HomeMy WebLinkAboutItem No. 03 Amend No. 2 Amec Foster WheelerText File
City of Lake Elsinore 130 South Main Street
Lake Elsinore, CA 92530
www.lake-elsinore.org
File Number: ID# 17-305
Agenda Date: 8/8/2017 Status: Consent AgendaVersion: 1
File Type: AgreementIn Control: City Council / Successor Agency
Agenda Number: 3)
Page 1 City of Lake Elsinore Printed on 8/3/2017
Page 1 of 2
REPORT TO CITY COUNCIL
To:Honorable Mayor and Members of the City Council
From:Grant Yates, City Manager
Prepared by: Nicole Dailey, Senior Management Analyst
Date:August 8, 2017
Subject:Amendment No. 2 – Extension of Agreement for On-Call Contract Services
with Amec Foster Wheeler Environment & Infrastructure, Inc.
Recommendation
Approve and authorize the City Manager to execute Amendment No. 2 to the On-Call
Contractor Services Agreement with Amec Foster Wheeler Environment & Infrastructure, Inc.
(Amec) to allow for a two (2) year renewal term in an amount not to exceed $40,000, in such
final form as approved by the City Attorney.
Background
Lake Elsinore is Southern California’s largest natural, freshwater lake with more than 3,000
surface acres and 14 miles of shoreline. It is a shallow lake that it is reliant on rain and runoff
from the Lake Elsinore and San Jacinto Watersheds.
Conditions for algae blooms are ideal when there is an oversupply of nutrients in a lake, such as
phosphorus and nitrogen, high temperatures, low oxygen levels in the water, little water
movement, and low water levels. Lake Elsinore suffers from all of these conditions, creating the
ideal environment for algae blooms.
Therefore, Lake Elsinore has historically experienced regular algae blooms.Algae blooms occur
when the algae grow at rapid speeds higher than normal causing dense accumulations in the
water. Algae blooms are normal occurrences in bodies of water and most species are harmless
under normal circumstances.
Blue-green algae, or cyanobacteria, can be harmful when there is excessive growth. As the
cyanobacteria die off, harmful toxins can be produced known as cyanotoxins. Concerns
regarding blue-green algae have been on the rise throughout the Country. Last year, in July
2016, Lake Elsinore suffered a significant blue-green algae (cyanobacteria) bloom for the first
time on record. Because of this bloom, three cyanotoxins were found in the lake that were
above the recommended recreational thresholds leading to a short-term closer.
Recognizing the vulnerabilities of Lake Elsinore, the City has taken a proactive approach to
prepare for and address these concerns as part of our Lake Watch program. Following this
Production Video Agreement
Page 2 of 2
blue-green algae bloom, the City entered into an on-call agreement with Amec Foster Wheeler
to conduct ongoing cyanobacterial toxin monitoring in Lake Elsinore.
Last summer through October 2016, the City conducted bi-weekly monitoring of the water
quality and then began to sample every other month. This year, the Lake Elsinore & San Jacinto
Watersheds Authority (LESJWA) authorized ongoing harmful algae bloom monitoring during
their routine Nutrient TMLD Sampling, which occurs eight times per year. However, this
sampling is limited in the scope and locations of the samples collected.
In November 2016, the City amended the original agreement (Amendment No. 1) for an
additional amount of $15,000. The Original Agreement and Amendment No. 1 with Amec
officially ended on June 30, 2017, and the expenditures authorized have exceeded the City
Manager's contracting authority.
Discussion
In July 2017, Lake Elsinore suffered another blue-green algae bloom resulting in the presence
of one of three of the cyanotoxins, i.e. microcystins. These cyanotoxins were detected as part of
the limited sampling conducted for LESJWA’s routine TMDL monitoring.
Amec responded within days to collect and analyze additional samples from popular
recreational areas in Lake Elsinore. To protect the public health and safety of visitors to the
Lake, it is essential that the City is able to conduct ongoing monitoring of cyanotoxins.
Monitoring of cyanotoxins by Amec would occur as needed, based on in-lake evidence
suggesting a cyanobacteria bloom may have occurred. The frequency of monitoring, locations
monitored, and number of samples collected will be determined in consultation with the City of
Lake Elsinore prior to each sampling event.
When possible, the City and Amec have tried to schedule sampling events to occur
concurrently with LESJWA’s routine TMDL monitoring. In this case, only costs for laboratory
analysis of cyanotoxins are incurred, as mobilization labor costs are covered under
LESJWA’s’ nutrient TMDL monitoring program. For the remaining months of summer, the
City anticipates conducting water quality sampling every two weeks while toxins are present.
