HomeMy WebLinkAbout1978-06-07; City Council; 3500-3; Encina water pollution control facility expansion Phase III Upgrading and ExpansionCITY OF CARLSBAD
AGENDA BILL NO. ***
DATE: June 7, 1978
DEPARTMENT: Public Works - Joint Advisory Committee
Subject:ENCINA WATER POLLUTION CONTROL FACILITY - PHASE III UPGRADING AND EXPANSION
Statement of the Matter
The Environmental Protection Agency (EPA), via the State Water Resources Control
Board (SWRCB), has given us concept approval on the Phase III project. Upon
receipt of a Step 2 (design) grant offer, we will have approximately one year
in which to design the project. The Vista Sanitation District (VSD) is the lead
agency on this project.
The existing Step I preliminary study, Contract VSD-100, between VSD and Brown
and Caldwell (B&C) authorizes the negotiation of a design contract with B&C.
The JAC has reaffirmed its intention to exercise this condition and has negoti-
ated the attached contract. Because the EPA requires certain wording in these
contracts, Exhibit "C" to the contract is included as a part thereof. This
exhibit incorporates Title 40, which contains many of the provisions we normally
include in our contracts.
This contract differs from our normal contracts in two respects. First, it is
cost plus fixed fee rather than lump sum. Second, it is in three distinct parts.
The first part takes design to the 10% level, at which time it is evaluated by
the Value Engineering Team (a federal requirement). The second part takes it
through completion. The third part is for special engineering services, as
directed. The budget for the work is as follows:
Preliminary Design Services (cost ceiling plus fixed fee) $ 210,776.00
Step 2 Services •" " " " " 1,281,520.00
Special Engineering Services 200,000.00
Exhibits:
1. Letter from JAC counsel dated May 4, 1978
2. Resolution No.
Recommendation:
If Council concurs, adopt Resolution No.^J'yjM approving and authorizing the
Vista Sanitation District to enter into a contract with Brown and Caldwell for
design services for the Phase III upgrading and expansion of the Encina Water
Pollution Control Facility.
Council action
6-7-78 Resolution #5433 was adopted, approving and authorizing the
Vista Sanitation District to enter into a contract with Brown
and Caldwell for design services for the Phase III upgrading
. and expansion of the Encina Water Pollution Control Facility.
RUSSELL W. WALKER
ROY H. QANN
WALKER AND GANN
ATTORNEYS AT LAW
333 - SOUTH JUNIPER, SUITE - 214
POST OFFICE BOX 788
ESCONDHM). CAI.IH'OKMA U2O2K
May 4, 1978
TELEPHONE 743-3022
AREA CODE 714
City Council
City of Carlsbad
1200 Elm Avenue
Carlsbad, California
92008
Attention: A.J. Skotnicki
Re: Approval of Proposed Agreement between Vista
Sanitation District and Brown & Caldwell for
Phase III Design Engineering.
Dear Mr. Skotnicki:
Enclosed please find a Resolution which, when adopted
by your City Council , will authorize Vista to enter
into the proposed contract with Brown & Caldwell for design
engineering of Phase III enlargement and upgrading of the
Encina Water Pollution Control Facilities.
Any action that may be taken to expedite adoption of
the Resolution will be for the best interests of all agencies
involved.
It is respectfully requested that a conformed copy of
the adopted Resolution be sent directly to Vista Sanitation
District, and a copy of the accompanying cover letter be
directed to the undersigned in order that communication be
kept current.
A similar resolution is transmitted herewith to all
members of the Joint Powers Agreement.
Your cooperation is appreciated.
