HomeMy WebLinkAboutItem No. 09 - Agreements for Lake Water Quality Plan Projects with Moleaer, Inc., Ballard Mari_202406212313584769)Agreements for Lake Water Quality Plan Projects with Moleaer, Inc., Ballard Marine
Construction, and Poseidon LLC.
1.Approve and authorize the City Manager to execute an Equipment Purchase & Service
Agreement with Moleaer, Inc., in an amount not to exceed $1,595,847 in such final form
as approved by the City Attorney and authorize the City Manager to execute change
orders not to exceed a 10% contingency amount of $160,000 for construction
uncertainties and adjustments. Waive the formal bidding process per Municipal Code
Section 3.08.070(G) for the purchase from Moleaer since it is a non-replicable, custom
water treatment system;
2.Approve and authorize the City Manager to execute a Contractor Services Agreement
with Ballard, Marine Construction in an amount not to exceed $1,286,240 for installation
of barges, mooring, anchoring, and electrical connections in such final form as approved
by the City Attorney and authorize the City Manager to execute change orders not to
exceed a 10% contingency amount of $128,624 for construction uncertainties and
adjustments. Waive the formal bidding process per Municipal Code Section 3.08.070(G)
for the purchase from Ballard since it is a non-replicable, custom installation;
3.Authorize the City Manager to purchase custom barge systems from Poseidon LLC. in
an amount not to exceed $425,507 and to execute change orders not to exceed a 10%
contingency amount of $42,550 for construction uncertainties and adjustments; and
4.Find that the proposed Lake Water Quality Plan Projects are exempt from the California
Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15301
(Existing Facilities).
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REPORT TO CITY COUNCIL
To:Honorable Mayor and Members of the City Council
From:Jason Simpson, City Manager
Prepared by:Adam Gufarotti, Community Support Manager
Date:June 25, 2024
Subject:Agreements for Lake Water Quality Plan Projects with Moleaer, Inc.,
Ballard Marine Construction, and Poseidon LLC.
Recommendation
1. Approve and authorize the City Manager to execute an Equipment Purchase & Service
Agreement with Moleaer, Inc., in an amount not to exceed $1,595,847 in such final form as
approved by the City Attorney and authorize the City Manager to execute change orders not
to exceed a 10% contingency amount of $160,000 for construction uncertainties and
adjustments. Waive the formal bidding process per Municipal Code Section 3.08.070(G) for
the purchase from Moleaer since it is a non-replicable, custom water treatment system;
2. Approve and authorize the City Manager to execute a Contractor Services Agreement with
Ballard, Marine Construction in an amount not to exceed $1,286,240 for installation of barges,
mooring, anchoring, and electrical connections in such final form as approved by the City
Attorney and authorize the City Manager to execute change orders not to exceed a 10%
contingency amount of $128,624 for construction uncertainties and adjustments. Waive the
formal bidding process per Municipal Code Section 3.08.070(G) for the purchase from Ballard
since it is a non-replicable, custom installation;
3. Authorize the City Manager to purchase custom barge systems from Poseidon LLC. in an
amount not to exceed $425,507 and to execute change orders not to exceed a 10%
contingency amount of $42,550 for construction uncertainties and adjustments; and
4. Find that the proposed Lake Water Quality Plan Projects are exempt from the California
Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15301 (Existing
Facilities).
Lake Water Quality Projects
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Background
As Southern California’s largest freshwater lake, Lake Elsinore is a vital resource for both wildlife
and recreation. Located at the bottom of the San Jacinto Watershed, the lake has a history of
algae blooms and frequent water quality challenges. The San Jacinto River Watershed, upstream
of Lake Elsinore, covers 780 square miles in the western half of Riverside County. It begins in the
San Jacinto Mountains and runs west through Canyon Lake, ending in Lake Elsinore. The natural
water flow through the San Jacinto Watershed carries nutrient-rich sediment into our lake each
year. The sediment carries high levels of nitrogen and phosphorus that contribute to water quality
issues and threaten aquatic life in Lake Elsinore.
The City along with its partners have implemented several water quality projects over the last
twenty years. In 2008, the Lake Elsinore & San Jacinto Watershed Authority (LESJWA) installed
the Lake Elsinore Aeration and Mixing System (LEAMS) project that aerates and mixes lake water
to improve the oxygen levels. We have studied the fish population and worked to remove harmful
fish like carp from the ecosystem. In the fall of 2022, the City conducted a pilot study to explore
long-term solutions to improving the water quality of Lake Elsinore.
On August 22, 2023, the City Council approved several agreements to kick off the Lake Elsinore
Water Quality Plan. The Lake Water Quality Plan is not one large project but a road map
approach with several strategies to improve the Lake. This road map includes immediate and
long-term water treatment projects that will work together to improve the Lake. The Lake Water
Quality Plan projects include Nannobubble Treatment with an oxygen concentrator system to
produce oxygen and ozone injected into the nanobubbles, Algaecide and Phosphorus
Treatments.
On February 6, 2024, the city implemented the first treatment plans with a cutting-edge
nanobubble system designed to infuse oxygen into the lake, effectively preventing the release of
phosphorus from its sediment layer. Early observations indicate promising outcomes, evident
through visible transformations in the lake's appearance and notable improvements in both
dissolved oxygen levels and Oxidative Reduction Potential (ORP).
Discussion
In 2023, the City secured a California Proposition 1 Round 2 grant amounting to $1.5 million,
requiring an equal matching contribution from the City. The grant application, submitted in 2022,
proposed using an Algal Harvester from AECOM to physically remove algae from the lake. The
project involves deploying the algae harvester over two-years, treating approximately one million
gallons of water daily. The project site spans roughly 12,500 square feet, with AECOM planning
to treat an area of 5.5 acres.
The budget for the project includes $1,760,000 for leasing the equipment for two years, $963,377
for operations and biomass disposal through CR&R, $75,000 for equipment breakdown and
removal by AECOM, and $200,833 for laboratory analysis and reports.
Lake Water Quality Projects
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City staff conducted a thorough analysis of the project and has raised several concerns, including
high operational costs, the limited treatment area, and challenges related to future scalability to
cover the entire lake. In comparison, our existing nanobubble pilot project addresses a 200-acre
area using equipment that we now own, making it a more scalable and cost-effective solution.
To fully leverage the potential of the state funding, City staff have revised the grant application to
enhance the existing nanobubble project by incorporating two additional barges. These new
barges will be identical in size and appearance to the current barge but will feature significant
improvements in their operational capacities. Specifically, the new barges will have double the
pumping capacity and oxygen generation capability compared to the existing one. Although the
new barges will not initially include ozone generation capabilities, this feature can be integrated
at a later stage if needed.
This strategic enhancement aims to significantly increase the efficiency and effectiveness of the
nanobubble project, ensuring a more comprehensive approach to lake treatment and algae
removal. By doubling the pumping and oxygen generation capacity, the project can address larger
areas more quickly and maintain better water quality over time. The decision to allow for future
ozone integration provides flexibility for further improvements based on the project's evolving
needs and outcomes.
In addition to expanding nanobubble generation under this state grant, we will implement a
comprehensive phosphorus mitigation project to further enhance water quality. This project entails
installing specialized boom socks filled with phosphorus-absorbing pellets. These boom socks will
be strategically placed so that as water flows over them, the excess phosphorus is effectively
removed. Phosphorus, a key contributor to algae growth, will be targeted directly, helping to
prevent algal blooms and improve overall lake health.
The installation of this phosphorus mitigation system will take place on the south side of Elm
Grove Beach, specifically at the point where recycled water enters the lake. This location has
been chosen due to its strategic importance in influencing the lake's water quality.
We are currently in the process of bidding this project out and will return to City Council at a later
time to award this project.
This dual approach—expanding the nanobubble technology and implementing the phosphorus
mitigation project—demonstrates our commitment to using innovative and effective methods to
improve and maintain the lake's water quality. By addressing both oxygenation and nutrient levels,
we aim to create a more balanced and healthy aquatic ecosystem.
