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HomeMy WebLinkAbout08. Leymaster Environmental AGENDA MEMO DATE: October 26, 2010 TO: Mayor and Members of the City Council FROM: Office of the City Manager By: John Oskoui, P.E., Director of Public Works SUBJECT: ON-CALL ENVIRONMENTAL CONSULTING SERVICES AGREEMENT WITH LEYMASTER ENVIRONMENTAL CONSULTING, LLC. EXECUTE PROFESSIONALSERVICES AGREEMENT RECOMMENDATION: That the City Council authorize the Mayor to execute an On-Call Environmental Consulting Services Agreement with Leymaster Environmental Consulting, LLC. BACKGROUND: Under contract with the City for the last six years, Leymaster Environmental Consulting, LLC has provided on-call consulting services related to the Spartan Lacquer Remediation Project (9255 Imperial Highway), the Discovery Sports Complex, and other City owned sites. Leymaster Environmental Consulting services includes soil and groundwater investigations, site assessments, defining the extent of site contamination, review of project specifications, lab reports and cost estimates, inspection, and processing agency approvals. They have also interfaced with the Regional Water Quality Control Board on the City’s behalf, provided well testing and monitoring services for site remediation and monitoring wells, and prepared reports and other documents. DISCUSSION: It is anticipated that Leymaster Environmental Consulting, LLC services as related to the Spartan Lacquer Remediation Project and other similar projects is needed for an additional term of two (2) years. Their ongoing work at the Spartan Lacquer Remediation Project will primarily consist of analyzing progress of the vapor extraction operation, quarterly groundwater well monitoring, review of reports prepared by the contractor, replacement well drilling, report preparation, and other related work. FINANCIAL IMPACT: For each specific project involving Leymaster Environmental Consultant, LLC, funding would be included in the specific project’s overall budget. In addition, the Agreement limits the maximum total yearly compensation to $35,000 per year. Attachment: Professional Services Agreement S:\AGENDAMEMOSCC 2010\10-26-10\LeymasterOn-Call.doc CITY OF DOWNEY, CALIFORNIA PROFESSIONAL SERVICES AGREEMENT ON-CALL ENVIRONMENTAL CONSULTING SERVICES THIS AGREEMENT is made this 26th day of October, 2010, between the City of Downey, a municipal corporation, hereinafter referred to as “CITY”, and Leymaster Environmental Consulting, LLC, hereinafter referred to as “CONSULTANT.” RECITALS CITY is a public entity organized and existing pursuant to the Charter and the Constitution of the State of California. CITY desires to engage CONSULTANT to provide On-Call Environmental Consulting Services, as shown in the attached Exhibit “A”, and to render its services on the terms and conditions provided in this Agreement. CONSULTANT is an environmental consulting services firm, duly licensed to practice in the State of California and desires to render the professional services for the CITY as provided herein. CONSULTANT further warrants that it is experienced and capable of performing the tasks hereunder in a professional and competent manner. THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, CITY hereby engages the services of the CONSULTANT and the parties agree as follows: I. TERM 1.1. The execution of this Agreement by the parties does not constitute an Authorization to Proceed. The services of Consultant shall commence when CITY, acting by and through its Director of Public Works, has issued an Authorization to Proceed. Each project shall have a specific written scope of services and schedule agreed upon by CITY and CONSULTANT, prior to any Authorization to Proceed. The work shall be completed as described following CONSULTANT’S receipt of the Authorization to Proceed, exclusive of any review periods required by CITY. The CONSULTANT shall have no claim for compensation for any services or work which has not been authorized by CITY’s Authorization to Proceed. 