S 90 165 500 190 190 Aaareaates Abscr;nion, Coarse, C 127 ................................................................... $ 35 Abscrption, Fine, C 128........................................................................ $ 35 Clay Lumps and Friable P'3rtlcles,. C 142............................................. S 100 Cleanness Vaiue, CT 227..................................................................... S 120 Crushed Particles, CT 205 ................................................................... $ 140 Durability, Ccarse, CT 229 ................................................................... $ 130 Durability, Fine, CT 229........................................................................ $ 130 Los Angeles Abrasion, C 131 or C 535.................................. .............. S 180 Mcrtar making proper.ies ofnne aggregate, C 87.................................. $ 275 Organic Impurities, C 40 ......................................................................5 55 Pctential Reactivity ef Aggregate (Chemical Method), C 289................ $ 390 Sand Equivalent, CT 217..................................................................... $ 90 Sieve Anaiysis, Coarse Aggregate, C 136............................................ 5 105 Sieve Analysis, Rne Aggregate (including wash), C 136...................... $ 105 Sodium Sulfate Soundness (per size fraction), C 88............................. $ 160 Specific Gravity, Ccarse, C 127............................................................ 5 75 Specific Gravity, Fine, C 128................................................................ 5 85 45 60 45 45 40 35 SO 60 440 120 55 55 30 30 110 Special preparation of standard test specimens will be c:iarged at the technician's hourly rate. Ninyo & Moore is accredited to perform the AASHTO equivalent of many ASTM test precedures. 11 - ~iJ iyin90 &J\i\O\lt"e ~(~ ~~- Januarj 13, 2009 Proposal No. P-8286 Proposal to Provide As-Needed Geotechnical, Storm Water Monitoring, Materials Testing, and Special Inspection Consuiting SelVices 01Y OF (HUlA VISlA ~...l:EST METHOD. . '.~' PRIMAR'fTESTS .'. ." .... . '., .... .... ..' .' .1. P P.R RIICC.~.IE.. . '. .. ~~3JSf~~~~~"~~ , C 39 I Com ression Test I 522.00 C 42 I Care' excludin sam Ie oreoaration I $55.00 ACI I Shotcrete oanel care 3 cores er oanel) I $250.00 I Concrete Mix Desi n or Mix Review excludin a I $140.00 I 'Sawcuttinq of Sample I 56400/hr ,~ Comoression Test I Black 8x8x16 or smaller, I Mortar, 2x4 c' Iinder (USC), I Grout USC I Care I Shear Masonry Prism, Full Size (8x16x16), , each Masonr Prism, Half Size 8x16x8 , each I I Conformance Package ASTM C90 (including all testing and report, 61 Units) . F~{tf~~~=:t1~1f~ Speciric Gravity ASTM C127 Coarse Aggregate 575.00 ASTM C128 Fine Aggregate $ 85.00 ___2~.&R~es.istilJi, . 5140.0.0 ~~\\~!l~=!i~_ I ASTM 01559 I Stabilit Test - Marshall, ave of 3, unit we! ht & fiow, . $215.00 I I I .~.sohalt Concrete Mix Desi n or Mix Review, I 5150.00 T 245 I Unit Weight Requiring Compaction (Marshall) I $21500 ASTM 01559 ASTM E447 ASTM ,'-447 C 90 545.00 $60.00 530 00 . $30.00 $55.00 $55.00 $140.00 $110.00 $440.00 SM 2540 C 120.1 Total Dissolved Solids (TDS) Soecific Conductivit' Oii and Grease pH $1500 S12.00 $36.00 $9.00 1664 HtM I SM 4500H + S/9045 I TEST METHOD I PRIMARY TESTS . I PRJCE I ~=:9Ii~!l~~ ~ I Shear Tests (sin ale ooin!) I $110.00 I 02435, CT 219 I Consolidation Tests $275.00 I 02937 I Moisture-Density $3900 I I C.S.R. Tests (includes Comoaction Test) $600.00 I I Lime Treated CBR $440.00 I R-Ifalue (Lime Treated) $250 00 I Mechanical Analyses - Sieve Test $110.00 H'Idrometer Test 5190.00 I Plasticitv Index I 5145.00 I 04829, USC 18-2 I Exoansion Index I $165.00 0854 I Soecific Gravity I $90.00 1 1 - ~S JYin90 &~OOi'e ~! fc.. ~- January 13, 2009 Proposal No. P.,'J286 Proposal to Provide As-Needed Geotechnical, Storm Water Monitoring, Materials Testing, and Special Inspection Consulting Services G1Y Of CHUL-\ V1STA I 02166, T 208 $100.00 Fine Sieve Analysis with 200 Wash Sieve Analysis oi Fine and Coarse Aggregate Compressive Strength - Concrete Cylinder (Set oi Three) ASTM 01557 I Compaction Characteristics oi Soil Using the Modiiied Proctor $180.00 Method ASTM 02041 I Maximum speciiic Gravity and Density oi Bituminous Paving Mixtures $120.00 ASTM 02172 Extraction oi Bitumen irom Bituminous Paving Mixtures $215.00 I ASTM 02419 Sand Equivalent Value oi Soils and Fine Aggregates $90.00 I ASTM D2726 I Speciiic Gravity and Density oi Compacted Bituminous Paving MiXi $90.00 tures I ASTM 03910 I Consistency Test and Wet Track Abrasion Test I $100.00 I ASTM C131 I Abrasion and Impact in the L.A. Machine I $180.00 ASTM C289 Potential Reactivity oi Aggregate $39000 ASTM C40 Organic Impurities in Fine Concrete Aggregates I 555.00 ASTM C42 Testing Drilled Concrete Cores (Compression Test Only, Set oi I $55.00 Three) ASTM C78 Flexural Strength oi Concrete I 550.00 I ASTM C88 Soundness oi Aggregates by Use oi Suliates I $160.00 I ASTM D422 Particle Size Analysis oi Soils I $110.00 I CA TEST 202 CA TEST 216 CA TEST 217 CA TEST 226 CA TEST 301 Sieve Analysis oi Fine and Coarse Aggregates Relative Compaction oi Untreated and Treated Soils and Aggregates Sand Equivalent Moisture Content in Soils by Oven Drying "Fl," Value oi Soils by Stabilometer I Preparation oi Bituminous Mixtures ior Testing (Built into Hourlyl Rate) . I Moisture Vapor Susceptibility oi Bituminous Mixtures I 8110.00 $180.00 $90.00 $30.00 $250.00 $64.00/hr CA TEST 304 CA TEST 307 $25000 11-3.'B JVin90 &JV\oore ~(~ ~ January 13, 2009 Proposal No. P-B286 Proposal to Provide As-Needed Geotechnical, Storm Water Monitoring, Materials Testing, and Special Inspection Consulting Services Cl1Y Of CHULA VI5fA I TEST METHOD I PRIMARY TESTS ~ PRICE CA TEST 308 I Specific Gravity and Weight of Compressed Bituminous Mixtures $90.00 CA TEST 312 Design and Testing of Class "A" Cement Treated Base (Complete I 5750.00 I CTB Design, including laboratory conFormance testing of aggregates) CA TEST 366 Stabilometer Value of Bituminous Mixtures $195.00 I CA TEST 367 Recommending Optimum Bitument Content (OBC) $280.00 CA TEST 375 I In-Place Density and Relative Compaction of Asphalt Concrete Pave- included ment (Built into Hourly Rate) CA TEST 379 I Asphalt Content of Bituminous Mixtures $215.00 I CA TEST 521 Compressive Strength of Molded Concrete Cylinders I 522.00 CA TEST 540 I Mixing, Storing, and Handling Concrete Compressive Strength. I included Specimens in the Field (Built into Hourly Rate) CA TEST 205 I Percentage of Crushed Particles $140.00 CA TEST 211 Abrasion of Coarse ( 500 Revolutions) $15000 Aqqreqate - LA Rattler (1,000 Revolutions) CA TEST 213 Organic Impurities in Concrete Sand , $55.00 I CA TEST 214 Soundness of Aggregates by Use of Sodium Sulfate 516000 , CA, TEST 227 Evaluating Cleanness of Coarse Aggregates 5120.00 CATEST 229 Test for Durability Index I $130.00 .~ I Mechanical Coupler Testing (Tensile, Yield, Slippage & Sample Preparation), each. I $95.00 I I Tensile Testing up to No. 11 Bar (ultimate strength only), each I 550.00 I Tensile Testing No. 14 Bar (ultimate strength only), each I 560.00 I Tensile Testing No. 18 Bar (ultimate strength only), each I $70.00 I Tensile Testing (ultimate strength only) I 550.00 Flat Bar Reduced Section, each I $70.00 Round Bar Reduced Section 0.505" Diameter, each I 570.00 Round Bar Reduced Section, sub-size, each I $70.00 Yield Strength Testing (by extensometer), each I $12000 Tensile, Full Section Tube, each I $100.00 Bend Test, each I $50.00 Fillet Weld Break Test, each I 555.00 Charpy Impact: Ambient I emperature, per set of 3 5100.00 Charpy Impact: Ambient - 40QF, per set of 3 5150.00 I Charpy Impact: - 41 'F to -100QF $150.00 Charpy Individual Specimens for Transition Curle I $120.00 Rockwell Hardness, per set of 3 550.00 11-410 1(in90&}{\80re. ~{~ ~ January 13, 2009 Proposal No. P-il286 Proposal to Provide As-Needed Geotechnical, Storm Water Monitoring, Materials Testing, and Special Inspection Consulting Services mY OF CHUlA VISTA PRIMARY TESTS Sample Preparation (as required) r PRICE I 564 OO/h r Charpy Impact Specimens Carbon Steel, per set of 3 Carbon Steel, Sub-Size, per set of 3 Other Materials, per set of 3 Other Materials, Sub-Size, per set of 3 Carbon Steel, Flat Bar Reduced Section, each Carbon Steel, Round Bar 0.505" Diameter, each Carbon Steel, Ro~nd Bar Sub-Size, each Other Materials, Flat Bar Reduced Section, each Other Materials, Round Bar 0.505" Diameter, each Other Materials, Round Bar Sub-Size, each. Macro Specimens Carbon Steel, each Other Materials, each General Machining Charge, per hour I I I I I I I I $360.00 $360.00 $360.00 $360.00 $90.00 $90 00 $90.00 $90.00 $90.00 $90.00 530.00 530.00 $100.00 11-4t1 }(i090&JV\'Oor'e. y Dated: 3LIV /15"} I ~ ' Agreement between the City of Chula Vista and MACTEC Engineering and Consulting, Inc. to conduct on call Geotechnical, Storm Water Monitoring, Materials Testing and Special Inspection Consulting Services 11 -42 Parties and Recital Page(s) Agreement between City of Chula Vista and MACTEC Engineering and Consulting, Inc. To conduct on call Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services This agreement ("Agreement"), dated for the purposes of reference . only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1, is between the City-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A, Paragraph 4, as Consultant, whose business form is set forth on Exhibit A, Paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6 ("Consultant"), and is made with reference to the following facts: Recitals WHEREAS, the City has a Capital Improvement Program (TIP") for various projects located in the City, and, WHEREAS, the City has the need for on call Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services during said CIP projects' design and construction phases; and, . WHEREAS, A Request for Proposal ("RFP") was issued with a due date of January 13, 2009; and, WHEREAS, on said date, the City of Chula Vista received eight (8) proposals from firms interested in providing said consultant services; and, WHEREAS, after the City completed their review of the proposals for all eight firms, the City selected MACTEC Engineering and Consulting, Inc. as one of four Consultant to provide the services necessary; and, WHEREAS, MACTEC Engineering and Consulting, Inc. as an on call consultant, prior to commencing work on a particular CIP project ("Project") on which the City desires its services, shall be issued a task order; and WHEREAS, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions ofthis Agreement; (End of Recitals. Next Page starts Obligatory Provisions.) K:\ENGINEER\l\1aterial testing\'vfACTEC\att-final-MACTEC- rl.doc 11-43 Page 1 NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: All ofthe Recitals above are hereby incorporated into this Agreement. .ARTICLE 1. CONSULTANT'S OBLIGATIONS A. General 1. General Duties. Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties". 2. Scope of Work and Schedule. In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule", not inconsistent with the General Duties, accQrding to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this Agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, terminate this Agreement. 1. Reductions in Scope of Work. City may independently, or upon request from Consultant, from time to time, reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding.reduction in the compensation associated with said reduction. 11. Additional Services. In addition to performing the Defmed Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph IO(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. 3. Task Orders. Consultant shall not commence work on a Project unless and until the City has issued a written "Task Order" for that Project. No costs incurred on a Project prior to the issuance of a Task Order shall be recoverable by Consultant under this Agreement. 4. Standard of Care. The Consultant expressly warrants that the work to be performed pursuant to this Agreement, whether Defined Services or Additional Services, and the Task Orders shall be performed in accordance with the standard of care ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. K:\ENGINEER\J.vfaterial testing\MACTEC\att.fmal-Mtf!44- rl.doc Page 2 1. No Waiver of Standard of Care. 'Nhere approval by City or other agencies as may be applicable is required, it is understood to be conceptual approval only and does not relieve the Consultant of responsibility for complying with all laws, codes, industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Consultant or its subcontractors. B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the Consultant must comply with the federal or state law and implementing regulations. No provision of the Agreement requires the Consultant to.observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of federal, state, territorial, or local law, regulation, or ordinance. If compliance with any provision of the Agreement violates or would require the Consultant to violate any law, the Consultant agrees to notify City immediately in writing. Should this occur, the City and the Consultant agree that they will make appropriate arrangements to proceed with or, if necessary, terminate the Project, or portions thereof, expeditiously. ", '--, 1. Subcontractors. Consultant agrees to take appropriate measures necessary to ensure that all Project participants, such as subcontractors, comply with all applicable laws, regulations, ordinances, and policies, whether federal, state, or local, affecting performance of the Defined Services for a Project. In addition, if a subcontractor is expected to fulfill any responsibilities of the Consultant under this Agreement, the Consultant shall assure that the subcontractor carries out the Consultant's responsibilities as set forth in this Agreement. C. Insurance 1. General. Consultant must procure and maintain, during the period of performance of this Agreement, policies. of insurance from insurance companies to protect against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the Agreement and the results of that work by the Consultant, his agents, representatives, employees or subcontractors and provide documentation of same prior to commencement of work. 2. Minimum Scope of Insurance. Coverage must be at least as broad as: 1. CGL. Insurance Services Office Commercial General Liability coverage (occurrence Form CGOOOl). 11 Auto. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). iii. WC. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. K:\ENGINEER\i.\1aterial testing\i.vIACTEC\att-final-MACTEC- rl.doc 11-45 Page 3 IV. E&O. Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. 3. Minimum Limits of Insurance. Contractor must maintain limits no less than those included in the table below: i. General Liability: $1,000,000 per occurrence for bodily injury, personal injury, (Including (including death), and property damage. If Commercial General operations, Liability insurance with a general aggregate limit is used, either products and the general aggregate limit must apply separately to this completed project/location or the general aggregate limit must be twice the operations, as required occurrence limit. applicable) ii. Automobile $1,000,000 per accident for bodily injury, including death, and Liability: property damage. iii. Workers' Statutory Compensation $1,000,000 each accident Employer's $1,000,000 disease-policy limit Liability: $1,000,000 disease-each employee iv. Professional $1,000,000 each occurrence Liability or Errors $2,000,000 policy aggregate & Omissions Liability: 4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. 5. Other Insurance Provisions. The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: 1. Additional Insureds. City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect general liability and auto only of insurance, including those with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the contractor's K:\ENGINEER \ivIaterial testing\ivI.ACTEC\art-frnal-N(tfI~~- rl.doc Page 4 insurance using a blanket endorsement. Specifically, the endorsement must not exclude Products/Completed Operations coverage. 11. Primary Insurance. The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the contractor and in no way relieves the contractor from its responsibility to provide msurance. iii. Cancellation. The insurance policies required must be endorsed to state that coverage will not be canceled by either party, except after thirty (30) days' prior written notice to the City by U.S. mail. iv. Active Negligence. Coverage shall not extend to any indemnity coverage for the . active negligence of the additional insureds in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 oftheCivil Code. v. Waiver of Subrogation. Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage for the term required by this Agreement. 6. Claims Forms. If General Liability, Pollution andJor Asbestos Pollution Liability andJor Errors & Omissions coverage are written on a claims-made form: 1. Retro Date. The "Retro Date" must be shown, and must be before the date of the contract or the beginning of the contract work. 11. Maintenance and Evidence. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract work. iii. Cancellation. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of three (3) years after completion of contract work. IV. Copies. K:\ENGI0icER\Material testingll\1ACTEC\att-final-MACTEC- r l.doe 11-47 Page 5 7. Acceptability of Insurers. Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California "List of Eligible Surplus Lines Insurers ("LESLI") with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. 8. Verification of Coverage. Consultant shall furnish the City with original certificates and amendatory endorsements affecting coverage required by Section C. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the contract requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. 9. Subcontractors. Consultants must include all subconsultants as insureds under its policies or furnish separate certificates and endorsements for each subconsultant. All coverage for subconsultants is subject to all of the requirements included in these specifications. 