DRAFT

SERVICE AGREEMENT

BETWEEN THE CITY OF SUNNYVALE AND MWH LABORATORIES

FOR LABORATORY TESTING SERVICES

THIS AGREEMENT dated ______________________________ is by and between the CITY OF SUNNYVALE, a municipal corporation ("CITY"), and MWH LABORATORIES, a California corporation ("LABORATORY").

WHEREAS, CITY is in need of laboratory testing services; and

WHEREAS, LABORATORY possesses the skill and expertise to provide the required services;

NOW, THEREFORE, THE PARTIES ENTER INTO THIS AGREEMENT.

1. Services by LABORATORY

a. There are attached and incorporated by this reference the following exhibits:

1. Exhibit "A", consisting of Pages 2 through 12, inclusive, and Attachments B through D of that certain document entitled "Request for Proposals No. F0206-83". The exhibit consists of the I. Notice Inviting Proposals, II. Instructions to Proposers, III. Specifications, IV. Terms and Conditions, IV. Instructions for Completion of Proposer Response Pages, Attachment B. Evaluation Criteria, Attachment C. Statement of Qualifications Requirements, and Attachment D. Sample Chain of Custody Document which was submitted to all prospective proposers.

2. Exhibit "B", consisting of Pages 16 through 22, inclusive, of that certain document and its attachments presenting LABORATORY's response to "Request for Proposals No. F0206-83".

b. LABORATORY shall perform the services described in Pages 5 through 10, inclusive, of Exhibit "A" III. Specifications.

c. The performance of such services shall be governed by Pages 11 and 12, inclusive of Exhibit "A" IV. Terms and Conditions and this Agreement.

2. Time for Performance

The term of this Agreement shall one-year, beginning the date of contract execution, unless otherwise terminated. The Agreement may be extended for two (2) additional one-year periods at the option of CITY. CITY shall give LABORATORY thirty (60) days advance notice should it decide to exercise its option to extend the Agreement.

3. Compensation

CITY agrees to pay LABORATORY at the rates set forth in Exhibit "B". Total compensation shall not exceed One Hundred Sixty Thousand and no/ 100 Dollars ($160,000.00), including extensions. LABORATORY shall submit invoices to CITY no more frequently than monthly. CITY shall make payment within thirty (30) days of receipt of an accurate, itemized invoice by CITY's Accounts Payable Unit.

4. Conflict of Interest

No officer or employee of CITY shall have any interest, direct or indirect, in this Agreement or in the proceeds thereof. During the term of this Agreement LABORATORY shall not accept employment or an obligation which is inconsistent or incompatible with LABORATORY's obligations under this Agreement.

5. Confidential Information

LABORATORY shall maintain in confidence and at no time use, except to the extent required to perform its obligations hereunder, any and all proprietary or confidential information of CITY of which LABORATORY may become aware in the performance of its services.

6. Compliance with Laws

(a) LABORATORY shall not discriminate against any employee or applicant for employment because of race, religion, creed, color, national origin, gender, age (persons 40 years or older), disability, or any other basis to the extent prohibited by federal, state, or local law. All employees of LABORATORY shall be treated during employment without regard to their race, creed, color or national origin.

(b) LABORATORY shall comply with all federal, state and city laws, statutes, ordinances, rules and regulations and the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of the Agreement.

7. Independent Contractor

LABORATORY is acting as an independent Contractor in furnishing the services or materials and performing the work required by this Agreement and is not an agent, servant or employee of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and LABORATORY. LABORATORY is responsible for paying all required state and federal taxes.

8. Indemnity

LABORATORY shall indemnify, defend and hold harmless CITY and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses, including attorney fees, arising out of the performance of the work described herein, caused in whole or in part by any negligent act or omission of LABORATORY, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence, or willful misconduct of CITY.

9. Insurance

LABORATORY shall take out and maintain during the life of this Agreement policies of insurance as specified in Exhibit "C" attached and incorporated by reference, and shall provide all certificates or endorsements as specified in Exhibit "C."

10. CITY Representative

Lorrie Gervin, as City Manager's authorized representative, shall represent CITY in all matters pertaining to the services to be rendered under this Agreement. All requirements of CITY pertaining to the services and materials to be rendered under this Agreement shall be coordinated through the CITY representative.

11. LABORATORY Representative

Andrew Eaton shall represent LABORATORY in all matters pertaining to the services and materials to be rendered under this Agreement; all requirements of LABORATORY pertaining to the services or materials to be rendered under this Agreement shall be coordinated through LABORATORY representative.

12. Notices

All notices required by this Agreement shall be in writing, and shall be personally delivered, sent by first class with postage prepaid, or by sent by commercial courier, addressed as follows:

To CITY: Lorrie Gervin

Environmental Division

Department of Public Works

CITY OF SUNNYVALE

P. O. Box 3707

Sunnyvale, CA 94088-3707

To LABORATORY: Andrew Eaton, VP/Lab Director

MWH Laboratories

555 E. Walnut St.

Pasadena, CA 91101

Nothing in this provision shall be construed to prohibit communication by more expedient means, such as by telephone or facsimile transmission, to accomplish timely communication. However, to constitute effective notice, written confirmation of a telephone conversation or an original of a facsimile transmission must be sent by first class mail or commercial carrier, or hand delivered. Each party may change the address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of two days after mailing, unless such date is a date on which there is no mail service. In that event communication is deemed to occur on the next mail service day.

13. Assignment

Neither party shall assign or sublet any portion of this Agreement without the prior written consent of the other party.

14. Termination

If LABORATORY defaults in the performance of this Agreement, or materially breaches any of its provisions, CITY at its option may terminate this Agreement by giving written notice to LABORATORY. If CITY fails to pay LABORATORY, LABORATORY at its option may terminate this Agreement if the failure is not remedied by CITY within thirty (30) days from the date payment is due.

Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY also shall have the right to terminate this Agreement for any reason upon ten (10) days' written notice to LABORATORY. In the event of such termination, LABORATORY shall be compensated in proportion to the percentage of services performed or materials furnished (in relation to the total which would have been performed or furnished) through the date of receipt of notification from CITY to terminate. LABORATORY shall present CITY with any work product completed at that point in time.

15. Entire Agreement; Amendment

This writing constitutes the entire agreement between the parties relating to the services to be performed or materials to be furnished hereunder. No modification of this Agreement shall be effective unless and until such modification is evidenced by writing signed by all parties.

16. Miscellaneous

Time shall be of the essence in this Agreement. Failure on the part of either party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any other provision. This Agreement shall be governed and construed in accordance with the laws of the State of California.

IN WITNESS WHEREOF, the parties have executed this Agreement.

ATTEST: 

City Clerk 

APPROVED AS TO FORM: 

MWH LABORATORIES ("LABORATORY")

City Attorney