Lake Water Quality Projects
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Environmental Determination
The proposed Lake Water Quality Plan projects (Project) is exempt from the California
Environmental Quality Act (CEQA) pursuant to Section 15301 (Class 1: Existing Facilities). Class
1 consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration
of existing public or private structures, facilities, mechanical equipment, or topographical features,
involving negligible or no expansion of use beyond that existing at the time of the lead agency’s
determination. (h) Maintenance of existing landscaping, native growth, and water supply
reservoirs (excluding the use of pesticides, as defined in Section 12753, Division 7, Chapter 2,
Food and Agricultural Code); and (i) Maintenance of fish screens, fish ladders, wildlife habitat
areas, artificial wildlife waterway devices, streamflows, springs and waterholes, and stream
channels (clearing of debris) to protect fish and wildlife resources. Lake Elsinore has a history of
algae blooms and frequent water quality challenges. The natural water flow through the San
Jacinto Watershed carries nutrient-rich sediment which carries high levels of nitrogen and
phosphorus that contribute to water quality issues and threaten aquatic life in Lake Elsinore. The
proposed Project involves infusing oxygen to improve oxygen levels and installing specialized
boom socks filled with phosphorus-absorbing pellets which will prevent the release of phosphorus
from its sediment layer. The Project involves maintenance work only to improve the water quality
of Lake Elsinore and does not involve any expansion of use.
Fiscal Impact
Funding costs are included in the Fiscal Year 2024/2025 Measure Z Budget.
Attachments
Attachment 1- Agreement with Moleaer, Inc.
Attachment 2- Agreement with Ballard Marine Construction
Attachment 3- Quote with Poseidon LLC
Page 1 Attachment 2 - Moleaer Agreement 8-17 A
AGREEMENT FOR EQUIPMENT PURCHASE AND SERVICES
Moleaer, Inc.
Water Treatment Equipment Purchase and Service
This Agreement for Equipment Purchase and Services (the “Agreement”) is made and
entered into as of , by and between the City of Lake Elsinore, a municipal corporation
(‘‘City") and Moleaer, Inc., a Delaware corporation ("Consultant").
RECITALS
A. The City has determined that it requires the following equipment and related services:
Water Treatment Equipment and Services for Lake Elsinore
B. Consultant has submitted to City a proposal, dated May 24, 2024, attached hereto
as Exhibit A (“Consultant’s Proposal”) and incorporated herein, to provide the water treatment
equipment and services to City pursuant to the terms of this Agreement.
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to deliver and install the equipment and perform the services described in this
Agreement on the terms and conditions described herein.
D. City desires to purchase the equipment from Consultant and retain Consultant to
perform the services as provided herein and Consultant desires to provide the equipment and
perform the services as set forth in this Agreement.
AGREEMENT
1. Scope of Services. Consultant shall perform the services described in
Consultant’s Proposal (Exhibit A). Consultant shall provide such services at the time, place, and
in the manner specified in Consultant’s Proposal, subject to the direction of the City through its
staff that it may provide from time to time.
2. Time of Performance.
a. Time of Essence. Time is of the essence in the performance of this
Agreement. The time for delivery of the equipment and performance of the services to be
performed by Consultant is an essential condition of this Agreement. Consultant shall
prosecute regularly and diligently the professional services contemplated pursuant to this
Agreement according to the agreed upon performance schedule in Consultant’s Proposal (Exhibit
A).
b. Performance Schedule. Consultant shall commence the development of
the equipment and perform the services pursuant to this Agreement upon receipt of a written
notice to proceed and shall deliver and install the equipment and perform all services within the
time period(s) established in the Consultant’s Proposal (Exhibit A). When requested by
Consultant, extensions to the time period(s) specified may be approved in writing by the City
Manager.
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c. Term. The term of this Agreement shall commence upon execution of this
Agreement and shall continue until the equipment has been delivered and installed and the
services and related work are completed in accordance with the Consultant’s Proposal (Exhibit A).
3. Compensation. Compensation to be paid to Consultant shall be in accordance
with the fees set forth in Consultants’ Proposal (Exhibit A), which is attached hereto and
incorporated herein by reference. In no event shall Consultant’s compensation exceed 1 Million
Five Hundred and Ninety Five Thousand and Eight Hundred and Forty Seven dollars (1,595,847)
without additional written authorization from the City. Notwithstanding any provision of
Consultant’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.
4. Method of Payment. Consultant 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. Consultant’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 Consultant provides services. Consultant’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
Consultant no later than forty-five (45) days after receipt of the monthly invoice by City staff.
5. Background Checks. At any time during the term of this Agreement, the City
reserves the right to make an independent investigation into the background of Consultant’s
personnel who perform work required by this Agreement, including but not limited to their
references, character, address history, past employment, education, social security number
validation, and criminal or police records, for the purpose of confirming that such personnel are
lawfully employed, qualified to provide the subject service or pose a risk to the safety of persons or
property in and around the vicinity of where the services will be rendered or City Hall. If the City
makes a reasonable determination that any of Consultant’s prospective or then current personnel is
deemed objectionable, then the City may notify Consultant of the same. Consultant shall not use
that personnel to perform work required by this Agreement, and if necessary, shall replace him or
her with a suitable worker.
6. 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 Consultant at least ten
(10) days prior written notice. Upon receipt of such notice, the Consultant 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 Consultant the actual value of the work performed up to the time of termination,
provided that the work performed is of value to the City. Upon termination of the Agreement
pursuant to this Section, the Consultant will submit an invoice to the City, pursuant to Section
entitled “Method of Payment” herein.
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7. Plans, Studies, Documents.
a. Ownership of Documents. All plans, studies, documents and other writings
prepared by and for Consultant, 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 Consultant for such work, and the City shall
have the sole right to use such materials in its discretion without further compensation to
Consultant or to any other party. Consultant shall, at Consultant’s expense, provide such reports,
plans, studies, documents and other writings to City upon written request. City shall have sole
determination of the public’s rights to documents under the Public Records Act, and any third-
party requests of Consultant shall be immediately referred to City, without any other actions by
Consultant.
b. 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 Consultant
under this Agreement ("Documents & Data"). Consultant 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. Consultant represents and warrants that
Consultant has the legal right to license any and all Documents & Data. Consultant makes no
such representation and warranty in regard to Documents & Data which were prepared by design
professionals other than Consultant or provided to Consultant 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.
c. 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 Consultant in connection with the performance
of this Agreement shall be held confidential by Consultant. Such materials shall not, without the
prior written consent of City, be used by Consultant 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 Consultant which is otherwise known to Consultant or is generally known, or has
become known, to the related industry shall be deemed confidential. Consultant shall not use
City’s name or insignia, photographs relating to project for which Consultant’s services are
rendered, or any publicity pertaining to the Consultant’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.
8. Consultant’s Books and Records.
a. Consultant shall maintain any and all ledgers, books of account, invoices,
vouchers, canceled checks, and other records or documents evidencing or relating to charges for
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 Consultant to
this Agreement.
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b. Consultant 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 Consultant’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 Consultant’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 Consultant, Consultant’s
representatives, or Consultant’s successor-in-interest.
9. Independent Contractor.
a. Consultant is and shall at all times remain as to the City a wholly
independent contractor pursuant to California Labor Code Section 3353. The personnel
performing the services under this Agreement on behalf of Consultant shall at all times be under
Consultant’s exclusive direction and control. Neither City nor any of its officers, employees, or
agents shall have control over the conduct of Consultant or any of Consultant’s officers,
employees, or agents, except as set forth in this Agreement. Consultant shall not at any time or
in any manner represent that it or any of its officers, employees, or agents are in any manner
officers, employees, or agents of the City. Consultant shall not incur or have the power to incur
any debt, obligation, or liability whatsoever against City, or bind City in any manner.
b. Notwithstanding any other federal, state and local laws, codes, ordinances
and regulations to the contrary and except for the fees paid to Consultant as provided in the
Agreement, Consultant 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. PERS Eligibility Indemnification. In the event that Consultant or any employee,
agent, or subcontractor of Consultant 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, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer
contributions for PERS benefits on behalf of Consultant 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.
11. Interests of Consultant. Consultant (including principals, associates and
professional 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
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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 Consultant’s services
hereunder. Consultant 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.
Consultant is not a designated employee within the meaning of the Political Reform Act
because Consultant:
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).)
12. Professional Ability of Consultant. City has relied upon the professional training
and ability of Consultant to perform the services hereunder as a material inducement to enter into
this Agreement. Consultant shall therefore provide properly skilled professional and technical
personnel to perform all services under this Agreement. All work performed by Consultant under
this Agreement shall be in accordance with applicable legal requirements and shall meet the
standard of quality ordinarily to be expected of competent professionals in Consultant’s field of
expertise.
13. Compliance with Laws.
a. Consultant shall comply with all local, state and federal laws and
regulations applicable to the services required hereunder, including any rule, regulation or bylaw
governing the conduct or performance of Consultant and/or its employees, officers, or board
members.
b. Consultant represents that it has obtained and will maintain at all times
during the term of this Agreement all professional and/or business licenses, certifications and/or
permits necessary for performing the services described in this Agreement, including a City
business license.