10. Not a Limitation of Other Obligations. Insurance provisions under this Article shall not be construed to limit the Consultant's obligations under this Agreement, including Indemnity. D. Security for Performance 1. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, http://www.fms.treas.gov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the agreement, and which also satisfy the requirements stated in Section 995.660 ofthe Code of Civil Procedure, except as provided otherWise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required. Form must be satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Exhibit A, Paragraph 18. 2. Letter of Credit. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, K:\ENGINEER\Jvfalerial testing\JVfACTEC\att-fmal-j\l1~T!g- rl.doc Page 6 stating that the Consultant is in breach of the terms ofthis Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Exhibit A, Paragraph 18. 3. Other Security. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such . other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. E. Business License. Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. ARTICLE II. CITY OBLIGATIONS A. Consultation and Cooperation. City shall regularly consult the Consultant for the purpose ofreviewing the progress of the Defined Services and Schedule therein contained for each Task Order, and to provide direction and guidance to achieve the objectives of this Agreement and the Task Order. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 9, and with the further understanding that delay in the provision of these materials beyond thirty (30) days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation. 1. Following Receipt of Billing. Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 11. 2. Supporting Information. Any billing submitted by Consultant shall contain sufficient information as to the propriety of the billing, including properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature of the charges to the Project in order to permit the City to evaluate that the amount due and payable thereunder is proper, and such billing shall specifically contain the City's account number indicated on Exhibit A, Paragraph 17(e) to be charged upon making such payment. Page 7 K:\ENGINEER'u'vlaterial testing'u'v1ACTEC\att-final-iYt10'!~:- rl.doc 3. Exclusions. In determining the amount of the compensation City will exclude any cost 1) incurred prior to the effective date of this Agreement; 2) arising out of or related to the errors, omissions, negligence or acts of willful misconduct ofthe Consultant, its agents, employees, or subcontractors. 1. Errors and Omissions. In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 4. Payment Not Final Approval. The Consultant understands and agrees that payment to the Consultant for any Project cost does not constitute a City final decision about whether that cost is allowable and eligible for payment under the Project and does not constitute a waiver of any violation of Consultant of the terms of the Agreement. The Consultant acknowledges that City will not make a fmal determination about the eligibility of any cost until the final payment has been made on the Project or the results of an audit of the Project requested by the City has been completed, whichever occurs latest. If City determines that the Consultant is not entitled to receive any portion of the compensation due or paid, City will notify the Consultant in writing, stating its reasons. The Consultant agrees that Project closeout will not alter the Consultant's responsibility to return any funds due City as a result oflater refunds, corrections, or other similar transactions; nor will Project closeout alter the right of City to disallow costs and recover funds provided for the Project on the basis of a later audit or other review. 1. Consultant's Obligation to Pay. Upon notification to the Consultant that specific amounts are owed to City, whether for excess payments or disallowed costs, the Consultant agrees to remit to City promptly the amounts owed, including applicable interest. ARTICLE III. ETHICS A. Financial Interests of Consultant .1. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes ofthe Politicai Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney. 2. No Participation in Decision. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or K:\ENGINEER\\1aterial testingIMACTEClatt-flnal-1vIff.Isu- rl.doc Page 8 has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. 3. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. 4. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represen'ts that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. 5, Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's that may result in a conflict of interest for the purpose ofthe Fair Political Practices Act, and regulations promulgated'thereunder. ' 6. Specific Warranties Against Economic Interests. Consultant warrants, represents and agrees: 1. That neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which maybe the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14. 11. That no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for twelve months thereafter. iii. That Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City. IV. That Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party that may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. K;\ENGIl'-iEER \lvIaterial tesringINlACTEC\att- final-tvl{F!:1fi- r I.doc Page 9 IV. LIQUIDATED DAMAGES A. Application of Section. The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. 1. Estimating Damages. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. 2. Amount ofPenaltv. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 ("Liquidated Damages Rate"). 3. Request for Extension of Time. If the performance of any act required of Consultant is directly prevented or delayed by reason of strikes, lockouts, labor disputes, unusual governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other causes beyond the reasonable control of the Consultant, as determined by the City, Consultant shall be excused from performing that act for the period of time equal to the period of time of the prevention or delay. In the event Consultant claims the existence of such a delay, the Consultant shall notify the City's Contract Administrator, or designee, in writing of that fact within ten (10) calendar days after the beginning of any such claimed delay. Extensions of time will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress ofthe work. ARTICLE V. INDEMNIFICATION A. Defense, Indemnity, and Hold Harmless. 1. General Requirement. Except for liability for Professional Services covered under Article V, Section (A)(2), Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Consultant, its officials, officers, employees, agents, and contractors, arising out of or in connection with the performance of the Defined Services or this Agreement. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in K;\ENGINEER\ivlaterial testing\ivIACTEClatt-final-i'vr"f.:!'S1- rl.doc Page 10 combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. 2. Professional Services. For those professionals who are required to be licensed by the state (e.g. architects, landscape architects, surveyors and engineers) C'Design Professionals"), Design Professionals shall defend, indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or relating to any negligence, errors or omissions, recklessness, or willful misconduct of Design Professional, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Design Professional's Services. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Design Professional, its employees, agents or officers, or any third party. The Design Professional's duty to indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Design Professional's obligation and duties under this Agreement. 3. Costs of Defense and Award. Included in the obligations in Sections 1 and 2, above, is the Consultant's obligation to defend, at Consultant's own cost, expense and risk, any and all aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its directors, officials, officers, employees, agents and/or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expense and cost incurred by each of them in connection therewith. 4. Insurance Proceeds. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, and/or volunteers. 5. Declarations. Consultant's obligations under Article V shall not be limited by any prior or subsequent declaration by the Consultant. 6. Enforcement Costs. Consultant agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Article V. 7. Survival. Consultant's obligations under Article V shall survive the termination of this Agreement. ARTICLE VI. TERJ.VfINATION OF AGREEMENT K:\ENGINEER\i.vfaterial testingllvIACTEClatt-final-MACTEC- rl.doc 11-53 Page 11 A. Termination for Cause. If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement and . less any damages caused City by Consultant's breach, for any work satisfactorily completed . on such documents and other materials up to the effective date of Notice of Termination,. B. Termination of Agreement for Convenience of City. City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement, for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. ARTICLE VII. RECORD RETENTION AND ACCESS A. Record Retention. During the course of the Project and for three (3) years following completion, the Consultant agrees and to maintain, intact and readily accessible, all data, documents, reports, records, contracts, and supporting materials relating to the Project as City may reqUITe. B. Access to Records of Consultant and Subcontractors. The Consultant agrees to permit, and require its subcontractors to permit City or its authorized representatives, upon request, to inspect all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Contractor and its subcontractors pertaining to the Project. C. Project Closeout. The Consultant agrees that Project closeout does not alter the reporting and record retention requirements of this Agreement. ARTICLE VIII. PROJECT COMPLETION, AUDIT, AND CLOSEOUT A. Project Completion. Within ninety (90) calendar days following Project completion or termination by CITY, the Consultant agrees to submit a final certification of Project expenses and audit reports, as applicable. K:\ENGINEER\1v!aterial testingINlACTEClatt-final-1v1f.!S4- rl.doc Page 12 B. Audit of Consultants. The Consultant agrees to have performed financial and compliance audits the City may require. The Consultant also agrees to obtain any other audits required by City. The Consultant agrees that Project closeout will not alter the Consultant's audit responsibilities. Audit costs are allowable Project costs. C. Project Closeout. Project closeout occurs when City notifies the Consultant that City has closed the Project, and either forwards the final payment or acknowledges that the Consultant has remitted the proper refund. The Consultant agrees that Project closeout by City does not invalidate any continuing requirements imposed by the Agreement or any unmet requirements set forth in a written notification from City ARTICLE VIII. MISCELLANEOUS PROVISIONS A. Assignability. The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. 1. Limited Consent. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subconsultants identified thereat as "Permitted Subconsultants". B. Ownership, Publication, Reproduction and Use of Material. All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the Unit~d States or in any other country without the express Written consent of City. City shall have umestricted authority to publish, disclose (except as may be limited by the provisions of ,the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. C. Independent Contractor. City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, independent contractors and shall not be deemed to be employees of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security ta.x or any other payroll ta.x, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 1, Actions on Behalf of City, Except as City may specify in writing, Grantee shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever, as an K:\ENGINEER'v.vfaterial testing'v.vfACTEC\att-final-~'10S:5- rl ,doc Page 13 agent or otherwise. Grantee shall have no authority, express or implied, to bind City or its members, agents, or employees, to any obligation whatsoever, unless expressly provided in this Agreement. 2. No Obligations to Third Parties. In connection with the Project, the Consultant agrees and shall require that it's agents, employees, subcontractors agree that the City shall not be responsible for any obligations or liabilities to any third party, including its agents, employees, subcontractors, or other person or entity that is no't a party to this Agreement. Notwithstanding that the City may have concurred in or approved any solicitation, sub agreement, or third party contract at any tier, neither City shall have any obligations or liabilities to such other party. D. Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. E. Administration of Contract. Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 12, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. F. Term. This Agreement shall terminate when the Parties have complied with all executory provisions hereof. G. Attorney's Fees. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reason,able attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. H. Statement of Costs. In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 1. Consultant is Real Estate Broker and/or Salesman. If the box on Exhibit A, Paragraph 15 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. K:\ENGINEER \ivlaterial testing\N1ACTEC\att- final-!vlAf2's%- r l.doc Page 14 J.. Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. K. Integration. This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. L. Capacity of Parties. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. M. Governing LawNenue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue. for this Agreement, and performance hereunder, shall be the City of Chula Vista. (End of page. Next page is signature page.) K:\ENG fNEER uvlaterial testinguvLA.CTEC\att- fillal-N1J~,c:!57 - r l.doc PagelS .Signature Page to Agreement between City of Chuta Vista and MACTEC Engineering and Consulting, Inc. To conduct on cal1 Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services IN WITNESS WHEREOF, City and MACTEC Engineering and Consulting, Inc., have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated; City ofChula Vista By: Cheryl Cox, Mayor Attest: Donna Norris, City Clerk Approved as to form: Bart Miesfeld, City Attorney Dated: MACTEC Engineering and Consulting, Inc. By: /~ / ~/l/z...,-J <tr~ .!Javia'IYi/';'ol1, FE. Principa! JVlaferia!s Engi17.eer By: LJI'1II/0 W!i....f'!J/>I, .s.C'Niof(. ~I'<J (.,f'/f <.... [Name of Person, Title] Exhibit List to Agreement ex) Exhibit A. Page] 6 K :\EN GINEER\Material testing\MACTEC\att- final-MACTEC.doc 11-58 Exhibit A to Agreement between City of Chula Vista and . MACTEC Engineering and Consulting, Inc. To conduct on call Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services 1. Effective Date of Agreement: Same as final City signature on page 15 of this agreement. 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City ofChula Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: , a [insert business form] ("City") 3. Place of Business for City: Cityof Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Consultant: l'vlACTEC Engineering and Consulting, Inc. 5. Business Foim of Consultant: ( ) Sole Proprietorship ( ) Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: K:\ENGINEER\Material testingI.1YIACTEC\alt-fmal-!'vrrf.!5~- rl.doc Page 17 9177 Sky Park Court San Diego, CA 92123 Phone: 858-278-3600 Fax: 858-495-1941 7. General Duties: Consultant shall provide Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services at the direction and to the satisfaction of the City Engineer at construction sites and facilities designated by the City of Chula Vista. The Consultant shall provide: A. Materials testing laboratory facilities staffed with personnel qualified to perform sampling arid testing of portland cement concrete, soils, treated soils, crushed aggregate base, bituminous materials, and other building materials, as required. The materials testing laboratory must have a documented Quality Assurance Program (QAP) in conformance with Chapter 16 of the CALTRANS Local Assistance Procedures Manual. The Consultant shall also provide a copy of the QAP on a yearly basis. B. Geotechnical/soil engineering services for City-funded projects during earthwork construction operations, including geotechnical/soils engineering observations during site preparation for placement of fill and construction of sub-drainage systems. C. Personnel that are experienced in the testing of materials used in the construction of public works facilities and familiar with the San Diego Area Regional Standard Drawings, the Green Book and mC-2007. The City shall have the right to make a determination as to the qualifications of individual personnel and shall have the right to require substitution of non-qualified individuals with qualified personnel at any time. Personal assigned to City Of Chula Vista proj ects shall obtain approval from the City on an annual basis. The Consultant's QAP must include procedures and policies in which personnel are certified to perform the materials testing and sampling requested by City. D. Materials Testing, Geotechnical and Building Special Inspection Consulting Services in response to the City's request at the times and locations as determined by the City Engineer. The City shall make requests for services with 24 hours notice. K:\ENGINEER\c\1aterial testingI..LvIACTEC\att-fmal-J'vt'f!6D- rl.doc Page 18 E. A documented internal laboratory QAP for all required laboratory analyses and procedures. All reference standards and equipment calibrations shall be traceable to the National Institute of Standards and Technology. F. Assurances that all samples are logged and traceable in personal, lab, times, tests, results and disposal. G. Assurances that all instruments and devices to be utilized in field and laboratory analyses are properly maintained and calibrated in accordance with the Consultant's QAP. H. Provide the City of Chula Vista with all original data, reports, records, etc. of field and laboratory analyses, as well as certified copies of all calibration and maintenance records on an annual basis. Further, the Consultant shall maintain copies of all records related to field and laboratory testing performed under the contract for a minimum of five years from the date of the sample, measurement, report, etc. This period may be extended during the course of any unresolved litigation or when requested by the City of Chula Vista. I. Billing forms and procedures used shall be acceptable to the City and shall include all test results reports billed during that period. 