Amendment No. 2 (Exhibit A) extends the Agreement for Algal Toxin Monitoring and Analysis
by another two-year term through June 30, 2019 at a cost not to exceed $40,000. To date,
the City Manager’s Office has been highly satisfied with Amec’s performance and services
and recommends the City Council approve this amendment to ensure ongoing, on-call
cyanobacterial toxin monitoring in Lake Elsinore.
Fiscal Impact
Ongoing water quality monitoring for Lake Elsinore is included in the FY2017-18 operating
budget.
Exhibits
A – Amendment No. 2
B – Amendment No. 1
C – Original Agreement
City of Lake Elsinore
Amec Foster
08/08/2017 Page 1
AMENDMENT NO. 2
TO AGREEMENT FOR CONTRACTOR SERVICES
Amec Foster Wheeler Environment & Infrastructure, Inc.
Algal Toxin Monitoring And Analysis
This Amendment No. 2 to Agreement for Contractor Services (“Amendment No. 2”) is made and
entered into as of August 8, 2017 by and between the City of Lake Elsinore, a municipal
corporation (“City), and Amec Foster Wheeler Environment & Infrastructure, Inc., a Nevada
corporation (“Contractor”).
RECITALS
A. The City and Contractor have entered into that certain Agreement for Contractor
Services dated as of July 1, 2016 (the “Original Agreement”). Except as otherwise defined
herein, all capitalized terms used herein shall have the meanings set forth for such terms in the
Original Agreement.
B. The Original Agreement provided for compensation to Contractor in an amount
$15,000.
C. Amendment No. 1 to the Original Agreement, dated November 1, 2016 increased
the compensation by $15,000.
D. The parties now desire to amend the terms of services as set forth in this
Amendment No. 2.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth
herein, City and Contractor agree as follows:
1. The first paragraph of Section 2c, Term and Compliance with Task/Work Order
System, of the Agreement is hereby amended in its entirety to read as follows:
Unless earlier terminated as provided elsewhere in this Agreement, this
Agreement shall continue in full force and until June 30, 2019. The City may, at
its sole discretion, extend the term of this Agreement on a 12-month basis no to
exceed two (2) additional twelve 12-month renewal terms by giving written notice
thereof to Contractor not less than thirty (3) days before the end of the contract
term, such notice to be exercised by the City Manager.
2. The first paragraph of Section 3, Compensation, of the Agreement is hereby
amended to add the follows:
Compensation to be paid to Contractor for Fiscal Year 2017/18 and
Fiscal Year 2018/19 shall be in accordance with the fees set forth in
Contractor’s Proposal dated August 2, 2017 (Exhibit A-1 attached to
Amendment No. 2 and incorporated herein). In no event shall
Contractor’s compensation related to Exhibit A-1 to Amendment No. 2
exceed Forty Thousand Dollars ($40,000) for the period beginning July 1,
2017 and terminating on June 30, 2019, without additional written
authorization from the City. Notwithstanding any provision of
Page 2
Contractor’s Proposal (Exhibit A-1) to the contrary, out of pocket
expenses set forth in Exhibit A-1 to Amendment No. 2, shall be
reimbursed at cost without an inflator or administrative charge. Payment
by City under this Agreement shall not be deemed a waiver of defects,
even if such defects were known to the City at the time of payment.
3. Except for the changes specifically set forth herein, all other terms and conditions
of the Original Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be
executed on the respective dates set forth below.
“CITY”
CITY OF LAKE ELSINORE, a municipal
corporation
Grant Yates, City Manager
Date:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
“CONTRACTOR”
Amec Foster Wheeler Environment &
Infrastructure, Inc., a Nevada corporation
Barry J. Snyder, Branch Manager
Date:
Attachments: Exhibit A-1 – Contractor’s Proposal
Original Agreement and Amendment No. 1
EXHIBIT A-1
EXHIBIT A-1
CONTRACTOR’S PROPOSAL
[ATTACH AUGUST 2, 2017 PROPOSAL]
Page 1 of 3
August 2, 2017
City of Lake Elsinore
130 South Main St.
Lake Elsinore, CA 92530
Attention: Nicole Dailey
Subject: Scope of Work for Cyanobacteria Toxin Monitoring
1.0 PURPOSE
The purpose of this document is to provide a scope and costs to the City of Lake Elsinore for ongoing
cyanobacterial toxin monitoring in Lake Elsinore.
A scope of work description is provided in Section 2.0, a schedule is presented in Section 3.0, and costs are
summarized in Section 4.0.
2.0 SCOPE OF WORK
A cyanobacterial bloom was observed in Lake Elsinore over the summer of 2016, leading to the closure of
the lake for an extended period. Cyanotoxin sampling was initiated on Lake Elsinore by Amec Foster
Wheeler (Amec FW) staff in July 2016 to monitor cyanotoxin concentrations and determine if levels were
of concern for public health. This scope of work serves to continue that work over the 2017-2018 monitoring
years.