14. Licenses. Consultant represents and warrants to City that it has the licenses,
permits, qualifications, insurance and approvals of whatsoever nature which are legally required
of Consultant to practice its profession. Consultant represents and warrants to City that
Consultant 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
Consultant to practice its profession. Consultant shall maintain a City of Lake Elsinore business
license.
15. Indemnity. Consultant 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 Consultant 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 Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of
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law arises from the sole negligence or willful misconduct of the City or its officers, employees,
agents, or volunteers and (2) the actions of Consultant 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 Consultant 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 Consultant 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, Consultant
acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
16. Insurance Requirements.
a. Insurance. Consultant, at Consultant’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. Consultant 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, Consultant
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
Consultant for City. In the event that Consultant 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, Consultant 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. Consultant 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. 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.
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iii. Automobile Liability Coverage. Consultant shall maintain
automobile liability insurance covering bodily injury and property damage for all activities
of the Consultant 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 not less than one 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.
iv. Professional Liability Coverage. Consultant shall maintain
professional errors and omissions liability insurance appropriate for Consultant’s
profession for protection against claims alleging negligent acts, errors or omissions which
may arise from Consultant’s services under this Agreement, whether such services are
provided by the Consultant or by its employees, subcontractors, or sub consultants. The
amount of this insurance shall not be less than one million dollars ($1,000,000) on a
claims-made annual aggregate basis, or a combined single limit per occurrence basis.
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. Notwithstanding any inconsistent statement in any required
insurance policies or any subsequent endorsements attached thereto, the protection
offered by all policies, except for Workers’ Compensation, shall bear an endorsement
whereby it is provided that, the City and its officers, employees, servants, volunteers and
agents and independent contractors, including without limitation, the City Manager and
City Attorney, are named as additional insureds. Additional insureds shall be entitled to
the full benefit of all insurance policies in the same manner and to the same extent as any
other insureds and there shall be no limitation to the benefits conferred upon them other
than policy limits to coverages.
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.
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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, Consultant shall
demonstrate financial capability for payment of such deductibles or self-insured retentions.
d. Certificates of Insurance. Consultant shall provide certificates of insurance
with original 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.
17. 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
If to Consultant: Moleaer, Inc.
Attn: Chris Stephan
3232 W El Segundo Blvd
Hawthorne, CA 90250
18. Assignment and Subcontracting. The parties recognize that a substantial
inducement to City for entering into this Agreement is the professional reputation, experience and
competence of Consultant and the subcontractors listed in Exhibit B. Consultant 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 Consultant under this Agreement will be permitted only with the
express consent of the City. Consultant shall not subcontract any portion of the work to be
performed under this Agreement except as provided in Exhibit B without the written authorization
of the City. If City consents to such subcontract, Consultant 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.
19. 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.
20. 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.
Page 9
21. 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.
22. Prohibited Interests. Consultant maintains and warrants that it has not employed
nor retained any company or person, other than a bona fide employee working solely for
Consultant, to solicit or secure this Agreement. Further, Consultant 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 Consultant, 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.
23. Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee or
applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex
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.
24. Prevailing Wages. Consultant 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.
Consultant 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, Consultant shall bear
all risks of payment or non-payment of prevailing wages under California law, and Consultant
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.
25. 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.
26. 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.
27. Authority to Enter Agreement. Consultant 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
Page 10
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.
28. Counterparts. 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.
29. Entire Agreement; Incorporation; Conflict. This Agreement contains the entire
understanding between the parties relating to the obligations described herein. All prior or
contemporaneous understandings, agreements, representations and statements, oral or written,
are superseded in total by this Agreement and shall be of no further force or effect. Consultant’s
Proposal is incorporated only for the description of the scope of services and/or the schedule of
performance and no other terms and conditions from such proposal shall apply to this Agreement
unless specifically agreed to in writing. In the event of conflict, this Agreement shall take
precedence over those contained in the Consultant’s Proposal.
30. Amendments. This Agreement may be modified or amended only by a written
document executed by both Consultant and City and approved as to form by the City Attorney.
[Signatures on next page]
Page 11
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
“CONSULTANT”
Moleaer, Inc., a Delaware corporation
City Manager
ATTEST:
By:
Its:
City Clerk
APPROVED AS TO FORM:
City Attorney
Assistant City Manager
Attachments: Exhibit A – Consultant’s Proposal
Quote for City of Lake Elsinore - 2nd phase- 2 additional
container systems |
About Moleaer
MoleaerTM is the global leader in nanobubble technology with a mission to unlock nanobubbles’ full potential to enhance and protect water, food, and
natural resources. Our patented nanobubble technology improves sustainable food production and processing, water and wastewater treatment, natural
resource recovery, and restores aquatic ecosystems without chemicals. Our technology has been validated by extensive research and we have over
2,200 installations in more than 50 countries.
City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
United States
Adam Gufarotti
agufarotti@lake-elsinore.org
19516743124
Reference: 20240524-144508470
Quote created: May 24, 2024
Quote expires: August 22, 2024
Moleaer Inc
3232 W El Segundo Blvd
Hawthorne California 90250
United States
Prepared by: Chris Stephan
chris@moleaer.com
Project Application
Moleaer is pleased to o er this proposal to the City of Lake Elsinore for 2 additional containerized Moleaer Oxygen Nanobubble systems to increase
treatment capacity and continue on Lake Restoration Plan.
Purchase Terms
Payment terms:
-Downpayment, payment upon installation, service payment, exact amount TBD
Lead time: 12-22 wks
Administrative/contract contact:
Adam Gufarotti
On site Contact:
TBD
Moleaer is to provide:
-2 containerized Moleaer oxygen nanobubble system
*System Details, each: 2 x 20' container, 4400 gpm 125 hp pump, 2 x NBG8 Nanobubble Generator, up to 106#/hr O2 generator, 40 hp compressor, self
cleaning intake screen and remote monitoring.
-Arrange freight, load and deliver containers to Lake Elsinore
-10 days of On site commissioning support
-1 yr of Moleaer Global Service support to ensure proper operation and maintenance per manufacturers requirements
Customer is to provide:
-All necessary permits, permissions, and access for use/maintenance
-Unloading of containers from trailers
-Supply and installation of barges
-Lifting, setting and securement of containers on the barge
-Supply and connection of 3ph 480V 400A 126kw power to each container
-Supply and connection of all exterior piping
-Supply and connection of all required buoys, warnings, moorings, signs, lights and beacons
Total $1,595,847.00
PRODUCTS & SERVICES SKU QUANTITY BILLING FREQUENCY TERM PRICE
Containerized Nanobubble System 2 $1,565,274.00
50F1-607: Trinity, NBG 8, Imperial 316SS 50F1-607 4 $0.00
AIR SEP: AS-L 2 $0.00
4400 gpm pump with VFD drive 2 $0.00
2 x 20' containers with access doors 2 $0.00
Ingersoll Rand Rotary Screw Compressor 2 $0.00
Remote Monitoring and Safety Systems 2 $0.00
1 yr Maintenance -1 $0.00
-Startup/Commissioning 1 $30,573.00
SUBTOTALS PRICE
One-time subtotal $1,595,847.00
Total $1,595,847.00
MOLEAER STANDARD TERMS AND CONDITIONS OF SALE (2023)
1. CONDITIONS. These Standard Terms and Conditions of Sale (these “Conditions”) govern the sale of products (the “Goods”) by Moleaer, Inc.
(“Moleaer”) to the entity (“Buyer” and, with Moleaer, the “Parties”) named in Moleaer’s proposal, sales quote or sales agreement (the “Order” and,
together with these Conditions, this “Contract”). Unless specified in another agreement between the Parties, this Contract constitutes the entire
agreement between the Parties, supersedes all prior written or oral communications or understandings concerning the Goods and takes precedence
over and cancels any other, di erent or conflicting terms or conditions of Buyer’s purchase order or acceptance. No waiver or amendment of any of the
provisions of this Contract shall be e ective unless in writing and executed by both Parties. Unless otherwise stated herein, Buyer's receipt of any
portion of the Goods shall constitute acceptance of these Conditions.
2. PRICES AND PAYMENT. All prices are quoted on a EXW, CIF, CFR or FCA basis. Unless otherwise specified in the Order, all freight and other
transportation and insurance charges and costs shall be borne by Buyer and Buyer will be liable for any sales, use or excise tax, custom, inspection or
testing fee, import duty, clearance expense or any other tax, fee, or charge imposed by any governmental authority upon the sale, purchase, delivery,
storage, processing, use or consumption of the Goods. Unless otherwise specified in the Order, payment shall be required upon delivery of the Goods.
Buyer shall pay interest on any overdue amount at the rate of one-percent (1%) per month, prorated weekly, without prejudice to any other rights of
Moleaer.