8. Scope onVork and Schedule: A. Detailed Scope of Work: I. Materials Testing The Consultant shall perform the required materials, soils, sampling, and inspection in accordance with test methods and standards established by the American Society for Testing and Materials (ASTM), the State of California Department of Transportation (CaITrans), and the Environmental Protection Agency (EPA), as specified by the City Engineer. Subject to the provisions of section 11 below, the work shall be paid for on an hourly and unit price per test basis, which shall include all costs such as testing, reports, report review, storing of specimens, and test cylinders, as listed in the fee schedule (Exhibit B) II. Geotechnical Engineering Consultant shall provide Geotechnical Engineering services for City projects during earthwork construction operations that the City Engineer determines are necessary to meet finished grades shown on the plans and cross-sections. Consultant shall provide geotechnical engineering observation during site preparation for placement of fill and construction of subdrains. Consultant shall make recommendations regarding the removal of unsuitable material for fills and methods of compaction based on previous geotechnical K:\ENGINEER\iYfaterial testing\iYIACTEC\att-fmal-l'vrAf..!~9- rl.doc Page 19 investigations and Consultant's observations. For test results that failed, Consultant shall provide analysis of the failure and a recommendation of possible solutions in the signed and stamped report. On test that passed, Consultant shall state so in the signed and stamped report provided to the City. Said reports shall include the appropriate specification next to the test results. Consultant's services will be on an as-needed basis. Subject to the provisions in section 11 below, payment shall be on an hourly and unit paid per test basis for each City. III. Building Special Inspection The Consultant shall perform the required Building Special Inspection services inspection as directed by the City of Chula Vista in accordance with test methods and standards established by. the American Society for Testing and Materials (ASTM), IBC- 2007, the State of California Department of Transportation (CalTrans), and the Environmental Protection Agency (EP A), as specified by the City Engineer. The work shall be paid for on an hourly and unit price per test basis. Subject to the provision in section 11 below, the price per test shall include all associated costs such as testing, reports, report review, storing of specimens, and test cylinders, as listed in the fee schedule (Exhibit B) IV. Accounting and Billings Consultant shall provide separate invoices for each City project identified. Every invoice will list all work performed on project. Invoice shall show total amount billed to date for project, payments received, and amount due. All work elements shall be itemized, i.e. tests performed, personnel charges/hours, equipment costs, etc. All re-test shall be identified and explained on the invoice. City shall be billed within four (4) weeks of work performance and shall include all test results reports billed during that period. Consultant shall only be paid for work done at the request of the City. If additional work is requested by others, Consultant shall obtain a verbal authorization from the City. In addition, the Consultant shall include on respective invoice the following documentation for said additional work: l)who requested the work, 2)who approved the work, 3)date of work, 4)who performed the work and 5)Time in and out. 6)total of exact hours worked The Consultant shall forfeit and will not receive payment for work performed and billed to City more than sixty (60) calendar days after performance of work. V. Personnel Mr. David Wilson P.E. shall serve as Project Manager and single point of contact for the City. The City shall reserve the right of refusing personnel assigned to a proj ect by the Consultant. VI. Reports K:\ENGINEER\1vlaterial testing\1\1.!\CTEC\ari-fIDal-wrrf!6~- tl.doc Page 20 Consultant shall provide City with written reports on test results within 3- working days after completion oftest results. Test results are to be faxed to FAX number directed by the City as soon as final test results are available. VII. Conflict of Interest Consultant shall not retain any clients who are doing work under permits or contractual agreements with the City of Chula Vista unless otherwise approved in writing by City Engineer. IX. Work not listed in Schedule If an occasion arises whereby the City requests work to be done which is not listed in this schedule, the price ofproviding this work shall be negotiated in good faith between the City and the Consultant. The negotiated price(s) shall not exceed the Schedule of Charges labeled as Exhibit B to this agreement between the City and Consultant. B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery ofDeliverables: Deliverable No.1: Deliverable No.2: Deliverable No.3: Deliverable No.4: D. Date for completion of all Consultant services: December 31,2011. City has the option to extend this agreement for up to two additional years. Said extension shall be by mutual agreement between City and Consultant with outgoing through the City's Consultant selection process as outlined in the City's Municipal Code. The City Contract Administrator shall give notice of election to extend this agreement by sending notice by letter to Consultant not later than three months prior to expiration ofthe term. 9. Materials Required to be Supplied by City to Consultant: None 10. Compensation: A. ( ) Single Fixed Fee Arrangement. K:\ENGINEER \ivfaterial testing\cvL<i.CTEC\atl-fmal-MACTEG._ rl.doc . - 11-63 Page 21 For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: , payable as follows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. ( ) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase 1. Fee for Said Phase ., .J. $ $ $ 2. ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest K:\ENGINEER\1vfaterial testing\iv!ACTEC\att.final-j'yrAf.!5~- rl.doc Page 22 free loans that must be returned to the City ifthe Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement. For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (1) 0 Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) (X) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $500,000 ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. See Exhibit B for wage rates. ( ) Hourly rates may increase by 6% for services rendered after [month], 20_, if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: o . None, the compensation includes all costs. Cost or Rate K:\ENGI?--iEERuv[aterial testinguv[ACTEC\att-final-Mi~C2"6~- rl.doe Page 23 () Reports, not to exceed $ () Copies, not to exceed $ () Travel, not to exceed $ () Printing, not to exceed $ () Postage, not to exceed $ () Delivery, not to exceed $ (x) Outside Services: . (x) Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ $ $ $ $ $ $ Cost Plus 15% Cost Plus 15% $ $ 12. Contract Administrators: City: Roberto Yano, Sr. Civil Engineer Public Services Building 476 Fourth Ave. Chula Vista, CA 91910 Telephone: (619) 476-2402 Fax: (619) 691-5171 Consultant: MACTEC Engineering and Consulting, Inc. 9177 Sky Park Court San Diego, CA 92123 Phone: 858-278-3600 Fax: 858-495-1941 13. Liquidated Damages Rate: ( ) $ ( ) Other: per day. 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (X) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer ( ) Category No.1. Investments and sources of income. ( ) Category No.2. Interests in real property. K;\ENGINEERI.c\1aterial testing\MACTEClatt-final-?v!ffJ:6<6- rl.doc Page 24 ( ) Category No.3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. . ( ) Category No. 4. Investments in business entities and sources of income that engage in land development, construction or the acquisition or sale ofreal property. ( ) Category No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies; materials, machinery or equipment. ( ) Category No.6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. ( ) Category No.7. Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 15. ( ) Consultant is Real Estate Broker and/or Salesman 16. Permitted Subconsultants: None K:\ENGTh"EER\.i\1arerial testing\1vfACTEC\att-final-MACTEC- rl.doc . 11-67 Page 25 1. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: (X) Monthly ( ) Quarterly ( ) Other: B. Day of the Period for submission of Consultant's Billing: ( ) First of the Month ( ) 15th Day of each Month (X) End of the Month ( ) Other: C. City's Account Number: 2. Security for Performance ( ) Performance Bond; $ ( ) Letter of Credit, $ ( ) Other Security: Type: Amount: $ ( ) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ( ) Retention Percentage: ( ) Retention Amount: $ % Retention Release Event: ( ) Completion of All Consultant Services ( ) Other: K:\ENGINEER\1\1aterial testing\1\1ACTEC\att-final-NT~.I6B- rl.doe Page 26 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORNI BY THE CITY ATTORL'WY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROV BY THE CITY CO CIL I (, Dated: J;; &; k>! I j / Agreement between the City of Chula Vista and NOVA Engineering & Environmental, LLC, to conduct on call Geotechnical, Storm Water Monitoring, Materials Testing and Special Inspection Consulting Services 11-69 J Parties and Recital Page(s) Agreement between City of Chula Vista and NOVA Engineering & Environmental, LLC, To conduct on call Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services This agreement (" Agreement"), dated 03 - I ~ - (:)., for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in. Exhibit A, Paragraph I, is between the City-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A, Paragraph 4, as Consultant, whose business form is set forth on Exhibit A, Paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6 ("Consultant"), and is made with reference to the following. facts : Recitals WlIEREAS, the Ci1:Y has a Capital Improvement Program ("Crp") for various projects located in the City, and, WlIEREAS, the City has the need for on call Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services during said ClF projects' design and construction phases; and, WHEREAS, A Request for Proposal ("RFP") was issued with a due date of January 13, 2009; and, WHEREAS, on said date, the City of Chula Vista received eight (8) proposals from firms interested in providing said consultant services; and, WHEREAS, after the City completed their review of the proposals for all eight firms, the City selected NOVA Engineering & Environmental, LLC, as one of four Consultant to provide the services necessary; and, WHEREAS, NOVA Engineering & Environmental, LLC, as an on call consultant, prior to commencing work on a particular CIP project ("Project") on which the City desires its services, shall be issued a task order; and vVHEREAS, Consultant warrants and represents that they are experiencea and staffed in a manner such that they are and can deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; (End of Recitals. Next Page starts Obligatory Provisions.) K:\ENGIN"EER\iVlaterial testing\NOV A\att-nnal-Nova.doc Page 1 11-70. /A6 NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: All of the Recitals above are hereby incorporated into this Agreement. ARTICLE 1. CONSULTANT'S OBLIGATIONS A. General 1. General Duties. Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties". 2. Scope of Work and Schedule. In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled '~Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this Agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, terminate this Agreement. 1. /(educlions In Scope 0/ /Yod: City may independently, or upon request from Consultant, from time to time, reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. 11. Ada/llonal Se/'J/ices. In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, ifthey are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph IO(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. 3. Task Orders. Consultant shall not commence work on a Project unless and until the City has issued a written "Task Order" for that Project. No costs incurred on a Project prior to the issuance of a Task Order shall be recoverable by Consultant under this Agreement. 4. Standard of Care. The Consultant expressly warrants that the work to be performed pursuant to this Agreement, whether Defined Services or Additional Services, and the Task Orders shall be performed in accordance I,vith the standard of care ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. K:\ENGINEER'u'vfaterial testing'u"iOV A latt- final-Nova. doc Page 2 11-71 jJ6 1. #0 Iraiver o/SlaJldard o/Care. 'iVThere approval by City. or other agencies as may be applicable is required, it is understood to be conceptual approval only and does not relieve the Consultant of responsibility for complying wim all laws, codes, industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Consultant or its subcontractors. B. Appli~ation of Laws. Should a federal or state law pre-empt a local law, or regulation, the Consultant must comply with the federal or state law and implementing regulations. No provision of the Agreement requires the Consultant to observe or enforce compliance with any provision, perform any other act, or do any omer thing in contravention of federal, state, territorial, or local law, regulation, or ordinance. If compliance with any provision of the Agreement violates or would require the Consultam to violate any law, the Consultant agrees to notify City immediately in writing. Should this occur, the City and the Consultant agree that they will make appropriate arrangements to proceed with or, if necessary, terminate the Project, or portions thereof, expeditiously. 1. Subcontractors. Consultant agrees to take appropriate measures necessary to ensure that all Project participants, such as subcontractors, comply with all applicable laws, regulations, ordinances, and policies, whether federal, state, or local, affecting performance of the Defined Services for a Project. In addition, if a subcontractor is expected to fulfill any responsibilities of the Consultant under this Agreement, the Consultant shall assure that the subcontractor carries out the Consultant's responsibilities as set forth in this Agreement. C. Insurance I. General. Consultant must procure and maintain, during the period of performance of this Agreement, policies of insurance from insurance companies to protect against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the Agreement and the results of that work by the Consultant, his agents, representatives, employees or subcontractors and provide documentation of same prior to commencement of work. 2. Minimum Scope ofInsurance. Coverage must be at least as broad as: I. CGL. Insurance Services Office Commercial General Liability coverage (occurrence Form CGOOOl). 11 Auto. Insurance Services Office Form Number CA 000 I covering Automobile Liability, Code I (any auto). Ill. Ire. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. Page 3 K:\ENGIi'IEERIMaterial tesring'u'-iOV A1an-final-Nova.doc 11-72 ;it IV. Ed-o. Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. . 3. Minimum Limits of Insurance. Contractor must maintain limits no less than those included in the table below: i. General Liability: $1,000,000 per oc.currence for bodily injury, personal injury, (Including (including death), and property damage. If Commercial General operations, Liability insurance with a general aggregate limit is used, either products and the general aggregate limit must apply separately to this completed projecUlocation or the general aggregate limit must be twice the operations, as required occurrence limit. applicable) ii. Automobile $1,000,000 per accident for bodily injury, including death, and Liability: property damage. iii. Workers' Statutory Compensation $1,000,000 each accident Employer's $1,000,000 disease-policy limit Liability: $1,000,000 disease-each employee iv. Professional $1,000,000 each occurrence Liability or Errors $2,000,000 policy aggregate & Omissions Liability: 4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. 5. Other Insurance Provisions. The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to comain, the following provisions: 1. Adcliliol1a1./l7sZlTem. City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect all policies of insurance, inc luding those with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the contractor's K:\ENGINEERI1Vfaterial testinglNOV Alatt-final-Nova.doc Page 4 11-73 ;<<6 insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. ll. .l'rimary msurallce. The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, i!s officers, officials, employees, or volunteers is wholly separate from the insurance of the contractor and in no way relieves the contractor from its responsibility to provide msurance. iii. CallcellatiOll. The insurance policies required must be endorsed to state that coverage will not be canceled by either party, except after thirty (30) days' prior written notice to the City by certified mail, return receipt requested. IV. Active Hegbgence. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insureds in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. v. ff.'alver ifSuorogatiol1. Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage for the term required by this Agreement. 