HomeMy WebLinkAbout09 - Agreement for Potable Water Lab ServicesCTY OF
F
NEWPORT BEACH
City Council Staff Report
May 12, 2015
Agenda Item No. 9
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: George Murdoch, Acting Municipal Operations Department Director - (949) 644-
3011, gmurdoch @newportbeachca.gov
PREPARED BY: Rachell Wilfert
PHONE: (949) 644 -3010
TITLE: Approve the Professional Services Agreement for Potable Water Laboratory
Services with Testamerica Laboratories, Inc.
ABSTRACT:
The current agreement for potable water laboratory services expires at the end of June 2015. Following a
competitive Request for Proposals (RFP) process, the City selected Testamerica Laboratories, Inc. a State -
certified water quality laboratory to perform the sample collection and testing for water quality.
RECOMMENDATION:
Approve Professional Services Agreement for Potable Water Laboratory Services with Testamerica
Laboratories, Inc., a Delaware Corporation, for a five year term with a total amount not to exceed of
$325,000, and authorize the Mayor and City Clerk to execute the agreement.
FUNDING REQUIREMENTS:
There are adequate funds in Municipal Operations Department budget 5500 -8195, Water Quality
Monitoring Program, to fund these services this fiscal year, and funds for these services will continue to be
budgeted in subsequent fiscal years.
DISCUSSION:
As part of the State Health water quality regulations the City is required to test dedicated water sites for
various components as often as once a week to ensure proper water quality. The City outsources its water
quality sampling and testing to a State - certified water quality laboratory. Services include sample collection
and testing needed to meet all State and Federal regulations for safe drinking water. The current
agreement with Testamerica Laboratories is set to expire June 30, 2015.
On February 24th, 2015, the City posted a Request for Proposals (RFP) for Potable Water Laboratory
Services to provide sample collecting and testing of 30 different sites throughout the City. Based on the
terms of the RFP, the proposers had to demonstrate previous experience of similar scope, proper
qualifications and certification, and proposed costs. The overall weight of the qualifications, experience and
a
ability to deploy services accounted for 70% of the evaluation criteria, with 30% based on proposal price.
The Municipal Operations Department received three proposals, including one from the current contractor.
The proposals were scored by a three - member review panel. The total scores and estimated annual costs
are below.
The results of the review panel placed the Irvine based Testamerica Laboratories, Inc. as the highest
score. Testamerica received high technical scores as a result of their current experience with the City
providing outstanding customer service, reliability, quick response, and lack of issues. Although
significantly lower in price, Clinical Laboratories received lower scores technically as the City's previous
experience with the firm was unsatisfactory. References were checked with all firms and confirm that
Testamerica is the appropriate choice.
Therefore, an agreement with Testamerica Laboratories, Inc. is submitted for Council approval. The term of
the agreement is for five (5) years.
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).
ATTACHMENTS:
Description
Attachment A - Agreement
9 -2
Babcock
Clinical Laboratory
Testamerica
Laboratories
of San Bernandino
Laboratories
Technical Score
43.67
38.00
65.00
(Out of 70):
Cost Ratio Score
4.88
30.00
10.35
(Out of 30
Aggregate Score
48.55
68.00
75.35
(Out of 100)
Estimated Annual
$127,283.00
$20,700
$60,000
Cost
The results of the review panel placed the Irvine based Testamerica Laboratories, Inc. as the highest
score. Testamerica received high technical scores as a result of their current experience with the City
providing outstanding customer service, reliability, quick response, and lack of issues. Although
significantly lower in price, Clinical Laboratories received lower scores technically as the City's previous
experience with the firm was unsatisfactory. References were checked with all firms and confirm that
Testamerica is the appropriate choice.
Therefore, an agreement with Testamerica Laboratories, Inc. is submitted for Council approval. The term of
the agreement is for five (5) years.
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).
ATTACHMENTS:
Description
Attachment A - Agreement
9 -2
ATTACHMENT A
PROFESSIONAL SERVICES AGREEMENT
WITH TESTAMERICA LABORATORIES, INC. FOR
POTABLE WATER LABORATORY SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement') is made and
entered into as of this 5th day of May, 2015 ( "Effective Date "), by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ( "City "), and
TESTAMERICA LABORATORIES, INC., a Delaware corporation ( "Consultant'), whose
address is 4101 Shuffel Street NW, North Canton, Ohio 44720, 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 California 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, 2020, 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
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performed to 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. COMPENSATION TO CONSULTANT
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 Twenty Five Thousand Dollars and 00/100 ($325,000.00), 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.