3. DELIVERY. Unless specified in the Order, delivery of the Goods to a carrier at Moleaer’s factory shall constitute “delivery” to Buyer. If Buyer or its
carrier does not take delivery of the Goods on the date scheduled by Moleaer, then Buyer shall promptly pay to Moleaer an inventory carrying cost equal
to one-third of a percent (0.333%) of the purchase price for each unit of Goods held per day of delay. Title to and all risks of loss and/or damage to the
Goods shall pass to Buyer upon delivery. Moleaer does not guarantee any delivery date unless specified in the Order.
4. LIMITED WARRANTY. Moleaer warrants that the Goods will be free from defects in material and workmanship for a period of twelve (12) months
from delivery (the “Warranty Period”). Moleaer shall in no event be liable for defects or damage attributable to modifications performed or repair work
done other than by Moleaer personnel, use of service parts or components not authorized by Moleaer, or abuse, accident, negligence, catastrophe, force
majeure event, shipment, improper use including but not limited to circumstances where pumps and / or compressors included in the Goods are not
operated in accordance with the original pump or compressor manufacturer’s specifications, maintenance, storage or application or any other external
cause. EXCEPT FOR ANY WRITTEN PERFORMANCE WARRANTY THAT MOLEAER HAS EXPRESSLY INCORPORATED IN THIS CONTRACT, THE GOODS ARE
PROVIDED BY MOLEAER “AS IS” AND WITH ALL FAULTS, AND MOLEAER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ANY IMPLIED WARRANTY THAT CANNOT
BE DISCLAIMED BY LAW IS LIMITED TO THE DURATION OF THE WARRANTY PERIOD. MOLEAER DOES NOT WARRANT THAT THE GOODS WILL MEET
BUYER’S REQUIREMENTS OR ACHIEVE ANY SPECIFIC RESULTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ACKNOWLEDGES AND
AGREES THAT BUYER IS SOLELY RESPONSIBLE FOR USE OF THE GOODS COMPLIANCE WITH APPLICABLE LAWS, RULES AND REGULATIONS.
5. CLAIMS; EXCLUSIVE REMEDY. Any warranty claim must be made to Moleaer in writing within ten (10) days of discovery of the alleged defect. After
obtaining prior written authorization from Moleaer, Buyer shall return all allegedly defective Goods, freight pre-paid, for examination by Moleaer. If
Moleaer finds that the Goods are defective and covered by the warranty, Moleaer’s sole obligation shall be, at Moleaer’s option, to repair or replace the
Goods, or to refund the purchase price therefor, and to reimburse Buyer’s reasonable shipping costs. Buyer shall be responsible for all charges for
handling of returned items not found defective. The remedy set forth in this paragraph 4 is Buyer’s sole and exclusive remedy for any breach of
warranty or claim related to the Goods other than pursuant to any written performance warranty that Moleaer has expressly incorporated in this
Contract.
6. LIMITED LIABILITY. MOLEAER SHALL NOT BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING DAMAGES
FOR LOST OR PROSPECTIVE PROFITS OR OTHER ECONOMIC DAMAGES, ARISING OUT OF OR RELATED TO THIS CONTRACT OR THE GOODS. MOLEAER’S
TOTAL LIABILITY, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE PORTION OF THE PRICE PAID BY BUYER ALLOCABLE TO
THE GOODS GIVING RISE TO THE LIABILITY. THE LIMITATIONS IN THIS PARAGRAPH WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY. This limitation shall not apply to claims for personal injury directly caused by Moleaer’s willful or reckless acts.
7. INTELLECTUAL PROPERTY; CONFIDENTIALITY; USE; RESALE. Nothing in this Contract conveys any license, right, title or interest in or to the
intellectual property of Moleaer to Buyer or any third party. To the extent Buyer obtains the Confidential Information (defined below) of Moleaer
(including, for example, pricing information or trade secrets), Buyer shall not use such Confidential Information for any unauthorized purpose or
disclose such Confidential Information to any third party. Without limiting the foregoing, Buyer shall not,
and shall not permit or assist any third party to, reverse engineer or otherwise attempt to extract, learn or derive proprietary elements of, the Goods, in
whole or in part, or otherwise attempt to use the Goods to unfairly compete directly or indirectly with Moleaer. These restrictions shall not apply to
information that Buyer can demonstrate (1) is in the public domain through no fault of Buyer or persons to whom it disclosed such information, (2) was
independently developed by or for Buyer prior to receipt from Moleaer or (3) was disclosed to Buyer by a third party with the legal right to do so, free
of any restrictions on subsequent disclosure. Buyer also may disclose such Confidential Information to the extent compelled by court order or
applicable law, provided that it shall use its best e orts to provide Moleaer with prior written notice thereof and shall cooperate with Moleaer to obtain
confidential treatment or a protective order therefor. For purposes of this Agreement,
“Confidential Information” means all nonpublic information disclosed by Moleaer or its agents, or otherwise obtained by Buyer, and that is designated as
confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as
confidential. Buyer shall use the Goods only at Buyer’s facility and only for the application for which they were sold by Moleaer. Without Moleaer’s prior
written approval, Buyer shall not resell, transfer, exchange or otherwise assign the Goods to any third party.
8. TERMINATION OR CANCELLATION. Moleaer may terminate this Contract if Buyer fails to cure a material breach within fifteen (15) days after
receiving written notice of the breach, or if Buyer becomes unable to meet its obligations as they mature, or if any proceeding under bankruptcy or
insolvency laws is brought by or against Buyer, or if a receiver for Buyer is appointed or applied for or if an assignment for the benefit of creditors is
made by Buyer. Buyer may cancel orders made pursuant to this Contract, provided that Buyer shall promptly pay cancellation charges as follows: (i) any
Goods that are completed will be paid for in full at the quoted price whether shipment is accepted or not, and (ii) any work in process and any materials
or supplies on hand or for which commitments have been made is to be paid for on the basis of Moleaer’s total cost plus thirty-five percent (35%).
9. FORCE MAJEURE. Neither Party shall be liable for any loss or damage of any nature whatsoever incurred or su ered as a result of any failures or
delays in performance caused by strikes, lockouts or labor disputes, acts of God, epidemics, earthquakes, power failures or other disasters, riots, acts of
civil or military authorities, acts of war or terrorism, compliance with laws, orders or policies of any governmental authority, delays in transit, delivery
or communications facilities, failures of sources of materials or other events outside such Party’s reasonable control.
10. ASSIGNMENTS. This Contract shall not be assigned by Buyer without the prior written consent of Moleaer. Moleaer may assign this Contract to any
a liate or subsidiary of Moleaer or to a person or entity acquiring all or substantially all of the stock, assets or business of Moleaer.
11. COMPLIANCE. Buyer has full responsibility for obtaining any licenses, permits and inspections required for and for complying with all applicable
laws, regulations, and ordinances in connection with the installation and use of the Goods. Without limiting the foregoing, Buyer shall comply with all
applicable laws, regulations, and ordinances when using any hazardous gas, including but not limited to ozone, and shall be fully responsible for such
compliance regardless of whether such gas is sourced from a third party provider or generated onsite by a gas generator or concentrator that is
included in the Goods or acquired separately. Buyer shall take all necessary measures to ensure any hazardous gas is used in a safe manner consistent
with industry best practices. Buyer acknowledges and agrees to follow and comply with the operating instructions provided by Moleaer and shall be
fully responsible for the health and safety of Buyer’s employees, consultants, service providers and other representatives. Buyer shall ensure that any
export of the Goods is made in accordance with all applicable export regulations, including the U.S. Department of Commerce’s Export Administration
Regulations. Diversion or re-export contrary to U.S. law is prohibited. Buyer agrees that, in the performance of this Contract, neither it nor any of its
o cers, representatives or agents shall make, authorize, permit or o er any payments, loans, gifts or other value in violation of the laws or policies of
the U.S.A. (including, but not limited to, the Foreign Corrupt Practices Act of 1977, as amended) or of any other country.
12. NOTICES. All notices required or permitted under this Contract and all requests for approvals, consents, and waivers must be in writing and
delivered to the Parties at their respective addresses set forth on the Order by a method providing for proof of delivery. Any notice or request will be
deemed to have been given on the date of receipt.
13. GOVERNING LAW AND JURISDICTION. This Contract shall be construed and enforced in accordance with the laws of the State of California,
U.S.A., without reference to its conflict of laws principles. Any legal action or proceeding relating to this Contract shall be subject to the exclusive
general jurisdiction of the courts of the State of California and the federal courts of the United States of America located in Los Angeles, California, and
the appellate courts thereof. This Contract shall not be governed by the U.N. Convention & Contracts for the International Sale of Goods, the application
of which is expressly excluded.