1.2. This Agreement shall be effective for a period of not to exceed two (2) years from the date of signature of this agreement by the Mayor. II. SERVICES 2.1. The CONSULTANT’s services shall consist of the testing, evaluating of test results, preparation of technical reports, and field inspections, acting on behalf of CITY, under the supervision of the Public Works Department. A general description of the duties, responsibilities and limitations of authority of the CONSULTANT are attached hereto as Exhibit “A” and incorporated herein by this reference. CONSULTANT will be expected to augment CITY staff on either a full or part-time basis depending upon the specific needs of each project. Each project shall have a specific written scope of services agreed upon by CITY and CONSULTANT. III. USE OF AGENTS OR ASSISTANTS 3.1. To the extent reasonably necessary to enable the CONSULTANT to perform, his, her or its duties hereunder, the CONSULTANT shall be authorized to engage the services of any agents or assistants which he, she or it may deem proper, and may further employ, engage, or retain the services of such other persons or corporations to aid or assist it in the proper performance of his, her or its duties. All cost of the services of, or expenses incurred by such agents or assistants shall be chargeable directly to CONSULTANT. IV. PROJECT MANAGEMENT 4.1. Both parties shall appoint a project manager who shall meet as frequently as deemed necessary by both parties to coordinate, review and insure performance by CONSULTANT under this Agreement. The project manager appointed by CITY will oversee the daily administration of the tasks to be performed by CONSULTANT under this Agreement. V. FACILITIES 5.1. CONSULTANT shall provide all facilities reasonably necessary to complete the various work tasks to be performed hereunder. In the event CONSULTANT requires additional facilities from CITY, CONSULTANT shall meet and confer with CITY before work commences. VI. FEE 6.1. For services to be rendered under this Agreement, the CONSULTANT shall be compensated for the actual costs of services rendered in accordance with the Billing Rates set forth in Exhibit “B” attached hereto and incorporated herein by this reference. VII. MAXIMUM COSTS 7.1. The total compensation to be paid by CITY to CONSULTANT shall not exceed the amount established and agreed to by CITY and CONSULTANT at the time the scope of services for each project is determined, with said total compensation agreed to in a dated writing to be attached to this Agreement as Exhibit “C” (“Maximum Costs Memo”) and incorporated herein by this reference. Each Maximum Costs memo shall include some indication, clear from the face of the document, as to the project for which the Memo sets the maximum compensation. Each subsequent Maximum Costs Memo shall replace the previous one. VIII. BILLING 8.1. CONSULTANT shall submit an itemized billing to the CITY for approval prior to receiving compensation. Billing shall include a summary of total costs and shall be made as set forth in the attached Exhibit “B”. All billings shall include a description of the status of efforts, a brief itemization of costs associated with each project or project phase, and the total phase or project costs to date. IX. AUDIT BY CITY 9.1. CONSULTANT shall permit CITY or any authorized representatives of CITY, at all reasonable times, access to and the right to examine all records, books, papers or documents related to CONSULTANT’s performance under this Agreement including, but not limited to, expenses for sub-consultants, agents or assistants, direct and indirect charges for work performed and detailed documentation for all such work performed or to be performed under this Agreement. X. COPIES OF DATA 10.1. Copies or originals of all data collected by CONSULTANT in relation to work associated with this Agreement shall be provided to CITY. Data collected, stored, and/or provided shall be in a form acceptable to CITY and agreed upon by CITY. XI. OWNERSHIP 11.1. Each and every report, draft, work product, map, record, and other document reproduced, prepared, or caused to be prepared by CONSULTANT pursuant to or in connection with this Agreement shall be the exclusive property of CITY. XII. CONFIDENTIALITY 12.1. CONSULTANT shall not disclose, publish, or authorize others to disclose or publish, design data, drawings, specifications, reports, or other information pertaining to the projects assigned to CONSULTANT by CITY or other information to which CONSULTANT has had access during the term of this Agreement without the prior written approval of the CITY Attorney during the term of this Agreement and for a period of two (2) years after the termination of this Agreement. XIII. WRITTEN AUTHORIZATION REQUIRED 13.1. CONSULTANT shall not make changes in the job scope or perform any additional work or provide any additional material except as set forth in Paragraph 2.1 under this Agreement without first obtaining written authorization from CITY for such additional work or materials. Additional labor or materials provided without