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HomeMy WebLinkAbout13 - City's Laboratory Potable Water Sample TestingCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 13 March 23, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Utilities Department Murdoch, George, Director 949 - 718 -3401 or gmurdoch @newaortbeachca.gov SUBJECT: APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH TESTAMERICA, INC. FOR THE CITY'S LABORATORY POTABLE WATER SAMPLE TESTING SERVICES ISSUE: Should the City Council approve a Professional Services Agreement (PSA) for the City's laboratory potable water sample testing services? RECOMMENDATION: Approve PSA with TestAmerica Laboratories, Inc. for the sampling and testing of the potable water system and authorize the Mayor and City Clerk to execute the Agreement. BACKGROUND: The City outsources its water quality sampling and testing to a state certified water quality laboratory (lab). Services include sample collection and testing needed to meet all State and Federal regulations for safe drinking water. The water quality lab that the City is currently using is on a month to month basis. Proposals were recently solicited to ensure the City is getting a qualified lab. Staff prepared a Statement of Qualifications /Request for Proposals (SOQ /RFP) for this process. Per Council Policy F -14, a contract for lab services is required since the cost exceeds $30,000. DISCUSSION: The SOQ /RFP was mailed to five (5) laboratories, whose names were obtained from other water utilities. All five (5) laboratories responded. Water Quality Sampling and Laboratory Testing Professional Services Agreement March 23, 2010 Page 2 In the SOQ /RFP firms were asked to provide the following information as the basis for City selection: • Describe successes in providing water quality laboratory services for organizations similar in size and nature. • Provide detailed information on at least one project of similar scope to the services requested. • Describe why their firm would be particularly qualified to be selected for this project. • Provide a description of the services the laboratory provides. • Discuss both current and potential services the company is contemplating as well as the current and potential time commitments of assigned staff. The selection process for this SOQ /RFP was qualification- based. A committee of City staff evaluated each proposal and the most qualified firm was selected. In evaluating the proposals, the following criteria were used as specified in the City's SOQ /RFP. Firm Qualifications and Experience 50% Workload and resources 50% Total 100% Below is the list of firms who submitted proposals and how they ranked: Company Rankin TestAmerica Laboratories, Inc. 25 points Associated Laboratories 16 points Michelson Laboratories 16 points Sierra Analytical 10 points Truesdail Laboratories, Inc. 8 points To provide flexibility in any future decisions regarding the water quality and lab testing, staff is proposing that the initial agreement be for a two (2) year term with the option of three (3) one (1) year extensions, renewable on an annual basis at the City's sole discretion. To address the potential liability, the proposed agreement includes standard insurance coverage requirements of $1,000,000 for General Liability. The Utilities Department recommends TestAmerica Laboratories, Inc. be awarded the contract as the most qualified lab. TestAmerica Laboratories, Inc. was ranked first due to their experience, client references, proximity to the City and their state of the art facility, which has been in business providing analytical services in Irvine since 1987. Test America Laboratories, Inc. is known for their outstanding customer service, Water Quality Sampling and Laboratory Testing Professional Services Agreement March 23, 2010 Page 3 regulatory expertise and quality of work. With their facilities in Irvine and Colton and 150 employees, they have the capacity, capabilities, support system and experience to deliver the results and data the City needs and are required by State and Federal Regulations. . Environmental Review: Exempt from environmental review as this work is not a project as defined in CEQA. Funding Availability: There are sufficient funds available in the current FY2009 -10 budget for the balance of this year's testing services, which will be three months, totaling $13,808 (account no. 5500 - 8195). Funds are budgeted in FY2010 -11 to cover the total contract cost of $53,828. Prepared by: f�L '1/ Ter a oor Administrative Analyst Submitted by: eor e M rdoch, Utilities Director Attachments: Professional Services Agreement with TestAmerica Laboratories Inc. PROFESSIONAL SERVICES AGREEMENT WITH TESTAMERICA, INC. TO PROVIDE CERTIFIED LABORATORY TESTING SERVICES FOR THE CITY OF NEWPORT BEACH THIS AGREEMENT is made and entered into as of this 23rd day of March, 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and TESTAMERICA, INC. a California Corporation whose address is 17461 Derian Avenue, Suite 100, Irvine, California, 92614 ( "Contractor "), 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 Contractor to provide certified laboratory testing for the City's water quality samples ( "Project "). C. Contractor possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. D. The principal member[s] of Contractor for purposes of Project, shall be Theresa Tyrrell. E. City has solicited and received a proposal from Contractor, has reviewed the previous experience and evaluated the expertise of Contractor, and desires to retain Contractor 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 Unless terminated earlier in accordance with Section 24 of this Agreement, the Term of this Agreement shall be for a period of two (2) years with the possibility of up to three (3) one (1) year extensions. The term shall commence within ten (10) working days of City Council approval of this Agreement and upon the City's receipt and approval of all required certificates of insurance. The term of this Agreement shall automatically be extended for three (3) additional (1) year terms (automatic extensions) with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies the Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to terminate this Agreement. Time is of the essence in the performance of services under this Agreement. 