HomeMy WebLinkAbout12484RESOLUTION NO. 12484
A RESOLUTION APPROVING AN AGREEMENT IN AN
AMOUNT NOT TO EXCEED $58,680 BETWEEN THE CITY OF
PUEBLO AND OTTERTAIL ENVIRONMENTAL, INC., FOR
PROFESSIONAL SERVICES ASSOCIATED WITH
ENVIRONMENTAL MONITORING
WHEREAS, the City of Pueblo owns, operates and maintains a wastewater system
subject to the requirements of the Federal Clean Water Act and the Colorado Water Quality
Control Act, and;
WHEREAS, the Colorado Department of Public Health and Environment has adopted
changes to the regulations governing the methods used to determine attainment of aquatic life
uses for surface waters, and;
WHEREAS, the Colorado Department of Public Health and Environment is proposing to
base assessment of compliance with narrative standards for nutrients on the aquatic life
attainment methodology, and;
WHEREAS, the changes might affect the compliance status of Pueblo’s Water
Reclamation Facility, and;
WHEREAS, the City has selected OtterTail Environmental, Inc. to provide professional
services for evaluating attainment of aquatic life uses;
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Agreement for Professional Services by and between Pueblo, a Municipal
Corporation, and OtterTail Environmental, Inc., a true copy of which is attached hereto and
incorporated herein by reference (the “Agreement”) having been approved as to form by the City
Attorney, is hereby approved.
SECTION 2.
The President of City Council is hereby authorized to execute the Agreement in the
name and on behalf of the City and the City Clerk is directed to affix the seal of the City thereto
and attest same.
SECTION 3.
Funds for payment for professional services under said Agreement in an amount not to
exceed $58,680 shall be paid from appropriated funds budgeted in the City’s 2012 Budget from
the Sewer User Fund.
INTRODUCED: September 10, 2012
BY: Chris Nicoll
COUNCIL PERSON
Background Paper for Proposed
RESOLUTION
AGENDA ITEM
# M-3
DATE: September 10, 2012
DEPARTMENT: WASTEWATER DEPARTMENT
GENE MICHAEL, DIRECTOR
TITLE
A RESOLUTION APPROVING AN AGREEMENT IN AN AMOUNT NOT TO EXCEED
$58,680 BETWEEN THE CITY OF PUEBLO AND OTTERTAIL ENVIRONMENTAL,
INC., FOR PROFESSIONAL SERVICES ASSOCIATED WITH ENVIRONMENTAL
MONITORING
ISSUE
Should the City Council approve an agreement in an amount not to exceed $58,680
with OtterTail Environmental, Inc. for professional services associated with
environmental monitoring?
RECOMMENDATION
Approval of Resolution.
BACKGROUND
The Colorado Department of Public Health and Environment (CDPHE) recently
changed the regulations that establish aquatic life classifications for water bodies and
implemented guidance for methods to assess use attainment for aquatic life uses
through a Multi-Metric Assessment. The new rule changed the method used to
evaluate whether aquatic life uses are attained in surface waters, and CDPHE is
currently proposing to use this method in determining compliance with the narrative
standard for nutrients. A finding of non-attainment will result in the stream segment
being added to the list of impaired waters, which in turn will affect the effluent limits
applied to Pueblo’s Water Reclamation Facility. The next evaluation will be performed
in 2014. It is in the interest of the City of Pueblo to perform assessments to determine
the compliance status of Segment 1a of the Lower Arkansas River, and to ensure that
the assessment will not be based on the result of a single sampling effort.
A copy of the agreement with OtterTail Environmental, Inc. for the 2012 Multi-Metric
Assessment study is attached.
FINANCIAL IMPACT
Funds for the 2012 Multi-Metric Assessment study are available from the Sewer User
Fund and were appropriated in the 2012 budget.
AGREEMENT FOR SERVICES
THIS AGREEMENT is made and entered this 10th day of September , 2012, by and
between the City of Pueblo, a Municipal Corporation ( "Client ") and Ottertail Environmental Inc., a Colorado
corporation , (hereinafter referred to as "Supplier ") for Supplier to render professional scientific, technical, and
consulting services for Client with respect to a Muli- Metric Index Study 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) Supplier shall satisfactorily perform the 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 services including any required drafting, design, or installation services
incident to its work on the Project.
