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HomeMy WebLinkAbout10199RESOLUTION NO. 10199 A RESOLUTION AWARDING A CONTRACT IN THE AMOUNT OF $147,895.00 AND SETTING FORTH $29,580.00 IN CONTINGENCIES, TO ARCADIS FOR NPDES PERMIT WORK, TESTIMONY, AND EXPERT WITNESS SERVICES WHEREAS, The City of Pueblo owns, operates and maintains a water reclamation facility subject to the requirements of the Federal Clean Water Act and the Colorado Water Quality Control Act, and WHEREAS, Accurate water quality information is needed to assure that appropriate limits are established in the discharge permit for the water reclamation facility, and WHEREAS, Inaccurate water quality information could result in extreme costs being imposed on the water reclamation facility without a resulting environmental benefit; BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. A contract in the amount of $147,895.00 and setting forth $29,580.00 in contingencies is hereby awarded to ARCADIS, to perform a selenium source characterization study and provide testimony and expert witness services in hearings before the Colorado Water Quality Control Commission. SECTION 2. The Purchasing Agent is hereby authorized to execute said contract on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest the same. SECTION 3. Funds for said project have been appropriated in the 2004 Sewer User Fund. INTRODUCED August 9, 2004 BY Michael Occhiato Councilperson N I - , _ 16 - Background Paper for Proposed RESOLUTION l&v. - 0 io/ 99 AGENDA ITEM # 6 DATE: AUGUST 9, 2004 DEPARTMENT: WASTEWATER DEPARTMENT GENE MICHAEL, DIRECTOR TITLE A RESOLUTION AWARDING A CONTRACT IN THE AMOUNT OF $147,895.00 AND SETTING FORTH $29,580.00 IN CONTINGENCIES, TO ARCADIS FOR NPDES PERMIT WORK, TESTIMONY, AND EXPERT WITNESS SERVICES. ISSUE Should the City Council award a contract to ARCADIS for NPDES permit work, testimony, and expert witness services? RECOMMENDATION Approval of this Resolution BACKGROUND In 2004 the Colorado Water Quality Control Commission placed Segment 1a of the Lower Arkansas River (Fountain Creek to Avondale) on the list of threatened or impaired waters because selenium concentrations exceed the State - assigned water quality standards. Pueblo's James R. Dilorio Water Reclamation Facility discharges to this segment, so water quality in the segment can directly impact the National Pollutant Discharge Elimination System ( NPDES) permit under which the Water Reclamation Facility operates. The consequence of the river segment being placed on the impaired stream list is that federal law requires that a Total Maximum Daily Load (TMDL) and a Waste Load Allocation (WLA) be performed. Strict application of these processes could result in Pueblo being ordered to remove selenium from its reclaimed water. The cost of selenium removal using reverse osmosis treatment technology was estimated at $35 million in construction costs and $2 million annual operating costs in 2000 dollars. Because Pueblo contributes less than 5 percent by mass of the selenium in the river segment, Pueblo's removing selenium from its effluent would not bring the river segment into compliance. The TMDL/WLA process is required where human activities are the source of materials that exceed water quality standards. The City of Pueblo has conducted extensive monitoring and has presented evidence to the State that selenium in the Arkansas River comes from natural sources, not human activity. However, the federal Environmental Protection Agency disapproved Colorado's initial determination agreeing with Pueblo, arguing that insufficient evidence has been presented to demonstrate that agricultural return flows are not significant sources of selenium. Because agricultural return flows are deemed to result from human activity, no waiver from existing standards can be granted until this issue is addressed. In order to protect its NPDES permit against improper imposition of a selenium limit that would not achieve an environmental benefit, the Wastewater Department proposes to enter into an agreement with ARCADIS, to further define the selenium contribution from agricultural return flows in the Fountain Creek and Lower Arkansas River drainages. FINANCIAL IMPACT Funds for this project are available from the Sewer User Fund and were appropriated in the 2004 budget. AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made and entered this 3rd day of August, 2004, by and between the City of Pueblo, a Municipal Corporation ( "Client ") and ARCADIS, (hereinafter referred to as "Consultant") for Consultant to render professional scientific, technical, and consulting services for Client with respect to characterization of sources of selenium in selected portions of the Arkansas River watershed, and related ancillary services, hereinafter referred to as the "Project." In consideration of the mutual covenants hereinafter set forth, the parties agree as follows: SECTION 1. GENERAL AND SCOPE OF SERVICES. (a) Consultant shall satisfactorily perform the professional scientific, technical, and consulting services for the Project described in more detail in Schedule 1 attached hereto and incorporated herein by reference (the "Basic Services "). Such services shall include all usual and customary professional scientific, technical, and consulting services including any required drafting or design services incident to its work on the Project. (b) To the extent Consultant performs any of the Project work through subcontractors or sub - consultants, Consultant shall be and remain as fully responsible for the full performance and quality of