HomeMy WebLinkAbout14 - PSA for Potable Water Laboratory ServicesQ �EwPpRT
CITY OF
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z NEWPORT BEACH
<,FORN'P City Council Staff Report
May 12, 2020
Agenda Item No. 14
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Mark Vukojevic, Utilities Director - 949-644-3011,
mvukojevic@newportbeachca.gov
PREPARED BY: Steffen Catron, Utilities Manager, scatron@newportbeachca.gov
PHONE: 949-644-3011
TITLE: Approve the Professional Services Agreement for Potable Water
Laboratory Services with Sierra Analytical Labs, Inc.
ABSTRACT:
The Utilities Department utilizes a service provider to test the quality of the City's drinking
water. The current service provider agreement expires May 31, 2020. Following a
competitive Request for Proposals (RFP) process, the City selected Sierra Analytical
Labs, Inc., to perform the sample collection and laboratory testing.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) Approve Professional Services Agreement for Potable Water Laboratory Services with
Sierra Analytical Labs, Inc., for a five-year term with a total not -to -exceed amount of
$300,000, and authorize the Mayor and City Clerk to execute the Agreement.
FUNDING REQUIREMENTS:
The current adopted budget includes sufficient funding for potable water laboratory
services. The contract services will be expensed to the Water Fund account in the Utilities
Department, 7019052-581060. The estimated annual cost of this service is $60,000 per
year. The proposed agreement with Sierra is slightly less expensive than the existing
service provider's agreement.
DISCUSSION:
In accordance with California regulations related to drinking water (Title 22), the City is
required to test for various constituents in the City's potable water once a week from
30 dedicated water sites. The City outsources this sampling and testing to a State -
certified water quality laboratory.
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Approve the Professional Services Agreement for Potable Water Laboratory Services
with Sierra Analytical Labs, Inc.
May 12, 2020
Page 2
Services include sample collection and testing needed to meet all State and Federal
regulations for safe drinking water. Additional services include sampling requested by the
City for specific needs that may arise. The current agreement with existing service
provider expires on May 31, 2020.
On February 13, 2020, the City posted a Request for Proposals (RFP) for Potable Water
Laboratory Services to provide sample collecting and testing. The proposers were
required to demonstrate previous experience of similar scope, proper qualifications and
certifications, and proposed costs. The overall weight of the qualifications, experience,
and ability to deploy services accounted for 70% of the evaluation criteria, with 30% based
on proposal price. The Utilities Department received six proposals, including one from the
current contractor. The proposals were scored by a three-member review panel. Of the
six proposals, four received a score of 70% or better in the technical qualification's
evaluation. Therefore, pursuant to City procurement procedures for Professional
Services, only the costs from the highest -qualified proposers were opened and reviewed.
Based on the evaluation summary, Sierra Analytical received the highest overall average
technical score and submitted a proposal with the lowest cost among the four qualifying
proposals. Staff interviewed Sierra and contacted other agency references to review
quality and pricing. Staff believes that Sierra is well-qualified, has performed satisfactory
work for other municipalities in Orange County, can perform the work and can meet the
demanding requirements of the contract. Sierra's corporate office and laboratory is in
Orange County (Laguna Hills) and can provide a quick response for additional services.
Staff recommends approval of a Professional Services Agreement with Sierra Analytical
for a five-year contract term, with a total not to exceed the amount of $300,000. The
agreement includes an approximate $10,000 per year contingency for additional water
testing and analysis that may be necessary with staff directed retests, emerging
contaminants, and state directives. This amount also covers annual inflationary
adjustments. The training, transfer of files, and transition to the new service provider
would begin immediately.
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COST
TECHNICAL
SCORE -
TOTAL SCORE
OVERALL
PROPOSER
SCORE-
MAX. 30 (Est.