2. SERVICES TO BE PERFORMED A. Contractor shall diligently perform all the services described in the Request for Qualifications /Request for Proposals and as attached hereto in their response as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of at its sole discretion. B. As a material inducement to the City for entering into this Agreement, Contractor warrants that all work and services to be provided hereunder shall be performed in a competent, professional and satisfactory manner by an adequate level of staff with the appropriate level of training. Contractor covenants that it shall follow the highest professional standards in performing the work and services and that all equipment and supplies used will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first - class firms performing similar work under similar circumstances. 3. PERSONNEL REQUIREMENTS A. All contract services shall be performed by competent and experienced employees. The Contractor shall comply with all state and federal legal requirements regulating the right to work in the United States of America to ensure that all members of the work force have the legal right to perform work under this Agreement. Contractor shall make any records related thereto available to the City within ten (10) days of receiving a written request for said records to the City. B. All supervisors and lead workers must be able to communicate effectively in English (both orally and in writing). Any order given to these supervisors or lead workers shall be deemed delivered to the Contractor. C. Contractor shall be responsible for compliance with all local, state, and federal laws and regulations regarding chemical usage. Contractor shall employ or retain, at its sole cost and expense, all professional and technical personnel necessary to properly perform contract services. D. The City will periodically inspect all work performed by the Contractor. E. Contractor shall ensure there is no lapse in service. 2 4. LICENSES, FEES, PERMITS AND TAXES Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. 5. COMPLIANCE WITH ALL LAWS All work and services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any Federal, State, or local governmental agency of competent jurisdiction. 6. COMPENSATION TO CONTRACTOR City shall pay Contractor based on monthly billings for services which may include weekly tests, monthly tests and quarterly tests. All costs are based on Exhibit B and per State and Federal testing requirements with a total not to exceed the sum of Fifty -Three Thousand Eight Hundred Twenty -Eight Dollars and no /100 ($53,828.00) per year ( "Contract Amount ") to perform all the work and services contemplated by and described in Exhibits A and B. Payment for services shall be made to the Contractor once a month upon submission of an invoice explaining in sufficient detail the services performed. City shall pay invoices within thirty (30) days after approval of the invoice by the City. Payment shall be deemed made when deposited in the United States mail, first -class postage pre -paid, and addressed to Contractor as specified in Section entitled "Notices." Upon the second anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the Contract Amount shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 2.5% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original Contract Amount by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month immediately prior to Commencement Date. For example, if the adjustment is to occur effective June 1, 2009, the index to be used for the numerator is the index for the month of March 2009 and the index to be used for the denominator is the index for the month of March preceding the Commencement Date. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items), for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics. If both an official index and one or more unofficial indices are published, the official index shall be used. 7 19 If said Consumer Price Index is no longer published at the adjustment date, it shall be construed by conversion tables included in such new index. In no event, however, shall the amount payable under this Agreement be reduced below the Contract Amount in effect immediately preceding such adjustment. No adjustment shall be made on the first anniversary of the Commencement Date. The maximum increase to the Contract Amount, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 2.5% of the Contract Amount in effect immediately preceding such adjustment. REPAIRIREPLACEMENT A. The Contractor shall adopt reasonable methods to furnish continuous protection to City property and equipment to prevent loss or damage, and shall be responsible for all such damages, to persons or property, except