written authorization shall be done at CONSULTANT’s risk and without payment. XIV. DEFAULTS, TERMINATION OF AGREEMENT 14.1. If the Director of Public Works deems that CONSULTANT is in default for failure to supply an adequate working force, or service of proper quality, or has failed in any other respect to satisfactorily perform the services specified in this Agreement, Director of Public Works may give written notice to CONSULTANT specifying defaults to be remedied within thirty (30) days and such notice shall set forth the basis for any dissatisfaction and suggest corrective measures, and; A. If CONSULTANT does not remedy defaults within thirty (30) days or commence steps to remedy default to the reasonable satisfaction of the Director of Public Works, CITY may provide for such service from another CONSULTANT and CITY may withhold any money due or which may become due to CONSULTANT for such task related to the claimed default; or B. If, after thirty (30) days, CONSULTANT has not remedied defaults or commenced steps to remedy defaults to the satisfaction of the Director of Public Works, CITY may elect to terminate this Agreement at expiration of the thirty (30) days. 14.2. Notwithstanding Paragraph 14.1, CITY reserves the right and may elect to terminate this Agreement at any time. At such time, CONSULTANT would be compensated only for that work which has been satisfactorily completed to the date of termination. No compensation shall be paid for de-mobilization, takedown, disengagement, wind-down or other costs incurred due to termination of this Agreement. XV. INSURANCE 15.1. CONSULTANT shall assume all responsibility for damages to property or injuries to persons, including accidental death, which arise from or be caused by CONSULTANT's performance of this Agreement, by its subcontractor, or by anyone it directly or indirectly employs, and whether or not such damage or injury shall accrue or be discovered before or after termination of this Agreement. 15.2. CONSULTANT shall obtain, pay for, and maintain during the life of this Agreement a Commercial General Liability policy, including Contractual Liability, and an Automobile Liability policy, which shall protect it and CITY from claims for injuries and damages. The policy shall name the City of Downey, its officers, agents, and employees as additional insureds under the policy in the following amounts: 15.2.1.Commercial General Liability Insurance in an amount not less than two million dollars ($2,000,000) per occurrence for personal injuries, including accidental death, to any one person; property damage insurance in an amount not less than two million dollars ($2,000,000) and subject to the above limits and combined single limit of insurance in an amount not less than two million dollars ($2,000,000); and 15.2.2.Automobile Liability Insurance shall be endorsed for all owned and non- owned vehicles with a combined single limit in an amount not less than two million dollars ($2,000,000) per occurrence for personal injuries, including accidental death, to any one person; and for property damage. 15.2.3. Both commercial general liability and automobile liability policies shall contain a “Severability of Interests” clause and a “Primary Coverage” clause for any loss arising from or caused by CONSULTANT’s performance of the Agreement. In addition, the policies shall contain a statement of obligation on the carrier’s part to notify CITY, by registered mail, at least thirty (30) days in advance of any policy cancellation, termination, or reduction in the amount of coverage. ` 15.2.4. CONSULTANT shall furnish the required certificate(s) of insurance and endorsement(s) before CITY executes this Agreement. Before starting operations under this Agreement, CONSULTANT shall furnish the CITY with a “Certificate of Insurance” and an “Additional Insured Endorsement”, both documents countersigned by the insurance carrier or its authorized representative, on forms satisfactory to the City Attorney, which set forth the above provisions. 15.2.5. The countersigned certificate, along with the additional insured endorsement, shall state: The City of Downey, its officers, agents, and employees are named as additional insureds under this policy. This insurance is primary to the coverage of the City of Downey. Neither CITY nor any of its insurers shall be required to contribute to any loss. This policy contains a severability of interests clause.” 