AGREEMENT
This Agreement ("Agreement"), dated for purposes of identification only this day of 2024, is made and entered into by and between the City of Anaheim, a municipal corporation ("Anaheim"), and Weck Laboratories, Inc., a California corporation ("Service Provider - or "Provider"). Anaheim and Provider are sometimes individually referred to as "Party" and collectively as "Parties."
RECITALS
A. Anaheim is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Anaheim Charter.
B. Anaheim desires to engage Provider to perform various chemical, radiological, physical, and microbiological laboratory testing, analyses, and reporting on an as-needed basis ("Project").
C. Provider possesses the skill, experience, ability, licenses, and certifications necessary to perform the Project services_
D. Anaheim has solicited and received a proposal from Provider and has evaluated Provider's previous experience and expertise, and Anaheim desires to retain Provider to render the Project services under the terms and conditions set forth in this Agreement.
TERMS AND CONDITIONS
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and conditions contained herein, the Parties agree as follows:
I. SERVICES TO BE PROVIDED
Provider shall provide to Anaheim all labor, materials, tools, equipment, services, systems, and incidental and customary work necessary for the Project ("Services"). The Services are more particularly described in Exhibit A, which is incorporated herein by this reference ("Scope of Services"). On behalf of Anaheim, the Public Utilities General Manager ("General Manager") or designee is authorized to add, modify, or delete tasks from the Scope of Services.
2. TERM
The term of this Agreement shall commence on the Effective Date and continue through its second anniversary, unless earlier terminated per Section 24 ("Term"). Thereafter, the Term shall automatically renew for up to four (4) successive annual periods on each anniversary of the Effective Date, for a total possible Term of six (6) years, unless Anaheim gives written notice of nonrenewal prior to expiration of the then-current Term. Each initial and successive annual period is referred to as "Term Year.'
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of this Agreement, and Provider shall perform and complete all Services in accordance with the schedules included in Exhibit A and any schedules agreed upon between the Parties. Provider's failure to adhere to stated schedules, if any, may result in Anaheim's election to terminate this Agreement.
3.2 The time period(s) specified for performance of the Services rendered, pursuant to this Agreement, shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Provider, including, but not restricted to, acts of God or of the public enemy; unusually severe weather, fires, earthquakes, floods, pestilence, or other natural catastrophes; epidemics; quarantine restrictions; riots; strikes; freight embargoes; wars, litigation; civil disturbance or disobedience; labor dispute; labor or material shortage; sabotage; change in government priorities; restraint by court order or public authority; and action or non-action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, and/or acts of any governmental agency, including Anaheim, which by the exercise of due diligence such Party cannot reasonably be expected to avoid and by which exercise of due diligence has been unable to overcome, if Provider shall within ten (10) days of the commencement of such delay notify Anaheim's project administrator ("Project Administrator") in writing of the causes of the delay. The Project Administrator shall ascertain the facts and the extent of delay and may extend the time for performing the Services for the period of the enforced delay if, in the judgment of the Project Administrator, such delay is justified. The Project Administrator's determination shall be final and conclusive upon the Parties. In the event of delay, however caused, Provider's sole remedy shall be an extension of the Term, pursuant to this Section, and Provider shall not be entitled to recover damages against Anaheim_
4. COMPENSATION
4.1 Anaheim shall pay Provider for the Services satisfactorily completed pursuant to the pricing contained in Table I of Exhibit A ("Unit Prices"). Except as provided in Section
4.2, no changes to the Unit Prices may be made without the prior written authorization of the General Manager or designee.
4.2 The Unit Prices shall remain fixed for the first two (2) Term Years. Commencing with the third Term Year, the Unit Prices may be adjusted annually, if at all, commencing on each anniversary of the Effective Date based on changes in the Consumer Price index ("CPI") for All Urban Consumers ("CPI-U"), U.S. City Average, All Items, not seasonally adjusted, with abase of 1982-84 = 100 as published by the U.S. Department of Labor, Bureau of Labor Statistics_ If the CPI-U is no longer published at the time of adjustment, the Parties shall use the successor index or applicable conversion tables. Notwithstanding CPI changes, any annual increase shall not exceed five percent (5%) of the fee from the prior Term Year unless approved in writing by Anaheim_ Provider must notify Anaheim in writing at least thirty (30) days prior to any price increase. The notice shall include the calculation and effective date of the adjustment, and failure to provide timely notice will render the increase null and void until notice is properly given.
2 43 Anaheim shall reimburse Provider for only those costs or expenses specifically approved in writing in advance by the General Manager or designee.
4.4 Except as provided in Section 4.5 below, the Parties understand and agree that full and complete payment for all Services provided under this Agreement, including, but not limited to, all reimbursable expenses and subconsultant fees, if any, shall not exceed four hundred thousand dollars ($400,000) ("Contract Amount"). The Contract Amount does not constitute a guarantee of payment to Provider but instead constitutes a spending option for Anaheim, as may be needed.
4.5 The General Manager is authorized to approve expenditures above the Contract Amount not to exceed fifteen (15%) of the Contract Amount for additional services ('Extra Services") that the General Manager determines (a) are necessary for the successful completion of the Services, (b) can be paid for by available budget appropriations, and (c) are in Anaheim's best interest to purchase.