such loss or damage as may be caused by City's sole negligence or willful misconduct. B. Contractor shall advise the Water Quality Coordinator of any damage to City equipment or property immediately upon becoming aware of the damage. C. Contractor shall repair, at its sole cost and expense, any damage to City equipment or property caused by Contractor or its agents, employees, representatives or officers. FAMILIARITY WITH WORK AND WORK SITE A. By executing this Agreement, Contractor warrants that Contractor: (a) has thoroughly investigated and considered the Scope of Services to be performed, (b) has carefully considered how the services should be performed, and (c) fully understands the regulatory requirements, facilities, difficulties and restrictions attending performance of the services under this Agreement. Contractor warrants that Contractor will meet with Administrator and will be fully acquainted with the sites and conditions there existing, prior to commencement of services hereunder. B. City and Contractor agree that City has made no representation regarding the order or condition of any area or location for which Contractor is to provide services or that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of this Agreement. HOLD HARMLESS To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties ") from and against any and i 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, attorney's 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 work performed or services provided under this Agreement (including, without limitation, defects in workmanship and /or materials) or Contractor's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, Contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Contractor 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 attorney's 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 the Contractor. 10. INDEPENDENT CONTRACTOR It is understood that City retains Contractor on an independent contractor basis and Contractor is not an agent or employee of City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Contractor or any of Contractor's employees or agents, to be the agents or employees of City. Contractor shall have the responsibility for and control over the means of performing the work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the services. 11. INSURANCE Without limiting Contractor's indemnification of City, and prior to commencement of work, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance iy ■ of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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. D. Coverage Requirements. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California; however, in no event shall the Employer's Liability Insurance be less than one million dollars ($1,000,000) per occurrence. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. ii. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor 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 for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: I i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Contractor. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Agreement. G. Additional Insurance. Contractor 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. 12. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS A. Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without the consent of the City shall be null and void. Contractor acknowledges that these provisions relative to assignment are commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of contract services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory 7 performance of contract services. Contractor may not employ any sub - Contractors unless specifically authorized by City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. 13. RECORDS A. All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. B. Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs, including man hours, incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. Contractor shall maintain and 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 Contractor under this Agreement. 14. ADMINISTRATION This Agreement will be administered by the Utilities Department. The Water Quality Coordinator, Gary Tegel, shall be considered the City's Administrator and shall have the authority to act for the City under this Agreement. The Administrator or his /her authorized representative shall represent the City in all matters of his /her authorized representative shall represent the City in all matters pertaining to the services to be rendered under this Agreement. 15. INCREASE OR DECREASE IN SCOPE OF SERVICES A. Contractor may be asked to perform additional services by the Administrator. The Administrator may give verbal authorization for additional services up to $500. The Administrator shall provide Contractor with written authorization prior to the performance of any additional services that exceed $500. B. City reserves the right to withdraw certain tasks from the work to be performed by Contractor pursuant to this Agreement. City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any service. In the event a task is withdrawn from the Scope of Services, compensation to Contractor shall be reduced in accordance with costs as specified in Exhibit B. In the event the task is withdrawn for a period of less than a full one (1) year term, Contractor's compensation shall be reduced on a prorated basis. 