Monitoring of cyanotoxins in Lake Elsinore for public health concerns will be an as needed task if requested
by the City of Lake Elsinore based on in-lake evidence suggesting a cyanotoxin bloom may be present.
The frequency of monitoring, locations monitored, and number of samples collected will be determined in
consultation with the City of Lake Elsinore prior to each sampling event. For the public health samples,
cyanobacterial scum or foam will be prioritized over water samples, as these tend to contain much higher
concentrations of algal toxins and will provide a worst case scenario. Otherwise water samples will be
collected at each location monitored. If possible, sampling events will be scheduled to occur concurrent
with routine Nutrient TMDL monitoring. In this case, only costs for laboratory analysis of cyanotoxins and
charges for data QA/QC will be incurred, as mobilization labor costs will be covered under the Nutrient
TMDL monitoring program. Samples will be analyzed for the cyanotoxins presented in Table 1.
Table 1: Analyte List
Analyte Volume / Recommended
Container Field Preservation
Microcystin 500ml Poly <4°C
Cylindrospermopsin 500ml Poly <4°C
Anatoxin-a 500ml Poly <4°C
Page 2 of 3
Two laboratories will be used for these analyses. Greenwater Labs in Florida will be used when a quicker
turnaround is desired, and the University of California, Santa Cruz Cyanotoxin Laboratory will be used
when quick turnaround is not necessary. Greenwater Labs is more expensive, but provides a 1-3 day turn-
around time (TAT) needed to inform posting of signage for public warning. The University of California,
Santa Cruz Cyanotoxin Laboratory is less expensive, but typically has a longer 7-10 day TAT.
3.0 SCHEDULE OF WORK
Cyanotoxin sampling will be an as needed task if requested by the City of Lake Elsinore, and if possible
will be sampled concurrent to routine Nutrient TMDL sampling (Table 2). Nutrient TMDL sampling on
Lake Elsinore occurs 8 times annually (bi-monthly October to May, and monthly June to September).
Table 2: Lake Elsinore Nutrient TMDL Sampling Frequency
Month Monitored
Water Body J F M A M J J A S O N D
Lake Elsinore ● ● ● ● ● ● ● ●
4.0 COST
Table 3 summarizes the costs for the cyanotoxin monitoring outlined above. Costs assume the use of the
City of Lake Elsinore boat for collection of mid-lake samples. Assuming 4 samples per event, 6 hours of
staff field time per event to collect and ship samples, and a quick TAT using GreenWater Labs, the cost per
event would range from $2165 to $2285, dependent upon the staff member performing the sampling. The
same scenario using the University of California, Santa Cruz Cyanotoxin Lab would range from $1593 to
$1713 per event.
Table 3: Cyanotoxin Monitoring Costs
Task Unit Price
Amec FW staff labor1 $90-$110/hour
Shipping Costs $30/event
Vehicle Charge $55/event
University of California, Santa
Cruz Cyanotoxin Lab2 $242/sample
GreenWater Labs2 $385/sample
Notes:
1 Inclusive of coordination, field sampling, and reporting.
2 Unit price is inclusive of all three toxins outlined in Table 1.
Page 3 of 3
If you have any questions, please contact us at your convenience. We look forward to continuing our work
with the City of Lake Elsinore on these important projects.
Sincerely,
Chris Stransky
Amec Foster Wheeler
Aquatic Sciences Group Manager
Client Project Manager
ORIGINAL AGREEMENT AND
AMENDMENT NO. 1
[ATTACHED]
AMENDMENT NO. 1
TO AGREEMENT FOR CONTRACTOR SERVICES
AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC
ALGAL TOXIN MONITORING AND ANALYSIS
This Amendment No. 1 to Agreement for Contractor Services (“Amendment No. 1”) is made and
entered into as of November 1, 2016 by and between the City of Lake Elsinore, a municipal
corporation (“City), and Amec Foster Wheeler Environment & Infrastructure, Inc. (“Contractor”).
RECITALS
A. The City and Contractor have entered into that certain Agreement for Contractor
Services dated as of July 1, 2016 (the “Original Agreement”). Except as otherwise defined herein,
all capitalized terms used herein shall have the meanings set forth for such terms in the Original
Agreement.
B. The Original Agreement provided f or compensation to Contractor in an amount
$15,000.