4.5.01 In no event shall Provider render Extra Services without the written authorization of the General Manager or designee
4.5.02 Extra Services shall be billed at either the Unit Prices or at a fixed price, at the General Manager's discretion. If billed at a fixed price, Provider shall provide Anaheim with a general description of the Extra Services to be performed with a proposed price.
4.5.03 Any approved Extra Services will be incorporated into the Services and the Agreement upon the Parties' execution of a letter agreement ("Extra Services Letter") that contains (a) the agreed price for the Extra Services and (h) a description of the Extra Services.
Provider shall commence performance of the Extra Services either upon the Parties' execution of the Extra Services Letter or such other time expressly indicated therein.
4.5.04 Other than the Extra Services that the General Manager or designee is authorized to approve pursuant to this Section 4.5, Provider shall not render additional services beyond the scope of this Agreement unless such services are first approved by a written amendment to this Agreement.
4.6 Provider shall submit monthly invoices to Anaheim describing the work that was performed the preceding month. Provider's invoices shall be based on the Unit Prices_ For items authorized in advance by Anaheim for which, in Anaheim's sole opinion, a line-item equivalent is not listed, Provider's invoice shall include the name of the person who performed the work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed and a description of any reimbursable expenditures. Anaheim shall pay Provider 110 later than thirty (30) days after approval of the monthly invoice by Anaheim staff
4.7 All Parties recognize that the continuation of this Agreement after the close of any fiscal year of Anaheim, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as an expenditure in said budget.
Anaheim does not represent that said budget item will be actually adopted, said determination being the determination of the City Council at the time of the adoption of the budget herein. No 3 penalty shall accrue to Anaheim in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, the Parties shall negotiate a settlement based on monies paid and due, items delivered, and Services provided.
5. PROJECT MANAGER
5.1 Provider designates Rahul Nair as its "Project Manager," who shall coordinate the Services. This Project Manager shall be available to Anaheim at all reasonable times during the Term of this Agreement. It is expressly understood that the experience, knowledge, capability, and reputation of the foregoing Project Manager is a substantial inducement for Anaheim to enter into this Agreement. Therefore, the foregoing Project Manager shall be responsible during the Term of this Agreement for directing all activities of Provider and devoting sufficient time to personally supervise the provision of Services hereunder. The Provider may not change the Project Manager without the General Manager or designee's express written authorization.
5.2 Any personnel or subconsultant, if any, who fail or refuse to perform the Services in a manner acceptable to Anaheim or who are determined by Anaheim, in its sole discretion, to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, or a threat to the safety of persons or property, shall be promptly removed from the Project by Provider at the request of Anaheim. Provider warrants that it will continuously furnish the necessary personnel to complete the Services on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
The Anaheim Public Utilities Department ("APU") will administer this Agreement. The following APU employees are authorized to take the below actions pursuant to this Agreement:
• The General Manager is authorized to take any action on behalf of Anaheim as set forth herein and to terminate this Agreement in accordance with Section 24 below.
• Anaheim designates Keith McDonald as its "Project Administrator" The General Manager or designee may change the Project Administrator at any time, and Anaheim will provide Provider written notice of such change as soon as is practical. The Project Administrator, or designee, shall have the power to act on behalf of Anaheim for ordering, reviewing, and approving all Services performed by Provider under this Agreement. The Project Administrator shall not be authorized to approve Extra Services, change Unit Prices, or terminate Services under this Agreement
7. STANDARD OF CARE
7.1 As a material inducement for Anaheim to enter this Agreement, Provider represents and warrants that Provider is a provider of first-class work and services and is experienced in performing the Services contemplated herein, and in light of such status and experience Provider covenants that it shall follow the highest professional standards in 4 performing the work and Services required hereunder and that all work will be of good quality.
Provider further warrants that all employees and subcontractors, if any, shall have sufficient skill and experience to perform the Services assigned to them. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances_
7.2 Provider represents and warrants to Anaheim that it has, shall obtain, and shall keep in full force in effect during the Term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance, certifications, and approvals of whatsoever nature that is legally required of Provider to practice its profession, including any licenses and certifications, if any, listed in Exhibit A. Provider shall maintain a City of Anaheim business License during the Term.
7.3 At no cost to Anaheim, Provider shall re-perform any Services that Anaheim reasonably deems unsatisfactory.
8. FAMILIARITY WITH WORK
By executing this Agreement, Provider represents and warrants that Provider: (i) has thoroughly investigated and considered the Services to be performed; (ii) has carefully considered how the Services should be provided; and (iii) fully understands the facilities, difficulties, and restrictions attending the provision of the Services under this Agreement. Should Provider discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by Anaheim, Provider shall immediately inform Anaheim of such fact and shall not proceed except at Provider's risk until written instructions are received from Anaheim.
9. INDEPENDENT CONTRACTOR
9.1 Neither Anaheim nor any of its employees shall have any control over the manner, mode, or means by which Provider, its agents or employees, perform the Services, except as otherwise set forth herein. Except as expressly provided herein, Anaheim shall have no voice in the selection, discharge, supervision, or control of Provider's employees, servants, representatives or agents, or in fixing their number, compensation, or hours of service. Provider shall perform all Services as an independent contractor of Anaheim and shall remain at all times, as to Anaheim, a wholly independent contractor with only such obligations as are consistent with that role. Provider shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of Anaheim. Anaheim shall not in any way or for any purpose become or be deemed to be a partner of Provider in its business or otherwise or a joint venturer or a member of any joint enterprise with Provider.