(b) To the extent Supplier performs any of the Project work through subcontractors or sub -
consultants, Supplier 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 Supplier.
(c) To the extent Supplier requires access to private property to perform its services hereunder,
Supplier shall be required to make arrangements to obtain such access. However, in the event Client has already
secured access for Supplier to any such property through a right of entry agreement, access agreement, letter of
consent or other instrument, Supplier 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 Supplier upon request.
SECTION 2. SUPPLIER'S RESPONSIBILITIES,
(a) Supplier shall be responsible for the professional quality, technical accuracy and timely
completion of Supplier's work, including that performed by Supplier's sub - consultants and subcontractors, and
including drawings, procurement, installation, reports and other services, irrespective of Client's approval of or
acquiescence in same.
(b) Supplier shall be responsible, in accordance with applicable law, to Client for all loss or damage to
Client caused by Supplier's negligent act or omission; except that Supplier 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) Supplier shall be completely responsible for the safety of Supplier's employees in the execution of
work under this Agreement and shall provide all necessary safety and protective equipment for said employees.
(d) Supplier acknowledges that time is of the essence with respect to the completion of its services
under this Agreement. Supplier represents that Schedule I attached hereto is the schedule by which Supplier
proposes to accomplish its work. Except to the extent the parties agree to time extensions for delays beyond the
control of Supplier, Supplier 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. In the event that delays
beyond the control of Supplier occur, Supplier shall advise Client in writing that (1) the delay has occurred and the
reason for the delay, (ii) a reasonable estimate of the length of the delay, and (iii) alternatives that could be pursued
to reduce the delay. Supplier 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
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private facilities.
(e) Before undertaking any work or incurring any expense which Supplier considers beyond or in
addition to the Scope of Work described in Schedule 1 or otherwise contemplated by the terms of this Agreement,
Supplier shall advise Client in writing that (i) Supplier considers the work beyond the scope of this Agreement, (ii)
the reasons that Supplier believes the out of scope or additional work should be performed, and (iii) a reasonable
estimate of the cost of such work. Supplier 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 Supplier 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 Supplier as full compensation for all services required to be
performed by Supplier under this Agreement, except for services for additional work or work beyond the scope of
this Agreement, the maximum sum of U.S. $58,680.00 , as set forth in Schedule 1.
(b) Supplier 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 contain appropriate documentation that such
services have been performed and such expenses incurred. Thereafter, Client shall pay Supplier 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 Supplier for services required and expenditures incurred in
correcting Supplier'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, Supplier 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. CLIENTS RESPONSIBILITIES.
(a) Client agrees to advise Supplier regarding Client's Project requirements and to provide all relevant
information, surveys, data and previous reports accessible to Client which Supplier may reasonably require.
(b) Client shall designate a Project Representative to whom all communications from Supplier 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 Supplier, 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 Supplier of responsibility for the professional
adequacy of its work.
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(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 Supplier 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 Supplier's performance hereunder, at any
time upon written notice, either for cause or for convenience. Upon such termination, Supplier 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 Supplier 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 Supplier, Supplier shall
be paid 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 Supplier or Client. In no event shall payment to Supplier upon termination exceed the
maximum compensation provided for complete performance in Section 3(a).
(c) In the event termination of this Agreement or Supplier's services is for breach of this Agreement
by Supplier, or for other fault of Supplier including but nott 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, Supplier'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) Supplier'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, Supplier and
Supplier's employees and consultants shall obtain all additional necessary approval and clearances required for
access to such property. Client shall assist Supplier in obtaining access to such property at reasonable times but
makes no warranty or representation whatsoever regarding access to such property. Notwithstanding the foregoing,
Supplier understands and agrees that entry to some property by Supplier may be subject to compliance by Supplier
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
Supplier 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 Supplier 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
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federal regulations.
SECTION 8. INSURANCE AND INDEMNITY.
(a) Supplier 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 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 Supplier 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.