C. The parties now desire to increase the payment for such services as set forth in
this Amendment No 1.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth
herein, City and Contractor agree as follows:
1. The first paragraph of Section 3, Compensation, of the Original Agreement is
hereby amended to read in its entirety as follows:
Compensation to be paid to Contractor shall be in accordance with the fees
set forth in Contractor’s Proposal (Exhibit A to the Original Agreement). In
no event shall Contractor’s compensation related to Exhibit A to the
Original Agreement exceed Thirty Thousand dollars ($30,000) for FY
2016-17, without additional written authorization from the City.
Notwithstanding any provision of Contractor’s Proposal and/or
Contractor’s July 29, 2016 Proposal to the contrary, out of pocket
expenses set forth in Exhibit A, shall be reimbursed at cost without an
inflator or administrative charge. Payment by City under this Agreement
shall not be deemed a waiver of defects, even if such defects were known
to the City at the time of payment.
2. Except for the changes specifically set forth herein, all other terms and conditions
of the Original Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be executed
on the respective dates set forth below.
“CITY”
CITY OF LAKE ELSINORE, a municipal
corporation
Grant Yates, City Manager
Date:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
“CONTRACTOR”
Amec Foster Wheeler Environment &
Infrastructure, Inc., a Nevada corporation
Barry J. Snyder, Branch Manager
Date:
Attachments: Exhibit A – Original Agreement
EXHIBIT A
EXHIBIT A
ORIGINAL AGREEMENT
[ATTACHED]
Agreement for On-Call Services Page 1
AGREEMENT FOR CONTRACTOR SERVICES (ON-CALL)
AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC.
ALGAL TOXIN MONITORING AND ANALYSIS
This Agreement for Contractor Services (On-Call) (the “Agreement”) is made and entered
into as of July 1, 2016 by and between the City of Lake Elsinore, a municipal corporation (‘‘City")
and Amec Foster Wheeler E&I, Inc. ("Contractor").
RECITALS
A. The City has determined that it requires the following services: To support Algal
Toxin Monitoring and Analysis in Lake Elsinore.
B. The Contractor has submitted to City a quote, dated 7/29/2016 which is attached
hereto as Exhibit A (collectively, the “Contractor’s Proposal”) and incorporated herein, to provide
services and related work to the City pursuant to the terms of this Agreement.
C. Contractor possesses the skill, experience, ability, background, certification and
knowledge to perform the services and related work described in this Agreement on the terms
and conditions described herein.
D. City desires to retain Contractor to perform the services and related work as
provided herein and Contractor desires to provide such services and related work as set forth in
this Agreement.
AGREEMENT
1. Scope of Services. Contractor shall perform the services and related work
described in Contractor’s Proposal (Exhibit A). Contractor shall provide such services and related
work at the time, place, and in the manner specified in Contractor’s Proposal (Exhibit A), subject
to the direction of the City through its staff that it may provide from time to time. Contractor
acknowledges that the Scope of Services provides for 24 hour-a-day, 7 day-a-week, on-call
support on an as needed basis.
2. Time of Performance.
a. Time of Essence. Time is of the essence in the performance of this
Agreement. The time for completion of the services and related work to be performed by
Contractor is an essential condition of this Agreement. Contractor shall prosecute regularly and
diligently the services and related work contemplated pursuant to this Agreement consistent with
Contractor’s Proposal (Exhibit A) and shall provide, furnish and pay all labor, materials, necessary
tools, expendable equipment, and all taxes, utility and transportation services required to perform
such the services and related work.
b. Performance Schedule. Contractor shall commence the services and
related work pursuant to this Agreement upon receipt of a written notice to proceed and shall
perform all services and related work within the time period(s) established in the Contractor’s
Proposal (Exhibit A). When requested by Contractor, extensions to the time period(s) specified
may be approved in writing by the City Manager.
Page 2
c. Term and Compliance with Task/Work Order System.
Unless earlier terminated as provided elsewhere in this Agreement, this
Agreement shall continue in full force and effect for a period of 12-months commencing on
July 1, 2016 and ending on June 30, 2017. The City may, at its sole discretion, extend the term
of this Agreement on a 12-month basis not to exceed two (2) additional twelve 12-month renewal
terms by giving written notice thereof to Contractor not less than thirty (30) days before the end
of the contract term, such notice to be exercised by the City Manager.
Contractor hereby agrees and acknowledges that any and all work or
services performed pursuant to this Agreement shall be based upon the issuance of a Task/Work
Order by the City. Contractor acknowledges that it is not guaranteed any minimum or specific
amount of work or services as all work or services shall be authorized through a Task/Work Order
issued by the City.
3. Compensation and Cost of Living Adjustment. Compensation to be paid to
Contractor shall be in accordance with the fees set forth in Contractor’s Proposal (Exhibit A),
which is attached hereto and incorporated herein by reference. In no event shall Contractor’s
compensation exceed Fifteen Thousand dollars ($15,000) per Fiscal Year, without additional
written authorization from the City. Notwithstanding any provision of Contractor’s Proposal to the
contrary, out of pocket expenses set forth in Exhibit A shall be reimbursed at cost without an
inflator or administrative charge. Payment by City under this Agreement shall not be deemed a
waiver of defects, even if such defects were known to the City at the time of payment.