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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 Harry Behzadi 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 Municipal Operations. 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 the highest professional
standards. For purposes of this Agreement, the phrase "highest professional
standards" shall mean those standards of practice recognized by one (1) or more first -
class firms performing similar work under similar circumstances.
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8.2 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 the highest professional standard.
8.3 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.
8.4 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 and employees (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.
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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. 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
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9 -7
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.
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.
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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.
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
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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.
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 "), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 If subject to the Act, Consultant shall conform to all requirements of the
Act. 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: Gary Tegel Water Quality Coordinator
Municipal Operations
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: Jenny Stewart
TestAmerica Laboratories, Inc.
4101 Shuffel Street NW
North Canton OH 44720
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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 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.
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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.
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 of race, religion, color, national origin, handicap,
ancestry, sex, 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.
[SIGNATURES ON NEXT PAGE]
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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 A T RNEICS OFFICE
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By: ON d `,- By:
Aaron C. Harp cAmm117.11 Edward D. Selich
City Attorney Mayor
ATTEST: CONSULTANT: TestAmerica
Date: Laboratories, Inc., a Delaware corporation
Date:
By: By:
Leilani I. Brown Harry Behzadi
City Clerk Vice President Operations West
[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
o Furnish all labor, equipment, materials and supervision to perform potable
water laboratory services, including but not limited to:
• Collect samples at various City sites,
• Submit copies of the bacteriological monitoring results for all
positive routine total coliform and all repeat samples directly to the
CDPH,
• Provide data electronically to Project Administrator,
• Provide on- call emergency services with 24 hour response as
directed by the City, and
• Provide immediate re- testing for any samples determined to be in
error.
MINIMUM QUALIFICATIONS
o Proposer shall maintain at a minimum the following certification:
• E.L.A.P. or N.E.L.A.P. Certification and able to perform EPA
approved methods.
• All licenses, permits, professional qualifications, and approvals of
whatever nature that are legally required to practice his /her trade
throughout the term of a contract with the City.
o Vehicles and equipment must meet all current federal, State, and AQMD
regulations.
o Proposer shall provide qualified, licensed and available staff to complete
the proposed services.
o Proposer shall exhibit through documentation and demonstrated
competence to be able to, at a minimum:
• Perform the specified National Pollutant Discharge Elimination
System ( NPDES) test methods required under the City's NPDES
permit.
• Detection of constituents at or below the required detection limits
established by 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 the California Regulations Related to
Drinking Water Title 22.
• Analyze constituents at or below the detection limits for reporting
(DLR) prescribed in the most recent California Department of Public
Health (CDPH) Consumer Confidence Report Guidelines.
CORRESPONDENCE
o All correspondence shall be addressed to Water Quality Coordinator,
Municipal Operations Department, City of Newport Beach, PO Box 1768,
Newport Beach, California 92658 -8915.
CERTIFIED LABORATORY SERVICES
o Contractor will be required to perform all work necessary to pick up, test
and supply results for all samples from the City of Newport Beach in
accordance with good laboratory practices and in compliance with all
federal, state and local regulatory requirements.
o Contractor will be required to 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,
30 per month
Turbidity)
• Portable Drinking Water Tank Total
1 per month
Coliform/ E.Coli (SM9223B)
• Trihalomethanes THM (EPA 524.2)
8 per quarter
• Haloacetic Acids HAA5 (EPA 552.2)
8 per quarter
• Lead and Copper (EPA 200.8)
30 every 3 years
• Heterotrophic plate count (SM9215B)
As- Needed
• NPDES Testing:
- Volatile fuel hydrocarbons (EPA
5030 /CADHS mod. 8015)
- Oil and Grease (EPA 1664)
Varies
- Sulfide (EPA 4500)
- Total Chlorine (Field test)
- Total suspended solids (EPA
160.2)
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o The City of Newport Beach has 30 dedicated sample sites for the weekly
and monthly samples, 8 sample sites for the quarterly samples and 4 well
sites in Fountain Valley to be tested on an as- needed basis. With the
exception of the well sites, all sample sites are located in the City's
boundaries.
o The Contractor will be required to follow the City of Newport Beach Water
Quality Monitoring Plan. A copy of the City's Water Quality Monitoring
Plan will be given to the Contractor upon the award of this contract.
o If a Total Coliform/ E.Coli sample is found positive, the City must be
notified immediately. Upstream/ downstream and well site samples must
then be taken within 24 hours.
o Contactor 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.
o Contractor shall provide the City will monthly invoices detailing samples
included.
• WORKING HOURS
o Normal working hours shall be between the hours of 7:00 a.m. and 4:00
p.m., Monday through Friday. No weekend or after -hours work is to be
scheduled without prior written permission from the City.
