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HomeMy WebLinkAbout10936RESOLUTION NO. 10936 A RESOLUTION AWARDING A CONTRACT IN THE MAXIMUM AMOUNT OF $12,500.00 TO TIMOTHY K. GATES. Ph.D.. FOR 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, The water reclamation facility operates under the requirements of a discharge permit issued by the Colorado Department of Health and Environment, and WHEREAS, The terms and conditions of the discharge permit are based on the beneficial use classifications and numeric criteria applied to the receiving water; and WHEREAS, The Colorado Department of Health and Environment conducts periodic public hearings to review and revise beneficial use classifications and standards; and WHEREAS, The Colorado Department of Health and Environment has scheduled a public hearing to review beneficial use classifications and standards for the Arkansas River Basin in June 2007; and WHEREAS, The water quality standards for selenium and sulfate established in that June 2007 hearing will have a significant and direct monetary impact on the operation of Pueblo's water reclamation facility; BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO. that: SECTION 1. A contract in the maximum amount of $12,500.00 is hereby awarded to Dr. Timothy K. Gates, Ph.D., to provide testimony and expert witness services in the June 2007 Arkansas River Basin Hearing 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 2007 Sewer User Fund. INTRODUCED February 12, 2007 BY Michael Occiato Councilperson APPROVED: QZ& j p� el&xv — FFRESIDLINTof City Council ATTESTED BY: CITY CLERK Ai's, 1 Background Paper for Proposed RESOLUTION AGENDA ITEM # 10 DATE: FEBRUARY 12, 2007 DEPARTMENT: WASTEWATER DEPARTMENT GENE MICHAEL, DIRECTOR TITLE A RESOLUTION AWARDING A CONTRACT IN THE MAXIMUM AMOUNT OF $12,500.00 TO TIMOTHY K. GATES, Ph.D., FOR TESTIMONY AND EXPERT WITNESS SERVICES ISSUE Should the City Council award a contract to Timothy K. Gates, Ph.D., for testimony and expert witness services? Approval of this Resolution BACKGROUND The consultant will provide written and oral expert witness testimony as to the sources of selenium and sulfate in the Lower Arkansas River, and the degree to which in- stream concentrations of these substances could be reduced through modification of agricultural irrigation practices. 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. The effluent limits and other conditions contained in the discharge permit under which the Water Reclamation Facility operates are directly affected by beneficial use classifications and standards applied to the segment, thus affecting the operating costs for the facility. 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. Selenium and sulfate exceed Colorado's water quality standards in the Lower Arkansas River, largely as a result of natural sources. In 2004, the Wastewater Department undertook additional studies to identify and quantify sources of selenium and sulfate in the Arkansas River from the Pueblo Dam to the Huerfano River near Boone. The Colorado Department of Health and Environment and EPA Region 8 have tentatively agreed that the study meets the requirements for a Use Attainability Analysis, which is a mechanism allowed under the Federal Clean Water Act to justify less restrictive water quality standards. The Colorado Department of Health and Environment has scheduled a public hearing to review water quality classifications and standard for the Arkansas River Basin in June 2007. The City of Pueblo intends to recommend site - specific standards for selenium and sulfate that should allow the City to avoid the cost of constructing treatment facilities to remove these substances from wastewater. Dr. Gates was part of the study team that analyzed and interpreted data from the 2004 study. Dr. Gates has also performed considerable research on agricultural irrigation practices in the Lower Arkansas River Basin and is recognized as an authority on irrigation - related water quality issues by both the Colorado Department of Health and Environment and by EPA Region 8. His testimony will be valuable in securing a favorable ruling on appropriate water quality standards. FINANCIAL IMPACT Funds for this project are available from the Sewer User Fund and were appropriated in the 2007 budget. AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made and entered this 12th day of February, 2007, by and between the City of Pueblo, a Municipal Corporation ( "Client ") and Dr. Timothy Gates, (hereinafter referred to as "Consultant ") for Consultant to render professional scientific, technical, consulting, and expert witness 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, consulting, and expert witness 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. (e) Before undertaking any work or incurring any expense which Consultant considers beyond or in -1- addition to the Scope of Work described in Schedule 1 or otherwise contemplated by the terms 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. $ 12. 500.00 , 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 invoices and other documentation for time and actual expenses. 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 furnished hereunder shall not in any way relieve Consultant of responsibility for the professional adequacy of its work. (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 -2- 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 federal regulations. SECTION 8. INSURANCE AND INDEMNITY -3- (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 of personal 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 ofproperty including loss ofuse 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: (1) Workers' Compensation Insurance complying with statutory requirements in Colorado and in any other state or states where the work is performed. (it) 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 hamiless, 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 onlyparty 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 Clientprior 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 Client's 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 parry 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: Gene Michael, Wastewater Director, 211 East "D" Street. Pueblo. CO 81003 , or to Consultant at Timothy K. Gates, Ph.D., 1001 Club View Road Fort Collins, CO 80524 Eitherparty 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. -4- (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 Onnorturn . In connection with the performance of this Agreement, neither Consultant nor its consultants shall discriminate 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. ATTEST: City Cle C-vAit& Stilste*W -5- CITY OF PUEBLO, A MUNICIP ORPORATION BY �(CN� President of the ity Counc' SCHEDULE 1 SCOPE OF WORK SCOPE OF WORK Timothy Gates will provide professional services as a consultant and expert witness regarding selenium and sulfate loading to the Lower Arkansas River along reaches that are substantially influenced by agricultural irrigation and drainage activities, to include the following: Provide written testimony of expert opinion in support of the City of Pueblo position paper regarding the potential to reduce non -point source selenium and sulfate loads to reaches of the Lower Arkansas River. 2. Assist the City of Pueblo in a review of rebuttals of the proponent's position paper by other parties to the ARTR hearing and in preparation of written responses and rebuttals that may be required to any position papers. 3. Prepare and conduct an oral presentation of the proponent's position to the ARTR hearing before the CWQCC and present oral testimony in response to any questions posed by the CWQCC.