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RESOLUTION NO. 13552
A RESOLUTION APPROVING AN AGREEMENT IN AN
AMOUNT NOT TO EXCEED $164,000 BETWEEN THE CITY OF
PUEBLO AND BROWN AND CALDWELL, INC., FOR 2017
COMPLIANCE AND PERMITTING SUPPORT
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 protect aquatic life in situations with
natural sources of selenium occur; and
WHEREAS, the Colorado Department of Public Health and Environment is requiring a
Discharger Specific Variance to allow a phase approach showing progressive improvements
toward meeting the selenium stream standard; and
WHEREAS, the changes may affect the compliance status of Pueblo’s Water
Reclamation Facility; and
WHEREAS, Brown and Caldwell, Inc is the Engineer of Record for the James R. DiIorio
Water Reclamation Facility, they will provide professional services for evaluating treatment
process for removal of selenium; NOW THEREFORE,
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 Brown and Caldwell, 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.
Funds for payment for professional services under said Agreement in an amount not to
exceed $164,000 shall be paid from appropriated funds budgeted in the City’s 2016 Budget
from the Sewer User Fund Project No. WW1503.
SECTION 3.
The City Council President 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 4.
The officers and staff of the City are directed and authorized to perform any and all acts
consistent with the intent of this Resolution and the attached agreement to effectuate the
transactions described therein.
SECTION 5.
This Resolution shall become effective immediately upon passage and approval.
INTRODUCED: November 14, 2016
BY: Ed Brown
City Clerk’s Office Item # M-13
Background Paper for Proposed
Resolution
COUNCIL MEETING DATE: November 14, 2016
TO:
President Stephen G. Nawrocki and Members of City Council
CC:
Sam Azad, City Manager
VIA:
Gina Dutcher, City Clerk
From:
Nancy Keller, Wastewater Director
SUBJECT:
A RESOLUTION APPROVING AN AGREEMENT IN AN AMOUNT NOT TO
EXCEED $164,000 BETWEEN THE CITY OF PUEBLO AND BROWN AND
CALDWELL, INC., FOR 2017 COMPLIANCE AND PERMITTING SUPPORT
SUMMARY:
This Resolution accepts an agreement between the City and Brown and Caldwell, Inc for
professional services associated with 2017 compliance and permitting. The agreement will
provide assistance for the proposed DSV for selenium, including the alternatives analysis,
supporting documentation, and hearing support effective.
PREVIOUS COUNCIL ACTION
:
Resolution No. 12828 - A resolution approving an agreement between the City of Pueblo and
Brown and Caldwell, Inc., to provide engineering services for the Pueblo Wastewater
Department.
BACKGROUND
:
The Wastewater Department operates the 28 year old James R. DiIorio Water Reclamation
Facility, which was recently required by the Water Quality Control Division to move from the
long term temporary modification for selenium to a Discharger Specific Variance for selenium.
The Colorado Discharger Specific Variance regulation was recently adopted by the Water
Quality Control Commission to set up a regulatory option that facilities can use to allow a
phased compliance with the stream standard. This agreement between the City and Brown and
Caldwell, Inc. authorizes Brown and Caldwell, Inc. to do an alternatives analysis to determine
the feasibility of treatments available to remove selenium, their economic impact, prepare
documentation, assist with determime alternative effluent limits and provide hearing support.
FINANCIAL IMPLICATIONS
:
Funds for this project are available from the Sewer User Fund and have been appropriated in
the Sewer User Fund Project No. WW1503.
BOARD/COMMISSION RECOMMENDATION
:
None
STAKEHOLDER PROCESS
:
None
ALTERNATIVES
:
The alternative is to wait for CDPHE apply the requirement to meet the selenium stream
standard in the permit and face potential daily fines for noncompliance.
RECOMMENDATION
:
Approval of the Resolution.
Attachments
:
Agreement for Professional Services between the City of Pueblo and Brown and
Caldwell, Inc.
AGREEMENT
FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered this /4? day of /16✓cm4er , 201L, by and between the
City of Pueblo,a Municipal Corporation ("Client")and Brown and Caldwell,Incorporated,a California corporation,
1527 Cole Boulevard, Golden, Colorado 80401 (hereinafter referred to as "Consultant") for Consultant to render
professional engineering services for Client with respect to 2017 James R. Dilorio Water Reclamation Facility
Compliance and Permitting support 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 planning and consulting services for the
Project described in more detail in Schedule I attached hereto and incorporated herein by reference (the "Basic
Services"). Such services shall include all usual and customary professional engineering services including any
required drafting or design services incident to its work on the Project as set forth in Schedule 1.