- MAX. 100
RANK
MAX. 70
Annual Base
Cost)
SIERRA ANALYTICAL
66.67
30.00-
96.67
1
LABS INC
($47,286)
ALS GROUP USA
54.67
29.01
83.68
2
CORP (TRUESDAIL)
($48,904)
BABCOCK
57.00
25.99-
82.99
3
LABORATORIES INC
($54,577)
EUROFINS EATON
65.00
14.31 -
79.31
4
ANALYTICAL LLC
($99,109)
Based on the evaluation summary, Sierra Analytical received the highest overall average
technical score and submitted a proposal with the lowest cost among the four qualifying
proposals. Staff interviewed Sierra and contacted other agency references to review
quality and pricing. Staff believes that Sierra is well-qualified, has performed satisfactory
work for other municipalities in Orange County, can perform the work and can meet the
demanding requirements of the contract. Sierra's corporate office and laboratory is in
Orange County (Laguna Hills) and can provide a quick response for additional services.
Staff recommends approval of a Professional Services Agreement with Sierra Analytical
for a five-year contract term, with a total not to exceed the amount of $300,000. The
agreement includes an approximate $10,000 per year contingency for additional water
testing and analysis that may be necessary with staff directed retests, emerging
contaminants, and state directives. This amount also covers annual inflationary
adjustments. The training, transfer of files, and transition to the new service provider
would begin immediately.
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Approve the Professional Services Agreement for Potable Water Laboratory Services
with Sierra Analytical Labs, Inc.
May 12, 2020
Page 3
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A — Professional Services Agreement with Sierra Analytical Laboratories, Inc.
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ATTACHMENT A
PROFESSIONAL SERVICES AGREEMENT
WITH SIERRA ANALYTICAL LABS, INC. FOR
POTABLE WATER LABORATORY SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 12th day of May, 2020 ("Effective Date"), by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
SIERRA ANALYTICAL LABS, INC., a California corporation ("Consultant"), whose
address is 26052 Merit Circle, Suite 104, Laguna Hills, California 92653, and is made with
reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of Califomia with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide potable water laboratory services
("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on May 31, 2025, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
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completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed Three Hundred Thousand
Dollars and 001100 ($300,000.00), without prior written authorization from City. No billing
rate changes shall be made during the term of this Agreement without the prior written
approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Sierra Analytical Labs, Inc. Page 2
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Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Richard Forsyth to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Utilities Department. City's Water
Quality Coordinator or designee shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
Sierra Analytical Labs, Inc. Page 3
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8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services contemplated
by this Agreement (collectively, the "Indemnified Parties") from and against any and all
claims (including, without limitation, claims for bodily injury, death or damage to property),
demands, obligations, damages, actions, causes of action, suits, losses, judgments,
fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys'
fees, disbursements and court costs) of every kind and nature whatsoever (individually,
a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or
indirectly) to any breach of the terms and conditions of this Agreement, any Work
performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Sierra Analytical Labs, Inc. Page 4
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Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
Sierra Analytical Labs, Inc. Page 5
M.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
Sierra Analytical Labs, Inc. Page 6
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19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
Sierra Analytical Labs, Inc. Page 7
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24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Water Quality Coordinator
Utilities Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Richard Forsyth
Sierra Analytical Labs, Inc.
26052 Merit Circle, Suite 104
Laguna Hills, CA 92653
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
Sierra Analytical Labs, Inc. Page 8
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identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
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28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: � j( = j .12,,o
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
BV:
Will O'Neill
Mayor
CONSULTANT: Sierra Analytical Labs,
Inc., a California corporation
Date:
By:
Richard Forsyth
President
Date:
Bw
Rebekah Arnitz
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
PROJECT DESCRIPTION
Consultant shall furnish all labor, equipment, materials and supervision to perform
potable water laboratory services, including but not limited to:
1) Collect samples at various City sites;
2) Submit copies of the bacteriological monitoring results for all positive routine
total coliform and all repeat samples directly to the California Department of
Public Health ("CDPH");
3) Provide data electronically to Project Administrator;
4) Provide on-call emergency services with 24 hour response as directed by
the City; and
5) Provide immediate re -testing for any samples determined to be in error.