9.2 In consideration for the compensation Anaheim pays to Provider, Provider agrees that Anaheim shall not be liable or responsible for any benefits, including, but not limited to, worker's compensation, disability, retirement, life, unemployment, health, or any other benefits that Provider offers to its employees/agents, and Provider agrees that it shall not sue or file a claim, petition, or application therefor against Anaheim or any of its appointed or elected officials, officers, employees, agents, representatives, or sureties. 5 10. INSURANCE
10.1 Without limiting Anaheim's right to indemnification, it is agreed that Provider shall secure, prior to commencing any activities under this Agreement, and maintain, during the Term of this Agreement, insurance coverage as follows:
10.1.01 Workers' Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence/accident/illness/injury.
10.1.02 Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent Consultant's Liability where appropriate, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to Anaheim, in writing, at the inception of this Agreement.
10.1.03 Commercial Automobile Liability Coverage including—as applicable owned, non-owned, and hired autos, in an amount not less than $2,000,000 per occurrence, combined single limit, as required by California law.
10.1.04 Professional Liability Insurance, inclusive of Cyber Liability Insurance where required, in an amount not less than $2,000,000 per occurrence or per claim.
Such insurance shall be written on a primary basis but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to Anaheim, in writing, at the inception of this Agreement.
10.2 Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval by Anaheim's Risk Manager prior to the inception of the final Agreement.
10.3 Provider agrees that this insurance shall not be voluntarily cancelled or limited in scope or coverage by Provider until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., second floor, Anaheim, CA 92805. This does not apply to cancellation for non-payment of premium, which requires notice of not less than ten (10) clays_
10.4 Each insurance policy required by this Agreement, except policies for Professional Liability and Workers Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
10.4.01 "It is agreed that any insurance maintained by Provider pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self-insurance maintained by the City of Anaheim."
10.4.02 "The City of Anaheim, its officers, agents, employees, representatives and Anaheim-designated volunteers are added as additional insured as respects 6 the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim."
10.5 Prior to commencing any work under this Agreement, Provider shall deliver to Anaheim insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, Provider shall provide Anaheim (i) endorsements to the insurance policies that add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable to Anaheim evidencing that the coverage, terms, and conditions set forth in the above-referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in California, (ii) possessing an A. M. Best's rating of A VII or higher, or (iii) otherwise acceptable to Anaheim, with prior written permission from Anaheim. In the event that a claim or other legal action is filed against Anaheim, and if Anaheim, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then Anaheim has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the parties agree that Provider shall fully defend, hold harmless, and indemnify Anaheim against any such claim or other legal action.
10.6 in addition to other remedies Anaheim may have if Provider fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Anaheim may, at its sole option:
• Order Provider to stop work under this Agreement and/or withhold any payment(s) that become due to Provider hereunder until Provider demonstrates compliance with the requirements hereof;
• Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies Anaheim may have and is not the exclusive remedy for Provider's failure to maintain insurance or secure appropriate endorsements.
10.7 Nothing herein contained shall be construed in any way as limiting the extent that Provider may be held responsible for payments of damages to persons or property resulting from Provider's (or Provider's agent or sub-agent, if any) performance of the work covered under this Agreement.
10.8 In the event Provider hires other persons or firms to perform some of the work related to this Agreement, Provider shall ensure (i) that the acts or omissions of such persons or firms are covered under the above-referenced liability insurance, or (ii) that such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of Provider under this Agreement (except for firms that are not performing professional services—such firms shall not be required to carry the above-referenced professional liability insurance); and in either instance, Provider shalt provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to Anaheim. 7 10.9 Anaheim's Risk Manager is hereby authorized to amend the requirements set forth herein in the event that such amendment is in Anaheim's best interest.
11. INDEMNIFICATION
11.1 As respects acts, errors or omissions in the performance of professional services, Provider agrees to indemnify and hold harmless Anaheim, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, directly arising out of the negligent acts, errors or omissions of the Provider or any sub- agent in the performance of professional services under this Agreement
11.2 As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by general and automobile liability insurance, Provider agrees to indemnify, defend (at Anaheim's option), and hold harmless Anaheim, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as "Claims"), arising out of or in connection with Provider's (or Provider's agent or sub-agent, if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims that arise out of the sole negligence or willful misconduct of Anaheim.
11.3 The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not Anaheim, Provider, or any other person maintains, or fails to maintain, insurance coverage, or a self-insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
12. PERFORMANCE OF SERVICES
12.1 Provider is responsible for keeping the Project Administrator or designee informed on a regular basis regarding the status and progress of the Services, activities performed and planned, and any meetings that have been scheduled or are desired.
12.2 In performing the Services, Provider agrees to work closely and cooperate fully with the Project Administrator and such other employees, consultants, or contractors of Anaheim, whom Anaheim has assigned to the Project.
13. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
The Parties recognize that a substantial inducement to Anaheim for entering into this Agreement is the professional reputation, experience, and competence of Provider. Provider has no right to assign, transfer, delegate, or otherwise encumber (together "Assignment") any rights, obligations, duties, interests, or privileges in or arising out of this Agreement, including as a result of a merger, acquisition, consolidation, or other form of corporate assimilation, without the prior written consent of Anaheim_ Any such purported Assignment without Anaheim's prior consent shall be void as to Anaheim. If Anaheim approves an Assignment, this Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the permitted successors and assigns of Provider. 8 14. SUBCONTRACTING
Except for those subcontractors set forth in the Scope of Services, if any, Provider shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of Anaheim. Provider shall be fully responsible to Anaheim for all acts and omissions of any approved subcontractor. Nothing in this Agreement shall create any contractual relationship between Anaheim and the subcontractor, nor shall it create any obligation on the part of Anaheim to pay or ensure the payment of any monies due to any such subcontractor other than as otherwise required by law. Anaheim is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between the subcontractor and Anaheim pursuant to this Agreement.