15.2.6. Additionally, the certificate of insurance and the additional insured endorsement shall state: “The issuing company shall mail thirty (30) days advance notice to the CITY of any policy cancellation, termination, or reduction in the amount of coverage.” 15.3. CONSULTANT’s failure to obtain, pay for, or maintain any required insurance shall constitute a material breach upon which CITY may immediately terminate or suspend this Agreement. At its discretion, CITY may obtain or renew the insurance and pay all or part of the premiums. Upon demand, CONSULTANT shall repay CITY all monies CITY has paid to obtain or renew the insurance, or CITY may offset the cost of the premium against any monies due CONSULTANT from CITY. 15.4.Workers Compensation Insurance 15.4.1. CONSULTANT understands and agrees that all persons furnishing services to CITY under this Agreement are, for the purpose of workers’ compensation liability, employees solely of CONSULTANT and not of CITY. CONSULTANT shall bear the sole responsibility, liability and costs of furnishing workers compensation benefits to its employees, or anyone it directly or indirectly employs, for injuries arising from or connected with services performed on behalf of CONSULTANT. 15.4.2. All workers compensation insurance policies shall bear an endorsement, or shall attach a rider, which provides that carrier will notify CITY, by registered mail, at least thirty (30) days in advance of the policy’s expiration, termination or cancellation. 15.5.Professional Liability Insurance CONSULTANT shall obtain and maintain at its expense Professional liability errors and omissions insurance which includes coverage for professional malpractice, in an amount of no less than two million dollars ($2,000,000). The policy shall provide coverage of all claims occurring during the term of the policy. XVI. WAIVER OF BREACH 16.1. The waiver of either party of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of that same or any other provision. XVII. INDEMNITY 17.1. CONSULTANT shall take all reasonable precautions to prevent the occurrence of any injury, including death, to any person or any damage to any property arising out of the negligentact or omissions of CONSULTANT, its agents, employees, or subcontractors. 17.2. CONSULTANT shall indemnify, defend and hold harmless the CITY and its officers, agents and employees, against all losses, claims, liabilities, damages, and expenses of any nature directly or indirectly arising out of, or as the result of, any negligentact or omission by CONSULTANT or the employees, agents, or subcontractors of CONSULTANT, in the performance of this Agreement. XVIII. ENTIRE AGREEMENT 18.1. This Agreement supersedes any and all other Agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereof, and no other Agreement, statement, or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding. XIX. ASSIGNMENT 19.1. Neither this Agreement nor any duties or obligations hereunder shall be assignable by CONSULTANT without the prior written consent of CITY. In the event of an assignment by CONSULTANT to which CITY has consented, the assignee or his, her or its legal representative shall agree in writing with CITY to personally assume, perform, and be bound by the covenants, obligations, and Agreements contained herein. XX. SUCCESSORS AND ASSIGNS 20.1. Subject to the provision regarding assignment, this Agreement shall be binding on the heirs, executors, administrators, successors, and assigns of the respective parties. XXI. GOVERNING LAW 21.1. The validity of this Agreement and of any of its terms or provisions, as well as the rights and duties of the parties hereunder, shall be governed by the laws of the State of California. XXII. TIME IS OF THE ESSENCE 22.1. Whenever a task is to be performed by CONSULTANT, it shall be performed consistent with any time constraints set forth hereunder, including exhibits, time being considered of the essence of this Agreement. XXIII. NOTICES 23.1. All notices hereunder must be in writing and, unless otherwise provided herein, shall be deemed validly given on the date either personally delivered to the address indicated below; or on the third (3rd) business day following deposit, postage prepaid, using certified mail, return receipt requested, in any U.S. Postal mailbox or at any U.S. Post Office; or when sent via facsimile to a party at the facsimile number set forth below or to such other or further facsimile number provided in a notice sent under the terms of this paragraph, on the date of transmission of that facsimile. Should CITY or CONSULTANT have a change of address, the other party shall immediately be notified in writing of such