services performed by such subcontractors as it is for services performed directly by Consultant. (c) To the extent Consultant requires access to private property to perform its services hereunder, Consultant shall be required to make arrangements to obtain such access. However, in the event Client has already secured access for Consultant to any such property through a right of entry agreement, access agreement, letter of consent or other instrument, Consultant shall fully comply with and be subject to the terms and conditions set forth therein. A copy of any such instrument will be provided to Consultant upon request. SECTION 2. CONSULTANT'S RESPONSIBILITIES (a) Consultant shall be responsible for the professional quality, technical accuracy and timely completion of Consultant's work, including that performed by Consultant's sub - consultants and subcontractors, and including drawings, reports and other services, irrespective of Client's approval of or acquiescence in same. (b) Consultant shall be responsible, in accordance with applicable law, to Client for all loss or damage to Client caused by Consultant's negligent act or omission; except that Consultant hereby irrevocably waives and excuses Client and Client's attorneys from compliance with any requirement to obtain a certificate of review as a condition precedent to commencement of an action, including any such requirements set forth in Section 13 -20 -602, C.R.S. or similar statute, whether now existing or hereafter enacted. (c) Consultant shall be completely responsible for the safety of Consultant's employees in the execution of work under this Agreement and shall provide all necessary safety and protective equipment for said employees. (d) Consultant acknowledges that time is of the essence with respect to the completion of its services under this Agreement. Consultant represents that Schedule 3 attached hereto is the schedule by which Consultant proposes to accomplish its work, with time periods for which it will commence and complete each major work item Except to the extent the parties agree to time extensions for delays beyond the control of Consultant, Consultant shall adhere to this schedule and perform its work in a timely manner so as not to delay Client's timetable for achievement of interim tasks and final completion of Project work. Consultant further acknowledges that its schedule has accounted for all reasonably anticipated delays, including those inherent in the availability of tools, supplies, labor and utilities required for the work, the availability of information which must be obtained from any third parties, and all conditions to access to public and private facilities. 90 (e) Before undertaking any work or incurring any expense which Consultant considers beyond or in addition to the Scope of Work described in Schedule 1 or otherwise contemplated by the temvs of this Agreement, Consultant shall advise Client in writing that (i) Consultant considers the work beyond the scope of this Agreement, (ii) the reasons that Consultant believes the out of scope or additional work should be performed, and (iii) a reasonable estimate of the cost of such work. Consultant shall not proceed with any out of scope or additional work until authorized in writing by Client. The compensation for such authorized work shall be negotiated, but in the event the parties fail to negotiate or are unable to agree as to compensation, then Consultant shall be compensated for its direct costs and professional time at the rates set forth in Schedule 2 attached hereto. SECTION 3. FEES FOR SERVICES, PAYMENT (a) Client will pay to Consultant as full compensation for all services required to be performed by Consultant under this Agreement, except for services for additional work or work beyond the scope of this Agreement, the maximum sum of U.S. $ 147, 895.00 , computed as set forth in Schedule 2. (b) Consultant shall submit periodic, but not more frequently than monthly, applications for payment, aggregating to not more than the maximum amount set forth above, for actual professional services rendered and for reimbursable expenses incurred. Applications for payment shall be submitted based upon the hourly rates and expense reimbursement provisions set forth in Schedule 2 attached hereto, and shall contain appropriate documentation that such services have been performed and such expenses incurred. Thereafter, Client shall pay Consultant for the amount of the application within 45 days of the date such application is received. (c) No separate or additional payment shall be made for profit, overhead, local telephone expenses, lodging, routine photocopying, computer time, secretarial or clerical time or similar expenses unless otherwise provided and listed in Schedule 2. (d) No compensation shall be paid to Consultant for services required and expenditures incurred in correcting Consultant's mistakes or negligence. (e) Compensation for authorized work beyond the scope of this Agreement shall be governed by the provisions of Section 2(e). (f) In the event services under this Agreement are phased and to be performed in more than one fiscal year or are subject to annual appropriation, Consultant acknowledges that funds only in the amount of initial appropriation are available and it shall confirm availability of funds before proceeding with work exceeding initial and subsequent annual appropriations. SECTION 4. CLIENT'S RESPONSIBILITIES. (a) Client agrees to advise Consultant regarding Client's Project requirements and to provide all relevant information, surveys, data and previous reports