Attachment 2 - Ballard Marine Construction Agreement Page 1
AGREEMENT FOR CONTRACTOR SERVICES
Ballard Marine Construction
Installation of Electrical Equipment and Barge Anchorage
This Agreement for Contractor Services (the “Agreement”) is made and entered into as of
Click or tap to enter a date., by and between the City of Lake Elsinore, a municipal corporation
(‘‘City") and Ballard Marine Construction, Inc., a Corporation ("Consultant").
RECITALS
A. The City has determined that it requires the following contractor services:
Installation of Electrical Equipment and Barge Anchorage for 2024 Lake Water Quality Equipment.
B. Consultant has submitted to City a proposal, dated June 14, 2024, attached hereto
as Exhibit A (“Consultant’s Proposal”) and incorporated herein, to provide contractor services to
City pursuant to the terms of this Agreement.
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to perform the services described in this Agreement on the terms and conditions
described herein.
D. City desires to retain Consultant to perform the services as provided herein and
Consultant desires to provide such contractor services as set forth in this Agreement.
AGREEMENT
1. Scope of Services. Contractor shall perform the services described in Contractor’s
Proposal (Exhibit A). Contractor shall provide such services at the time, place, and in the manner
specified in Contractor’s Proposal, subject to the direction of the City through its staff that it may
provide from time to time.
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 professional services to be performed by Contractor
is an essential condition of this Agreement. Contractor shall prosecute regularly and diligently
the professional services contemplated pursuant to this Agreement according to the agreed upon
performance schedule in Contractor’s Proposal (Exhibit A).
b. Performance Schedule. Contractor shall commence the services pursuant
to this Agreement upon receipt of a written notice to proceed and shall perform all services 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. The term of this Agreement shall commence upon execution of this
Agreement and shall continue until the services and related work are completed in accordance
with the Consultant’s Proposal (Exhibit A).
3. Compensation. Compensation to be paid to Consultant shall be in accordance
with the fees set forth in Consultants’ Proposal (Exhibit A), which is attached hereto and
incorporated herein by reference. In no event shall Consultant’s compensation exceed One
Million Two Hundred and Eighty-Six Thousand and Two Hundred and Forty dollars ($1,286,240)
without additional written authorization from the City. Notwithstanding any provision of
Consultant’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.
4. Method of Payment. Consultant 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. Consultant’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 Consultant provides services. Consultant’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
Consultant no later than forty-five (45) days after receipt of the monthly invoice by City staff.
5. Background Checks. At any time during the term of this Agreement, the City
reserves the right to make an independent investigation into the background of Consultant’s
personnel who perform work required by this Agreement, including but not limited to their
references, character, address history, past employment, education, social security number
validation, and criminal or police records, for the purpose of confirming that such personnel are
lawfully employed, qualified to provide the subject service or pose a risk to the safety of persons
or property in and around the vicinity of where the services will be rendered or City Hall. If the City
makes a reasonable determination that any of Consultant’s prospective or then current personnel
is deemed objectionable, then the City may notify Consultant of the same. Consultant shall not
use that personnel to perform work required by this Agreement, and if necessary, shall replace
him or her with a suitable worker.
6. 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 Consultant at least ten
(10) days prior written notice. Upon receipt of such notice, the Consultant 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 Consultant the actual value of the work performed up to the time of termination,
provided that the work performed is of value to the City. Upon termination of the Agreement
pursuant to this Section, the Consultant will submit an invoice to the City, pursuant to Section
entitled “Method of Payment” herein.
Page 3
7. Plans, Studies, Documents.
a. Ownership of Documents. All plans, studies, documents and other writings
prepared by and for Consultant, 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 Consultant for such work, and the City shall
have the sole right to use such materials in its discretion without further compensation to
Consultant or to any other party. Consultant shall, at Consultant’s expense, provide such reports,
plans, studies, documents and other writings to City upon written request. City shall have sole
determination of the public’s rights to documents under the Public Records Act, and any third-
party requests of Consultant shall be immediately referred to City, without any other actions by
Consultant.
b. 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 Consultant
under this Agreement ("Documents & Data"). Consultant 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. Consultant represents and warrants that
Consultant has the legal right to license any and all Documents & Data. Consultant makes no
such representation and warranty in regard to Documents & Data which were prepared by design
professionals other than Consultant or provided to Consultant 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.
c. 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 Consultant in connection with the performance
of this Agreement shall be held confidential by Consultant. Such materials shall not, without the
prior written consent of City, be used by Consultant 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 Consultant which is otherwise known to Consultant or is generally known, or has
become known, to the related industry shall be deemed confidential. Consultant shall not use
City’s name or insignia, photographs relating to project for which Consultant’s services are
rendered, or any publicity pertaining to the Consultant’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.
8. Consultant’s Books and Records.
a. Consultant shall maintain any and all ledgers, books of account, invoices,
vouchers, canceled checks, and other records or documents evidencing or relating to charges for
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 Consultant to
this Agreement.
Page 4
b. Consultant 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 Consultant’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 Consultant’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 Consultant, Consultant’s
representatives, or Consultant’s successor-in-interest.
9. Independent Contractor.
a. Consultant is and shall at all times remain as to the City a wholly
independent contractor pursuant to California Labor Code Section 3353. The personnel
performing the services under this Agreement on behalf of Consultant shall at all times be under
Consultant’s exclusive direction and control. Neither City nor any of its officers, employees, or
agents shall have control over the conduct of Consultant or any of Consultant’s officers,
employees, or agents, except as set forth in this Agreement. Consultant shall not at any time or
in any manner represent that it or any of its officers, employees, or agents are in any manner
officers, employees, or agents of the City. Consultant shall not incur or have the power to incur
any debt, obligation, or liability whatsoever against City, or bind City in any manner.
b. Notwithstanding any other federal, state and local laws, codes, ordinances
and regulations to the contrary and except for the fees paid to Consultant as provided in the
Agreement, Consultant 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. PERS Eligibility Indemnification. In the event that Consultant or any employee,
agent, or subcontractor of Consultant 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, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer
contributions for PERS benefits on behalf of Consultant 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.
11. Interests of Consultant. Consultant (including principals, associates and
professional 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
Page 5
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 Consultant’s services
hereunder. Consultant 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.
Consultant is not a designated employee within the meaning of the Political Reform Act
because Consultant:
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).)
12. Professional Ability of Consultant. City has relied upon the professional training
and ability of Consultant to perform the services hereunder as a material inducement to enter into
this Agreement. Consultant shall therefore provide properly skilled professional and technical
personnel to perform all services under this Agreement. All work performed by Consultant under
this Agreement shall be in accordance with applicable legal requirements and shall meet the
standard of quality ordinarily to be expected of competent professionals in Consultant’s field of
expertise.
13. Compliance with Laws.
a. Consultant shall comply with all local, state and federal laws and
regulations applicable to the services required hereunder, including any rule, regulation or bylaw
governing the conduct or performance of Consultant and/or its employees, officers, or board
members.
b. Consultant represents that it has obtained and will maintain at all times
during the term of this Agreement all professional and/or business licenses, certifications and/or
permits necessary for performing the services described in this Agreement, including a City
business license.
14. Licenses. Consultant represents and warrants to City that it has the licenses,
permits, qualifications, insurance and approvals of whatsoever nature which are legally required
of Consultant to practice its profession. Consultant represents and warrants to City that
Consultant 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
Consultant to practice its profession. Consultant shall maintain a City of Lake Elsinore business
license.
15. Indemnity. Consultant 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 Consultant 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 Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of
Page 6
law arises from the sole negligence or willful misconduct of the City or its officers, employees,
agents, or volunteers and (2) the actions of Consultant 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 Consultant 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 Consultant 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, Consultant
acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
16. Insurance Requirements.
a. Insurance. Consultant, at Consultant’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. Consultant 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, Consultant
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
Consultant for City. In the event that Consultant 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, Consultant 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. Consultant 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. 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.
Page 7
iii. Automobile Liability Coverage. Consultant shall maintain
automobile liability insurance covering bodily injury and property damage for all activities
of the Consultant 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 not less than one 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.
iv. Professional Liability Coverage. Consultant shall maintain
professional errors and omissions liability insurance appropriate for Consultant’s
profession for protection against claims alleging negligent acts, errors or omissions which
may arise from Consultant’s services under this Agreement, whether such services are
provided by the Consultant or by its employees, subcontractors, or sub consultants. The
amount of this insurance shall not be less than one million dollars ($1,000,000) on a
claims-made annual aggregate basis, or a combined single limit per occurrence basis.