15. USE AND OWNERSHIP OF DOCUMENTS AND DATA
15.1 Anaheim shall furnish to Provider such documents, data, and materials as may be relevant and pertinent to the provision of Services hereunder as Anaheim may possess or acquire.
15.2 All documents, data, and written materials furnished by Anaheim to Provider pursuant to Section 15A shall remain the property of Anaheim and shall be returned to Anaheim upon termination of this Agreement, for any reason, or upon demand. All documents, data, or written materials prepared or caused to be prepared by Provider, its officers, employees, agents, and subcontractors in the course of implementing this Agreement shall become the exclusive property of Anaheim, and Anaheim shall have the sole light to use such materials in its discretion without further compensation to Provider or any other party. Provider shall, at Provider's sole cost and expense, provide such documents, data, and materials to Anaheim upon prior written request_
16. CONFIDENTIALITY
16.1 "Confidential Information" means, with respect to a Party hereto, all information or material that are either (1) marked or identified as "Confidential," "Restricted," or "Proprietary," or other similar marking or identification, or (2) the Receiving Party knew, or under the circumstances should have known, was considered confidential or proprietary by the Disclosing Party. Confidential Information shall consist of all information, whether in written, oral, electronic, digital, or other form that was furnished in connection with this Agreement by the Disclosing Party or its Representatives ("Representative" is defined as any elected or appointed official, affiliate, director, officer, employee, agent, advisor, or consultant of a Party or any of its subsidiaries or affiliates) to the Receiving Party or to its Representatives and specifically includes, but is not limited to, Anaheim's individually identifiable customer information and Anaheim's customer usage data and financial data. The term Confidential Information shall not include any of the following: (1) information already in possession of, or already known to, the Receiving Party as of the Effective Date without an obligation of confidentiality; (2) information in the public domain at the time of the disclosure, or which, after such disclosure, enters into the public domain through no breach of this Agreement by the Receiving Party or its Representative(s); (3) information lawfully furnished or disclosed to the Receiving Party by a non-party to this Agreement without any obligation of confidentiality and through no breach of this Agreement by the Receiving Party or its Representative(s); (4) 9 information independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party; or (5) information authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein.
16.2 Provider and Anaheim shall each hold the other's Confidential Information in confidence. Neither Party shall make the other's Confidential Information available in any form to any third party or use the other's Confidential Information for any purpose other than to perform this Agreement. The Party providing Confidential Information ("Disclosing Party") to the other Party ("Receiving Party") shall remain the sole owner of such information Except as provided elsewhere within this Agreement, nothing contained in this Agreement shall be construed as granting or conferring any right or license in any Confidential Information or in any patents, copyrights, software, or other technology, either expressly or by implication to the Receiving Party, its Representatives, or to others.
16.3 By virtue of this Agreement, each Party hereto may disclose to the other Party information that is Confidential Information. This Agreement does not diminish, revoke, or supersede any existing confidentiality, non-disclosure, or similar agreement between the Parties that does not pertain to the subject matter of this Agreement. However, any Confidential Information, whether or not previously disclosed, that pertains to the subject matter of this Agreement shall be governed by the terms of this Section 16, which shall supersede any less- restrictive provisions of such previous agreement with respect to such Confidential Information.
Any Confidential Information relating to the subject matter of this Agreement that was exchanged under such previous agreement shall be treated as though it were exchanged under this Agreement as of the date of such exchange.
16.4 The Receiving Party will treat all Confidential Information of the Disclosing Party as confidential and proprietary, and the Receiving Party shall only use such information in furtherance of this Agreement. As such, the Receiving Party shall hold in confidence the Confidential Information of the Disclosing Party and ensure that such Confidential information is not disclosed to any other person or entity, except as expressly permitted by this Agreement or as authorized in writing by the Disclosing Party. Receiving Party shall not disclose Confidential Information of the Disclosing Party received under this Agreement to any person other than its Representatives who require knowledge of such Confidential Information in furtherance of this Agreement. The Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information of the Disclosing Party and advise such Representatives of the limitations on the use and disclosure and prohibition on making copies or summaries of such Confidential Information. The Receiving Party shall be responsible for any breach of this Agreement by its Representatives_ Neither Party shall use the Confidential Information of the other Party for any commercial purpose.