16. WORK DEFICIENCIES AND CORRECTIONS A. The Contractor's performance will be evaluated on a regular basis. When problems are identified, the City will notify Contractor. If issues are serious or go unresolved, a Notice of Deficiency will be issued to Contractor in writing. This notice will detail the issues and give a cure period to resolve them. B. Failure to correct the deficiencies listed in the Notice of Deficiency within the timeframe specified by the City may, in the City's sole discretion, result in action being taken by the City, including, but not limited to: (a) withholding payment for the subject deficiency until the work is completed; (b) correcting the deficiency (using the City's own work force and /or by contracting out) and deducting any associated costs plus overhead incurred thereby from the total monthly compensation due the Contractor; (c) deletion of the task(s) from the Contract and reducing the corresponding compensation for that month; (d) contracting with another vendor to perform the tests and other services required for the remainder of the term of the Contract and deducting from the Contractor's total compensation under the contract any costs that the City pays or becomes obligated to pay the new Contractor, including expenses the City incurs over and above the monthly billing rate by the Contractor for that site; (e) terminating the agreement; and /or (f) taking any other action and exercising any other legal remedy available to the City under law. 17. DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute arise respecting the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the City Manager and his decision shall be final and binding upon Contractor and his sureties. 18. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for any expenses unless the City approves the expense in advance in writing. 19. LABOR A. Contractor shall conform with all applicable provisions of State and Federal law including, applicable provisions of the Federal Fair Labor Standards Act. B. Whenever Contractor has knowledge that any actual or potential dispute is delaying or threatens to delay the timely performance of this O Agreement, Contractor shall immediately give notice to City, and provide all relevant information. 20. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any sub - Contractor, Contractor, employee or applicant for employment because of race, religion, color, sex, handicap, national origin, or other basis that is in violation of the federal or state constitution or federal or state law. Contractor's obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 21. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other Contractors in connection with this Project. 22. CONFLICTS OF INTEREST A. The Contractor 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 financial interest that may foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a complete disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. 23. NOTICES All notices, demands, requests or approvals to be given under this Agreement must be given in writing, and will be deemed served when delivered personally, or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. Utilities Department Mr. Gary Tegel, Water Quality Coordinator City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA, 92658 -8915 10 Phone: 949 - 718 -3412 Fax: 949 - 646 -5204 E -mail: gtegel @newportbeachca.gov All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: TESTAMERICA, INC. Mr. Patrick Arrington 17461 Derian Avenue, Ste. 100 Irvine, CA 92614 Phone: 949 - 261 -1022 Fax: 949 - 260 -3299 E -mail: Patrick. arrin Mon (a)testamericainc.com 24. TERMINATION /DEFAULT A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and the Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from the City, City may terminate the Agreement forthwith by giving written notice. City may, in addition to the other remedies provided in this or authorized by law, terminate this agreement by giving written notice of termination. B. This agreement may be terminated without cause by the City upon thirty (30) days written notice. Upon termination, City shall pay to Contractor that portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination. The Contractor may only terminate the Agreement in the event of nonpayment by the City. In the event of nonpayment by the City, Contractor shall give the City thirty (30) days written notice thereof and the City shall have fifteen (15) working days to cure the alleged breach. C. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion of Contractor's compensation for contract services if, in the judgment of the City Manager, the Contractor fails to satisfactorily perform contract services. City shall have the right to retain funds withheld until the City Manager determines that contract services are performed as well and as frequently as required by this Agreement. 11 25. COST OF LITIGATION If any legal action is necessary to enforce any provision of this Agreement or for damages by reason for an alleged breach of any provisions of this Agreement, the parties agree that attorneys' fees shall not be recoverable by the prevailing party. 26. WAIVER A waiver by City 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. 27. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties and all preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. 28. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 29. 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. 30. 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. 31. 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. 