MINIMUM QUALIFICATIONS
1) Consultant shall maintain at a minimum the following certification:
■ Environmental Laboratory Accreditation Program ("ELAP") and/or
National Environmental Laboratory Accreditation Program
("NELAP") Certification.
■ All licenses, permits, professional qualifications, and approvals of
whatever nature that are legally required to practice his/her trade
throughout the term of the Agreement with the City.
2) Vehicles and equipment must meet all current federal, State, and Air Quality
Management District ("AQMD") regulations.
3) Consultant shall provide qualified, licensed and available staff to complete
the Services.
4) Consultant shall exhibit through documentation and demonstrated
competence, the ability to, at a minimum:
■ Perform the specified National Pollutant Discharge Elimination
System ("NPDES") test methods required under the City's NPDES
permit;
■ Detect constituents at or below the required detection limits
established by the EPA or the Regional Water Quality Control Board
for constituents to be tested pursuant to the NPDES Permit;
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Analyze constituents in accordance with the California regulations
related to drinking water, found in Title 22 of the California Code of
Regulations; and
Analyze constituents at or below the detection limits for reporting
("DLR") prescribed in the most recent CDPH Consumer Confidence
Report Guidelines.
CERTIFIED LABORATORY SERVICES
Consultant shall perform all work necessary to pick up, test and supply results for
all samples from the City of Newport Beach (including the City of Fountain Valley sites)
in accordance with best management practices for laboratories and in compliance with
all federal, state and local regulatory requirements.
Consultant shall perform, at a minimum, the following samples:
Testing
Quantity &
Frequency
Total Coliform/E.Coli (SM9233B)
30 per week
Chlorine residual (Field
30 per week
General Physical (CA DW -Color, Odor, Turbidity)
30 per month
Portable Drinking Water Tank Total Coliform/
1 per quarter or as
E.Coli (SM9223B)
needed
Trihalomethanes THM (EPA 524.2)
8 per quarter
Haloacetic Acids HAAS (EPA 552.2)
8 per quarter
Lead and Copper (EPA 200.8)
30 designated sites,
once every 3 years
Heterotrophic plate count (SM9215B)
As -Needed
NPDES Testing:
- Volatile fuel hydrocarbons (EPA
5030/CADHS mod. 8015)
- Oil and Grease (EPA 1664)
As -Needed
- Sulfide (EPA 4500)
- Total Chlorine (Field test)
- Total suspended solids (EPA 160.2)
The City of Newport Beach has 30 dedicated sample sites for the weekly and
monthly samples, eight (8) sample sites for the quarterly samples and four (4) well sites
in the City of Fountain Valley to be tested on an as -needed basis. With the exception of
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the well sites, all sample sites are located in the City's boundaries. The weekly sampling
shall be performed on Tuesdays.
Consultant shall follow the City of Newport Beach Water Quality Monitoring Plan.
The City shall provide Consultant with a copy of the City's Water Quality Monitoring Plan.
If a Total Coliform/E.Coli sample is found positive, the City must be notified
immediately. Upstream/downstream and well site samples must be taken within 24 hours
of a positive test.
Consultant shall maintain accurate records of all pick up times of samples, testing
and analysis reports and make all items available to the City upon request. All results
must be available online.
Consultant shall provide the City with monthly invoices detailing samples included.
WORKING HOURS
Normal working hours shall be between the hours of 7:00 a.m. and 4:00 p.m.,
Monday through Thursday and 7:00 a.m. and 3:00 p.m., Friday. No weekend or after-
hours work is to be scheduled without prior written permission from the City.
ON-CALL AND EMERGENCY RESPONSE REQUIREMENTS
Consultant shall provide the City a twenty-four (24) hour emergency phone number
and name of at least one (1) qualified person who can be called by City representatives
when an emergency occurs during normal business hours of operation, after-hours,
weekends and holidays.
CERTIFICATION, PERMITS, AND LICENSES
Consultant shall obtain and pay for any and all permits and licenses required by
virtue of this contract, including all CDPH certifications required.