The compensation paid to Contractor may be adjusted on each July 1 following the first
anniversary of the commencement of the term of this Agreement, provided that T he request for
cost of living adjustment shall be presented to the City no later than June 1st of a particular year
and, if approved by the City, will become effective on July 1st of that year. Any adjustment will be
based on the Los Angeles-Riverside-Orange County Consumer Price Index (CPI) but in no event
shall the price adjustment exceed five percent (5%).
4. Method of Payment. Contractor shall promptly submit billings to the City describing
the services and related work performed during the preceding month to the extent that such
services and related work were performed. Contractor’s bills shall be segregated by project task,
if applicable, such that the City receives a separate accounting for work done on each individual
task for which Contractor provides services. Contractor’s bills shall include a brief description of
the services performed, the date the services were performed, the number of hours spent and by
whom, and a description of any reimbursable expenditures. City shall pay Contractor no later
than forty-five (45) days after receipt of the monthly invoice by City staff.
5. Suspension or Termination.
a. The City may at any time, for any reason, with or without cause, suspend
or terminate this Agreement, or any portion hereof, by serving upon the Contractor at least ten
(10) days prior written notice. Upon receipt of such notice, the Contractor shall immediately cease
all work under this Agreement, unless the notice provides otherwise. If the City suspends or
terminates a portion of this Agreement such suspension or termination shall not make void or
invalidate the remainder of this Agreement.
b. In the event this Agreement is terminated pursuant to this Section, the City
shall pay to Contractor the actual value of the work performed up to the time of termination,
Page 3
provided that the work performed is of value to the City. Upon termination of the Ag reement
pursuant to this Section, the Contractor will submit an invoice to the City, pursuant to Section
entitled “Method of Payment” herein.
6. Ownership of Documents. All plans, studies, documents and other writings
prepared by and for Contractor, its officers, employees and agents and subcontractors in the
course of implementing this Agreement, except working notepad internal documents, shall
become the property of the City upon payment to Contractor for such work, and the City shall
have the sole right to use such materials in its discretion without further compensation to
Contractor or to any other party. Contractor shall, at Contractor’s expense, provide such reports,
plans, studies, documents and other writings to City upon written request. City acknowledges
that any use of such materials in a manner beyond the intended purpose as set forth herein shall
be at the sole risk of the City. City further agrees to defend, indemnify and hold harmless
Contractor, its officers, officials, agents, employees and volunteers from any claims, demands,
actions, losses, damages, injuries, and liability, direct or indirect (including any and all costs and
expenses in connection therein), arising out of the City’s use of such materials in a manner beyond
the intended purpose as set forth herein.
a. Licensing of Intellectual Property. This Agreement creates a nonexclusive
and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights,
designs, and other intellectual property embodied in plans, specifications, studies, drawings,
estimates, and other documents or works of authorship fixed in any tangible medium of
expression, including but not limited to, physical drawings or data magnetically or otherwise
recorded on computer diskettes, which are prepared or caused to be prepared by Contractor
under this Agreement ("Documents & Data"). Contractor shall require that all subcontractors
agree in writing that City is granted a nonexclusive and perpetual license for any Documents &
Data the subcontractor prepares under this Agreement. Contractor represents and warrants that
Contractor has the legal right to license any and all Documents & Data. Contractor makes no
such representation and warranty in regard to Documents & Data which were prepared by design
professionals other than Contractor or provided to Contractor by the City. City shall not be limited
in any way in its use of the Documents & Data at any time, provided that any such use not within
the purposes intended by this Agreement shall be at City’s sole risk.
b. Confidentiality. All ideas, memoranda, specifications, plans, procedures,
drawings, descriptions, computer program data, input record data, written information, and other
Documents & Data either created by or provided to Contractor in connection with the performance
of this Agreement shall be held confidential by Contractor. Such materials shall not, without the
prior written consent of City, be used by Contractor for any purposes other than the performance
of the services under this Agreement. Nor shall such materials be disclosed to any person or
entity not connected with the performance of the services under this Agreement. Nothing
furnished to Contractor which is otherwise known to Contractor or is generally known, or has
become known, to the related industry shall be deemed confidential. Contractor shall not use
City’s name or insignia, photographs relating to project for which Contractor’s services are
rendered, or any publicity pertaining to the Contractor’s services under this Agreement in any
magazine, trade paper, newspaper, television or radio production or other similar medium without
the prior written consent of City.