change, provided, however, that each address for notice must include a street address and not merely a post office box. All notices, demands or requests from CONSULTANT to CITY shall be given to CITY addressed as follows: CITY: Edwin Norris, P.E. Deputy Director of Public Works City of Downey 11111 Brookshire Avenue P.O. Box 7016 Tel. No. (562) 904-7109 Downey, CA 90241-7016 Fax No. (562) 904-7296 CONSULTANT: Mark Leymaster, P.E., REA II President Leymaster Environmental Consulting, LLC 5500 East Atherton Street, Suite 210 Tel. No: (562) 799-9866 Long Beach, California 90815 Fax No: (562) 799-1963 XXIV. NON-DISCRIMINATION IN EMPLOYMENT 24.1. CONSULTANT certifies and agrees not to discriminate against any employee or applicant for employment because of race, color, religion, national origin, ancestry, sex, age or physical or mental disability all as defined and set forth under state and federal law. XXV. SEVERABILITY 25.1. Should any part, term or provision of this Agreement or any document required herein to be executed be declared invalid, void or unenforceable, all remaining parts, terms and provisions hereof shall remain in full force and effect and shall in no way be invalidated, impaired or affected thereby. XXVI. RECYCLED PAPER 26.1. CONSULTANT shall submit all reports, correspondence, and documents related to the execution of this Agreement on recycled paper. XXVII. FORCE MAJEURE 27.1. Neither party shall be considered in default in the performance of its obligations hereunder or any of them, if such obligations were prevented or delayed by any cause, existing or future beyond the reasonable control of such party which include, but are not limited to, acts of God, labor disputes or civil unrest. Any delays beyond the control of either party shall automatically extend the time schedule as set forth in this Agreement by the period of any such delay. Executed at Downey, California, on the day and year first written. CONSULTANT By: Title: CITY OF DOWNEY Anne M. Bayer, Mayor ATTEST: APPROVED AS TO FORM: Kathleen L. Midstokke, City Clerk Charles Vose, City Attorney APPENDIX “A” SCOPE OF WORK FOR ON-CALL GENERAL ENVIRONMENTAL CONSULTING SERVICES CONSULTANT as CITY’s Agent, will act as directed by and under the supervision of CITY, and will confer with CITY regarding its actions. CONSULTANT will provide environmental consulting services which may include but are not limited to soil and groundwater investigations, defining the lateral and vertical extent of soil and groundwater contamination of sites for both organics and inorganics, environmental management, planning, assessments, auditing, review of documents and submittals, inspection, litigation support, expert testimony, processing agency sign-offs, permitting and resource management. EXHIBIT “B” PROFESSIONAL SERVICES AGREEMENT ON-CALL GENERAL ENVIRONMENTAL CONSULTING SERVICES BILLING RATES A. The Consultant will be paid in accordance with the following hourly professional fee rates: Classification HourlyRates Principal$150 per hour Hydrogeologist $120 per hour Project Manager $85 per hour Field Technician $75 per hour Administrative Assistant $50 per hour B. Deposition/Trial Professional Rates: Principal is $150 per hour with a six-hour daily minimum. In addition, travel time and out-of- pocket expenses will be charged per the following schedule: C. Reimbursable Expenses (Cost plus 15 percent, except as noted below): 1. Out-of-pocket expenses (travel, telephone, messenger service, express delivery, lodging, vehicle rental, meals, etc.). Per Diem charge for subsistence may be negotiated in lieu of expenses for daily lodging and meals. 2. Subcontractors 3. Blueprint, reproduction, photocopy and photographic services 4. Personal passenger cars. $0.40 per mile. The City reserves the right to retain 10% of payment due to Consultant. Said retention shall be released upon completion of the work to the City’s satisfaction. EXHIBIT “C” MAXIMUM COSTS MEMO ON-CALL GENERAL ENVIRONMENTAL CONSULTING SERVICES LEYMASTER ENVIRONMENTAL CONSULTING, LLC 5500 East Atherton Street, Suite 210 Long Beach, California 90815 Phone: (562) 799-9866 Fax: (562-799-1963) October 5, 2010 Mr. Brian A. Ragland, PE Assistant Director of Public Works City of Downey 11111 Brookshire Avenue Downey, CA 90241 Re: Maximum Costs Memo City of Downey, California Dear Mr. Ragland: The maximum costs for total compensation per year for the services outlined in Appendix A, and based upon the billing rates outlined in Exhibit B, shall not exceed $35,000. Sincerely, Mark S. Leymaster, REA II, P.E.