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF CITY ATTORNEY: By: Leonie H. Mulvihill, Assistant City Attorney ATTEST: By: Leilani Brown, City Clerk Attachments: CITY OF NEWPORT BEACH, A Municipal Corporation Bv: Keith D. Curry, Mayor CONTRACTOR: 13 Name: Rachel Brydon Janetta Title: Chief Executive Officer By: Name: Heather Villemaire Title: Chief Financial Officer Exhibit A — SOQ /RFP Response (Services) Exhibit B — Schedule of Billing Rates 13 TestAmedca THE LEADER IN ENVIRONMENTAL TESTING TestAmerica Laboratories, Irvine Response to the City of Newport Beach Request for Statement of Qualifications and Request for Proposals to provide Laboratory Potable Water Sample Testing Services Submitted by: TestAmerica Laboratories, Inc. 17461 Derian Avenue, Suite 100 Irvine, CA 92614 -5817 Phone: 949 261 -1022 Facsimile: 949 260 -3299 Principal Contact Cam Pham, Account Executive 949- 261 -1022, or via e-mail at cam.pham (o)testamericainc.com EX N IBIf'A° 17461 Derian Avenue, Suite 100 Irvine, CA 92614 ter 949.261.1022 fax 949.260.3299 www.testamericalne.com TestAmerica THE LEADER IN ENVIRONMENTAL TESTING January 25, 2010 Mr. Casey Parks Acting Water Quality Coordinator Utilities Department City of Newport Beach 949 West 161h Street Newport Beach, CA 92658 -8915 RE: Request for Proposal to Provide Laboratory Potable Water Sample Testing Services Dear Mr. Parks, TestAmerica is pleased to respond to the City of Newport Beach request for proposal to provide laboratory potable water sample testing services. We have carefully reviewed all documents and we are prepared to deliver the scope of services per the bid specifications. TestAmerica is excited for the opportunity to provide testing services under this proposed contract. TestAmerica is well qualified to provide analytical testing services for the City of Newport Beach as described in the RFP. Some of the key elements that allow TestAmerica to provide quality analytical services and outstanding customer services include: • High level of quality • Large sample capacity • Broad capabilities • Experienced staff • Dedicated Project Manager • Industry leading TotafAccess capabilities n " ro,e 4� • Powerful Laboratory Information Management System (LIMS) • Electronic data deliverables (EDDs) • Internet services • In -house courier services • Fully insured laboratories TestAmerica is conveniently located in the City of Irvine. We are the closest laboratory to the City amongst all the bidders. With a staff of over 100 employees, we are available to assist the City with routine sampling plan and emergency situations at a moments notice. D TestAmerica Irvine has been providing analytical services for 23 years. Our extensive experience is in both sample analysis and field sampling services for a number of local municipalities and utilities. The SOQ includes detailed project experience that relays our extensive experience and resources. ➢ TestAmerica Irvine is certified by California NELAP and will perform all of the analyses in house. No outside subcontracting is necessary. An experienced Project Manager will be assigned to the City. Our field crew, comprised of four samplers and nine couriers, is available to the City. Combined, they have over 20 years of experience dealing with potable and wastewater projects. 17461 Derian Avenue, Suite 100 Irvine, CA 92614 W 949.261.1022 fax 949.260.3299 www.testamoricalne.com TestAmedca THE LEADER IN ENVIRONMENTAL TESTING ➢ On -call emergency services will be provided to the City to provide immediate re- testing for any samples determined to be in error. In addition to having the largest inventory of instruments in Southern California, TestAmeriCa'S capacity is unprecedented with redundancy of instrumentation from our network laboratories. Case -in- point, holding time for Total Coliform and /or Heterotrophic Plate Count (HPC) would not pose any challenges for us as these analyses will be available at both our Ontario and Irvine facilities. ➢ Powerful Laboratory Information Management Systems (LIMS) that allows our Project Managers the ability to set up projects customized to fit the City's needs. This also enables the Project Manager to set up a sampling schedule in advance for the project term. ➢ City staff will be able to access data 2417 and in real time via our secure, on -line data management tool, Tota /Access. Our team of IT specialists can customize Electronic Data Deliverables if the City requires a specific format. TestAmerica is currently a portfolio company of H.I. G. Capital, a premier private investment firm. With corporate annual revenue over $300 Million and nearly 2,800 professionals dedicated to exceptional services and solutions for our clients' environmental testing needs, TestAmerica is financial stable and will be here in the future to support the City. Laboratory Facility We have designated TestAmerica Irvine, as the laboratory where analytical services will be managed and performed. Our laboratory offers.the best solutions for our mutual success the City of Newport Beach's Water Quality and Sampling program. The Irvine facility will provide analytical services for all the parameters of the program. TestAmenca is very capable of utilizing sister laboratories to ensure the client receives the best quality service and date. TestAmerica Irvine 17461 Derian Avenue, Suite 100 Irvine, CA 92614 -5817 Phone: 949 261 -1022 Facsimile: 949 260 -3299 Statement of Experience The Irvine laboratory has been providing analytical services to clients in the southwestern