accessible to Client which Consultant may reasonably require. (b) Client shall designate a Project Representative to whom all communications from Consultant shall be directed and who shall have limited administrative authority on behalf of Client to receive and transmit information and make decisions with respect to the Project. Said representative shall not, however, have authority to bind Client as to matters of governmental policy or fiscal policy, nor to contract for additions or obligations exceeding a value which is the lesser of $5000 or 5% of the maximum contract price. (c) Client shall examine all documents presented by Consultant, and render decisions pertaining thereto within a reasonable time. The Client's approval of any drawings, specifications, reports, documents or other materials or product fiunished hereunder shall not in any way relieve Consultant of responsibility for the professional adequacy of its work. -2- (d) Client shall perform its obligations and render decisions within a reasonable time under the circumstances presented. Based upon the nature of Client and its requirements, a period of 14 days shall be presumed reasonable for any decision not involving policy decision or significant financial impact. A period of 46 days shall be presumed reasonable for Client to act with respect to any matter involving policy or significant financial impact. The above periods of presumed reasonableness shall be extended where information reasonably required by Consultant is not within the custody or control of Client but must be procured from others. SECTION 5. TERMINATION. (a) Client reserves the right to terminate this Agreement and Consultant's performance hereunder, at any time upon written notice, either for cause or for convenience. Upon such termination, Consultant and its subcontractors shall cease all work and stop incurring expenses, and shall promptly deliver to Client all data, drawings, specifications, reports, plans, calculations, summaries and all other information, documents and materials as Consultant may have accumulated in performing this Agreement, together with all finished work and work in progress. (b) Upon termination of this Agreement for events or reasons not the fault of Consultant, Consultant shall be paid at the rates specified in Schedule 2 for all services rendered and reasonable costs incurred to date of termination; together with any reasonable costs incurred within 10 days of termination provided such latter costs could not be avoided or were incurred in mitigating loss or expenses to Consultant or Client. In no event shall payment to Consultant upon termination exceed the maximum compensation provided for complete performance in Section 3(a). (c) In the event termination of this Agreement or Consultant's services is for breach of this Agreement by Consultant, or for other fault of Consultant including but not limited to any failure to timely proceed with work, or to pay its employees and consultants, or to perform work according to the highest professional standards, or to perform work in a manner deemed satisfactory by Client's Project Representative, then in that event, Consultant's entire right to compensation shall be limited to the lesser of (a) the reasonable value of completed work or (b) payment at the rates specified in Schedule 2 for services satisfactorily performed and reimbursable expenses reasonably incurred, prior to date of termination. (d) Consultant's professional responsibility for its completed work and services shall survive any termination. SECTION 6. SITE ACCESS In the event the Project will require access to property not under the control of Client, Consultant and Consultant's employees and consultants shall obtain all additional necessary approval and clearances required for access to such property. Client shall assist Consultant in obtaining access to such property at reasonable times but makes no warranty or representation whatsoever regarding access to such property. Notwithstanding the foregoing, Consultant understands and agrees that entry to some property by Consultant may be subject to compliance by Consultant with the terms and conditions of an access agreement in accordance with section 1(c) of this Agreement. SECTION 7. USE OF DOCUMENTS (a) Plans, drawings, designs, specifications, reports and all other documents prepared or provided by Consultant hereunder shall become the sole property of Client, subject to applicable federal grant requirements, and Client shall be vested with all rights therein of whatever kind and however created, whether by common law, statute or equity. Client shall have access at all reasonable times to inspect and make copies of all notes, designs, drawings, specifications, and all other technical data or other documents pertaining to the work to be performed under this Agreement. In no event shall Consultant publish work product developed pursuant to this Agreement except (i) with advance written consent of Client and (ii) in full compliance with the requirements of this Agreement and applicable 11911 federal regulations. SECTION 8. INSURANCE AND INDEMNITY (a) Consultant agrees that it shall procure and will maintain during the term of this Agreement, such insurance as will protect it from claims under workers' compensation acts, claims for damages because ofpersonal injury including bodily injury, sickness or disease or death of any of its employees or of any person other than its employees, and from claims or damages because of injury to or destruction of property including loss of use resulting therefrom; and such insurance