16.5 If the Receiving Party becomes legally compelled by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information of the Disclosing Party or is requested Confidential Information pursuant to the California Public Records Act or similar law, the Receiving Party will provide the Disclosing Party with written notice of such an occurrence (if so permitted) as soon as possible, but in no event later than five (5) days after knowledge of Provider's obligation to such requirement. Thereafter, at its sole costs and expense, the 10 Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement_ So long as it is consistent with applicable law, the Receiving Party will not oppose action by, and the Receiving Party will cooperate with, the Disclosing Party, at the Disclosing Party's sole cost and expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. If the Disclosing Party fails to obtain such protective order or other remedy, or if the Disclosing Party waives compliance with the requirements of the preceding sentence, the Receiving Party will disclose only that Confidential Information that it is legally required to disclose and will exercise commercially reasonable efforts, at Disclosing Party's expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
16.6 In the event the Receiving Party discloses, disseminates, or releases any Confidential Information, except as expressly permitted by this Agreement, such disclosure, dissemination, or release will be deemed a material breach of this Agreement, and the Disclosing Party may demand prompt return of all Confidential Information previously provided to the Receiving Party. As soon as the Receiving Party becomes aware that it has made an unauthorized disclosure of Confidential Information, the Receiving Party shall take any and all necessary actions to recover the improperly disclosed Confidential Information and immediately notify Disclosing Party regarding the nature of the unauthorized disclosure and the corrective measures being taken. Each Party agrees that any breach of their confidentiality obligations could cause irreparable harm to the other Party, the amount of which would be extremely difficult to estimate. Accordingly, it is understood and agreed that monetary damages would not be a sufficient remedy for any material breach of this Agreement and that specific performance and injunctive relief in addition to monetary damages shall be appropriate remedies for any breach or any threat of such breach. The provisions of this Paragraph are in addition to any other legal rights or remedies the Disclosing Party may have.
16.7 Within two (2) weeks of the termination of this Agreement, Provider will return to Anaheim or destroy, to the extent permitted by law, any and all Confidential Information, including all originals, copies, translations, transcriptions, or any other form of said material without retaining any copy or duplicate thereof; provided that Provider may retain Confidential Information contained on backup media created in the ordinary course of business, provided further that there is no effort to access such Confidential Information, and Provider's confidential obligations with respect to such information shall continue so long as such information is retained. Provider shall certify in writing the destruction of the Confidential Information.
Anaheim may perform an audit of Provider's records to confirm the return or destruction of the Confidential Information. Anaheim shall have this audit right for three (3) years after the termination of this Agreement.
16.8 Notwithstanding the termination of this Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Agreement.
17. INTELLECTUAL PROPERTY INDEMNITY
17.1 Provider shall defend, indemnify, and hold harmless Anaheim, its officials, officers, employees, and agents from and against any claims, liabilities, damages, losses, and 11 expenses (including reasonable attorneys' fees and costs) an from infringement or alleged infringement of any U.S. patent, trademark, copyright, or other intellectual property rights related to any work product, materials, or documents provided by Provider to Anaheim under this Agreement. This indemnity obligation includes any claims that may arise out of or are related to Provider's use of third-party intellectual property in connection with the performance of this Agreement. This indemnity excludes claims resulting solely from Anaheim's unauthorized modification or misuse of work product.
18. FISCAL RECORDS AND AUDIT
Provider shall keep records and invoices in connection with the Services. Provider shall use recognized accounting methods in preparing such reports and invoices. Anaheim reserves the right to designate its own employee representative(s) or its contracted representative(s) with a certified public accounting firm, who shall have the right to audit Provider's accounting procedures and internal controls of Provider's financial systems and to examine any cost, revenue, payment, claim, other records, or supporting documentation resulting from any items set forth in this Agreement If Provi der fails to provide supporting documentation satisfactory to Anaheim for cost charged, then Provider agrees to reimburse Anaheim for those costs. Any such audit(s) shall be undertaken by Anaheim or its representative(s) at reasonable times and in conformance with generally accepted auditing standards. Provider agrees to fully cooperate with any such audit(s).
This right to audit shall extend during the length of this Agreement and for a period of three (3) years, or longer if required by law, following the date of final payment under this Agreement. Provider agrees to retain all necessary records/documentation for the entire length of this audit period.
Provider will be notified in writing of any exception taken as a result of an audit. Any adjustments and/or payments that must be made as a result of any such audit or inspection of Provider's invoices and/or records shall be made within thirty (30) days from presentation of Anaheim's findings to Provider. If Provider fails to make such payment, Provider agrees to pay interest, accruing monthly, at a rate of ten percent (10%) per annum unless another section of this Agreement specifies a higher rate of interest, which higher rate would then prevail. Interest will be computed from the date of written notification of exception(s) to the date Provider reimburses Anaheim for any exception(s). If an audit inspection or examination in accordance with this article discloses overcharges (of any nature) by Provider to Anaheim in excess of one percent (1%) of the value of that portion of the Agreement that was audited, the actual cost of Anaheim's audit shall be reimbursed to Anaheim by Provider.
19. WITHHOLDINGS
Anaheim may withhold payment to Provider of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Provider shall not discontinue the Services as a result of such withholding. Provider shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums, and his decision shall be final, Provider shall be entitled to receive interest on any withheld sums at the rate of return that 12 Anaheim earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld_
20. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional inexperience of Provider that result in expense to Anaheim greater than what would have resulted if there were not errors or omissions in the Services performed by Provider, the additional cost and expense shall be borne by Provider. Nothing in this paragraph is intended to limit Anaheim's rights under the law or any other sections of this Agreement.
21. ANAHEIM'S RIGHT TO EMPLOY OTHER PROVIDERS
Provider acknowledges and agrees that this Agreement and the provision of services hereunder are nonexclusive and that Anaheim may enter into similar agreements with other entities for the provision of similar services.
22. CONFLICTS OF INTEREST
Provider or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Services performed under this Agreement and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Provider shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by Anaheim. Provider shall indemnify and hold harmless Anaheim for any and all claims for damages resulting from Provider's violation of this Section.