(b) To the extent Consultant performs any of the Project work through subcontractors or subconsultants,
Consultant shall be and remain as fully responsible for the full performance and quality of services performed by such
subcontractors or subconsultants as it is for services performed directly by Consultant or Consultant's employees.
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 subconsultants and subcontractors, and
including drawings, reports and other services, irrespective of Client's approval of or acquiescence in same.
Consultant shall perform its services in accordance with generally-accepted standards and practices customarily
utilized by competent engineering firms in effect at the time Consultant's services are rendered.
(b) Consultant shall be responsible, in accordance with applicable law,to Client for all loss or damage
to Client to the extent 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's obligation to render services shall continue for such period of time as may reasonably
be required for completion of the work contemplated in Schedule I as set forth in Schedule 3 of 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.
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 for
Force Majeure events, or any reasonable period of time extended under Section 4(d) below, 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 and 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
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,
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(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.$164,000,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,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 negligent errors or omissions.
(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.
Consultant shall rely on information provided without verification unless otherwise agreed in Schedule 1.
(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
reasonable for any decision not involving policy decision or significant financial impact, when all information
reasonably necessary for Client to responsibly render a decision has been furnished. 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 is not within the
custody or control of Client but must be procured from others.
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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, work product 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 with that level of care and skill ordinarily exercised by
Consultants performing similar services at the time such services are performed, 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 to Client 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. RESERVED.
SECTION 7. USE OF DOCUMENTS.
(a) Plans, drawings, designs, specifications, reports and all other documents and instruments ("Work
Product")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. In the event Client uses Work Product provided hereunder for another
project independent from Project, without adaptation by Consultant, Client shall hold harmless and indemnify
Consultant from all loss, claims, injury and judgments arising from the use of such Work Product for such other
project. Consultant shall retain all rights to its pre-existing proprietary information and intellectual property. 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,which consent may be granted or withheld in Client's sole and absolute discretion and(ii)in full compliance
with the requirements of this Agreement and applicable federal regulations.
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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 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 Consultant shall obtain and keep in force is as follows:
(i) Workers'Compensation Insurance complying with statutory requirements in Colorado and
in any other state or states where the work is performed. The Workers' Compensation Insurance policy shall
contain an endorsement waiving subrogation against the Client.
(ii) Commercial General Liability Insurance (Policy Form CG 00 01)with coverage limits of
no less than$1,000,000 per occurrence and in the aggregate,for bodily injury and property damage,including
premises/operations and completed operations/products liability. The Commercial General Liability
Insurance policy shall also provide coverage for contractual liability and contain an endorsement waiving
subrogation against the Client.
(iii) Automobile Liability Insurance with coverage limits no less than $1,000,000 per accident
and contain coverage for both hired and non-owned vehicles and equipment.
(iv) Umbrella/Excess Liability Insurance in an amount not less than$1,500,000 per occurrence
and in the aggregate in excess of the primary limits.
(v) Professional Liability Insurance with coverage of not less than One Million and No/100
Dollars ($1,000,000.00 each claim/aggregate) covering claims arising from the negligent acrs, errors or
omissions in the services performed by Consultant for Client under this Agreement.
(vi) The Commercial General Liability Insurance, Automobile Liability Insurance and
Umbrella/Excess Liability Insurance policies shall be endorsed naming Client, its officers, agents and
employees as additional insureds.
(c) Consultant agrees to hold harmless,defend and indemnify Client from and against any liability to
third parties,to the extent caused by the negligent acts,errors 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
subconsultants or subcontractors,Consultant shall contractually bind each of its subconsultants 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 Client's consent thereto.
Consultant shall not assign or reassign Project work to any person to whom Client has reasonable objection.
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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:
Nancy Keller
Wastewater Director
City of Pueblo Department of Wastewater
211 East D Street
Pueblo,CO 81003
or to Consultant,Attention:
Mary J.Gearhart
1527 Cole Blvd Suite 300
Lakewood,CO 80401
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. In the case of any conflict between the terms of this Agreement for Professional Services and terms of
Schedule 1 or any other attachment hereto,the terms of this Agreement shall govern.