United States since it was founded in 1987. Known for our outstanding customer service, regulatory expertise and quality of data - we serve hundreds of clients including municipalities, environmental consultants, private industry, oil companies and government agencies where we perform both sampling and analytical services. With a newly expanded 40,000 square foot facility and nearly 150 employees, the Irvine Laboratory has the capacity, capabilities, support system and experience to effectively deliver results and data deliverables for all projects, no 17461 Derian Avenue, Suite 100 Irvine, CA 92614 to] 949.261.1022 fax 949.260.3299 www.testaFnericainc.com TestAmedca THE LEADER IN ENVIRONMENTAL TESTING matter the size or complexity. Our team of knowledgeable and experienced project managers is available to assist clients in ensuring that all regulatory and analytical requirements are met. We understand that a project of this size and importance will require a great deal of planning and coordination. Theresa Tyrrell will act as your primary point of contact. Ms. Tyrrell is an experienced project manager in the environmental industry. Ms. Tyrrell will be responsible for coordinating sample transportation from the location(s) designated by the City and setting up sampling with our in -house trained sampler, Jason Romanjuk. His knowledge and expertise gained from 11 years of experience are invaluable to ensuring samples are properly collected and transported in a timely manner to the laboratory. These value added services will ensure the City receives the best service and quick turnaround times. These value added services are explained in more detail in the Statement of Qualifications which follows. The proposal will be valid for at least 90 days from the proposal submission deadline. The project team and all other necessary resources which are required to perform the services described in this RFP will be made available over the life of the anticipated contract. This includes being able to provide services within 24 hours or on weekends as needed. I, Fred Haley, Irvine Laboratory Director, have the authority to bind this proposal. We are confident that our proposal will demonstrate that TestAmerica is the laboratory of choice for attaining the best value in analytical services. All required responses and proposal documents have been included with our response. If you have any questions regarding this proposal please contact me or Patrick Arrington. The signatory below has the authority to bind the proposal. Thank you for considering TestAmerica for this proposal. Sincerely, Fred Haley Laboratory Director 17461 Derian Avenue, Suite 100 Irvine, CA 92614 tel 949261.1022 fax 949.260.3299 www.testamericalne.com 2. Description of Services Laboratory Facility We have designated our Irvine facility as the prime location where field sampling and analytical services will be managed. The Irvine facility is the closest location to City of Newport Beach. The convenient location of Irvine will ensure that any short notice sampling can be completed efficiently. A dedicated project manager, has been assigned to provide a single point of contact for all services required under the proposed contract, including field sampling services, sample analyses, analytical reporting, and invoicing. Business Hours 8:00 AM to 5:00 PM M -F Sample Receiving Hours 7:00 AM to 7:00 PM M -F 9:00 AM to 3:00 PM Saturday 24 Hour Notice and Weekend Service is Available. TestAmerica Laboratories 17461 Dorian, Suite 100 Irvine, CA 92614 -5817 Phone: 949 261 -1022 Facsimile: 949 260 -3299 The Irvine laboratory has been providing analytical services to clients in the southwestern United States since it was founded in 1987. Known for our outstanding customer service, regulatory expertise and quality of data - we serve hundreds of clients including municipalities, environmental consultants, private industry, oil companies and government agencies. With a newly expanded 40,000 square foot facility and nearly 150 employees, the Irvine Laboratory has the capacity, capabilities, support system and experience to effectively deliver results and data deliverables for all projects, no matter the size or complexity. Our team of knowledgeable and experienced project managers is available to assist clients in ensuring that all regulatory and analytical requirements are met. Approach to the Scope of Work TestAmerica's extensive project experience, size and unprecedented capacity and make TestAmerica the best candidate for the City of Newport Beach. Of all the bidders, TesfAmedca Irvine facility is the closest lab to the City's Utilities Department (less than 10 miles) that is capable of performing sampling and analytical services under the referenced water quality program. TestAmerica fully understands the proposed Scope of Work. We will ensure that all weekly, monthly and quarterly sampling are collected within the required timeframe. Residual chlorine reading will be done as part of the sampling process and samples for Total Coliform/E. Coll will be collected on a weekly basis. In addition, we will collect samples for General Physical testing on a monthly basis and Disinfection By- Products (TTHM /HAA) on a quarterly basis. NPDES and HPC sampling /analysis will be done annually or as needed. All field sampling will be conducted by our in- house, trained technicians. Ms. Theresa Tyrrell will be your primary client contact for all project - related requests. Ms. Tyrrell has invaluable experience in working with and organizing