Consultant shall maintain and provide copies of certifications and permits to
perform analytical services. Any renewed or modified certifications or permits shall be
provided to City within thirty (30) calendar days of the renewal or certification.
QUALITY ASSURANCE/QUALITY CONTROL
All analyses shall be conducted by technically qualified persons and in accordance
with best management practices for laboratories and data validation guidance as defined
by the American Society of Testing and Materials ("ASTM"), CDPH, and other applicable
regulations and requirements including the Environmental Protection Agency's National
Functional Guidelines for Organic Data Review (2017), Functional Guidelines for
Inorganic Data Review (2017), and Region IX Superfund Data EvaluationNalidation
Guidance (2001). All QA/QC data shall be recorded, printed, and this information made
available at all times, given reasonable notice, and submitted to City upon request, at no
additional charge.
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Consultant shall maintain a QA/QC plan for each analytical facility and shall follow
the Standard Operating Procedures ("SOPs") contained in the plan. A copy of the SOPs
shall be made available to the City upon request.
Consultant's quality assurance officer or senior scientist shall provide technical
assistance to City regarding the analyses requested or discussion of analytical issues
when requested.
Consultant's personnel must be qualified as expert witnesses and be able to testify
concerning laboratory procedures and tests performed.
ANALYSES RESULTS
Consultant must have the capability to submit regulatory results to State Water
Resources Board Electronic Data Tracker ("EDT").
Consultant shall submit results to the City in a timely manner (i.e., at least five (5)
business days) prior to the regulatory reporting due dates.
STANDARD TURNAROUND TIME
Accurate and complete analytical results consisting of a report and associated
Electronic Data Deliverable ("EDD") shall be submitted to City within the standard
turnaround time of fourteen (14) calendar days following the collection of samples, or
within a shorter turnaround time when requested by City.
Consultant shall make initial results available through Consultant's online portal,
as soon as 24 hours from collection.
City will be notified of report and EDD delivery via electronic mail on the day the
report and EDD are posted on the Contractor's data delivery website. Final report and
EDD shall be delivered, via email, to City's Project Administrator and City's Field
Superintendent.
Contractor shall not submit any reports to any other agency without prior written
authorization from City.
ELECTRONIC DELIVERABLES
All analytical results for environmental samples, and field and laboratory QC
samples shall be provided to City or designated representative as EDDs in a format that
will be developed between Consultant and the City. EDDs shall be provided at no
additional cost to City or its representatives. The final Adobe Acrobat read-only reports
that are signed must contain the same results and values as the EDDs submitted.
In the event a Method Blank for an N-Nitrosodimethylamine ("NDMA") analysis
contains between 0.5 and 0.7 nanograms per liter (ng/L) of NDMA, Consultant shall
contact City immediately and discuss reporting of any sample data from the analytical run
associated with the Method Blank. Any Method Blank that contains NDMA at or above
0.7 ng/L shall be deemed unacceptable and all samples associated with this Method
Blank shall be re -extracted and reanalyzed.
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CONTENTS OF REPORTS CONTAINING ANALYTICAL DATA
General information submitted in these reports shall include, but not be limited to:
■ Cover letter with narrative, including information on any irregularities
Consultant's project file shall include a printout of all raw analytical data, electronic
copy, and other information not included in the analytical data report. The file shall be
available for review by City upon seven (7) calendar days' notice and shall be sufficiently
detailed to produce Level 4 reporting packages acceptable to EPA, Region IX, if
requested. Information in the Consultant's project file (in addition to the material contained
in the analytical data report) shall include, but not be limited to:
■ Printout of all analytical QA/QC data;
■ Copy of shipping manifest;
■ Standard logs, Lab notebooks, and instrument logs;
■ Results of Lab blanks;
■ Results of instrument calibration;
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and problems;
■
QA/QC limit exceedances, positive travel or method blanks, or any
other noteworthy occurrences encountered during sample receipt,
preparation, and analysis;
■
Lab sample identification number;
■
Sample location, time of collection and person collecting;
■
Sample identification number and description
■
List of sample analytical parameters and their results;
■
Date and time sample was received by Consultant,
■
Signature of Consultant's personnel authorizing release of results,
■
Sample preparation/extraction date;
■
Sample analysis date;
■
Units in which each parameter is reported;
■
Laboratory qualifiers;
■
Analytical method citation; and
■
Analytical detection limits, reporting limit, and quantitation limit as
applicable.