6. Claims Forms. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: 1. J?etro vote. The "Retro Date" must be shown, and must be before the date of the contract or the beginning of the contract work. II. Afali1tel1al1ce and Evidence. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract work. Ill. Cancellation. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. IV. CO.-OleS. A copy of the claims reporting requirements must be submitted to the City for review. K:\ENGINEER \tv!aterial testing\t'lO V A lat!- final-Nova. doc Page 5 11-74 fi6 7. Acceptability of Insurers. Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rarina of no less o than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers ("LESLI") with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. 8. Verification of Coverage. Consultant shall furnish the City with original certificates and amendatory endorsements affecting coverage required by Section C. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the contract requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. 9. Subcontractors. Consultants must include all subconsultants as insureds under its policies or furnish separate certificates and endorsements for eachsubconsultant. All coverage for subconsultants is subject to all of the requirements included in these specifications. 10. Not a Limitation of Other Obligations. Insurance provisions under this Article shall not be construed to limit the Consultant's obligations under this Agreement, including Indemnity. D. Security for Performance 1. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond in the fonn prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, htto:llwww.fms.treas.gov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as . provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required. Form must be satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Exhibit A, Paragraph 18. 2. Letter of Credit. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, Page 6 K:IENGINEERIMaterial testing\NOV A\att-final-Nova.doc 11-75 jJiJ stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Exhibit A, Paragraph 18. 3. Other Security. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. E. Business License. Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. ARTICLE II. CITY OBLIGATIONS A. Consultation and Cooperation. City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained for each Task Order, and to provide direction and guidance to achieve the objectives of this Agreement and the Task Order. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth. on Exhibit A, Paragraph 9, and with the further understanding that delay in the provision of these materials beyond thirty (30) days after authorization to proceed; shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation. I. Following Receipt of Billing. Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkrnark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph II. 2. Supporting Information. . Any billing submitted by Consultant shall contain sufficient information as to the propriety of the billing, including properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature of the charges to the Project in order to permit the City to evaluate that the amount due and payable thereunder is proper, and such billing shall specifically contain the City's account number indicated on Exhibit A, Paragraph l7(C) to be charged upon making such payment. Page 7 K;\ENG INEER \J.vIaterial testing\J.~O V A \att- final-Nova. doc A6 11-76 3. Exclusions. In determining the amount of the compensation City will exclude any cost 1) incurred prior to the effective date of this Agreement; 2) arising out of or related to the errors, omissions, negligence or acts of willful misconduct of the Consultant, its agents, employees, or subcontractors. . 1. Errors and Omissions. In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 4. Pavment Not Final Approval. The Consultant understands and agrees that payment to the Consultant for any Project cost does not constitute a City final decision about whether that cost is allowable and eligible for payment under the Project and does not constitute a waiver of any violation of Consultant of the terms of the Agreement. The Consultant ack.'lOwledges that City will not make a final determination about the eligibility of any cost until the final payment has been made on the Project or the results of an audit of the Project requested by the City has been completed, whichever occurs latest. If City determines that the Consultant is not entitled to receive any portion of the compensation due or paid, City will notify the Consultant in writing, stating its reasons. The Consultant agrees that Project closeout will not alter the Consultant's responsibility to return any funds due City as a result of later refunds, corrections, or other similar transactions; nor will Project closeout alter the right of City to disallow costs and recover funds provided for the Project on the basis of a later audit or other review. 1. Consul/anI S Obllgalion 10 Fq:v. Upon notification to the Consultant that specific amounts are owed to City, whether for excess payments or disallowed costs, the Consultant agrees to remit to City promptly the amounts owed, including applicable interest. ARTICLE III. ETHICS A. Financial Interests of Consultant 1. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney. 2. No Participation in Decision. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or Page 8 K:\ENGINEER\tvfalerial testing\J'-'OV A \att-final.Nova.doc 11-77 /U}l has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. 3. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. 4. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. 5. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. 6. Specific Warranties Against Economic Interests. Consultant warrants, represents and agrees: 1. That neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently. have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined ,Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14. 11. That no' promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for twelve months thereafter. iii. That Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for hvelve months after the expiration of this Agreement, except with the ",Titten permission of City. IV. That Consultant may not conduct or solicit any business for any party to this Agreement, or for any'third party that may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. K:\ENGINEER\vfaterial testing\'iO V A \an- final-Nova. doc Page 9 11-78 'jA/S N. LlQUIDA TED DANfAGES A. Application of Section. The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. 1. Estimating Damages. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. 2. Amount of Penal tv. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 ("Liquidated Damages Rate"). 3. Request for Extension of Time. If the performance of any act required of Consultant is directly prevented or delayed by reason of strikes, lockouts, labor disputes, unusual governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other causes beyond the reasonable control of the Consultant, as determined by the City, Consultant shall be excused from performing that act for the period of time equal to the period of time ofthe prevention or delay. In the event Consultant claims the existence of such a delay, the Consultant shall notify the City's Contract Administrator, or designee, in writing of that fact within ten (l0) calendar days after the beginning of any such claimed delay. Extensions of time will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. ARTICLE V. INDEiYfNIFICA TION A. Defense, Indemnity, and Hold Harmless. 1. General Reauirement. Except for liability for Professional Services covered under Article V, Section (A)(2), Consultant shall defend, indemnify, protect and hold harmless thoe City, its elected and appointed officers and employees, from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Consultant, its officials, officers, employees, agents, and contractors, arising ollt of or in connection with the performance of the Detlned Services or this Agreement. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, anomeys fees) arising from the sole negligence or sole willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in K:\ENGIl'i"EER I1v!aterial testinglNO V A latt- final -Nova. doc Page 10 11-79 JAb combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. 2. Professional Services. For those professionals who are required to be licensed by the state (e.g. architects, landscape architects, surveyors and engineers) ("Design Professionals"), Desigri Professionals shall defend, indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or relating to any negligence, errors. or omissions, recklessness; or . willful misconduct of Design Professional, its officials, officers, employees, agents; consultants, and contractors arising out of or in connection with the performance of the Design Professional's Services. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the. pesign Professional, its employees, agents or officers, or any third party. The Design Professional's duty to indemnify, protect and hold harmless shall not include anyclaims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. This sectioQ. in no way alters, affects or modifies theDesign Professional's obligation and duties under this Agreement. 3. Costs of Defense and Award. Included in the obligations in Sections 1 and 2, above, is the Consultant's obligation to defend, at Consultant's own cost, expense and risk, any and all aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its directors, officials, officers, employees, agents and/or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any \lnd all legal expense and cost incurred by each of them in connection therewith. 4. Insurance Proceeds. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, and/or volunteers. 5. Declarations. Consultant's obligations under Article V shall not be limited by any prior or subsequent declaration by the Consultant. 6. Enforcement Costs. Consultant agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Article V. 7. Survival. Consultant's obligations under Article V shall survive the termination of this Agreement. ARTICLE VI. TERivfINATION OF AGREEMENT Page 11 K:\ENGINEER\vlaterial testing\'\!OV A\att-final-Nova.doc 11-80 ;c<5 A. Termination for Cause. If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement and less any damages caused City by Consultant's breach, for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination,. B. Termination of Agreement for Convenience of City. City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and un[mished documents and other materials described hereinabove shall, at the option ofthe City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement, for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. ARTICLE VII. RECORD RETENTION AND ACCESS A. Record Retention. During the course of the Project and for three (3) years following completion, the Consultant agrees and to maintain, intact and readily accessible, all data, documents, reports, records, contracts, and supporting materials relating to the Project as City may require. B. Access to Records of Consultant and Subcontractors. The Consultant agrees to permit, and require its subcontractors to permit City or its authorized representatives, upon request, to inspect all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Contractor and its subcontractors pertaining to the Project. C. Project Closeout. The Consultant agrees that Project closeout does not alter the reporting and record retention requirements of this Agreement. ARTICLE VIII. PROJECT COiYfPLETION, AUDIT, AND CLOSEOUT A. Project Completion. Within ninety (90) calendar days following Project completion or termination by CITY, the Consultant agrees to submit a final certification of Project expenses and audit reports, as applicable. K:\ENGfr..'EER'uvlaterial testinglNOV A lart-ftn~l-Nova.doc Page 12 11-81 j(t B. Audit of Consultants. The Consultant agrees to have performed financial and compliance audits the City may require. The Consultant also agrees to obtain any other audits required by City. The Consultant agrees that Project closeout will not alter the Consultant's audit responsibilities. Audit costs are allowable Project costs. C. Project Closeout. Project closeout occurs when City notifies the Consultant that City has closed the Project, and either forvvards the final payment or acknowledges that the Consultant. has remitted the proper refund. The Consultant agrees that Project closeout by City does not invalidate any continuing requirements imposed by the Agreement or any unmet requirements set forth in a written notification from.C ity ARTICLE VIII. MISCELLANEOUS PROVISIONS A. Assignability. The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shaH not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. 1. Limited Consent. City hereby consents to the assignment of the portions of the Defiried Services identified in Exhibit A, Paragraph 16 to the subconsultants identified thereat as "Permitted Subconsultants", B. Ownership, Publication, Reproduction and Use of Material. All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country ,vithout the express "Titten consent of City. City shaH have unrestricted authority to pU,blish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and othervvise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. C. Independent Contractor. City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, independent contractors and shall not be deemed to be employees of City, and none of them shaH be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroH tax, and Consultant shaH be solely responsible for the payment of same and shaH hold the City hamiless with regard thereto. 1. Actions on Behalf of City, Except as City may specify in ,vriting, Grantee shaH have no authority, express or implied, to act on behalf of City in any capacity whatsoever, as an K:\ENGIl'fEER\v!aterial testing\~O V A latt- final -Nova. doc Page 13 11-82 14> agent or otherwise. Grantee shall have no authority, express or implied, to bind City or its members, agents, or employees, to any obligation whatsoever, unless expressly provided in this Agreement. 2. No Oblig:ations to Third Parties. In connection with the Project, the Consultant agrees and shall require that it's agents, employees, subcontractors agree that the City shall not be responsible for any obligations or liabilities to any third party, including its agents, employees, subcontractors, or other person or entity that is not a party to this Agreement. Notwithstanding that the City may have concurred in or approved any solicitation, subagreement, or third party contract at any tier, neither City shall have any obligations or liabilities to such other party. D. Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this agreement, against the City unle~s a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. E. Administration of Contract. Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 12, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. F. Term. This Agreement shall terminate when the Parties have complied with all executory provisions hereof. G. Attorney's Fees. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. H. Statement of Costs. In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracfs relating to the preparation of the report or document. 1. Consultant is Real Estate Broker and/or Salesman. If the box on Exhibit A, Paragraph 15 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. K:\ENGINEER\cvfateriaJ tes!ing\c~OV A\att-final-Nova.doc Page 14 11-83 f(8 J. Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. . . K. Integration. This Agreement, together with any other. written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in wTiting executed by the party against which enforcement of such amendment, waiver or discharge is sought. L. Capacity of Parties. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction frorn.its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. M. Governing LawNenue. This 'Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. (End of page. Next page is signature page.) K:\ENGIJ'oiEER\.lvlaterial testing\.l~OV A\att-final-Nova.doc Page 15 11-84 ~. Signature Page to Agreement between City of Chula Vista and NOV A Engineering & Environmental, LLC, To conduct on call Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services IN WITNESS WHEREOF, City and NOVA Engineering & Environmental, LLC have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: City ofChulil Vista By: Cheryl Cox, Mayor Attest: Donna Norris, City Clerk Approved as to form: Bart Miesfeld, City Attorney Dated: NOVA Engineering &. Environmental, LLC, By,-r<<9 ~,~ Z' ., " ,~'f, .v,g. /'I7AR.1< BARol'! ?rincIj7a1 Dy:1 I By: ,t1rT4-. ~~.o PR.i~q~{L [Name of Person, Title] Exhibit List to Agreement (X) Exhibit A. K:\ENGINEERl.LvIaterial testinglNOV Alatt.finaj-Nova.doc Page 16 ~'6 11-85 Exhibit A to Agreement between City of Chula Vista and NOVA Engineering & Environmental, LLC, To conduct on call Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services 1. Effective Date of Agreement: Same as final City signature on page 15 of this agreement. 