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. Notwithstanding any inconsistent statement in any required
insurance policies or any subsequent endorsements attached thereto, the protection
offered by all policies, except for Workers’ Compensation, shall bear an endorsement
whereby it is provided that, the City and its officers, employees, servants, volunteers and
agents and independent contractors, including without limitation, the City Manager and
City Attorney, are named as additional insureds. Additional insureds shall be entitled to
the full benefit of all insurance policies in the same manner and to the same extent as any
other insureds and there shall be no limitation to the benefits conferred upon them other
than policy limits to coverages.
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.
Page 8
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, Consultant shall
demonstrate financial capability for payment of such deductibles or self-insured retentions.
d. Certificates of Insurance. Consultant shall provide certificates of insurance
with original 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.
17. 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
If to Consultant: Ballard Marine Construction
Attn: Chuck Phipps
6200 Angelo Ct.
Loomis, CA 95650
18. Assignment and Subcontracting. The parties recognize that a substantial
inducement to City for entering into this Agreement is the professional reputation, experience and
competence of Consultant and the subcontractors listed in Exhibit B. Consultant 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 Consultant under this Agreement will be permitted only with the
express consent of the City. Consultant shall not subcontract any portion of the work to be
performed under this Agreement except as provided in Exhibit B without the written authorization
of the City. If City consents to such subcontract, Consultant 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.
19. 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.
20. 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.
Page 9
21. 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.
22. Prohibited Interests. Consultant maintains and warrants that it has not employed
nor retained any company or person, other than a bona fide employee working solely for
Consultant, to solicit or secure this Agreement. Further, Consultant 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 Consultant, 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.
23. Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee or
applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex
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.
24. Prevailing Wages. Consultant 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.
Consultant 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, Consultant shall bear
all risks of payment or non-payment of prevailing wages under California law, and Consultant
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.
25. 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.
26. 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.
27. Authority to Enter Agreement. Consultant 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
Page 10
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.
28. Counterparts. 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.
29. Entire Agreement; Incorporation; Conflict. This Agreement contains the entire
understanding between the parties relating to the obligations described herein. All prior or
contemporaneous understandings, agreements, representations and statements, oral or written,
are superseded in total by this Agreement and shall be of no further force or effect. Consultant’s
Proposal is incorporated only for the description of the scope of services and/or the schedule of
performance and no other terms and conditions from such proposal shall apply to this Agreement
unless specifically agreed to in writing. In the event of conflict, this Agreement shall take
precedence over those contained in the Consultant’s Proposal.
30. Amendments. This Agreement may be modified or amended only by a written
document executed by both Consultant and City and approved as to form by the City Attorney.
[Signatures on next page]
Page 11
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
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Assistant City Manager
“CONSULTANT”
Ballard Marine Construction, Inc., a
Corporation
By: Click or tap here to enter text.
Its: Click or tap here to enter text.
Attachments: Exhibit A – Consultant’s Proposal
Exhibit B – List of Subcontractors
EXHIBIT A
EXHIBIT A
CONSULTANT’S PROPOSAL
[ATTACHED]
EXHIBIT B
EXHIBIT B
LIST OF SUBCONTRACTORS
[ATTACHED]
www.ballardmc.com
A ROM Proposal Prepared For:
Lake Elsinore Barge and Nano Bubbler Systems
City of Lake Elsinore
Bid Date: 6/14/2024
Prepared By:
Ballard Marine Construction
Chuck Phipps
Chuck.Phipps@ballardmc.com
866.782.6750
CONFIDENTIALITY
This proposal, including pricing, contains confidential and proprietary information and shall not be duplicated,
used or disclosed – in whole or in part – for any purpose other than to evaluate this proposal for the specific
project named above. The proposal and the information contained herein may be shared with Client’s
customer, employees, consultants and agents only to the extent such entities and individuals have a need to
know such information in connection with the Project and have been informed of the confidential and
proprietary nature of the information. Client shall take all reasonable precautions to prevent disclosure of
confidential and proprietary information to any other person or entity. In the event Client or third party uses
any information in this proposal for purposes other than as stated above, Ballard Marine shall not be liable in
any way relating to such use.
6/14/2024
Adam Gufarotti
City of Lake Elsinore
Lake Elsinore, CA
(951) 674-3124 Ext. 314
agufarotti@lake-elsinore.org
RE: Lake Elsinore Barge and Nano Bubbler Systems
Dear Adam Gufarotti,
Ballard Marine Construction (Ballard) appreciates the opportunity to submit our proposal for
the Lake Elsinore Barge and Nano Bubbler Systems as per your requested scope of work. Ballard
personnel will comply with all local, state and federal rules and regulations applicable to the
performance of our services.
Ballard looks forward to working with you on this project. Should additional information be
required, or if I may be of further assistance, please do not hesitate to contact me.
Respectfully Submitted,
Ballard Marine Construction
Chuck Phipps
866.782.6750 | Chuck.Phipps@ballardmc.com
ABOUT BALLARD
Ballard Marine Construction (Ballard) has been working in the heavy civil marine construction
industry since the 1970s; providing complete infrastructure inspection, construction,
rehabilitation and maintenance solutions on projects worldwide since our inception. Ballard has
always taken an innovative approach to offering highly technical heavy civil marine and
underwater solutions to our local, national, and international clients in the power,
transportation, environmental, water and wastewater, and industrial markets.
PROJECT OVERVIEW
Ballard will provide a crew and marine equipment to perform Lake Elsinore Barge and Nano
Bubbler Systems. This project is quoted as lump sum.
Client: City of Lake Elsinore Start Date: Sept-Oct 2024
Location: Lake Elsinore, CA Duration (est.): 10-12 Days
Project Location
SCOPE OF WORK
Ballard to provide services to assemble and anchor two nano system barges on Lake Elsinore.
The city is providing modular barges and nano bubbler systems. Ballard to provide equipment
and personnel to assemble the modular barges, load and assemble the nano-bubbler systems,
procure and install the anchoring systems for each barge, provide and assemble HDPE intake
and discharge piping with bracketry, electrical contractor for shoreside and barge hookups.
PROJECT ROM PRICING SUMMARY
Pricing Notes:
• Mobilization Rate – applies during preparation and loading of all equipment and
supplies require to perform the work, and during travel time to the Project site in
preparation for initial setup.
• Working Day Rate(s) – apply from initial arrival of crew at the Project site and at all
times crew is on site until work is completed, all equipment is loaded, and crew leaves
the Project site.
• Standby Rate – applies at any time Client requires crew to stand by at an offsite location
or near the Project site. Will be billed at a minimum of eight (8) hours per day/40 hours
per week at each employee’s billable classification. Owned equipment will be billed at
sixty percent (60%) of rate(s) shown above. Rented equipment will be billed at one
hundred percent (100%) of the rate(s) shown above.
• Demobilization Rate – applies after completion of the work from the point equipment
and crew leave the Project site, return to Ballard’s facility, and until all restocking of
equipment is completed.
• Dive System Maintenance: when applicable, maintenance will be performed daily for up
to one (1) hour, accruing up to eight (8) hours per project, and will not be considered
down time.
• Other:
o Consumables, materials and third-party services required to complete the work
will be billed at cost plus 15% for T&M Change Orders for additional work scope.
o Additional items will also be billed at cost plus 15%, including:
▪ Additional Client requested for T&M Change Orders for additional work
scope, services, equipment, or tooling (when available)
▪ Mobilization of additional equipment, unless Ballard and Client agree
Client will be directly responsible for mobilization
Item Description Actual Unit Est. Units Cost/Unit Subtotal
1 Mobilization / Demobilization LS 1.00 78,290.00$ 78,290.00$
2 Barge Assembly, Mooring, and Installation x 2 LS 1.00 235,750.00$ 235,750.00$
3 Service Crane - Barge & System Assembly Loading LS 1.00 70,820.00$ 70,820.00$
4 Electrical, Trenching, Sub Marine Cable, Submar Mat LS 1.00 598,270.00$ 598,270.00$
5 Nano Bubbler Permanent Barge Anchorage LS 1.00 145,430.00$ 145,430.00$
6 HDPE Piping, Davit, and Bases LS 1.00 157,680.00$ 157,680.00$
1,286,240.00$
BALLARD MARINE CONSTRUCTION ROM PRICING SUMMARY
Estimate Price
▪ Welders provided by Ballard for any Client provided equipment
o All work performed will be in accordance with working rules of applicable local
union agreements, prevailing wage, and/or Davis Bacon requirements.
o Rates do not include any applicable sales or use taxes.