7. Contractor’s Books and Records.
a. Contractor shall maintain any and all ledgers, books of account, invoices,
vouchers, canceled checks, and other records or documents evidencing or relating to charges for
Page 4
services, or 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 Contractor to
this Agreement.
b. Contractor shall maintain all documents and records which demonstrate
performance under this Agreement for a minimum period of three (3) years, or for any longer
period required by law, from the date of termination or completion of this Agreement.
c. Any records or documents required to be maintained pursuant to this
Agreement shall be made available for inspection or audit, at any time during regular business
hours, upon written request by the City Manager, City Attorney, City Auditor or a designated
representative of these officers. Copies of such documents shall be provided to the City for
inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually
agreed upon, the records shall be available at Contractor’s address indicated for receipt of notices
in this Agreement.
d. Where City has reason to believe that such records or documents may be
lost or discarded due to dissolution, disbandment or termination of Contractor’s business, City
may, by written request by any of the above-named officers, require that custody of the records
be given to the City and that the records and documents be maintained in City Hall. Access to
such records and documents shall be granted to any party authorized by Contractor, Contractor’s
representatives, or Contractor’s successor-in-interest.
8. Independent Contractor. It is understood that Contractor, in the performance of
the work and services agreed to be performed, shall act as and be an independent contractor and
shall not act as an agent or employee of the City.
9. PERS Eligibility Indemnification. In the event that Contractor or any employee,
agent, or subcontractor of Contractor providing services under this Agreement claims or is
determined by a court of competent jurisdiction or the California Public Employees Retirement
System (PERS) to be eligible for enrollment in PERS as an employee of the City, Contractor shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer
contributions for PERS benefits on behalf of Contractor or its employees, agents, or
subcontractors, as well as for the payment of any penalties and interest on such contributions,
which would otherwise be the responsibility of City.
Notwithstanding any other federal, state and local laws, codes, ordinances and
regulations to the contrary, Contractor and any of its employees, agents, and subcontractors
providing service under this Agreement shall not qualify for or become entitled to, and hereby
agree to waive any claims to, any compensation, benefit, or any incident of employment by City,
including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to
any contribution to be paid by City for employer contribution and/or employee contributions for
PERS benefits.
10. Interests of Contractor. Contractor (including principals, associates and
management employees) covenants and represents that it does not now have any investment or
interest in real property and shall not acquire any interest, direct or indirect, in the area covered
by this Agreement or any other source of income, interest in real property or investment which
would be affected in any manner or degree by the performance of Contractor’s services
hereunder. Contractor further covenants and represents that in the performance of its duties
hereunder no person having any such interest shall perform any services under this Agreement.
Page 5
Contractor is not a designated employee within the meaning of the Political Reform Act
because Contractor:
a. will conduct research and arrive at conclusions with respect to his/her
rendition of information, advice, recommendation or counsel independent of the control and
direction of the City or of any City official, other than normal agreement monitoring; and
b. possesses no authority with respect to any City decision beyond rendition
of information, advice, recommendation or counsel. (FPPC Reg. 18700(a)(2).)
11. Ability of Contractor. City has relied upon the training and ability of Contractor to
perform the services hereunder as a material inducement to enter into this Agreement. Contractor
shall therefore provide properly skilled personnel to perform all services under this Agreement.
All work performed by Contractor under this Agreement shall be in accordance with applicable
legal requirements and shall meet the standard of quality ordinarily to be expected of competent
contractors in Contractor’s field of expertise.
12. Compliance with Laws. Contractor shall use the standard of care in its profession
to comply with all applicable federal, state and local laws, codes, ordinances and regulations.
13. Licenses. Contractor represents and warrants to City that it has the licenses,
permits, qualifications, insurance and approvals of whatsoever nature which are legally required
of Contractor to practice its profession. Contractor represents and warrants to City that Contractor
shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this
Agreement, any licenses, permits, insurance and approvals which are legally required of
Contractor to practice its profession. Contractor shall maintain a City of Lake Elsinore business
license.
14. Indemnity. Contractor shall indemnify, defend, and hold harmless the City and its
officials, officers, employees, agents, and volunteers from and against any and all losses, liability,
claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily
injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law
or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts
or omissions of Contractor or its employees, subcontractors, or agents, by acts for which they
could be held strictly liable, or by the quality or character of their work. The foregoing obligation
of Contractor shall not apply when (1) the injury, loss of life, damage to property, or violation of
law arises from the negligence or willful misconduct of the City or its officers, employees, agents,
or volunteers and (2) the actions of Contractor or its employees, subcontractor, or agents have
contributed in no part to the injury, loss of life, damage to property, or violation of law. It is
understood that the duty of Contractor to indemnify and hold harmless includes the duty to defend
as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance
certificates and endorsements required under this Agreement does not relieve Contractor from
liability under this indemnification and hold harmless clause. This indemnification and hold
harmless clause shall apply to any damages or claims for damages whether or not such insurance
policies shall have been determined to apply. By execution of this Agreement, Contractor
acknowledges and agrees to the provisions of this Section and that it is a materia l element of
consideration.