CONTENTS OF LABORATORY PROJECT FILE
Consultant's project file shall include a printout of all raw analytical data, electronic
copy, and other information not included in the analytical data report. The file shall be
available for review by City upon seven (7) calendar days' notice and shall be sufficiently
detailed to produce Level 4 reporting packages acceptable to EPA, Region IX, if
requested. Information in the Consultant's project file (in addition to the material contained
in the analytical data report) shall include, but not be limited to:
■ Printout of all analytical QA/QC data;
■ Copy of shipping manifest;
■ Standard logs, Lab notebooks, and instrument logs;
■ Results of Lab blanks;
■ Results of instrument calibration;
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Raw analytical data, charts, and chromatograms for samples,
standards, and blanks; and
Raw data calculation worksheets.
RE -WORK DUE TO LABORATORY ERROR/OMISSION
In the event of an analytical error or omission (exceeding holding time, failure to
pick up samples, Consultant error, sample loss or breakage, etc.) or otherwise erroneous
results, Consultant shall immediately contact City or its representatives. Consultant will
be responsible for the cost of both the re -sampling and re -analysis of samples due to
Consultant error or omission. The re -work sample(s) shall be re -analyzed at no additional
cost to City or its representatives.
In addition to the requirements of Section 20 of this Agreement, all aspects of the
record system including, but not limited to, data entry, system maintenance, system
hardware and/or software upgrades and server security and stability shall be the
responsibility of the Consultant and shall be provided at no cost to the City. The system
shall not be proprietary in the nature of its function and shall operate and interface with
common computer software and web -based applications, including the ability to export
data into common spreadsheet applications.
The records created for the City shall be the property of the City, and made
available to the City in entirety upon the City's request.
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EXHIBIT B
SCHEDULE OF BILLING RATES
POTABLE WATER LABORATORY SERVICES
Consultant agrees to the following:
1) Should there be requested and/or required changes in the scope of work,
including additions and deletions on work not performed, the contract sum shall
be adjusted in accordance with the unit prices, where the City elects to use this
method in determining cost.
2) The unit price quoted will be charged or credited for labor provided. The labor
charge will be built into the sampling and testing cost.
SIERRA ANALYTICAL LABS, INC FEE SCHEDULE
SAMPLE TESTING
UNIT PRICE PER SAMPLE
Total Coliform/ E.Coli
$9.00
Chlorine residual Field
$2.00
General Physical (CA DW -Color,
Odor, Turbidity)
$15.00
Trihalomethanes THM
$55.00
Haloacetic Acids HAA5
$125.00
Lead and Copper
$40.00
Heterotrophic plate count
$6.00
NPDES Testing *
$135.00
* Cost includes: 8015M Gas, Oil &
Grease, Sulfide, Total Chlorine
and T35
Sample Collection
Unit Price per Site Visited
Cost to collect samples directly
from City water sites
$10.00 Per Sample Site
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EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers, employees and any person
or entity owning or otherwise in legal control of the property upon which
Consultant performs the Project and/or Services contemplated by this
Agreement.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
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Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. t� ion. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers,
employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services
contemplated by this Agreement or shall specifically allow Consultant or
others providing insurance evidence in compliance with these requirements
to waive their right of recovery prior to a loss. Consultant hereby waives its
own right of recovery against City, and shall require similar written express
waivers from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers,
employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services
contemplated by this Agreement shall be included as insureds under such
policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
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A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
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F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
G. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
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