23. NOTICES
Any notice to be made under this Agreement shall be in writing and shall be deemed effective when: (1) delivered personally, upon receipt or refusal of receipt by the receiving Party; (2) sent by registered or certified mail, return receipt requested, postage prepaid, on the date shown on the return receipt or the date of refusal of receipt; (3) sent by recognized overnight courier service, the business day following deposit with the courier, with delivery fees prepaid; or (4) sent by facsimile transmission ("FAX"), upon the sending Party's receiving confirmation of receipt from the receiving Party. Notices shall be addressed to the Parties at the following addresses.
If to Anaheim: Anaheim City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-4105
13 With copies to:
To Provider:
Public Utilities General Manager
City of Anaheim
201 S. Anaheim Blvd_, Suite 1101
Anaheim, CA 92805
FAX No. (714) 765-4138
Week Laboratories, Inc.
14859 Clark Avenue
City of Industry, CA 91745
Attn: Rabat Nair
FAX No. (626) 336-2634
Each Party may change its address or FAX for notice by providing written notice to the other in accordance with this Section.
24. EARLY TERMINATION
24.1 "Default" shall mean the failure of Provider to perform any of Provider's duties or obligations or the breach by Provider of any of the terms and conditions set forth in this Agreement. In addition, Provider shall be deemed to be in Default upon Provider's (i) application for, consent to, or suffering of, the appointment of a receiver, trustee, or liquidator for all or a substantial portion of its assets; (ii) making a general assignment for the benefit of creditors; (iii) being adjudged bankrupt (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization, or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing); or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution, or seizure of all or a substantial portion of Provider's assets or of Provider's interests hereunder.
24.2 Anaheim shall not be deemed to be in default in the performance of any obligation required to be performed by Anaheim hereunder unless and until Anaheim has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from Provider specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of Anaheim's obligation is such that more than thirty (30) days are required for its performance, then Anaheim shall not be deemed to be in default if Anaheim shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.
24.3 In the event of any Default, Anaheim may immediately terminate this Agreement.
Such termination shall be effective immediately upon receipt by Provider of written notice from Anaheim_ In such event, Provider shall have no further rights hereunder, and Anaheim shall have all other rights and remedies as provided by law.
24.4 Anaheim may terminate this Agreement at any time without the necessity of cause or Default by giving seven (7) days' notice in writing to Provider. In such event, the Parties shall have no further rights hereunder, except that Provider shall be paid for all services adequately rendered prior to such termination. Provider may not terminate this Agreement except for cause. 14 24.5 Anaheim may suspend or abandon the Services for any reason with or without notice. If any part of the Project is suspended or abandoned for any reason, Anaheim shall have the right to suspend or terminate the affected portions(s) of this Agreement, including any part of the Services. In the event of such suspension or termination, Provider shall only expend such additional time as is necessary to assemble the Services in progress for the purpose of properly filing and closing the job and as is previously approved by Project Administrator. In no event shall additional time exceed ten percent (10%) of the total time expended on the suspended or abandoned portion of the Services prior to the date of notice of suspension or termination. In the event the Services are suspended for longer than six. (6) months, Provider may terminate this Agreement as it applies to the suspended portion of the Project by giving Anaheim at least thirty (30) days' written notice.
24.6 Anaheim may withhold any payments to Provider for the purpose of set-off until such time as the exact amount of damages due Anaheim from Provider is determined. In addition, Anaheim may pursue all remedies available under law for breach of this Agreement.
The waiver by either Party of any breach to this Agreement shall not constitute a waiver as to any succeeding breach.
25. COMPLIANCE WITH ALL LAWS
Provider shall at its own cost and expense comply with all statutes, ordinances, regulations, and requirements of all governmental entities, including federal, state, county, or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Provider shall conform to applicable local, county, state, and federal laws, rules, regulations, and permit requirements and be subject to approval of the Project Administrator.
26. WAIVER
A waiver by either Patty of any breach, of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character.
27. INTEGRATED CONTRACT
This Agreement and its Exhibits hereto, if any, contain the entire agreement between the Parties with respect to the matters covered hereby, and no agreement, statement, or promise made by either Anaheim or Provider that is not contained herein shall be valid or binding. No prior agreement, understanding, or representation pertaining to any the matters covered hereby shall be effective for any purpose.
28. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and its Exhibits or any other attachments hereto, if any, the terms of this Agreement shall govern Is
29. INTERPRETATION
Each Party acknowledges that he/she/it has had the benefit of advice of competent legal counsel with respect to its decision to enter this Agreement. The provisions of this Agreement shall be interpreted to give effect to their fair meaning and shall be construed as prepared by both Parties.
30. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both Parties and approved as to form by the Anaheim City Attorney_
31. SEVERABILITY
If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law_
32. REMEDIES CUMULATIVE
The remedies given to Anaheim and Provider herein shall be cumulative and are given without impairing any other rights given Anaheim or Provider by statute or law now existing or hereafter enacted and the exercise of any one remedy by Anaheim or Provider shall not exclude the exercise of any other remedy.
33. NO THIRD-PARTY BENEFICIARIES
The Parties intend that neither rights nor remedies be granted to any third party as a beneficiary of this Agreement or of any covenant, duty, obligation, or undertaking established herein.
34. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement, and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, California.