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City ofChula Vista, a political subdivision' of the State of California ' ) Industrial Development Authority of the City of ChuJa Vista, a ( ) Other:' , a [insert business form] ("City") 3. Place of Business for City: City ofChula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Consultant: NOVA Engineering & Environmental, LLC 4373 Viewridge Avenue, Suite B San Diego, California 92123 5. Business Form of Consultant: ( ) So Ie Proprietorship ( ) Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: K:\ENGIl'-fEER\'vlaterial testing\"iOV A\att-nnal-Nova.doc Page 17 11 -86 J13 ph: 858-292-7575 fax: 858-292-7570 cell: 760~533-4805 7. General Duties: Consultant shall provide Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services at the direction and to the satisfaction of the City Engineer at construction sites and facilities designated by the City of Chula Vista. The Consultant shall provide: A. Materials testing laboratory facilities staffed with personnel qualified to perform sampling arid testing of portland cement concrete, soils, treated soils, crushed aggregate base, bituminous materials, and other building materials,as required. The materials testing laboratory'must have a documented Quality Assurance Program (QAP) in conformance with Chapter 16 of the CAL TRAL"'lS Local Assistance Procedures Manual. The Consultant shall also provide a copy of the QAP on a yearly basis. B. Geotechnical/soil engineering services for City-funded projects during earthwork construction operations, including geotechnical/soils engineering observations during site preparation for placement of fill and construction of sub-drainage systems. C. Personnel that are experienced in the testing of materials used in the construction of public works facilities and familiar with the San Diego Area Regional Standard Drawings, the Green Book and IBC-2007. The City shall have the right to make a determination as to the qualifications of individual personnel and shalI have the right to require substitution of non-qualified individuals with qualified personnel at any time. Personal assigned to City Of Chula Vista projects shalI obtain approval from the City on an annual basis. The Consultant's QAP must include procedures and policies in which personnel are certified to perform the materials testing and sampling requested by City. D. Materials Testing, Geotechnical and Building Special Inspection Consulting Services in response to the City's request at the times and locations as determined by the City Engineer. The City shall make requests for services with 24 hours notice. E. A documented internal laboratory QAP for all required laboratory K\ENGINEER 'uvlaterial testing'u'lOV A \att- final-Nova. doc Page 18 11-87 A6 analyses and procedures. All reference standards and equipment calibrations shall be traceable to the National Institute of Standards and Technology. F. Assurances that all samples are logged and traceable in personal, lab, times, tesrs, results and disposal. G. Assurances that all instruments and devices to be utilized in field and laboratory analyses are properly maintained and calibrated in accordance with the Consultant's Qi\.P. H. Provide the City of Chu!a Vista wirh all original data, reports, records, etc. of field and laboratory analyses, as well as certified copies of all calibration and maintenance records on an annual basis. Further, the Consultant shall maintain copies of all records related to field and laboratory testing performed under the contract for a minimum of. five years from the date of the sample, measurement, report, etc. This period may be extended during the course of any unresolved litigation or when requested by the City of Chula Vista. 1. Billing forms and procedures used shall be acceptable to the City and shall include all test results reports billed during that period. . 8. Scope of Work and Schedule: A. Detailed Scope of Work: 1. Materials Testing The Consultant shall perform the required materials, soils, sampling, and inspection in accordance with test methods and standards established by the American Society for Testing and Materials (ASTM), the State of California Department of Transportation (CaITrans), and the Environmental Protection Agency (EPA), as specified by the City Engineer. Subject to the provisions of section II below, the work shall be paid for on an hourly and unit price per test basis, which shall include all costs such as testing, reports, report review, storing of specimens, and test cylinders, as listed in the fee schedule (Exhibit B) II. Geotechnical Engineering Consultant shall provide Geotechnical Engineering services for City projects during earthwork construction operations that the City Engineer determines are necessary to meet finished grades shown on the plans and cross-sections. Consultant shall provide geotechnical engineering observation during site preparation for placement offill and . construction of subdrains. Consultant shall make recommendations regarding the removal of unsuitable material for fills and methods of compaction based on previous geotechnical Page 19 K:\ENGINEER\vfaterial testing\'-IOV A \an-final-Nova.doc 11-88 ~ investigations and Consultant's observations. For test results that failed, Consultant shall provide analysis of the failure and a recommendation of possible solutions in the signed and stamped report. On test that passed, Consultant shall state so in the signed and stamped report provided to the City. Said reports shall include the appropriate specification next to the test results. Consultant's services will be on an as-needed basis. Subject to the provisions in section II below, payment shall be on an hourly and unit paid per test basis for each City. III. Building Special Inspection The Consultant shall perform the required Building Special Inspection services inspection as directed by the City of Chula Vista in accordance with test methods and standards established by the American Society for Testing and Materials (ASTM), mc- 2007, the State of California Department of. Transportation (CaITrans), and the Environmental Protection Agency (EPA), as specified by the City Engineer. The work shall be paid for on an hourly and unit price per test basis. Subject to the provision in section II below, the price per test shall include all associated costs such as testing, reports, report review, storing of specimens, and test cylinders, as listed in the fee schedule (Exhibit B) IV. Accounting and Billings Consultant shall provide separate invoices for each City project identified. Every invoice will list all work performed on project. Invoice shall show total amount billed to date for project, payments received, and amount due. All work elements shall be itemized, i.e. tests performed, personnel charges/hours, equipment costs, etc. All re-test shall be identified and explained on the invoice. City shall be billed within four (4) weeks of work performance and shall include all test results reports billed during that period. Consultant shall only be paid for work done at the request of the City. If additional work is requested by others, Consultant shall obtain a verbal authorization from the City. In addition, the Consultant shall include on respective invoice the following documentation for said additional work: I)who requested the work, 2)who approved the work, 3)date of work, 4)who performed the work and 5)Time in and out. 6)total of exact hours worked The Consultant shall forfeit and will not receive payment for work performed and billed to City more than sixty (60) calendar days after performance of work. V. Personnel wlr. Dan J. Barnett, P .E. shall serve as Project Manager and single point of contact for the City. The City shall reserve the right of refusing personnel assigned to a project by the Consultant. VI. Reports K: \ENGINEER \i'v laterial testing\i'i 0 V A \att. final-Nova. doc Page 20 11-89 .ffi Consultant shall provide City with written reports on test results within 3- working days after completion oftest results. Test results are to be faxed to FAX number directed by the City as soon as final test results are available. VII. Conflict of Interest Consultant shall not retain any clients who are doing work under permits or contractual agreements with the City of Chula Vista unless otherwise approveq in writing by City Engineer. IX. Work not listed in Schedule If an occasion arises whereby the City requests work to be done which is not listed in this schedule, the price of providing this work shall be negotiated in good faith between the City and the Consultant. The negotiated price(s) shall not. exceed the Schedule of Charges labeled as Exhibit B to this agreement between the City and Consultant. B.Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. I: Deliverable No.2: Deliverable No.3: Deliverable No.4: D. Date for completion of all Consultant services: December 31,2011. City has the option to extend this agreement for up to two additional years. Said extension shall be by mutual agreement between City and Consultant with out going through the City's Consultant selection process as outlined in the City's Municipal Code. The City Contract Administrator shall give notice of election to extend this agreement by sending notice by letter to Consultant not later than three months prior to expiration of the term. 9. Materials Required to be Supplied by City to Consultant: Page 21 K:\ENGIN'EER\.cv[aterial testing'u'lOV A\att-final-Nova.doc 11-90 jAb None 10. Compensation; A. ( ) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee. in the amounts and at the times or milestones or for the Detiverables set forth below: Single Fixed Fee Amount: , payable as follows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a: percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. ( ) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase 1. Fee for Said Phase 2. $ $ $ '"' .J. Page 22 K:\ENGINEERI.tvlaterial iestingI.J.'iO V A lart- final-Nova. doc 11-91 A~ ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. . C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (1) 0 Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) (X) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $500,000 ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional SerVices at Consultant's own cost and expense. See Exhibit B for wage rates. ( )Hourly rates may increase by 6% for services rendered after [month], 20~, if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement Page 23 K:\ENGINEERlJ.vlateriaJ testinglJ.'-fOV A\att-final-Nova.doc 11-92 )Jb For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: o None, the compensation includes all costs. Cost or Rate $ $ $ $ $ $ Cost Plus 15% Cost Plus 15% $ $ () Reports, not to exceed $ () Copies, not to exceed $ () Travel, not to exceed $ () Printing, not to exceed $ () Postage, not to exceed $ () Delivery, not to exceed $ (x) Outside Services: (x) Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ 12. Contract Administrators: City: Roberto Yano, Sr. Civil Engineer Public Services Building 476 Fourth Ave. Chula Vista, CA 91910 Telephone: (619) 476-2402 Fax: (619) 691-5171 Consultant: Dan J. Barnett, ~ NOVA Engineering & Environmental, LLC 4373 Viewridge Avenue, Suite B San Diego, California 92123 ph: 858-292-7575 fax: 858-292-7570 cell: 760-533-4805 13. Liquidated Damages Rate: ( ) $ ( ) Other: per day. 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: Page 24 K:\ENGINEER\Material testingli'.fOVA latt- final-N ova. doc 11-93 ~ (X) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer ( ) Category No.1. Investments and sources of income. ( ) Category No.2. Interests in real property. ( ) Category No.3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. ( ) Category No.4. Investments in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. ( ) Category No.5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. ( ) Category No.6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's departmentto provide services, supplies, materials, machinery or equipment. ( ) Category No.7. Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 15. ( ) Consultant is Real Estate Broker and/or Salesman 16. Permitted Subconsultants: None Page 25 K:\ENGINEERIJ.'vfaterial testing\J.~OV A \att-final-Nova.doc 11-94 fib 1. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: ex) Monthly ( ) Quarterly ( ) Other: B. Day of the Period for submission of Consultant's Billing: ( ) First of the Month ( ) 15th Day of each Month (X) End of the Month ( ) Other: C. City's Account Number: "T>""'" ;;'.~'<: ?~ r,,;"_::Y:::'..; . 2. Security for Performance ( ) Performance Bond, $. ( ) Letter of Credit, $ ( ) Other Security: Type: Amount: $ ( ) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ( ) Retention Percentage: ( ) Retention Amount: $ % Retention Release Event: ( ) Completion of All Consultant Services ( ) Other: Page 26 K:\ENGI1'iEER IMalerial testingu'fO V A lan- final -Nova.doc 11-95 I-lb --.... 'NOYA ENGl.....U::ERING AND ENVIRONMENTAL A12. CURRENT SCHEDULE OF FEES, INCLUDING PERSONNEL HOURLY RATES, EQUIPMENT RATES, AND MATERIALS TESTING UNIT RATES 2008 Standard Rates for Professional and Technical Services NON - "Prevailing Wage" ,'. R.8'f~:i[(J!iai:~1:aW ,',' . " ~~te1 c~St'P\1f ~i* $145.00 $125.00 $110.00 $95.00 ,; ',.:;ooi ~.. . Principal Senior Engineer / Geologist Praject Engineer / Geologist Staff Engineer / Geologist $55.00' $60.00' $50.00' $75.00' $ 10.00/ hour $ 25.00/ hour $ 90.00/ hour :' '. " ' " .. $70.00 $50.00 $50.00 $0.65 $30.00 Special Inspector: Concrete, Steel, Masonry, Pre-Stressed Cone., Fireproofing Concrete Batch Plant Inspector NOT Inspector (Ultrasonic Testing) ~'~9M1P2f~~;~$~r~i,~B~1~~~';;";f{;;.:i~t"t:~;.~;;,' Vehicle with Mobile Laboratory (Includes sand cone density equipment, nuclear density g3uge, concrete air meter and slump cone) Pachometer - Reinforcing Steel Caring Equipment Rental (4 hour minimum) ':f~~~~Z~~&~\t?,t~;!C;"'X,: Draftsperson (CAD) Word Processing / Secretarial Pick-up / Delivery within San Diego County (per trip) Vehicle Mileage (if greater that 30 miles from OEM's affice) Express Mail/Courier Delivery (minimum) The Scheduie of Charges ("Schedule") Is not based upon any Prevailing Wage Determination or prevailing wage requirement under any federal or state law. In the event that it is determined by any federal, state or local agency, or any appropriate judicial ar administrative body, that any of the services performed by NOVA Engineering and Environmental, LLC for its client's project are subject to the provisions of the California Prevailing Wage Law (Cal. Lab. Code 9 1770 et seq.,] ("Code") and that NOVA Engineering and Environmental, LLC Is required to pay a specified prevailing wage rate for all or any portian of such services, client agrees to pay the applicable w~ge rate differential for any past and future services, being defined as the additional amount that is paid to each applicable employee in order to comply with the Code, in addition to an amount af mark- up on the applicable wage rate differential which is equal to the same mark-up upon which the originally-billed wage rate was calculated. REQUEST FOR PROPOSAL: Geotechnical. Storm Water Monitoring, Materials Testing & Special Inspection Consulting Services 52 11-96 ,M[) -- ---- NOYA ENGrNE=:R1NG AND EI'fVIRONMENTAL. laboratorv Testing ASTM I Caltrans Fee Soil and Aggregate, Primary Testing Compaction Curve, Modified, 6" D 1557 $160.00 Compaction Curve, Modified, 4" D 1557 $145.00 Compaction Curve, Standard 6" D 698 I $150.00 Compaction Curve, Standard 4" D 698 $135.00 Compaction Check Point $ 75.00 California Impact CT -216 $195.00 Oversize Rock Correction D 4718 $50.00 Sieve Analysis, with Wash C 136, CT-202 $110.00 Sieve Analysis, coarse, w/o wash C 136, CT-202 $60.00 Sieve Analysis, fine with Hydrometer D 422, CT-203 $190.00 11200 Sieve Wash D 1140 I $60.00 Specific Gravity and Absorption, Coarse C 127, CT-206 $50.00 Specific Gravity and Absorption, Fine I C 128, CT-207 $60.00 Unit Weight and Voids in Aggregate C 29, CT-212 $50.00 Moisture Content D 2216 $20.00 Moisture Content and Dry Density D 2937 $30.00 Atterberg Limits: Pl, LL, PI D 4318, CT-204 $100.00 Atterberg Limits - NP I D 4318, CT-204 S60.00 Sand Equivalent, Average of three D 2418, CT-217 $100.00 Sand Equivalent D 2418 $60.00 Durability Index, Coarse D 3744, CT-229 $100.00 Durability Index, Fine D 3744, CT-229 I $75.00 Cleaness Value CT-227 $95.00 Los Angeles Abrasion (L.A. Rattler) C131/C535, CT-211 $160.00 Soil, Secondary Testing Expansion Index D 4829, USC 29-2 $130.00 R-Value I D 2844, CT-301 S200.00 Consolidation, per point D 2435 $SO.OO Direct Shear, UU, CD, CU I D 3080 $275.00 Sulfate and Chloride Content $70.00 PH and Resistivity CT 643 I $125.00 Unconfined Compression D 2166 $100.00 Asphalt Concrete Hveem Stability and Unit Weight I D 1560, CT-366 $130.00 Maximum Theoretical Specific Gravity (Rice) D 2041 $80.00 Percent Asphalt - Ignition Oven, no gradation D 6307, CT 382 $80.00 Percent Asphalt with Gradation (ignition oven) D 6307, CT 382 $170.00 Unit Weight Only (compacted sample or core) I D 2726/ D 1188, CT 308 I $2S.00 I Unit Weight Requiring Compaction I D 2726, CT-304/308 $90.00 Asphalt Mix Design I AA5HTO, Caltrans, Request Asphalt Mix Design Review I $125.00 REQUEST FOR PROPOSAL: Geotechnical, Storm Water Monitoring, Materials Testing & Special Inspection Consulting Services 53 11-97 .M6 .--- --- NOYA e:NGI.'lE~~tNG AND ENVIRONMENTAL Concrete and Masonry Concrete Cylinder Compression Test (4x8, 6x11) I C39,a521 $10.00 Compression Test, Mortar, Grout C 780/ C 1019 $25.00 Compression Test, High-strength grout I C 1107 I $35.00 Compression Test, Core (includes sample prep) I C 42 $35.00 Compression Test, ltwt Concrete (insulating, fill) C495 $45.00 Compression Test, Shotcrete Panel, set of 3 cores C 42 $225.00 Flexural Strength, 6x6 beam I C 78 / C 293 $60.00 Unit Weight Fresh Concrete C 138, a-518 $40.00 Unit Weight, Ughtweight Concrete C 567 $65.00 Concrete Trial Batch and / or Mix Design Request Concrete Mix Design Review $125.00 Petrographic Analysis . I Request Composite Prism Masonry Unit - Compression . E 447, UBC 21-7 $95.00 Compression Test, Block I C 140 $55.00 Compression Test, Brick C 67 $40.00 Absorption, Unit Weight, and Moisture, Masonry I C 140 $80.00 lineal Shrinkage, Masonry Block C 426 $130.00 Masonry Conformance (abso~ption. unit weight, shrinkage. compressive C 90 $475.00 strength) . Steel and Fireproofing Bolt-Nut-Washer Conformance Testing F 606 I $105.00 Bolt-Nut-Washer, Hardness Only F 606 $75.00 Reinforcing Steel, Tensile Test, < No.8 bar A 370 $45.00 Reinforcing Steel, Tensile Test, 11 to 18 bar A370 $75.00 Reinforcing Steel, Bend Test, 11 bar or smaller I A 370 $55.00 Fireproofing - Density Test (template/displacement) I E 605 $50.00 Miscellaneous Terms and Other Excenses 1. OVERTIME AND MINIMUM CHARGES. Overtime Is charged at time-and-a-half in the iollowing instances: work hours outside oi the 6:30 am to 4:30 pm time window, work in excess oi eight hours per day, work in excess of forty hours per week. Double time will be charged for work in excess of 12 hours in one day, or on working holidays. . 