sampling efforts on behalf of Municipalities. Ms. Tyrrell is currently the project manager for the City of Huntington Beach's Water Quality Sampling and Analysis Program. This program is similar to the proposed program as it also involves weekly sampling of over 40 sampling sites. Ms. Tyrrell is responsible for setting up the project to fit the unique requirements of this program including customized EDD and coordinating the field sampling each week. More than one sampler is trained on the sample route so that we have back -up samplers available to ensure that the weekly sampling takes place efficiently every week. Proper project set -up and understanding is imperative to the success of the program. Field Services Experience — TestAmerica utilizes the latest equipment in an effort to support our clients with field sampling. Our focus is on potable water well head sampling, wastewater composite and grab sampling, drum sampling and hand auguring. TestAmerica has been providing daily, weekly, monthly, semi - annual and annual sampling for numerous southern California municipalities, manufacturing facilities as well as a major refinery in southern CA. In order to service these clients and provide the highest level of service, TestAmerica works with our clients to determine their individual sampling needs, review their permits and set up site walks prior to sampling activities commencing. We have organized a team of four dedicated members to complete the proposed sample collection and analysis of water and wastewater samples. Each member is HAZWHOPER trained and certified. In addition, each of our samplers has undergone extensive training with in -field supervision in order to demonstrate their proficiency to operate independently. All procedures performed by our sampling technicians are carried out in accordance with TestAmedca Field Sampling Standard Operating Procedure (SOP). Jason Romanjuk will serve as the lead field technician and conduct the field sampling. Jason has more than 11 years of experience with water and soil sampling, use of field equipment including 24- hr composite samplers, and completion of Chain -of- Custodies. In the nine years of independent field work, he has maintained a faultless safety record with zero reportable or non - reportable accidents. His experience will ensure accurate and informed sample collection and management, efficient communication with Theresa, and organized tracking and completion of tasks to meet the City's specific needs. Jason is also supported by other field sampling members: Alex Banueios, Efrain Figueroa, and Scott Burns. Our highly experienced team has been providing field sampling for numerous clients including City of Corona, Genentech(San Diego), Chevron Refinery (El Segundo), Pomona Fairplex, BP refinery, US Battery, California Department of Correction, and the participating purveyors under the Central Basin and West Basin Basin -wide Title 22 compliance program. From 2005 to 2009, TestAmerica was responsible for daily sampling (including weekends and holidays) of the City of Corona's wastewater monitoring and NPDES discharge program. By allowing TestAmenca to take over their sampling services, the City of Corona was able to cut back on their operation cost and comply with regulatory requirements while still maintaining a high level of services. TestAmerica also provides courier services for bottle orders and sample pick -up through our trained in -house staff, to guarantee that samples are picked up in a timely manner and to ensure that sample custody and integrity is maintained. Theresa will communicate closely with the couriers to ensure that schedules will allow for pick -up and return of samples with short holding times. With a staff of nine (9) in -house couriers, we are able to quickly respond to changes in field schedules. Sample CollectionlContainers /Supplies — Ms. Tyrrell will be responsible for the coordinating of field sampling, sample container drop off and pickup at the City's requests. Mr. Jason Romanjuk will be the lead field sampler to conduct field sampling various locations, in accordance with 40 CFR and TestAmerica Standard Operating Procedures. Jason will ensure that all proper protocols are followed during his sample collection. During sample transit, the samples are stored in a cooler with ice, as applicable, and remain solely in the possession of our technician until the samples are delivered to the laboratory. When samples arrive at the laboratory, sample receiving personnel inspect the coolers and samples for custody seals, cooler temperatures, preservation, sample labels and completeness of COC. Any non- conformance, irregularity, or compromised samples are documented and Theresa is notified of the discrepancies. With any discrepancy, the City staff will be notified immediately. The proposed sampling cost is based on individual site and our analytical cost includes all necessary sample containers, preservatives and supplies corresponding to the requested analyses. These containers are obtained from reputable container manufacturers and meet EPA specifications as required. Any certificates of cleanliness that are provided by the supplier are maintained at the laboratory. Additionally, TestAmerica lot tests all 40 -mL VOA vials for volatile organics by GCMS and all polyethylene bottles for common anions and trace -level metals. Data Delivery - TestAmerica is dedicated to providing the best possible service to our clients. Our goals are to provide high quality data and on -time performance at