Project Specific Notes, Clarifications, and Exclusions
1. Both barges quoted are to be assembled concurrently and deployed consecutively.
2. Pricing is based on previous project scope and conversation with Adam Gufarotti
3. An RFP/RFQ has not been provided to Ballard to base the pricing. All pricing is based on
email and verbal communication, and the preliminary plans provided (80F0-200-GAD
PRELIMINARY dated 10/24/2023) from the previous project.
4. A Bill of Materials (BOL) has not been provided by the City of Lake Elsinore.
5. Per conversation with Adam Gufarotti, the HDPE pipeing is larger than the previous
installed system. No sizes or specification were provided. Pricing based off the
preliminary plans provided (80F0-200-GAD PRELIMINARY dated 10/24/2023) from the
previous project.
6. Bonding and permitting not included in the proposal.
7. Ballard is not responsible for the condition of the existing aeration lines or power cable
that are laid across the lakebed.
8. Pricing assumes aeration lines and power cables will be marked out by others at the four
(4) anchorage drop points.
9. Pricing assumes Power Cable installation onshore can be direct burial conduit and NOT
concrete incased conduit.
10. Pricing assumes Power Cable will be laid on the lakebed and not protected.
11. No jetting of the power cables into the lake bed is required by the city.
12. Ballard to connect power cable to Nano-Bubbler barge breaker panel, other barge
power connections and installations to be performed by others.
13. Ballard is not responsible for any unmarked/unknown lines that are not identified
through the 811 process.
14. If the City of Lake Elsinore chooses to forgo stability and anchoring engineering of the
floating nano-bubbler barge, Ballard will not be held responsible for the stability of the
barge or the failure to maintain the barge positioning once installed.
15. Pricing may be subject to change with additional work scope is added to the project or
product substitution as directed by the City of Lake Elsinore or engineering firm
Moleaer.
16. Period of performance is subject to availability of materials, engineering, and the city to
approve the engineered design plans provided by Ballard.
17. Ballard to not be liable for the public mooring up to or boarding the barge.
18. Painting of existing, modified, and/or newly installed components is excluded from the
Ballard pricing and scope.
19. Per conversation with Adam Gufarotti Barge 1 will be located about the same distance
form the shoreline and power pulled from the same power source as the January 2024
barge installation. Additional cable required longer than 800LF will be an additional cost.
Power cable in long sections is a long lead item and needs to be sourced as soon as
possible.
20. Per conversation with Adam Gufarotti Barge 2 will be located near existing floats. Power
will be removed from one of the five existing barges and utilized for the new barge to
power the nano-bubbler. Ballard is assuming there is adequate power cable slack for
Ballard to be safely connected to the nano-bubble system with adequate slack for barge
movement.
21. Ballard will not procure material or incur cost until issued a PO to invoice against.
General Notes, Clarifications, and Exclusions
The following are made part of the contract and supersede any provisions thereof unless
expressly agreed otherwise in writing by Ballard.
1. This proposal is contingent upon:
a. the parties reaching mutually agreeable terms and conditions under a fully
executed written agreement, and
b. availability of personnel and equipment.
2. Ballard and Client acknowledge:
a. this proposal is submitted in response to an RFP or other request (i.e., schedule
of rates) from Client and is based on assumptions and quantities specified
therein, and
b. changes to assumptions and/or fluctuations in quantities may affect costs
associated with providing the services contemplated herein.
3. Exclusions:
a. This proposal does not include, and Ballard will not be responsible for, any
impact, delay or costs resulting from events or circumstances beyond Ballard’s
control, including but not limited to: acts of God; acts of the public enemy; acts
of the Client, Project owner, or their respective agents; fires; floods; epidemics
or pandemics; government orders or restrictions; strikes; severe weather; or
supply chain issues such as scarcity of commodities or unusual delivery delay.
b. Any deviation in site conditions, scope of services, and/or deliverables specified
herein will be considered a change and subject to negotiation and agreement in
writing prior to commencement of work affected by any such change.
c. Unless specifically stated otherwise, this proposal does not include any
environmental controls or engineering services.
d. Ballard is not responsible for any expenses related to decontamination of
equipment or reclamation of water or property contacted by contaminated
materials at the work site during the Project. Any diving equipment or support
equipment contaminated by radio nuclides, damaged, or destroyed by
hydrocarbons, solvents, chemicals and/or other environmental conditions will be
replaced at cost plus fifteen percent (15%) daily rental until the equipment is
replaced.
e. Spoils, debris, water treatment/filtration and trash disposal are not included and
are the responsibility of others, unless expressly included as part of Ballard’s
scope of work. Damaged equipment will become the property of the Client.
f. Cost of performance, payment or warranty bonds is not included. If required by
Client, bonds will be furnished at cost plus fifteen percent (15%).
4. Client Responsibilities:
a. Provide all permits required for the Project or performance of the services other
than business or contractors’ licenses required in the location of the Project.
b. Pay for any and all customs, import/export fees, foreign tax, duties, work
permits, tariffs or any other related fees associated to the Project.
c. Provide sufficient access to and from the project site.
5. Safety & Compliance:
a. Ballard dive teams are OSHA compliant and adhere strictly to ADCI regulations
and guidelines. OSHA requires a minimum of a three (3) man properly trained
dive team on each commercial diving project.
b. Ballard reserves the right to add more personnel as needed to safely perform the
work depending on site conditions, depth of water, additional equipment, and
any other conditions or circumstances that may affect safe performance of the
work. Client shall be responsible for all resulting additional costs.
c. Ballard’s supervisor/superintendent will have sole authority to determine if
working conditions, including weather, allow for safe performance of the work.
Weather conditions that may prevent safe performance of the work may include
but are not limited to snow, ice, lightning, high winds/surf, extreme heat or cold,
currents, and poor visibility caused by fog, snow, or heavy rain.
d. Ballard may take immediate action to prevent the loss of life or limb, to prevent
undue suffering, or to prevent further property or environmental damage as
necessary without prior written authorization from Client. Any action so taken
will be documented and an appropriate change order issued as soon as
reasonably practical thereafter.
6. All pricing is quoted and to be paid in U.S. Dollars.
7. This proposal is good for thirty (30) days.
The terms and pricing of this proposal and any subsequent contract assume no impact from
an infectious disease outbreak, including but not limited to the COVID-19 pandemic, whether
directly or indirectly. Ballard Marine Construction’s ability to comply with any schedule
requirement contemplated by this proposal is directly contingent on a lack of impact by an
infectious disease outbreak. Such impacts could include but are not limited to: 1) any
government or other public authority decision causing delay or impact; 2) any cost increase or
lack of availability of personnel, materials, equipment and any other resources necessary for
the performance of the work related to the proposal; or 3) any additional costs incurred to
disinfect areas of the project site due to an infectious disease contamination or potential
contamination. Ballard Marine Construction reserves its right to seek an extension of time
and additional compensation if it or its subcontractors or suppliers are unable to maintain
planned crew sizes due to an infectious disease outbreak, supply shortages or governmental
restraints on business, travel or assembly or otherwise meet schedule requirements.
Page 1 of 3Quote #:
SALE TERMS AND CONDITIONS - “Terms”
1. Payment. Prior to shipment of the Equipment, the total contract purchase price is due and payable. Failure by Customer to pay the total contract price
may excuse Company’s obligations under this agreement, at Company’s option. In the alternative, Company may agree to accept Customer’s promise to
pay for all or any part of the goods accepted, but Company is under no obligation to do so. In any event, if payment of the total contract purchase price
is not tendered on delivery, the amount due hereunder shall bear interest at the rate of 1 ½% per month from the date due, until paid in full. The total
contract purchase price and any other amount due to Company shall be paid in U.S. currency without deduction or offset.
2. Delivery. The Equipment sold under this Agreement shall be delivered to F.O.B. Company Facility. Company may complete partial deliveries of the
Equipment purchased under this Agreement. If Seller engages third parties to deliver the goods, it does so as Purchaser’s agent, with all transportation
charges to be for Purchaser’s account and with delivery deemed to occur when the goods are picked up at Seller’s facility. Risk of loss and duty to insure
the goods shall pass from Seller to Purchaser upon delivery as defined in this section
3. Warranty. Company warrants that it is the lawful owner of the goods, that it has the right to sell the same, and that the goods are free of any claim of
lien or other encumbrance. Unless the Company provides separate written warranty documentation, the goods being sold are being sold on an “AS IS”
basis, with Customer having full opportunity to inspect the goods, or to have the goods inspected for it by technicians of its choice, before the goods are
delivered. Any recommendations and/or advice from Company is agreed to be informal and shall not create any warranty from Company; it shall remain
Customer’s sole responsibility to determine the suitability of the goods for the application intended by Customer. It is agreed that Company shall be held
to no other warranty or representation whatsoever.