24-hour notice is required for testing and inspection ser'lices. There will be a ~No-hour minimum charge for unscheduled cancellations (show-up time). A two-hour minimum is charged for field inspection and testing seNices. Time in excess af four hours but less than eight hours will be charged in one-hour increments. Overtime rates will be charged in half-hour increments. Field ser'lices will be charged on a portal-to-portal basis that includes 30 minutes of travel to/from our laboratory to/irom the jobsite located anywhere in Chula Vista. REQUEST FOR PROPOSAL: Geotechnical, Storm Water Monitoring, Materials Testing & Special Inspection Consulting Services 54 11-98 IJ\~ ..-....... NPYA E:NG1NE:E:'~IN'G A"NO ENVIRONMENTAl.. Storm Water Monitoring - Nolte Associates, Inc. 2009 Charge Rates Schedule Office: Technical Services Engineering Aid e/Plann ing Aid e ... .......... ...................... .................. ................:............................. ........ ...... $70.aO/hour Project Assistant ......... ...... ....... ... ....... ... ..... .......... ... ...... ......... .... ..... ....... ...... ..... ...... ....... ..... ..... ,.... ..... ... ...... $96.00/hour Project Ad min istrator ............ ..... ..... ......................................... .................. .................. ........... ........ ......... $120.aO/hour CADD Tech nician I....... ..................................... .................. .......~..... ........... ...................... .............. ........... $105.aO/hou r CADD Technician II............ ............... ........ ................................................................................................. $130.aO/hour CADD Techn ician III... ......... .............................. ....... ........................................................... ....... .......... ...... $136.aO/hou r Senior CADD Tech n ician/Designer........ .................. ...... .................. ....... ........................ ........... ....... ......... $145.aO/h our Design Supervisor... ......... ..... .......... ............ ..,..... ............ ................ ................:............ .............. ..... .......... $170.aOjhou r Professional Jun ior Engi n eer/Pla nner /5u rveyor ............. ........ .............................................. ................... ..... ........... ..... $125.aOjhou r Assistant Engi neer /Plan ner /5urveyor... .................. ........... ............ ....... ............................. ....... .... ............ $145.aO/hou r Associate Engin eer /Plan n er /5u rveyor ................ ...... ..... ...................... ....................... .... .................... ...... $165.aO/h our Senior Engi neer /Plan n er /5urveyo r............. .............. ...................... ................................................... ....... $176.aO/hour Ma nager .................................... ............................................ ...... ..... .......... ....................... ........... ............ $199 .aO/h our Structu ra I Engineer.. ................ ............................ ..................... .............................................. ..... ............. $176.aO/hou r Associate..... .......... .............................................. ............... ....................... ............................... .......... ....... $221.aO/hour Princi pa I ................................................................... .............. ..... .................. ....................................... ..... $ 255 .aO/hour Field: Construction Management Junior Fi eld Engineer ............ ........................ ........... ........ ............................. ................ ............................. $1l8.aO/h our Assista nt Field Engin eer............ .................. ............ ....... .................................... .................. ..................... $140.aO/houi Associate Field Engineer............. .................................................................... .......................................... $152.aO/h our 5en ior Fi el d Engi neer ............. ......... ........................... .......... .......... ...................................................... ..... $159 .aO/h our Construct! on Man ager................................. ........... ..................................... ....................................... ...... $174.aO/hour REQUEST FOR PROPOSAL: Geotechnical, Storm Water Monitoring, Materials Testing & Special Inspection Consulting Services 55 11-99 ;Uh -- ---- NPYA E:NGtNE;Ei=tING AND ENVIRONt'-1ENTAl- Expenses: Other Expenses -Including Subconsultants & Purchased Services through Subcontracts 1.15 x Cost Storm Water Sampling SI ngle Episode Sample Collection ........ ......... ................................................................. ................. ......... ....... $1,200.00 Addition al Sample Collection ................ ...... ............ ...... .... ..... ..................................... ............. ............ ....... ....... $100.00 REQUEST FOR PROPOSAL: Geotechnical, Storm Water Monitoring, Materials Testing & Special Inspection Consulting Services' 56 11-100 ;L0j THE A TT ACHED AGREEiYffiNT HAS BEEN REVIEWED AND APPROVED AS TO FOR1\1 BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORL\lIA.LL Y SIGNED UPON APPROV ~BY THE-CITY COUNCIuJ VJI Dated: 0/0/(;; j I Agreement between the City of Chula Vista and Southern California Soil & Testing, Inc. to conduct on call Geotechnical, Storm Water Monitoring, Materials Testing and Special Inspection Consulting Services 11-101 Parties and Recital Page(s} Agreement between City of Chula Vista and Southern California Soil & Testing, Inc. 6280 Riverdale Street San Diego, CA 92120 To conduct on call Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services This agreement ("Agreement"), dated for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1, is between the City-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A, Paragraph 4, as Consultant, whose business form is set forth on Exhibit A, Paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6 ("Consultant"), and is made with reference to the folloWing facts: Recitals WHEREAS, the City has a Capital Improvement Program ("CIP") for various projects located in the City, and, WHEREAS, the City has the need for on call Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services during said CIP projects' design and construction phases; and, 'VHEREAS, A Request for Proposal ("RFP") was issued with a due date of January 13, 2009; and, WHEREAS, on said date, the City of Chula Vista received eight (8) proposals from firms interested in providing said consultant serv-ices; and, W1fEREAS, after the City completed their review of the proposals for all eight firms, the City selected Southern California Soils & Testing, Inc. as one of four Consulrant to provide the services necessary; and, WHEREAS, Southern California Soils & Testing, Inc. as an on call consultant, prior to commencing "vork on a particular CIF project ("Project") on which the City desires its services, shall be issued a task order; and '''1fEREAS, Consulrant warrants and represents that they are experienced and staffed in a manner such that they are and can deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; (End of Recitals. Next Page starts Obligatory Provisions.) Page 1 K:\ENG l1'i""EER\.lvfaterial testingISCST\arr- final-SC ST _doc 11-102 NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: All of the Recitals above are hereby incorporated into this Agreement. .ARTICLE 1. CONSULTAJ.'TT'S OBLIGATIONS A. General 1. General Duties. Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties". 2. Scope of Work and Schedule. In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this Agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, terminate this Agreement. I. l?edtlctiol1S in Sco.,oe 0/ !IOrl:: City may independently, or upon request from Consultant, from time to time, reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated "ith said reduction. 11. Additional ServICes: In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in "vriting, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph IO(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. 3. Task Orders. Consultant shall not commence work on a Project unless and until the City has issued a written "Task Order" for that Project. No costs incurred on a Project prior to the issuance of a Task Order shall be recoverable by Consultant under this Agreement. 4. Standard of Care. The Consultant expressly warrants that the work to be performed pursuant to this Agreement, whether Defined Services or Additional Services, and the Task Orders shall be performed in accordance with the standard of care ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. K:\ENG INEER Ilvlaterial testinglSCSTlatt. final. SC S1 .doc 11-103 Page 2 1. No fFaiver 0/ Slandard 0/ Care. Wnere approval by City or other agencies as may be applicable is required, it is understood to be conceptual approval only and does not relieve the Consultant of responsibility for complying with all laws, codes, industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Consultant or its subcontractors. B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the Consultant must comply with the federal or state law and implementing regulations. No provision of the Agreement requires the Consultant to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of federal, state, territorial, or local law, regulation, or ordinance. If compliance with any provision of the Agreement violates or vvould require the Consultant to violate any law, the Consultant agrees. to notify City immediately in writing. Should this occur, the City and the Consultant agree that they will make appropriate arrangements to proceed with or, if necessary, terminate the Project, or portions thereof, expeditiously. 1. Subcontractors. Consultant agrees to take appropriate measures necessary to ensure that all Project participants, such as subcontractors, comply Vlith all applicable laws, regulations, ordinances, and policies, whether federal, state, or local, affecting performance of the Defmed Services for a Proj ect. In addition, if a subcontractor is expected to fulfill any responsibilities of the Consultant under this Agreement, the Consultant shall assure that the subcontractor carries out the Consultant's responsibilities as set forth in this Agreement. C. Insurance 1. General. Consultant must procure and maintain, during the period of performance of this Agreement, policies of insurance from insurance companies to protect against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the Agreement and the results of that work by the Consultant, his agents, representatives, employees or subcontractors and provide documentation of same prior to commencement of work. 2. Minimum Scope of Insurance. Coverage must be at least as broad as: 1. CGL. Insurance Services Office Commercial General Liability coverage (occurrence Form. CG0001). 11 At/to. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code I (any auto). Ill. fre. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. Page 3 K:\ENG INEER \J.vlateriallestingISCSTlatt- fmal-SCST. doc 11-104 IV. E&:O Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. 3.. Minimum Limits of Insurance. Contractor must maintain limits no less than those included in the table below: i. General Liability: $1,000,000 per occurrence for bodily injury, personal injury, (Including (including death), and property damage. If Commercial General operations, Liability insurance with a general aggregate limit is used, either products and the general aggregate limit must apply separately to this completed project/location or the general aggregate limit must be twice the operations, as required occurrence limit. applicable) ii. Automobile $1 ,000,000 per accident for bodily injury, including death, and Liability: property damage. iii. Workers' Statutory I Compensation $1,000,000 each accident Employer's $1,000,000 disease-policy limit Liability: $1,000,000 disease-each employee iv. Professional $1,000,000 each occurrence Liability or Errors $2,000,000 policy aggregate & Omissions Liability: 4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a fInancial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. 5. Other Insurance Provisions. The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: 1. Additional.lnsureds. City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect all policies of insurance, including those with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the contractor's K:\ENG INEER\Material testing\SCSTlart- final-SCST .doc 11-105 Page 4 insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. 11. Primary ./murance. The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the contractor and in no way relieves the contractor from its responsibility to provide msurance. 111. Cancellation.. The insurance policies required must be endorsed to state that coverage will not be canceled by either party, except after thirty (30) days' prior vvritten notice to the City by certified mail, return receipt requested. iv. Active NeglIgence. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insureds in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the CivilCode. v. fl7aivero/Subrogation. Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage for the term required by this Agreement. 6. Claims Forms. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: 1. l?etro Date. The "Retro Date" must be shown, and must be before the date of the contract or the begirming of the contract work. 11. Afain/enance and EVIdence. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract work. iii. Cancellation. If coverage is canceled or non-renewed, and not replaced with <llJ.other claims-made policy form with a "Retro Date" prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. IV. Copies. A copy of the claims reporting requirements must be submitted to the City for review. Page 5 K: \EN G INEER \iYfaterial testing\S C S T\ar;: - final-S C ST. doc 11-106 7. Acceptability of Insurers. Insurance is to be placed "With licensed insurers admitted to transact business in the State of California "With a current A.M. Best's rating of no less. than A V. If insurance is placed vvith a surplus lines insurer, insurer must be listed on the State of C.alifornia List of Eligible Surplus Lines Insurers ("LESLI") "With a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. 8. Verification of Coverage. Consultant shall furnish the City vvith original certificates and amendatory endorsements affecting coverage required by Section C. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the contract requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. 9. Subcontractors. .Consultants must include all subconsultants as insureds under its policies or furnish separate certificates and endorsements for each subconsultant. All coverage for subconsultants is subject to all of the requirements included in these specifications. I O. Not a Limitation of Other Obligations. Insurance provisions under this _Micle shall not be construed to limit the Consultant's obligations under this Agreement, including Indemnity. D. Security for Performance 1. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond in the form prescribed by the City and by such sureties which are authorized to transact such business in the S tate of California, listed as approved by the United States Department of Treasury Circular 570, htto://w\v\v.fms.treas.[w\/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided other"\Nise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Proj ect is located to issue bonds for the limits so required. Form must be satisfactory to the Risk Manager or City Attorney \vhich amount is indicated in the space adjacent to the term, "Performance Bond", in said Exhibit A, Paragraph 18. 2. Letter of Credit. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Letter of Credit (iridicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, K:\EN G TNEERuvlaterial testinglSC STlatt - fmal-SCST .doc 11-107 Page 6 stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Exhibit A, Paragraph 18. 3. Other Securitv. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the . subparagraph entitled "Other Security"), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. E. Business License. Consultant agrees to obtain a business license from the City and to . otherwise comply with Title 5 of the Chula Vista Municipal Code. ARTICLE II. CITY OBLIGATIONS A. Consultation and Cooperation. City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defmed Services and Schedule therein contained for each Task Order, and to provide direction and guidance to achieve the objectives of this Agreement and the Task Order. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 9, and with the further understanding that delay in the provision of these materials beyond thirty (30) days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation. 1. Following Receipt of Billing. Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 11. 2. Supporting Information. Any billing submitted by Consultant shall contain sufficient information as to the propriety of the billing, including properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the narure of the charges to the Project in order to permit the City to evaluate that the amount due and payable thereunder is proper, and such billing shall specifically contain the City's account number indicated on Exhibit A, Paragraph l7(C) to be charged upon making such payment. Page 7 K:\ENGINEER \J.vfaterial testing\SCST\att - final-SC ST .doc 11-108 3. Exclusions. In determining the amount of the compensation City will exclude any cost 1) . incurred prior to the effective date of this Agreement; 2) arising out of or related to the errors, omissions, negligence or acts of willful misconduct of the Consultant, its agents, employees, or subcontractors. 