35. DISCRIMINATION
Provider agxees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry, national origin, or other prohibited basis in its provision of Services or hiring of subcontractors or employees. To the extent this Agreement provides that Provider offer accommodations or services to the public, such accommodations or services shall he offered by Provider to the public on fair and reasonable terms
16 36. SIGNATURE AUTHORITY
Each Party and each Party's signatory represents and warrants that each is duly authorized to execute and deliver this Agreement on behalf of such Party and that this Agreement is binding upon such Party in accordance with its terms. Upon Anaheim's request, Provider shall deliver a certified copy of its governing board's resolution or certificate authorizing or evidencing such execution.
37. HEADINGS
The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
38. COUNTERPARTS AND ELECTRONIC SIGNATURE
This Agreement may be executed in counterparts, each deemed an original and together constituting one instrument. Digital signatures obtained through DocuSign shall be considered valid and binding as though signed in ink.
39. EFFECTIVE DATE
This Agreement shall be effective on the latest date on which this Agreement is executed by Anaheim ("Effective Date"). Anaheim shall have the authority to fill in the date field opposite the Provider's signature if Provider fails to write a date. [SIGNATURES ON FOLLOWING PAGE]
17 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed Oil the dates hereinafter respectively set forth.
CITY OF ANAHEIM, a municipal corporation
DATED: ,2024 By:
Dukku Lee
Public Utilities General Manager
ATT'EST
DATED: , 2024 By:
Theresa Bass
City Clerk
WECK LABORATORIES, INC., a California
corporation
p—DocuSigned by:
DATED. 9/30/2024 By: gl Astiv, piari
tc411
President
APPROVED AS TO FORM:
ANAHEIM CITY ATTORNEY'S OFFICE
By: '¼,
JILI-I LAN Lt....L.
(152316)
Deputy City Attorney 9/30/2024
18 EXHIBIT A
SCOPE OF SERVICES & SCHEDULE OF COMPENSATION
1. SCOPE AND PRICING
On an as-needed basis, Anaheim may submit to Provider orders for any of the tests listed in Table 1 below, which Provider must be able to perform in compliance with this Exhibit A and all current California and Federal testing requirements and any new requirements that are promulgated during the Term of this Agreement.
Anaheim makes no commitment to ordering any specific number of tests during the Term of this Agreement.
TABLE 1
No. Description Unit Price
(Per Test)
Section 1 - Drinking Water Analysis
1,01 Total Trihalomethanes (TI -iMs) $60
1.02 Haloacetic Acids (HAA5) $75
1.03 Total Dissolved Solids (TDS) $20
1.04 Gcosrnin iMethyl-Isobo MDID 1 (MIB) $180
1.05 Total Suspended Solids (TSS) $20
1.06 Nitratc/Nitritc $25
1.07 Lead $20
1.08 Copper $20
1.09 Aluminum $20
110 mercury $20
1.11 Perchlorate by 314.0 $40
1.12 Other Individual Metal Analysis by EPA 2008 . $15
1.13 Other Individual Metal Analysis by EPA 2001 . $15
1.14 Coliform Bacteria Analysis by Colilert $15
1.15 I-IPC 3acteria Count $15
1.16 Total conform & fecal colifomi by SM9223EQuantitray Method $35
1.17 Color $10
1.18 Odor $I 0
1.19 Foaming Agents (IviBAS) $50
No. Description Unit Price
(Per Test)
Section 2 - UCMR5
2.01 UCMR5 25 PFAS: EPA Method 533 S350
2.02 EPA Method 533: Exiraci and Hold $175
2.03 EPA Method 533: Analysis of Field Reagent Blank $350 204 UCMR5 4 PFAS: EPA Method 537.01 $200
2.05 EPA Method 537.01: Extract and Hold $100
2.06 EPA Method 537.0L Analysis of Field Reagent Blank $200
2.07 UCMR5 Lithium: EPA Method 200.7 $45
Section 3 - Treatment Plant Disinfection Byproduct Rule Analysis 301 Total Organic Carbon (TOC) $35
3.02 Dissolved Organic Carbon (DOC) $45
3.03 UV254 $25
3.04 Alkalinity $15
3.05 Bromate $45
Section 4 - Treatment Plant Drinking Water Title 22 Analysis
4.01 EPA Method 524.2: Purgeable Organic Compounds $85
4.02 -
EPA Method 525.2: Organic Compounds; also includes EPA Method 507:
Nitrogen and Phosphorous Pesticides
$160
4.03 EPA Method 504.1: 1,2-Dibromomethane (EDB) and 1,2-Dibromo-3- chloropropanc (1DBCP) by 524.3
$65
4.04 EPA Method 507: Nitrogen arid Phosphorous Pesticides (kid. with 4.02)
4.05 EPA Method 508: Chlorinated Pesticides and Polychlorinated Biphenyls (PCBs)
$90
4.06 EPA Method 515.1: Chlorinated Acids S95
4.07 EPA Method 531.1: Carbannates 90
4.08 EPA Method 549.2: Diquat $100
4.09 EPA Method 632: Carbamate and Urea Pesticides $180
4.10 Cyanide $35
4.11 1.2.3-TCP (SRL 524M) S90
4.12 Nitrate/Nitrite $30
4.13 General Mineral $150
4,14 General Physical $30
4.15 Title 22 Metals S175
A-2
No. Description Unit Price
(Per Test)
4.16 Title 22 Cations $60
4.17 Title 22 Anions $60
4.18 Total Cyanide $35
4.19 Asbestos $175
420 Gross Alpha $50
4.21 Gross Beta $50
4.22 U Tatham $35
4.23 Tritium $90
4.24 Stronium 90 $155
4.25 Radium 226 $145
4.26 Raditmi 228 $165