fair market prices. TestAmerica will provide a final report in pdf format within ten working days for all analyses except for radioactivity testing. Our Project Manager, Theresa Tyrrell, will notify the City of any analytical result in excess of a maximum contaminant level (MCL). Theresa will set up the project with trigger levels for each MCL. If an MCL is exceeded, the LIMS automatically sends an email notification to the project manager and their back -up. She will immediately notify the City of positive Total Coliform /E. Coll sample and will coordinate the sampling and analysis for repeat samples per the City's direction. Report submittal will include the case narrative, chain -of- custody, level II OC data and corresponding invoice. For potable water compliance, analytical data will be sent to CDPH by Electronic Data Transfer (EDT) and verification of the EDT will be provided to the City. The final analytical reports will be available in pdf format on -line via our secured TotalAccess service. The report and EDD will include the analytical report from all network and subcontracted laboratories. Analytical reports, EDDs and Invoices will remain on our web -site for a minimum of two years. Expected Time of Response - TestAmerica will organize a regular time schedule to perform weekly collection and analysis of bacteriological samples at the 30 locations specified by the City. We will only collect Coliform samples during favorable weather conditions. We estimate that the collection of sample at each site will take approximately 10 minutes and 10 minutes to travel to the next location. Therefore, a total of 34 samples can be collected per hour. Total sample collection /travel time is estimated to be 10 hours per week for all 30 locations and we plan to complete the weekly sampling in 1 or 2 days. The sampling procedure is as follows: (15 -20 minutes) Travel time from Irvine laboratory to Newport Beach location. (2 minutes) Flush the pipe by running water for at least two minutes (1 minute) The spigot or nozzle is sterilized via either a flame or sodium hypochlorite depending on the type of material. ( <1 minute) The sample bottles are filled to the line on the bottle. (2 -5 minutes) Chlorine residuals are tested with the HACH meter and recorded at each site. (10 minutes) Clean up and travel to the next site. (10 minutes) Travel time back to the Irvine laboratory. (< 1 hour) Login samples in the Irvine laboratory Sample Control Department. (2 -3 hours) Analysis and review results of samples. (18 -24 hours) TestAmerica will do everything in its control to set bacti samples as soon as possible so that results can be review and reported. (immediate) MCL Exceedances automatically generate notification to the department and project managers. TestAmerica project manager verbally contacts the City regarding exceedance and follow up with an excursion report. The Project Manager is in constant communication with the City for any discrepancies with the samples or results. ( <48 hour) Verbal result of Coliform /E. Coli to the City. Test men ca THE LEADER IN ENVIRONMENTAL TESTING PRICE QUOTE FOR LABORATORY SERVICES 17461 Derian Avenue. Suite 100 Irvine, CA 92614 Phone: (949) 261 -1022 Fax: (949) 260-3297 www.testamericaine.com Client: City of Newport Beach - Utilities ItemTotal Courier -On Call/hr Standard 1 Phone: (949) 718 -3422 Client Contact: Casey Parks 7500 Fax: (949) 723 -3522 Client Address: 3300 Newport Blvd., P.O. Box 1768 - Newport Beach, CA 926E Date: January 28, 2010 PO#/ContractlP: None Adjusted Bid Total: Quote Expires: January 28, 2011 Project/Sid Name: Sampling $ Water Quality - Independent Source Expected Start Date: January 28, 2010 The Pm/xt Dewdprvn samptina 6 Wawitualily- Ind¢pendenf S¢um¢, Mf/5iaspresentan fheehein a..( -fy I. raeaw Me Waorviryq disc¢unfedpricea Bid Total: $52,852.00 Unit Rush Method Description Matrix TAT Quantity Price Subtotal Charge Total EPA 8015 Mod. 8015B (GRO) / 5030B Water Standard t j $ 35.00 $ 35.00 NA $ 35.00 SM92238 9223 TotaVE.Coli PIA DW Water Standard 1,660 $ 8.00 $ 12,480.00 NA $ 12,480.0( Field Chlorine, Residual -Field Water Standard 1,560 S 5.00 $ 7,800.00 NA $ 7,800.00 varies General Physical - CA DW Water Standard 360 $ 12.00 $ 4,320.00 NA $ 4,320.00 EPA 524.2 524.2 CA THMS Water Standard 48 $ 30.00 $ 1,440.00 NA $ 1,440.00 EPA 552.2 562.2- Haloacetic Acids Water Standard 48 $ 60.00 $ 2,880.00 NA $ 2,880.00 varies Lead & Copper Rule CA DW Water Standard 30 $ 10.00 $ 300.00 NA $ 300.00 SM9215B 92158 (HPC SIM) DW Water Standard 1 $ 10.00 $ 10.00 NA $ 10.00 NA Sampling Fee per Site NA NA 1,560 $ 15.00 $ 23,400.00 NA $ 23,400.0( EPA 376.2 Sulfide -376.2 Water Standard *1 Ll $ 20.00 $ 20.00 NA $ 20.00 EPA 160.2 TSS - EPA 160.2 Water Standard t, A $ 12.00 $ 12.00 NA $ 12.00 EPA 1664A 16644-1EM Water Standard y y $ 50.00 $ 50.00 NA $ 50.00 Feld Chlorine Total -FIELD Water Standard Y + 4 $ 5.00 $ 5.00 NA $ 5.00 Bid Total: - $ 272.00 S 52,752.00 S52,752.00 LINE ITEMS Description ItemType Quantity Price Rate ItemTotal Courier -On Call/hr Standard 1 25.00 25.00 - On Call Sampling/hr Standard 1 75.00 7500 Total $100,00 ' Each invoice is subject to an Environmental Management Fee. " TestAmerica's minimum charge for a group of samples received and logged in together at the laboratory is $100. Groups of samples received that require services totaling less than $100 wfil be charged a $100 minimum transaction fee for the sample group. Adjusted Bid Total: Bid Total: $52,752.00 Line Item Total: $100.00 Bid Total: $52,852.00 rXHIBIt "B..