Page 6
15. Insurance Requirements.
a. Insurance. Contractor, at Contractor’s own cost and expense, shall
procure and maintain, for the duration of the contract, unless modified by the City’s Risk Manager,
the following insurance policies.
i. Workers’ Compensation Coverage. Contractor shall maintain
Workers’ Compensation Insurance and Employer’s Liability Insurance for his/her
employees in accordance with the laws of the State of California. In addition, Contractor
shall require each subcontractor to similarly maintain Workers’ Compensation Insurance
and Employer’s Liability Insurance in accordance with the laws of the State of California
for all of the subcontractor’s employees. Any notice of cancellation or non-renewal of all
Workers’ Compensation policies must be received by the City at least thirty (30) days 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. In the event that Contractor is exempt from Worker’s Compensation
Insurance and Employer’s Liability Insurance for his/her employees in accordance with
the laws of the State of California, Contractor shall submit to the City a Certificate of
Exemption from Workers Compensation Insurance in a form approved by the City
Attorney.
ii. General Liability Coverage. Contractor shall maintain commercial
general liability insurance in an amount of one million dollars ($1,000,000) per occurrence
for bodily injury, personal injury and property damage. If a commercial general liability
insurance form 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.
Required commercial general liability coverage shall be at least as broad as Insurance
Services Office Commercial General Liability occurrence form CG 0001 (ed. 11/88) or
Insurance Services Office form number GL 0002 (ed. 1/73) covering comprehensive
General Liability and Insurance Services Office form number GL 0404 covering Broad
Form Comprehensive General Liability. No endorsement may be attached limiting the
coverage.
iii. Automobile Liability Coverage. Contractor shall maintain
automobile liability insurance covering bodily injury and property damage for all activities
of the Contractor arising out of or in connection with the work to be performed under this
Agreement, including coverage for owned, hired and non-owned vehicles, in an amount
of million dollars ($1,000,000) combined single limit for each occurrence. Automobile
liability coverage must be at least as broad as Insurance Services Office Automobile
Liability form CA 0001 (ed. 12/90) Code 1 (“any auto”). No endorsement may be attached
limiting the coverage.
b. Endorsements. Each general liability and automobile liability insurance
policy shall be with insurers possessing a Best’s rating of no less than A:VII and shall be
endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insured with respect to liability
Page 7
under the Commercial General Liability and Automobile liability coverages
arising out of work performed by or on behalf of the Contractor, including materials, parts
or equipment furnished in connection with such work or operations.
ii. This policy shall be considered primary insurance as respects the
City, its elected or appointed officers, officials, employees, agents and volunteers.
Any insurance maintained by the City, including any self-insured retention the City may
have, shall be considered excess insurance only and shall not contribute with it.
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 the City, its
elected or appointed officers, officials, employees or agents.
v. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to the 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 except after thirty (30) days written
notice has been received by the City.
c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured
retentions must be declared to and approved by the City. At the City’s option, Contractor shall
demonstrate financial capability for payment of such deductibles or self-insured retentions.
d. Certificates of Insurance. Contractor shall provide certificates of insurance
with blanket endorsements to City as evidence of the insurance coverage required herein.
Certificates of such insurance shall be filed with the City on or before commencement of
performance of this Agreement. Current certification of insurance shall be kept on file with the
City at all times during the term of this Agreement.
16. Notices. Any notice required to be given under this Agreement shall be in writing
and either served personally or sent prepaid, first class mail. Any such notice shall be addressed
to the other party at the address set forth below. Notice shall be deemed communicated within
48 hours from the time of mailing if mailed as provided in this section.
If to City: City of Lake Elsinore
Attn: City Manager
130 South Main Street
Lake Elsinore, CA 92530
With a copy to: City of Lake Elsinore
Attn: City Clerk
130 South Main Street
Lake Elsinore, CA 92530
Page 8
If to Contractor: Amec Foster Wheeler E & I, Inc.
Attn: Mr. John Rudolph
9210 Sky Park Court, Suite 200
San Diego, CA 92123
17. Entire Agreement. This Agreement constitutes the complete and exclusive
statement of Agreement between the City and Contractor. All prior written and oral
communications, including correspondence, drafts, memoranda, and representations, are
superseded in total by this Agreement.
18. 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.