Section 5 - Treatment Plant Sewer Discharge Analysis ._
5.01 Discharge TSS $20
5.02 DOD $60
5 03 Discharge Copper $20
5.04 Discharge Metals: As, Cd, Cr, Cu, Pb, Hg, Ni, Ag, Zn $120 Section 6 - Other Environmental Testing Services (Non-Potable Water and 1 -lazardons Waste)
6.01 EPA Method 8015B: Total Petroleum Hydrocarbons for gasoline, diesel, oil (soil and water)
$120
6.02 EPA Method 8081A: Pesticides (soil and water) $140 6 03 EPA lvlethod 8082: PCBs (soil, water, and oil) $90
6.04 EPA Method 6010B/7471A: Metals (soil and water) $190
6.05 EPA Method 1664: Oil and Grease (water) $50
6.06 EPA Method 8260B: Volatile Organic Compounds (soil and water) $125
6.07 EPA Method 8270C: Seinivolaiile Organic Compounds (soil and wilier) S250 6 08 pH (water and soil) $20
6.09 TSS (water and soil) $20
6.10 -
Toxicity (Hazardous Waste Classification) $500
6.11 Ignitability (Hazardous Waste Classification) $50
6.12 Leachability Tests (STLC ( TCLP) for applicable methods $75 6 13 Total Col i form by Enumeration SM9221B (Wastewater Analysis) $45 A-3
No. Description Unit Price
(Per Test)
Section 7 - Miscellaneous
7.01 Reagent DI Water: TOC $20
7.02 24 Hr. Rush Analysis Charge 100% of test fee
7.03 48 Hr. Rush Analysis Charge 75% of test fee
704 5 Day (I20 Hr) Rush Analysis Charge 3014 of test fee
7.05 Pickup on Weekends and Holidays between R:00 AM- 5:30 PM (per batch) $150
7.06 Sample Pickup by Courier (per trip) $75
7.07 Individual Metals from TCLP or STLC $20
7.08 Metals Digestion $25
Section 8 - Additional Analyses Not Specified Above
8.01 For any test/analysisimethod not listed above, the price shall be Provider's current Standard Fee Schedule with the specified discount of. . . 10%
2. BACTERIOLOGICAL TESTING
• Coliform testing (drinking water) shall be performed according to the requirements of the Total Cotiform Rule mandated by the State Water Resources Control Board ("SWRCB").
• Provider must provide a 24-hour incubation period for coliform bacteria analysis. • Provider must provide a 48-hour incubation period for heterotrophic plate count bacteria analysis.
3. DELIVERY
• Provider must pick up and/or deliver all coolers, test containers, labels, and samples to locations designated by Anaheim.
4. PICK UP SCHEDULE
• Provider must coordinate with Anaheim regarding pickup times to accommodate Anaheim's operational needs on any weekday (holidays excluded). • Without limitation, Provider must arrange for pickups from the following address:
Lenain Water Treatment Plant located at 6751 E. Walnut Canyon Road, Anaheim, CA.
A-4
5. REPORTING
• Unless otherwise directed by Anaheim, Provider must provide complete analyses and submit electronic reports to Anaheim within /0 business days after taking custody of samples_ Upon request, Provide' must provide he'd copies of reports and original chain of custody forms.
o The standard turnaround time (TAT) for Section 6 analyses (in Table 1 above) and subcontract methods for radiochemistry and asbestos is 15 working days_
• For all analyses, the target lists and reporting limits shall he as specified in Provider's Analytical Method Information (PDF pages 494-521) contained in Provider's RFP response submitted on August 13, 2024, but in no circumstance shall be less rigorous than required by law, including sections 22 Cal. Code Regs. 64431, 64672.3, 64441, 64443, and 64444.
• Provider must provide Anaheim with online access to current and historical data reports through a secured user account.
• Provider must provide Electronic Data Deliverable ("Epp") files for all data reports. EDDs shall be available through Anaheim's secured online user account. • Provider must provide all quality assurance (QA") and quality control ("QC") data in each testing report.
• As directed by Anaheim staff, Provider must enter electronic data reporting into the databases of the SWRCB and U.S. Environmental Protection Agency (EPA").
• Provider must provide notifications of samples exceeding regulatory thresholds pursuant to the requirements and timelines established in 22 CCR 64814.
6. LICENSES & CERTIFICATIONS
• Provider must be certified by the SWRCB, Environmental Laboratory Accreditation Program ("ELAP") to perform specified chemical, microbiological, physical, and radiological testing for drinking water and/or wastewater. • Provider must be TNI-accredited by an organization recognized by the National Environmental Laboratories Accreditation Conference Institute ("TNI"). • Provider must be competent to perfolm perfluorinated chemical analyses and be certified for PFOS and PFOA by the EPA and/or any other state accrediting agency.
A-5
7. APPROVED SUBCONTRACTORS
Laboratory Location Analyses
EMSL Laboratories San Leandro, CA Asbestos
GEL Laboratmics Charleston, SC Radium226/228, Strontium 90, Tritium Aquatic Bioassay Laboratories Ventura, CA _ Toxicity _ A-6