• ON -CALL AND EMERGENCY RESPONSE REQUIREMENTS
o The Contractor will provide the City a twenty -four (24) hour emergency
phone number and name of at least one (1) qualified persons 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
o Contractor shall obtain and pay for any and all permits and licenses
required by virtue of this contract, including all CDPH certifications
required.
o Contractor 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
o All analyses shall be conducted by technically qualified persons and in
accordance with Laboratory practices and data validation guidance as
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defined by EPA, ASTM, CDPH, and other applicable regulations and
requirements including the National Functional Guidelines for Organic
Data Review (EPA 1999), Functional Guidelines for Inorganic Data
Review (EPA 2002), and Region IX Superfund Data EvaluationNalidation
Guidance (EPA 2001). All Lab equipment and standard operating
procedures (SOP) QA/QC data shall be recorded, printed, and this
information made available at all times, given reasonable notice, and
submitted to City or its representatives upon request, at no additional
charge.
o Contractor shall maintain a QA/QC plan for each analytical facility and
shall follow the SOPs contained in the plan. A copy of the SOPs should be
made available to the City upon request.
o The Laboratory's quality assurance officer or senior scientist shall be
made available periodically to provide technical assistance to City or its
representatives regarding the analyses requested or discussion of
analytical issues.
o Laboratory personnel shall be qualified as expert witness and be able to
testify concerning laboratory procedures and tests performed.
• ANALYSES RESULTS
o Contractor must have the capability to submit regulatory results to State
Water Resources Board Electronic Data Tracker (EDT).
o Contractor submit results to the City in a timely manner (i.e., at least five
business days) prior to the regulatory reporting due dates.
• STANDARD TURNAROUND TIME
o Accurate and complete analytical results consisting of a Report and
associated Electronic Data Deliverable (EDD) shall be submitted to City or
its representatives within the standard turnaround time, or within a shorter
turnaround time when requested by City.
o Contractor will make initial results available through Contractor online
portal, as soon as twenty four hours from collection.
o Standard turnaround time for final report shall be fourteen (14) calendar
days following the collection of samples. City will be notified of Report and
EDD delivery by electronic mail to City on the day the Report and EDD are
posted on the Contractor's data delivery website.
o Contractor shall not submit any reports to any other agency without prior
written authorization from City or its representative.
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NarA
ELECTRONIC DELIVERABLES
o 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 with the selected Lab. 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.
o 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, the Lab shall contact City or its representatives 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.
• CONTENTS OF REPORTS CONTAINING ANALYTICAL DATA
o General information submitted in these reports shall include, but not be
limited to:
• Cover letter with narrative, including information on any
irregularities 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 at Lab;
• Signature of Lab personnel authorizing release of results;
• Sample preparation /extraction date;
• Sample analysis date;
• Units in which each parameter is reported;
• Laboratory qualifiers;
• Analytical method citation;
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• Analytical detection limits, reporting limit, and quantitation limit as
applicable; and
• CONTENTS OF LABORATORY PROJECT FILE
o The Laboratory 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 Laboratory 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;
• Raw analytical data, charts, and chromatograms for samples,
standards, and blanks; and
• Raw data calculation worksheets.
• RE -WORK DUE TO LABORATORY ERROR/OMISSION
o In the event of an analytical error or omission (exceeding holding time,
failure to pick up samples, Lab error, sample loss or breakage, etc.) or
otherwise erroneous results, the Lab shall immediately contact City or its
representatives. The Lab will be responsible for the cost of both the re-
sampling and re- analysis of samples due to Lab error or omission. The re-
work sample(s) shall be re- analyzed at no additional cost to City or its
representatives.
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ZEN
EXHIBIT B
SCHEDULE OF BILLING RATES
POTABLE WATER LAB TESTING SERVICES
Description
Unit of Measure
TestAmerica
Total Coliform /E.Coli
Per Sample
$8.00
Chlorine residual (Field)
Per Sample
$5.00
General Physical (CA DW- Color, Odor, Turbidity)
Per Sample
$12.00
Trihalomethanes THM
Per Sample
$30.00
Haloacetic Acids HAA5
Per Sample
$60.00
Lead and Copper
Per Sample
$10.00
Heterotrophic plate count
Per Sample
$10.00
NPDES Testing
Per Sample
$112.00
Cost to collect samples directly from City water sites
Per Site Visited
$15.00
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EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. 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 officers, agents,
employees and volunteers.
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
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.
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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. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers 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 and its officers, officials, employees, and agents 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:
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. City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
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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.
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. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, 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
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judgment may be necessary for its proper protection and prosecution of
the Work.
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