(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 /l00 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) Supplier agrees to hold harmless, defend and indemnify Client from and against any liability to
third parties, arising out of negligent acts or omissions of Supplier, its employees, subcontractors and consultants.
SECTION 9. SUBCONTRACTS.
(a) Client acknowledges that Supplier is the prime contractor and the only party with whom Client has
a contractual relationship under this Agreement. To the extent Supplier performs any Project activities through sub -
consultants or subcontractors, Supplier 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) Supplier shall indemnify and defend Client from all claims and demands for payment for services
provided by subcontractors of Supplier.
(c) Supplier 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 Supplier assigns principal
responsibility for services performed under this Agreement. Consequently, Supplier 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. Supplier shall not change such consultants
or key personnel except after giving notice of a proposed change to Client and receiving Client's consent thereto.
Supplier shall not assign or reassign Project work to any person to whom Client has reasonable objection.
SECTION 10. REQUIRED FEDERAL PROVISIONS (RESERVED)
SECTION 11. 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 Supplier 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:
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Gene Michael, Wastewater Director , Pueblo, Colorado, or to Supplier at 1300 South Queens
Avenue, Pueblo, CO, 81001 . 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 Supplier and Client
respecting the Project, and any other written or oral agreement or representation respecting the Project or the duties
of either Client or Supplier in relation thereto riot 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 Supplier 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 Supplier 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
Supplier nor its consultants shall discriminate against any employee or applicant for employment because of race,
color, religion, sex, national origin, disability or age. Supplier 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) State - Imposed Mandates Prohibiting Illegal Aliens From Performing Work:
(1) Within 5 business days of contract execution, Consultant shall submit to the Purchasing
Agent of the City its certification that it does not knowingly employ or contract with an
illegal alien and that the Consultant has participated or attempted to participate in the
"Basic Pilot Program" created in Public Law 208, 104 Congress, as amended and
expanded in Public law 156, 108 Congress, as amended, that is administered by the
United States Department of Homeland Security.
(2) Consultant shall not:
(1) Knowingly employ or contract with an illegal alien to perform work under this
contract;
(II) Enter into a contract with a subcontractor that fails to certify to Consultant that
the subcontractor shall not knowingly employ or contract with an illegal alien to perform
work under this contract.
(3) The following state - imposed requirements apply to this contract:
(I) The Consultant shall have verified or attempted to verify through participation
in the Basic Pilot Program that the Consultant does not employ any illegal aliens and, if
the Consultant is not accepted into the Basic Pilot Program prior to entering into this
contract, that the Consultant shall apply to participate in the Basic Pilot Program every
three months until the Consultant is accepted or this Contract has been fully completed,
whichever occurs earlier. This provision shall not be required or effective if the Basic
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Pilot Program is discontinued.
(11) The Consultant is prohibited from using the Basic Pilot Program procedures to
undertake pre - employment screening of job applicants while this Contract is being
performed.
(III) If the Consultant obtains actual knowledge that a subcontractor performing work
under this contract knowingly employs or contracts with an illegal alien, the Consultant
shall be required to:
A. Notify the subcontractor and the Engineer within three (3) days that the
Consultant has received such knowledge; and
B. Terminate the subcontract with the subcontractor if within three (3) days of
receiving the notice required pursuant to subparagraph (c)(111)A. above the subcontractor
does not stop employing or contracting with the illegal alien; except that the Consultant
shall not terminate the contract with the subcontractor if, during such three (3) days, the
subcontractor provides information to establish that the subcontractor has not knowingly
employed or contracted with an illegal alien.
(IV) The Consultant is required to comply with any reasonable request by the
Colorado Department of Labor and Employment (hereinafter referred to as "CDLE ")
made in the course of an investigation that CDLE is undertaking pursuant to its authority
under §8-1 7.5-102(5), C.R.S.
(4) Violation of this Section by the Consultant shall constitute a breach of contract and
grounds for termination. In the event of such termination, the Consultant shall be liable
for City's actual and consequential damages.
(h) Severability. 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 • WEB ! - IPAL CORPORATION
By /.—
President • the ity C.uncil
EnV1 conme-n \ inc.
ATTEST: Q—
City erk Cd Ft.
�
Name: L I
Title: p rQ5 1 dn+
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