19. Assignment and Subcontracting. The parties recognize that a substantial
inducement to City for entering into this Agreement is the reputation, experience and competence
of Contractor. Contractor shall be fully responsible to City for all acts or omissions of any
subcontractors. Assignments of any or all rights, duties or obligations of the Contractor under this
Agreement will be permitted only with the express consent of the City. Contractor shall not
subcontract any portion of the work to be performed under this Agreement without the written
authorization of the City. If City consents to such subcontract, Contractor shall be fully responsible
to City for all acts or omissions of those subcontractors. Nothing in this Agreement shall create
any contractual relationship between City and any subcontractor nor shall it create any obligation
on the part of the City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise is required by law.
20. Waiver. Waiver of a breach or default under this Agreement shall not constitute a
continuing waiver of a subsequent breach of the same or any other provision under this
Agreement.
21. 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.
22. Controlling Law Venue. This Agreement and all matters relating to it shall be
governed by the laws of the State of California and any action brought relating to this Agreement
shall be held exclusively in a state court in the County of Riverside.
23. Litigation Expenses and Attorneys’ Fees. If either party to this Agreement
commences any legal action against the other party arising out of this Agreement, the prevailing
party shall be entitled to recover its reasonable litigation expenses, including court costs, expert
witness fees, discovery expenses, and attorneys’ fees.
24. Mediation. The parties agree to make a good faith attempt to resolve any disputes
arising out of this Agreement through mediation prior to commencing litigation. The parties shall
mutually agree upon the mediator and share the costs of mediation equally. If the parties are
unable to agree upon a mediator, the dispute shall be submitted to JAMS or its successor in
interest. JAMS shall provide the parties with the names of five qualified mediators. Each party
shall have the option to strike two of the five mediators selected by JAMS and thereafter the
mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation,
either party may commence litigation.
Page 9
25. Execution. This Agreement may be executed in several counterparts, each of
which shall constitute one and the same instrument and shall become binding upon the parties
when at least one copy hereof shall have been signed by both parties hereto. In approving this
Agreement, it shall not be necessary to produce or account for more than one such counterpart.
26. Authority to Enter Agreement. Contractor has all requisite power and authority to
conduct its business and to execute, deliver, and perform the Agreement. Each party warrants
that the individuals who have signed this Agreement have the legal power, right, and authority to
make this Agreement and to bind each respective party. The City Manager is authorized to enter
into an amendment or otherwise take action on behalf of the City to make the following
modifications to the Agreement: (a) a name change; (b) grant extensions of time; (c) non-
monetary changes in the scope of services; and/or (d) suspend or terminate the Agreement.
27. Prohibited Interests. Contractor maintains and warrants that it has not employed
nor retained any company or person, other than a bona fide employee working solely for
Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid
nor has it agreed to pay any company or person, other than a bona fide employee working solely
for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. For breach or violation
of this warranty, City shall have the right to rescind this Agreement without liability. For the term
of this Agreement, no member, officer or employee of City, during the term of his or her service
with City, shall have any direct interest in this Agreement, or obtain any present or anticipated
material benefit arising therefrom.
28. Equal Opportunity Employment. Contractor 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
or age. Such non-discrimination shall include, but not be limited to, all activities related to initial
employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or
termination.
29. Prevailing Wages. Contractor is aware of the requirements of California Labor
Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8,
Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage
rates and the performance of other requirements on "public works" and "maintenance" projects.
Contractor agrees to fully comply with all applicable federal and state labor laws (including,
without limitation, if applicable, the Prevailing Wage Laws). It is agreed by the parties that, in
connection with the work or services provided pursuant to this Agreement, Contractor shall bear
all risks of payment or non-payment of prevailing wages under California law, and Contractor
hereby agrees to defend, indemnify, and hold the City, and its officials, officers, employees,
agents, and volunteers, free and harmless from any claim or liability arising out of any failure or
alleged failure to comply with the Prevailing Wage Laws. The foregoing indemnity shall survive
termination of this Agreement.
30. Execution. This Agreement may be executed in several counterparts, each of
which shall constitute one and the same instrument and shall become binding upon the parties
when at least one copy hereof shall have been signed by both parties hereto. In approving this
Agreement, it shall not be necessary to produce or account for more than one such counterpart.
[Signatures on next page]
Page 10
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
date first written above.
“CITY”
CITY OF LAKE ELSINORE, a municipal
corporation
Grant Yates, City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
“CONTRACTOR”
Amec Foster Wheeler Environment &
Infrastructure, Inc., a Nevada Corporation
By: ________________________
Its: ________________________
Attachments: Exhibit A – Contractor’s Proposal
EXHIBIT A
EXHIBIT A
CONTRACTOR’S PROPOSAL
[ATTACHED]