(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,which consent may
be withheld in Client's sole and absolute discretion. Any assignment or attempted assignment in violation of this
subsection shall be void.
(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 matter relating to this Agreement,
unless otherwise provided for by 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 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) 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 as of the time of any such determination this entire Agreement shall be
void and terminated pursuant to the provisions of Section 5,without waiving any claims or defenses.
(h) Force Majeure. Neither party shall be responsible for delays caused by circumstances beyond its
reasonable control including but not limited to governmental action, statute, ordinance, rule or regulation, strike or
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other labor troubles,fires,acts of God,or other incidents outside of either party's control that makes performance or
acceptance impossible or impractical.
SECTION 12. STATE-IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM PERFORMING
WORK
(a) At or prior to the time for execution of this Agreement(which may be referred to in this section as
this"Contract"),Consultant(which may be referred to in this section as"Contractor")shall submit to the Purchasing
Agent of City its certification that it does not knowingly employ or contract with an illegal alien who will perform
work under this Contract and that the Contractor will participate in either the"E-Verify Program"created in Public
Law 208, 104th Congress,as amended and expanded in Public Law 156, 108th Congress,as amended,that is
administered by the United States Department of Homeland Security or the"Department Program"established
pursuant to §8-17.5-102(5)(c)C.R.S.that is administered by the Colorado Department of Labor and Employment in
order to confirm the employment eligibility of all employees who are newly hired for employment to perform work
under this Contract.
(b) Contractor shall not:
(1) Knowingly employ or contract with an illegal alien to perform work under this contract;
(II) Enter into a contract with a subconsultant that fails to certify to Contractor that the
subconsultant shall not knowingly employ or contract with an illegal alien to perform work under this
Contract.
(c) The following state-imposed requirements apply to this contract:
(I) The Contractor shall have confirmed the employment eligibility of all employees who are
newly hired for employment to perform work under this Contract through participation in either the E-Verify
Program or Department Program.
(II) The Contractor is prohibited from using either the E-Verify Program or Department
Program procedures to undertake pre-employment screening of job applicants while this Contract is being
performed.
(III) If the Contractor obtains actual knowledge that a subcontractor or subconsultant
performing work under this Contract knowingly employs or contracts with an illegal alien, the Contractor
shall be required to:
A. Notify the subconsultant and the Client's Purchasing Agent within three(3)days
that the Contractor has actual knowledge that the subcontractor/subconsultant is employing or
contracting with an illegal alien;and
B. Terminate the subcontract with the subcontractor/subconsultant if within three(3)
days of receiving the notice required pursuant to subparagraph (c)(IIl)A. above the
subcontractor/subconsultant does not stop employing or contracting with the illegal alien; except
that the Contractor shall not terminate the contract with the subcontractor/subconsultant if, during
such three (3) days, the subcontractor/subconsultant provides information to establish that the
subcontractor/subconsultant has not knowingly employed or contracted with an illegal alien.
(IV) The Contractor 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§8-17.5-102(5),C.R.S.
(d) Violation of this Section 12 by the Contractor shall constitute a breach of contract and grounds for
termination. In the event of such termination, the Contractor shall be liable for Client's actual and consequential
damages.
(e) As used in this Section 12, the terms "subcontractor" and "subconsultant" shall mean any
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subconsultant or subcontractor of Consultant rendering services within the scope of this Agreement.
SECTION 13. Reserved.
SECTION 14. PERA LIABILITY
Consultant shall reimburse the City for the full amount of any employer contribution required to be paid by
the City of Pueblo to the Public Employees' Retirement Association("PERA")for salary or other compensation paid
to a PERA retiree performing contracted services for the City under this Agreement. The Consultant shall fill out the
questionnaire attached as Exhibit A and submit the completed form to Client as part of the signed Agreement.
IN WITNESS WHEREOF,the parties hereto have made and executed this Agreement as of the day and year first
above written: v
CLIENT: CITY OF PUEBLO, A M J ICIPAL
CORPORATION
By
Preside .� �►ie':+ ci
ATTEST: APPROVED AS TO FORM:
1- 701/41 �.
City Attorney
City erk
CONSULTANT:BROWN AND CALDWELL,INC.
41-4-4(4 'le-614-111QL3Lsi
By:
Name: / (/ 3I' 1-(4
Title: 3'yVtq_c) A �'r--t!f��ei2 ,
CA apprvd form 3/12/10 7