1. Errors and Omissions. In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 4. Payment Not Final Approval. The Consultant understands and agrees that payment to the Consultant for any Project cost does not constitute a City final decision about whether that cost is allowable and eligible for payment under the Project and does not constitute a waiver of any violation of Consultant of the terms of the Agreement. The Consultant acknowledges that City ""ill not make a fInal determination about the eligibility of any cost until the final payment has been made on the Project or the results of an audit of the Project requested by the City has been completed, whichever occurs latest. If City determines that the Consultant is not entitled to receive any portion of the compensation due or paid, City will notify the Consultant in writing, stating its reasons. The Consultant agrees that Project closeout will not alter the Consultant's responsibility to return any funds due City as a result of later refunds, corrections, or other similar transactions; nor will Proj ect closeout alter the right of City to disallow costs and recover funds provided for the Project on the basis of a later audit or other review. 1. Consultant S Obligation to Pay. Upon notifIcation to the Consultant that specific amounts are owed to City, whether for excess payments or disallowed costs, the Consultant agrees to remit to City promptly the amounts owed, including applicable interest. ARTICLE III. ETHICS A. Financial Interests of Consultant 1. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specifIed, then as determined by the City Attorney. 2. No Participation in Decision. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, ot participate in ma.l<ing or in any ;'vay attempt to use . Consultant's position to influence a governmental decision in vvhich Consultant knows or K:\EN GTh"EER \\1aterial testingISCS1\.att- final-SCST.doc 11-109 Page 8 has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. 3. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. 4. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant 'Will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. 5. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, arid regulations promulgated thereunder. 6. Specific Warranties Against Economic Interests. Consultant warrants, represents and agrees: 1. That neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any propeny which may be the subject matter of the Defined Services, or in any property 'Within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14. 11. That no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for twelve months .thereafter. iii. That Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for t\.velve months after the expiration of this Agreement, except with the written permission of City. IV. That Consultant may not conduct onolicit any business for any party to this Agreement, or for any third party that may be in conflict with Consultant's responsibilities under this Agreement, except vvith the written permission of City. Page 9 K\ENG ll'-iEER \Material testing\SCST\att- final-SCST .doc 11-110 IV. LIQUIDATED DAJ.\1...<\GES A. Application of Section. The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. . 1. Estimating Damages. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. 2. Amount of Penal tv. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have V'iithheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 ("Liquidated Damages Rate"). 3. Request for Extension of Time. If the performance of any act required of Consultant is directly prevented or delayed by reason of strikes, lockouts, labor disputes, unusual governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other causes beyond the reasonable control of the Consultant, as determined by the City, Consultant shall be excused from performing that act for the period oftime equal to the period of time of the prevention or delay. In the event Consultant claims the existence of such a delay, the Consultant shall notify the City's Contract Administrator, or designee, in writing of that fact within ten (10) calendar days after the beginning of any such claimed delay. Extensions of time will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. ARTICLE V. fi\lTIEfv1l\fIFICATION A. Defense, Indemnity, and Hold Harmless. 1. General Requirement. Except for liability for Professional Services covered under Article V, Section (A)(2), Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including V'iTongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Consultant, its officials, officers, employees, agents, and contractors, arising out of or in connection with the performance of the Defined Services or this Agreement. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole V'iillful misconduct of the City, its officers, employees. Also covered is liability arising from, connected \Vith, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in K:\ENG INEER 'uV!aterial testingISCS1\att- final-SC ST.doc 11-111 Page 10 combination \Vith the active or passive negligent acts or omissions of the Consultmt, its . employees, agents or officers, or any third party. 2. Professional Services. For those professionals who are required to be licensed by the state (e.g. architects, landscape architects, surveyors and engineers) ("Design Professionals"), Design Professionals shall defend, indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any.and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including \VTongful death, in any manner arising out of, pertaining to, or relating to any negligence, errors or omissions, recklessness, or willful misconduct of Design Professional, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Design Professional's Services. Also covered is liability arising from, connected with, . caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active . or passive negligent acts or omissions of the Design Professional, its employees, agents or officers, or any third party. The Design Professional's duty to indemnify, protect and hold harmless shall not include anY claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Design Professional's obligation and duties under this Agreement. 3. Costs of Defense and Award. Included in the obligations in Sections 1 and 2, above, is the Consultant's obligation to defend, at Consultant's ov,n cost, expense and risk, any and all aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its directors, officials, officers, employees, agents and/or volunteers. Consultant shall pay and satisfy any judgment, award ot decree that may be rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expense and cost incurred by each of them in connection therewith. 4. Insurance Proceeds. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, and/or volunteers. 5. Declarations. Consultant's obligations under Article V shall not be limited by any prior or subsequent declaration by the Consultant. 6. Enforcement Costs. Consultant agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Article V. 7. Survival. Consultant's obligations under Article V shall survive the termination of this. Agreement. ARTICLE VI. TEfuYfINATION OF AGREEJ\'lENT Page 11 K;\EN G [}4'CER 'uvlaterial testing\SC ST\att- final-SC S1. doc 11-112 A. Termination for Cause. If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right. to terminate this Agreement by giving 'Written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement and less any damages caused City by Consultant's breach, for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination,. B. Termination of Agreement for Convenience of City. City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement, for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this . Agreement except as set forth herein. ARTICLE VII. RECORD RETENTION AND ACCESS A. Record Retention. During the course of the Project and for three (3) years following completion, the Consultant agrees and to maintain, intact and readily accessible, all data, documents, reports, records, contracts, and supporting materials relating to the Project as City may reqUIre. B. Access to Records of Consultant and Subcontractors. The Consultant agrees to permit, and require its subcontractors to permit City or its authorized representatives, upon request, to inspect all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Contractor and its subcontractors pertaining to the Project. C. Project Closeout. The Consultant agrees that Project closeout does not alter the reporting and record retention requirements of this Agreement. ARTICLE VIII. PROJECT COMPLETION, AUDIT, AND CLOSEOUT A. Project Completion. Within ninety (90) calendar days following Project completion or termination by CITY, the Consultant agrees to submit a final certification of Project expenses and audit reports, as applicable. K:\ENG INEER \ivlaterial testinglSCSTlatt- fmal-SCST .doc 11-113 Page 12 B. Audit of Consultants. The Consultant agrees to have performed fmancial and compliance audits the City may require. The Consultant also agrees to obtain any other auditsrequired by City. The Consultant agrees that Project closeout will not alter the Consultant's audit responsibilities. Audit costs are allowable Project costs. C. Project Closeout. Project closeout occurs when City notifies the Consultant that City has closed the Proj ect, and either fonvards the fmal payment or acknowledges that the Consultant has remitted the proper refund. The Consultant agrees that Project closeout by City does not invalidate any continuing requirements imposed by the Agreement or any unmet requirements set forth in a written notification from City ARTICLE VIII. MISCELLAL'\i"EOUS PROVISIONS A. Assignability. The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior \vritten consent of City. 1. Limited Consent. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to,the subconsultants identified thereat as "Permitted Subconsultants". B. Ownership, Publication, Reproduction and Use of MateriaI. All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express "Written consent of City. City shall have unrestriCted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and othenvise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forri:1s or other materials or properties produced under this Agreement. C. Independent Contractor. City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, independent contractors and shall not be deemed to be employees of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security ta.,< or any other payroll ta.,<, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 1. Actions on Behalf of Cirv. Except as City may specify in writing; Grantee shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever, as an K:\ENGINEER \J.'vfateria! tesnng\SCST\att- 6nal-SCST.doc - . 11"':114 Page 13 agent or otherwise. Grantee shall have no authority, express or implied, to bind City or its members, agents, or employees, to any obligation whatsoever, unless expressly provided in this Agreement. 2. No Obligations to Third Parties. In connection ""ith the Project, the Consultant agrees and shall require that it's agents, employees, subcontractors agree that the City shall not be responsible for any obligations or liabilities to any third party, including its agents, employees, subcontractors, or other person or entity that is not a party to this Agreement. Nowithstanding that the City may have concurred in or approved any solicitation, sub agreement, or third party contract at any tier, neither City shall have any obligations or liabilities to such other party. D. Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City' in the implementation of same. Upon request by City, Consultarit shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. E. Administration of Contract. Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 12, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. F. Term. This Agreement shall terminate when the Parties have complied with all executory provisions hereof. G. Attorney's Fees. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to ajudgrnent against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. H. Statement of Costs. In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the repon or document. 1. Consultant is Real Estate Broker and/or Salesman. If the box on Exhibit A, Paragraph 15 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Othervvise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. K\ENG IPiEER \cY[aterial testinglSC ST\att- final-SCST .doc 11-115 Page 14 1. Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, \Vith return receipt requested, at th~ addresses identified herein as the places of business for each of the designated parties. K. Integration. This Agreement, together \Vith any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. 1. Capacity of }>arties. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. . M. Governing LawN enue. This Agreement shall be governed by and construed in accordance \Vith the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, . State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. (End of page. Next page is signature page.) Page 15 K:\ENG INEERIMatenal testinglSCSTlatt- final-SCST .doc . .' 11-116 Signature Page to Agreement between City of Chula Vista and Southern California Soils & Testing, Inc. To conduct on call Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services IN 'WITNESS WHEREOF, City and Southern California Soils & Testing, Inchave executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: City of Chula Vista By: Cheryl Cox, Mayor Attest: Donna Norris, City Clerk Approved as to form: Bart Miesfeld, City Attorney Dated: Southern California Soil & Testing, Inc. By:~ ~ ~ / l Gordon TAd. lYoodarrd, .R eE Pice Presidellt, Principal Engineer By: [Name of Person, Title] Exhibit List to Agreement (X) Exhibit A. K:\ENG fNEER \lv[aIerial testing\SCST\att- final-SC ST .doc . 11-117 Page 16 Exhibit A to Agreement betw-een City of Chula Vista and Southern California Soils & Testing, Inc. To conduct on call Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services 1. Effective Date of Agreement: Same as [mal City signature on page 15 of this agreement. 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the S tate of California ( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: ("City") , a [insert business form] 3. Place of Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Consultant: Southern California Soil & Testing, Inc. 5. Business Form of Consultant: ( ) Sole Proprietorship . ( ) Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: t; z <?O ~ (l/l-f1../)A-~/:- 51 ->AJV' ,::>/ /i'{,.. 0/ (',4 "'1)..I?C) ~("1 'Z~o '(3'l.( (- c; 11 "Z rro 'i "'17-- K:\ENG rNEER \1Y{aterial testing\SCST\att- final-SCST. doc . . 11-118 Page 17 6280 Riverdale Street San Diego, CA 92120 619.280.4321 (0) 619.280.4717 (F) 7. General Duties: Consultant shall provide Geotechnical, Storm Water Monitoring, Materials Testing And Special Inspection Consulting Services at the direction and to the satisfaction of the City Engineer at construction sites and facilities designated by the City of Chula Vista. The Consultant shall provide: A. Materials testing laboratory facilities staffed with personnel qualified to perform sampling arid testing of portland cement concrete, soils, treated soils, crushed aggregate base, bituminous materials, and other building materials, as required. The materials testing laboratory must have a docwnented Quality Assurance Program (QAP) in conformance with Chapter 16 of the CAL TRANS Local Assistance Procedures Manual. The Consultant shall also provide a copy of the QAPon a yearly basis. B. GeotechnicaVsoil engineering services for City-funded projects during earthwork construction operations, including geotechnicaVsoils engineering observations during site preparation for placement of fill and construction of sub-drainage systems. C. Personnel that are experienced in the testing of materials used in the construction of public works facilities and familiar with the San Diego Area Regional Standard Dra'Wings, the Green Book and IBC-2007. The City shall have the right to make a determination as to the qualifications of individual personnel and shall have the right to require substitution of non-qualified individuals with qualified personnel at any time. Personal assigned to City Of Chula Vista projects shall obtain approval from. the City on an annual basis. The Consultant's QAP must include procedures and policies in which personnel are certified to perform the materials testing and sampling requested by City. D. Materials Testing, Geotechnical and Building Speciallnspection Consulting Services in response to the City's request at the times and locations as determined by the City Engineer. The City shall make requests for services with 24 hours notice. K:\ENG INEER 'uVlaterial testinglSCSTlatt- fmal-SCST. doc 11-119 Page 18 E. . A documented internal laboratory QAP for all required laboratory analyses and procedures. All reference standards and equipment calibrations shall be traceable to the National Institute of Standards and Technology. F. AssUrances that all samples are logged and traceable in personal, lab, times, tests, results. and disposal. G. Assurances that all instruments and devices to be utilized in field and laboratory analyses are properly maintained and calibrated in accordance '>vith the Consultant's QAP. H. Provide the City of Chula Vista with al~ original data, reports, records, etc. of field and laboratory analyses, as well as certified copies of all calibration and mainte:gance records on an annual basis. Further, the Consultant shall maintain copies of all records. related to field and laboratory testing performed under the contract for a minimum of five years from the date of the sample, measurement, report, etc.. This period may be extended during the course of any umesolved litigation or when requested by the City ofChula Vista. I. Billing forms and procedures used shall be acceptable to the City and shall include all test results reports billed during that period. 