4. Equipment and materials manufactured by people other than the Company are covered only by the warranty, if any, of the manufacturer. To the extent
necessary, the Company will assign to Customer all such manufacturer’s warranties to the fullest permissible extent.EXCEPT AS EXPRESSLY STATED IN
THESE TERMS (A) COMPANY MAKES NO (AND SHALL NOT BE DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO
ANY MATTER WHATSOEVER REGARDING THE EQUIPMENT, OR THE SALE OF EQUIPMENT INCLUDING, WITHOUT LIMITATION, REGARDING THE DESIGN,
OPERATION, OR CONDITION OF, OR THE QUALITY OF THE EQUIPMENT, OR WORKMANSHIP IN, THE EQUIPMENT, ITS MERCHANTABILITY OR ITS
FITNESS FOR ANY PARTICULAR PURPOSE, THE STATE OF TITLE THERETO OR OF ANY COMPONENT THEREOF, AND THE ABSENCE OF LATENT, PATENT
OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE); (B) COMPANY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT
NOT LIMITED TO ALL IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE NO DEFECT IN, OR UNFITNESS OF,
THE EQUIPMENT, OR ANY OF THE OTHER FOREGOING MATTERS, SHALL RELIEVE CUSTOMER OF ANY OBLIGATION HEREUNDER. CUSTOMER
ACKNOWLEDGES THAT IT HAS RELIED SOLELY UPON ITS OWN JUDGMENT AND EXPERTISE IN CHOOSING THE EQUIPMENT FOR ITS PARTICULAR USE
AND THAT CUSTOMER IS NOT RELYING UPON THE COMPANY’S SKILL, JUDGMENT OR DESIGN TO SELECT OR FURNISH GOODS FOR A PARTICULAR
PURPOSE. The use of Company’s equipment requires competent personnel and application of engineering principles. The improper use, operation,
modification, maintenance or repair of Company’s equipment can be dangerous and result in property damage, injury or death.
5. Law, Venue and Jurisdiction. Any suit or other legal action relating to this Agreement, the Equipment and/or its use, or sale shall be filed in federal or
state court located in Delaware. The substantially prevailing party in any such action shall be entitled to recover its reasonable legal fees and costs. The
law of the State of Delaware shall apply, without regard to its principles of conflicts of laws, and Customer hereby waives any and all defenses or
challenges based on any such courts’ alleged lack of jurisdiction or improper venue, including but not limited to, forum non conviens.
6. Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall Company be liable to Customer or any third party for any
direct, consequential, indirect, punitive, special, incidental or exemplary damages arising out of this Agreement, the Equipment or the sale, rental or use of
the Equipment (including but not limited to damages for loss of data, goodwill, profits, use of money or facilities; interruption in use or availability of data;
impairment of other assets; loss of business opportunity; and payment of liquidated sums, fines, penalties or damages), whether foreseeable or
unforeseeable and even if Company has been advised of the possibility of those damages and regardless of whether any action or claim is based on
contract, warranty, indemnity, negligence, strict liability, other tort or otherwise, and Customer’s sole and exclusive right and remedy under this
Agreement shall be the repair or replacement of any defective Equipment.
7. Taxes. Customer shall pay all taxes, fees, licenses, charges and other assessments relating to the Equipment. Customer shall pay all sums payable to
Company free and clear of all deductions or withholdings for or on account of taxes, unless the deduction or withholding is required by applicable law. If
a deduction or withholding is so required, Customer shall pay such additional amount as will ensure the net amount received by the Company equals the
full amount which would have been received by it had no such deduction or withholding been required. If Company makes the adjustment and is
required to pay the tax, the adjustment will be made on the invoice. In the event Customer makes such an adjustment, Customer shall provide evidence
of payment to tax authority along with all information confirming compliance with any requirement. If necessary, a revised invoice will be issued.
Furthermore, Customer agrees to hold Company. harmless from any and all taxes that may be levied or assessed as a result of this Agreement.
8. Force Majeure. Company is not liable for delays in performance or delivery due to causes beyond its reasonable control, including without limitation,
any delay, interruption in or failure of sources to supply materials or Equipment; labor disputes; transportation problems, fire, explosion, pandemic, acts of
God; or any judicial or other governmental order, contract, priority, or request, whether or not voluntarily assumed. 9. Integration and Modification.
This Agreement and these terms and conditions constitute the entire agreement between the parties with respect to the Equipment being sold and all
other matters addressed herein, superseding all prior understandings and agreements, whether written or oral. This Agreement shall be construed
neutrally, and as the mutual assent of both parties rather than for or against either party. This Agreement may be amended or modified only by a writing
signed by both parties. The parties expressly agree that any terms and conditions on any purchase order, whether in print or electronic form or whether
incorporated by reference, shall be void and of no effect in interpreting the obligations of either party.
10. Counterparts. This Agreement may be executed in one or more identical counterparts. The Agreement may be executed by electronic means.
11. Proprietary Information and Confidentiality: Data, drawings, specifications, pricing, or other technical information directly or indirectly furnished in
writing or otherwise by Company to Customer pursuant to the Agreement , shall in no event become the property of Customer, and shall be used only in
fulfilling the obligations imposed by the Agreement and shall not be duplicated or disclosed to third parties or used in whole or in part for any other
purpose. The furnishings of such data, drawings, specifications or other technical information shall not be construed as granting any rights whatsoever,
express or implied, under any patents of Company.
Page 3 of 3Quote #:q21256 CITY OF LAKE ELSINORE
725 E PARR ROAD
BERNE, IN 46711
260-422-8767 Phone
Quote
q21256-3
Fri 9/27/2024
Carl Piedmont
Upon Receipt
Status:
Quote #:
Terms:
Operator:
Quote To:
CITY OF LAKE ELSINORE
Customer #: 48312
Phone 951-674-3124
Job Descr: 130 SOUTH MAIN STREET
LAKE ELSINORE, CA 92530
P2-5' BARGES - SALE
Job No: SALE
Sales Rep: Carl Piedmont 480-271-0416 cpiedmont@poseidonbarge.com
Delivery Fri 9/27/2024
ADAM GUFAROTTI 951-674-3124
CITY OF LAKE ELSINORE
130 SOUTH MAIN STREET
LAKE ELSINORE, CA 92530-4109
Part#Qty Items Sold Each Price
P2 - 40X10X5 BARGE $359,400.00$59,900.006810-037 REV 6.3
POSEIDON P2 PORTABLE SECTIONAL BARGES OVERALL LENGTH - 40' 4" OVERALL WIDTH
- 10'4" OVERALL HEIGHT - 5' 0” WEIGHT APPROX - 23,000LBS DRAFT UNLOADED 12" DRAFT
FULL LOAD - 30" PAYLOAD AT FULL LOAD - 18.9 TONS BARIL DCC PAINT SYSTEM
INCLUDING ZINC RICH PRIMER COAT & PREMIUM ABRASION-RESISTANT TOPCOAT THE
HIGH STRENGTH TO WEIGHT RATIO ALLOWS TWO 40FT BARGES TO BE SHIPPED PER
TRUCK, SAVING FREIGHT COSTS!
DECK CLEAT 18" 880-002-N NEW $5,988.00$499.0012880-002-N
STEPDECK W/OVER WIDTH PERMIT $26,850.00$8,950.003
LOAD FEE BERNE, IN $1,200.00$400.003
Quote valid for 10 days.
All pricing listed in US Dollars, subject to availability, equipment's prior sale or other disposition. All details believed correct, but
without guarantee. All equipment quoted FOB current location. All quotes valid 10-days. Standard rental/sale terms and conditions
apply.
All rentals require a one-month minimum rental period, to secure/reserve equipment the first month's rental period must be paid
along with a signed contract, verification of insurance, and an established account in good standing. To reserve/hold equipment for
greater than 14 days a 50% standby rate will be applied until the agreed upon loadout date.
It is the customer's responsibility to determine the suitability of the equipment to its intended use, including all industry regulations
and guidelines.
WARNING: Winches and Hoists NOT to be used for Lifting, Lowering, or Transporting People or Including Over People. There will
be a minimum charge of $500.00 per sectioal barge if not returned clean.
NOTE: Images shown are representative samples of the equipment models. Individual photos of specific models are available
upon request.
Quote
$425,507.26 Amount Due:
Paid:
$425,507.26 Total:
$32,069.26 External Tax Service:
Subtotal:
Delivery Charge:
Sales:
$0.00
$393,438.00
$28,050.00
$365,388.00
contract-params.SQL.rpt (5)Printed On Wed 5/29/2024 2:18:30PM Software by Point-of-Rental Software www.point-of-rental.com
Modification #1