will provide for coverage in such amounts as set forth in subparagraph (b). (b) The minimum insurance coverage which Consultant shall obtain and keep in force is as follows: W Workers' Compensation Insurance complying with statutory requirements in Colorado and in any other state or states where the work is performed. (ii) Comprehensive General and Automobile Liability Insurance with limits not less than Six Hundred Thousand and No /100 Dollars ($600,000.00) per person and occurrence for personal injury, including but not limited to death and bodily injury, and Six Hundred Thousand and No /100 Dollars ($600,000.00) per occurrence for property damage. (iii) Professional Liability Insurance with coverage of not less than $1,000,000, and with a deductible acceptable to Client. (c) Consultant agrees to hold harmless, defend and indemnify Client from and against any liability to third parties, arising out of negligent acts or omissions of Consultant, its employees, subcontractors and consultants. SECTION 9. SUBCONTRACTS (a) Client acknowledges that Consultant is the prime contractor and the only party with whom Client has a contractual relationship under this Agreement. To the extent Consultant performs any Project activities through sub - consultants or subcontractors, Consultant shall contractually bind each of its sub - consultants and subcontractors by subcontract agreement to all of the terms of this Agreement which are for the benefit of Client, and Client shall be a third party beneficiary of those subcontract provisions. (b) Consultant shall indemnify and defend Client from all claims and demands for payment for services provided by subcontractors of Consultant. (c) Consultant acknowledges that, due to the nature of the services to be provided under this Agreement, the Client has a substantial interest in the personnel and consultants to whom Consultant assigns principal responsibility for services performed under this Agreement. Consequently, Consultant represents that it has selected and intends to employ or assign the key personnel and consultants identified in its proposal submitted to Client prior to execution of this Agreement to induce Client to enter this Agreement. Consultant shall not change such consultants or key personnel except after giving notice of a proposed change to Client and receiving Clients consent thereto. Consultant shall not assign or reassign Project work to any person to whom Client has reasonable objection. SECTION 10. MISCELLANEOUS. (a) Notices Any and all notices or other communications required or permitted by this Agreement or by law to be served on or given to either Consultant or Client by the other party shall be in writing and shall be deemed duly served and given when personally delivered to the party to whom it is directed, or in lieu of such personal service, when deposited in the United States mail, first -class postage prepaid, addressed to the Client, Attention: 10 Gene Michael Wastewater Director , Pueblo, Colorado, or to Consultant at 211 East "D" Street Pueblo, CO, 81003 . Either party may change his address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. (b) Entire Agreement This instrument contains the entire agreement between Consultant and Client respecting the Project, and any other written or oral agreement or representation respecting the Project or the duties of either Client or Consultant in relation thereto not expressly set forth in this instrument and its attachments is null and void. (c) Successors and Assigns This Agreement shall be binding on the parties hereto and on their successors and assigns; provided, however, neither this Agreement, nor any part thereof, nor any moneys due or to become due hereunder to Consultant may be assigned by it without the written consent of Client. (d) Amendments No amendment to this Agreement shall be made nor be enforceable unless made by written amendment signed by an authorized representative of Consultant and by Client in accordance with the requirements of Section 4(b) of this Agreement or upon authorization of Client's governing board. (e) Choice of Law This Agreement shall be governed and interpreted in accordance with the laws of the State of Colorado. Any unresolved dispute arising from or concerning any breach of this Agreement shall be decided in a state court of competent jurisdiction located in Pueblo, Colorado. (f) Equal Employment Opportunity In connection with the performance of this Agreement, neither Consultant nor its consultants shall dis crimina te against any employee or applicant for employment because of race, color, religion, sex, national origin, disability or age. Consultant shall endeavor to insure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national origin, disability or age. (g) Severabilitv If any provision of this Agreement, except for Section 2, is determined to be directly contrary to and prohibited by law or the requirements of any federal grant or other Project funding source, then such provision shall be deemed void and the remainder of the Agreement enforced. However, it is the intent of the parties that Section 2 of this Agreement not be severable, and that if any provision of said section be determined to be contrary to law or the terms of any federal grant, then this entire Agreement shall be void. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as of the day and year first above written. CITY OF PUEBLO, A MLTN1eII CORPORATION By PresidentA the City Council ATTEST: By City C lc ARCADIS Name: 4Ia h Title: 60001st) f'k?sfr%stq,'" -5- SCHEDULE 1 SCOPE OF SERVICES ARCADIS 1.0 Statement of Understanding ARCADIS G &M, Inc. ( ARCADIS) values the opportunity to again partner with the City of City of Pueblo to complete a selenium source and transport characterization study as described to ARCADIS during our June 18, 2004 meeting. The following are - the purposes and objectives of the study based on our understanding of the request for a proposal during the aforementioned meeting. Purpose: Further demonstrate that the source of selenium in surface water and groundwater in the Pueblo study area is from the Pierre Shale. e Characterize the hydrologic flow and chemical transport of selenium in the study area and develop a selenium mass balance for Segment la of the Arkansas River and Segment 2b Fountain Creek. e Determine the significance of land use impacts (i.e., agricultural return flows) on selenium in surface water and groundwater in the study area. Objectives: • Address the Environmental Protection Agency's (EPA's) concerns that irrigation of iron and selenium rich lands along the river may be a significant contributing cause for elevated selenium concentrations in the Arkansas River. • Conduct a focused field investigation to quantify the effect of irrigation return flows on iron and selenium in Segment la of the Arkansas River and Segment 2b Fountain Creek. ■ Characterize the impact of land management practices on the concentration of selenium in surface water and groundwater in the study area over long periods of time. ■ Support the permit renewal process with data and a model demonstrating the relative impact of alternate land use scenarios. This proposal includes the ARCADIS team, approach, schedule, and cost estimate to complete the work necessary to meet the defined purpose and objectives of the study. Use or disclosure of information contained on this sheet is subject to the restriction and disclaimer located on the table of contents of this document. G.N)ernr Tetl NW ProfectACu nt Pro*CMC y of Pueblo 7-OWty of Pueblo 7 -23-04 FIMI.GOt Selenium Source and Transport Characterization Study - Proposal City of Pueblo ARCADIS 2.0 Background An evaluation of selenium sources and selenium impacts to groundwater and surface water in the Pueblo study area has been previously conducted by ARCADIS during two phases of investigation. The Phase I investigation was performed in the fall of 1994. The second phase of the investigation was performed during the spring and summer of 1998. The results of both of these phases of work were reported to the City of Pueblo in the Selenium Source Characterization Report dated 24 September 1998. Also, Dr. Timothy Gates and associates from Colorado State University have been conducting extensive research focused on salinity and selenium in the Arkansas River Valley since the late 1990s. Significant data has been collected and continues to be collected along portions of the Arkansas River for use in modeling the watershed. In addition, City of Pueblo has performed extensive sampling of water flowing through the sanitary sewer system in an effort to evaluate the spatial distribution of selenium concentrations in the sewer lines. These data have been evaluated in concert with anticipated groundwater flow directions in order to design a monitoring network of wells completed during the Phase II investigation. The primary objective of the ARCADIS Phase I and Phase H investigations was to quantify the relationship between the occurrence of elevated selenium concentrations in soils, bedrock, groundwater, and surface water to the geology and geochemical conditions found in the vicinity of the defined study areas. The information obtained from these study areas has been used to assess sources of selenium to the City of Pueblo sanitary sewer system and the wastewater treatment plant. The studies completed during Phase I and II also assessed the dynamics of these sources with respect to urbanization of the Pueblo area and selenium concentrations in the Arkansas River. Subsequently, the EPA has recently stated that it cannot rule out the "possibility that irrigation of iron and selenium rich lands along the river is a contributing cause of the elevated water concentrations ". EPA believes that further study of the sources of iron and selenium and their affect on water quality in segment la of the Arkansas River is warranted. In particular, EPA requests concurrent, representative iron, selenium, and flow measurements for irrigation return flows and the Arkansas River upstream, and downstream of the points where the return flows enter segment la. Such data would be helpful to determine the water quality influence of the irrigation return flows and might support a finding that irrigation return flows are not a significant source of iron and selenium to this segment of the river. Use or disclosure of information contained on this sheet is subject to the restriction and disclaimer located on the table of contents of this document. Proposal for the Selenium Source Characterization City of Pueblo GDe"r TeahNal PmlectsNC r nt P JeR lty of PMbIo 7-04VJty of PWW 7 -2301 PlnelAoc ARCADIS The permit renewal process for wastewater discharges from the wastewater treatment plant has been primarily supported with data collected during the aforementioned Phase I and Phase H investigation and ongoing City of Pueblo sampling and analysis efforts. It is anticipated, however, that additional data and a predictive model demonstrating the relative impact of alternate land use scenarios is warranted for the subsequent permit renewal process. Proposal for the Selenium Source Characterization City of Pueblo