8. Scope of Work and Schedule: A. Detailed Scope of Work: I. Materials Testing The Consultant shall perform the required materials, soils, sampling, and inspection in accordance with test methods and standards established by the American Society for Testing and Materials (ASThf), the State of California Department of Transportation (CalTrans), and the Environmental. Protection Agency (EP A), as specified by the City Engineer. Subject to the provisions of section 11 below, the work shall be paid for on an hourly and unit price per test basis, which shall include all costs such as testing, reports, report review, storing of specimens, and test cylinders, as listed in the fee schedule (Exhibit B) II. Geotechnical Engineering Consultant shall provide Geotechnical Engineering services for City projects . during earthwork construction operations that the City Engineer determines are necessary to meet finished grades shown on the plans and cross-sections. Consultant shall provide geotechnical engineering observation during site preparation for placement of fill and construction of subdrains. Consultant shall make recommendations regarding the removal of unsuitable material for fills and methods of compaction based on previous geotechnical Page 19 K:\ENGfJ\iEER \Material testing\SC ST\ati:- fmal-SCST .doc 11-120 investigations and Consultant's observations. For test results that failed, Consultant shall provide analysis of the failure and a recommendation of possible solutions in the signed and stamped report. On test that passed, Consultant shall state so in the signed and stamped report provided to the City. Said reports shall include the appropriate specification next to the test results. Consultant's services will be on an as-needed basis. Subject to the provisions in section 11 below, payment shall be on an hourly and unit paid per test basis for each City. III. Building Special Inspection The Consultant shall perform the required Building Special Inspection services inspection as directed by the City of Chula Vista in accordance with test methods and standards established by the American Society for Testing and Materials (ASThf), IBe- 2007, the State of California Department of Transportation (CalTrans), and the Environmental Protection Agency (EPA), as specified by the City Engineer. The work shall be paid for on an hourly and unit price per test basis. Subject to the provision in section 11 below, the price per test shall include all associated costs such as testing, reports, report review, storing of specimens, and test cylinders, as listed in the fee schedule (Exhibit B) IV. Accounting and Billings Consultant shall pro"Vide separate invoices for each City project'identified. Every invoice will list all work performed on project. Invoice shall show total amount billed to date for project, payments received, and amount due. All work elements shall be itemized, i.e. tests performed, personnel charges/hours, equipment costs, etc. All fe-test shall be identified and explained on the invoice. City shall 5e billed within four (4) weeks of work performance and shall include all test results reports billed during that period. Consultant shall only be paid for work done at the request of the City. If additional work is requested by others, Consultant shall obtain a verbal authorization from the City. In addition, the Consultant shall include on respective invoice the following documentation for said additional work: l)whorequested the work,2)who approved the work, 3)date of work, 4)who performed the work and 5)Time in and out. 6)total of exact hours worked The Consultant shall forfeit and will not receive payment for work performed and billed to City more than sixty (60) calendar days after performance of work. V. Personnel Mr. Gordon T.M. Woodarrd, R.C.E shall serve as Project Manager and single point of contact for the City. The City shall reserve the right of refusing personnel assigned to a project by the Consultant. VI. Reports K:\ENGINEER \Material testing\5CSTlan- fi.nal-5C 51 .doc 11-121 Page 20 Consultant shall provide City with written reports on test results within 3- . working days after completion of test results. Test results are to be faxed to F AX number directed by the City as soon as final test results are available. VII. Conflict of Interest Consultant shall not retain any clients who are doing work under permits or contractual agreements with the City of Chula Vista unless otherwise approved in vvriting by City Engineer. IX. Work not listed iri. Schedule If an occasion arises whereby the City requests work to be done which is not listed in this schedule, the price of providing this work shall be negotiated in good faith between the City and the Consultant. The negotiated price(s) shall not exceed the Schedule of Charges labeled as Exhibit B to this agreement between the City and Consultant. B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliver abIes: Deliverable No.1: Deliverable No.2: Deliverable No.3: Deliverable No.4: D. Date for completion of all Consultant services: December 31,2011. .City has the option to extend this agreement for up to two additional years, Said extension shall be by mutual agreement between City and Consultant with out going through the City's Consultant selection process as outlined in the City's Municipal Code. The City Contract Administrator shall give notice of election to extend this a.greement by sending notice by letter to Consultant not later than three months prior to expiration of the term. 9. Materials Required to be Supplied by City to Consultant: None 10. Compensation: A ( ) Single Fixed Fee Arrangement. Page 21 K:\ENG ]}<cER\.cvlaterial testinglSC STlatt- fmal-SCST .doc 11-122 F or performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: , payable as follows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee ( ) 1. Interim MontWy Advances. The City shall make interim montWy advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. lfthe Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amotmt or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim montWy advances shall not convert this agreement to a time and materials basis of payment. B. ( ) Phased Fixed Fee Arrangement. F or the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services tmder any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase 1. Fee for Said Phase 2. $ $ $ ~ .J. ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made heretmder shall be considered as interest K:\EN GINtER \tvlatenal testinglSCS T\art- final-SCST .doc 11-123 Page 22 free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in ',>;Titing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said ~ervices, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: . I (1) 0 Not-to~Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Ma-runum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) (X) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $500,000 ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. See Exhibit B for wage rates. ( ) Hourly rates may increase by 6% for serv'ices rendered after [month], 20_, if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City -shall pay Consultant at the rates or amounts set forth below: o None, the compensation includes all costs. Cost or Rate Page 23 K: \EN G friEER \J.v{aterial testing\SC ST\att. final. SCS T _ doc 11-124 Reports, not to exceed $ Copies, not to exceed $ Travel, not to exceed $ Printing, not to exceed $ Postage, not to exceed $ Delivery, not to exceed $ Outside Services: Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ 12. Contract Administrators: I City: Roberto Yano, Sr. Civil Engineer Public Services Building 476 Fourth Ave. .. Chula Vista, CA 91910 Telephone: (619) 476-2402 Fax: (619) 691-5171 Consultant: Southern California Soil & Testing, Inc. 6280 Riverdale Street San Diego, CA 92120 619.280.4321 (0) 619.280.4717 (F) $ $ $ $ $ $ Cost Plus 15% Cost Plus 15% $ $ 13.ILiquidated Damages Rate: ( ) $ per day. Ie ) Other: . . . 14. :Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest (Code: (X) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer e ) Category No. 1. Investments and sources of income. e ) Category No.2. Interests in real property.. K\E NG Il'<"EER\1vlaterial testing\SCST\att- final-SCST .doc 11-125 Page 24 ( ) Category No.3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. ( ) Category No.4. Investments in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. ( ) Category No.5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. ( ) Category No.6. Investments in business entities and sources of income of the type which, "ithin the past two years, have contracted "ith the designated employee's department to provide services, supplies, materials, machinery or equipment. ( ) Category No.7. Business positions. ( ) List i'Consultant Associates" interests in real property "ithin 2 radial miles of Project Property, if any: 15. ( ) Consultant is Real Estate Broker and/or Salesman . 16. Permitted Subconsultants: None Page 25 K:\ENG INEER\'Vlaterial testing\SCST\att- rmal-SC ST .doc 11-126 1. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: (X) Monthly ( ) Quarterly ( ) Other: B. Day of the Period for submission of Consultant's Billing: ( ) First of the Month ( ) 15th Day of each Month (X) End of the Month ( ) Other: C. City's Account Number: 2. Security for Performance ( ) Performance Bond, $ ( ) Letter of Credit, $ ( ) Other Security: Type: Amount: $ ( ) Retention. If this space is checked, then nomithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention .'\mount" until the City determines that the Retention Release Event, listed below, has occlirred: ( ) Retention Percentage: ( ) Retention Amount: $ % Retention Release Event: ( ) Completion of All Consultant Services ( ) Other: K:\ENG INEER \1vlaterial testing\SC ST\arr- final-SCST .doc 11-127 Page 26 A CORP.. CERTIFICATE OF LIABILITY INSURANCE I OA T8 (MMIO 01YY) 03/03/09 PROOUCER OA99520 1-519-234-6848 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Cavignac " AssociatSls ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Suite 1300 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 450 B St=eetJ ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. San Diego, CA 92101-8005 I INSURERS AFFORDING COVERAGE INSURED INSURE.R A: 'the Travelers Indemnitv Comoany of Connect.icu~ Southe=n California Soil & Testing, Inc. INSURER 3: Peerless Insurance Company 6280 Riverdale Streec INSURER C: James River Insurance Company - San Diego, c... 92120 INSURER 0: I [,NSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEt:N ISSUED TO THE INSURED ,~AMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY R:QUIREMENT, TSRM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY ,oERTAIN. THE INSURANCE AFFORDED BY THE ,oOLlCIES DESCRIBED HEREIN IS SUBJECT TO ALL THE T:RMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGR:GATE LIMITS SHOWN MAY HAVE BESN REDUCED BY PAID CLAIMS. I~~!I TYPE OF INSURANCe I power NUMBER 1 p~^L.;.~y EFFeCTIVE ?~iJ.;: EXPlRA nON UMITS A k:lERAI. I./ABII.ITY 6806686L064 12/01/08 12/01/09 EACH OCCURRENCE S 1,000,000 X COMMERCI.AL GENERAL IjA31LlTY FIRE DAMAGE (Any ~ne tlra) Sl,OOO,OOO :=;g CLAIMS .MAOE 0 OCCUR MED EX? (Anyone person) 510,000 X IContractual Liab. PERSONAL &. ADV INJURY S 1,000,000 ~seoaration of Insureds GENERAL AGGREGATE .s 2,000,000 n'L AGG:i~E LIMIT A?nS PER: PRODUCTS. COMP/O? AGG 52,000,000 POLICY X P,~T LOC Oeductible None a ~OMOBI1.8 UABIUTY . aA8219565 12/01/08 12/01/09 COMBINED SINGLE UMIT X ANY AUTO (Ea accident) S 1,000,000 Al.l. OWNED AUTOS 30DIL Y INJURY R SCHEDULED AUTOS (Par person) 5 1_ HIRED AUTOS BODILY INJURY S NON-OWNEO AUTOS . (Per accident) - - PROPERTY OAMAGE 5 (Per accident) I GARAGE UABIUTY AUTO ONLY. EA ACC:OENT 1 s l~ ANY AUTO OTHER THAN EA ACC 5 AUTO ONLY' AGG Is I eXCESS LIABIUTY eACH OCCURRENCE: I 5 o OCCUR 0 CLAIMS MACE AGGREGATE S 5 R DEDUCT181.= 5 I RETENTION 5 15 A WORKERS COMPENSATION AND UB7302Y353 12/01/08 12/01/09 I X I ~'X~.;;T ~Ji'~ [ 101;'-1 EMPLOYERS' UABIUTY 151,000,000 E.L. EACH ACCIDENT I E.L. CISE.~5E . :A =MPLOY=~ S 1, 000 , 000 E.L. OISEASE . ?OLlCY LIMIT I 5 1, 000 , 000 OTHER I C Professional Liability 000028775 01/30/09 01/30/10 Each. Claim s 1,000,000 Claims made, defense Aggregate s 2,000,000 costs included wlin limit I Each Claim Oeduct. ,100,000 DESCRIPTION OF OPERATIONS/LoCATIONSNEHICLES/EXClUSIONS ADDEO BY ENDORSEMENT/SPECIAL PROVlSIONS Re: On-Call Geotechnical, Storm Water Monitoring, Mate=ials Testing ~~d Special Inspection Consulting Se:vices. I City of Chula Vista, its officers, officials, employes, agents aZld volunteers are additional insured primary wi th. respect to general liability per attached and auto 1 ability included in policy form. Waiver of Subrogation applies to auto liability included in policy fo~ and general 1 ability & wo=kera compensation per attached. I , CERTIFICATE HOLDER 1 Y I ADDITIONAL INSUR.ED; INSURER L5TTER: A CANCELLATION 10 days NOC for non-;>ayment of ;>remium. SHOULD ANY OF THE ABOVE DESCRIBED ?OUCIES BE CANCELL.ED BEFORE THE EXPlRATlON OATE THEREOF, THE ISSUING INSURER WILL ~~MAIL ~ DAYS WRITTEN NOTlCE TO THE CERTtFICATE HOLDER NAMED TO THE LEFT, ~~ City of Chula Vista 276 Fourth Ave. Xll\llllI=lI~~~~x=lIllX ~~x..=xXxxxx.:acxx."{:<x:<x_=="{;{;ac<x AUTHORIZED REPRESENTATIVE d ~ 1 1 S;m;:.. @ ACORD CORPORATION 1988 Chu1a Vista, CA 91910 I ACORD 25-5 (7/97) Katherine 11266529 USA 11-128 . TRAVEl-fRS WORKERS COLYIPENSATION AJ.~ ElYIPLOYERS LL~ILITY POLlCY ENDORSE.M:E1'Il WC 99 03 76 (00) POLICY l'ilJNffiER UE7852Y858 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFOR.J.~IA (BLA1~1(ET WAIVER) We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. You must maintain payroll records accurately segregating the r=uneration of your employees while engaged in the work described in the Schedule. The additional premium for this endors=em shall be % of the California workers' compensation pr=ium otherwise due on such r=uneration. Schedule Person or Organization Job Description ANY PERSON OR ORGA.~IZAIION FOR NEICE TEE INSURED HAS CO~LETED A WRITTEN AGREEMENT TO PROVIDE THIS WAIVER. 11-129 POLICY NUMBER: sSOSSSSL064 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED (ARCHITECTS, ENGINEERS AND SURVEYORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. The following is added to WHO IS AN INSURED (Section II): Any person or organization that you agree in a 'contract or agreement requiring insurance" to include as an additional insured on this Coverage Part, but only with respect to iiability for "bodily injury", "property damage" or 'personal injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: a. In the performance of your ongoing operations; b. In connection with premises owned by or rented to you; or c. In connection with "your work" and included within the "products-completed operations hazard". Such person or organization. does not qualify as an additional insured for "bodily injury", 'property dam age" or "personal injury" for which that person or organization has assumed liability in a contract or agreement. The insurance provided to the additional insured is iimited as follows: d. This insurance does not apply on any basis to any person or organization for which coverage as an additional insured specificaily is added by another endorsement to this Coverage Part. e. This insurance does not apply to the rendering of or failure to render any 'professional services". f. The limits of insurance afforded to the additional insured shall be the limits which you agreed in that "contract or agreement requiring insurance" to provide for that additional insured, or the limits shown in the Declarations for this Coverage Part, whichever. are less. This endorsem ent does not increase the limits of insurance stated in the LIMITS OF INSURANCE (Section III) for this Coverage Part. B. The following is added to Paragraph a. of 4. Other Insurance in COMMERCIAL GENERAL LIABILITY CONDITIONS (Section IV): However, if you specifically agree in a "contract or agreement requiring insurance" that the insurance provided to an additional insured under this Coverage Part must apply on a primary basis, or a primary and non- contributory basis, this insurance is primary to other insurance that is available to such additional insured which covers such additional insured as a named insured, and we will not share with the other insurance, provided that: (1) The "bodily injury" or "property damage" for which coverage is sought occurs; and (2) The "personal injury" for Which coverage is sought arises out of an offense committed; after you have entered into that 'contract or agreement requiring insurance". But this insurance still is excess over valid and collectible other insurance, whether primary, excess, contingent or on any other basis, that is available to the insured when the insured is an additional insured under any other insurance. C. . The following is added to Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us in COMMERCIAL GENERAL LIABILITY CONDITIONS (Section IV): We waive any rights of recovery we may have against any person or organization because of payments we make for "bodily injury", "property damage" or 'personal injury" arising out of "your work" performed by you, or on your behalf, under a 'contract or agreement requiring insurance" with that person or organization. We waive these rights only where you have agreed to do so as part of the 'contract or agreement requiring insurance" with such person or organization entered into by you berore, and in effect when, the 'bodily injury" or "property damage" occurs, or the 'personal injury" offense is committed. D. The following definition is added to DEFINITIONS (Section V): "Contract or agreement requiring insurance" means that part or any contract or agreement under which you are required to include a person or organization as an additional insured on this Coverage Part, provided that the 'bodily injury" and "property damage" occurs, and the. 'personal injury" is caused by an qffense committed: a. Afte( you have entered into that contract or agreement; b. While that part of the contract or agreement is in effect; and c. Before the end of the poi icy period. CG 03 81 0907 @ 2007 The Travelers Companies, Inc. Includes copyrighted material or Insur.ar'1'.2'f1ff Office, Inc., with its permission. 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