Very truly yours,
WALKER & GANN
RHG:dr
Enclosure
RECEIVED
MAY 1 2 1978
CITY OF CARLSBAD
Engineering Department
RESOLUTION NO. 54331
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING THE EXECUTION OF AN AGREEMENT BETWEEN
3 VISTA SANITATION DISTRICT AND BROWN AND CALDWELL FOR
ENGINEERING SERVICES IN CONNECTION WITH PHASE III ENLARGEMENT
4 AND UPGRADING OF THE ENCINA WATER POLLUTION CONTROL FACILITY
5 WHEREAS, the Vista Sanitation District has planned for engineering ser-
6 vices for the Phase III enlargement and upgrading of the Encina Water Pollution
7 Control Facility (hereinafter referred to as the "Project"); and
8 WHEREAS, Vista Sanitation District and other public agencies have entered
9 into a Joint Powers Agreement, pursuant to Chapter 5 of Division 7 of Title 1
10 of the Government Code for the joint exercise of powers and the acquisition,
11 construction and operation of facilities for the transmission, treatment and
12 disposal of sewage, which facilities comprise a single system of sanitation
13 works and includes any expansion of such facilities by virtue of the Project
14 which is the subject of this Agreement; and
15 WHEREAS, by a duly authorized and executed Supplemental Agreement to the
16 aforesaid Joint Powers Agreement, Vista Sanitation District has been, and
17 presently is, authorized to enter into the Agreement that is the subject of
18 this Resolution, as well as to act as the administrator in connection with the
19 subject Project; and
20 WHEREAS, it is necessary and desirable to expand and upgrade the Encina
21 Water Pollution Control Facility (EWPCF) to meet environmental protection re-
22 quirements of applicable regulatory bodies; and
23 WHEREAS, Vista Sanitation District is receiving a grant from the U.S.
24 Environmental Protection Agency for the proposed Project, and desires that
25 the Agreement with Brown and Caldwell shall be in accordance with the Amend-
26 ments to Title 40 of the Code of Federal Regulations, Part 35, as published
27 in the Federal Register of December 17, 1975; and
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WHEREAS, at a regular meeting of the Joint Advisory Committee held on
April 26, 1978, a motion was duly made, seconded and unanimously adopted that
Vista Sanitation District be authorized to enter into the Agreement attached
hereto marked Exhibit "A"; and
WHEREAS, some of the parties to the aforesaid Joint Powers Agreement
have heretofore expressed a desire to peruse the contracts proposed to be
entered into for engineering services in connection with enlargement and up-
grading of the Encina Water Pollution Control Facility; and
WHEREAS, changes in energy considerations and technological progress
since completion of the 1975 project report require a review of said report;
and
WHEREAS, the Agreement attached hereto marked Exhibit "A" contains, among
other things, provisions for such review; and
WHEREAS, it appears that the health and welfare of the public will best
be served by authorizing Vista Sanitation District to enter into the aforesaid
Agreement;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Carlsbad as follows:
Section 1: That the Board of Directors of the Vista Sanitation District
be, and is, hereby authorized to enter into a contract with
Brown and Caldwell in the form and substance as that attached
hereto marked Exhibit "A".
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PASSED, APPROVED AND ADOPTED at an adjourned regular meeting of the City
Council of the City of Carlsbad held on the 7th day of June, 1978, by the fol-
lowing vote, to wit:
AYES:
NOES:
ABSENT: None
Councilmen Packard, Skotnicki, Anear and
Councilwoman Casler
None
RONALD C. PACKARD, Mayor
ATTEST:
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c
AGREEMENT FOR STEP 2 ENGINEERING-SERVTCES
BETWEEN VISTA SANITATION DISTRICT
AND BROWN AND CALDWELL
FOR
PHASE III ENLARGEMENT AND UPGRADING OF THE
ENCINA WATER POLLUTION CONTROL FACILITY
THIS AGREEMENT made and entered into as of the day of
1978 by and between the VISTA SANITATION DISTRICT, a county sanitation district,
hereafter referred to as "District" or "Owner", and BROWN AND CALDWEIt, a
California corporation, hereafter referred to as "Engineer":
WITNESSETH:
WHEREAS, the District has planned for engineering services for the Phase
III Enlargement and Upgrading of the Encina Water Pollution Control Facility (herein-
after referred to as the "Project"); and
WHEREAS, District and other public agencies have entered into a Joint Powers
Agreement, pursuant to Chapter 5 of Division 7 of Title 1 of the Government Code
for the joint exercise of powers and the acquisition, construction and operation of
facilities for the transmission, treatment, and disposal of sewage which facilities
comprise a single system of sanitation works and includes any expansion of such
facilities by virtue of the project which is the subject of this Agreement; and
WHEREAS, by a duly authorized and executed Supplemental Agreement to the
aforesaid Joint Powers Agreement, District has been, and presently is, authorized
to enter into this Agreement as well as to act as the administrator in connection
with the subject Project; and
WHEREAS/ it is necessary and desirable to expand and upgrade the Encina
Water Pollution Control Facility (WPCF) to meet environmental protection requirements
of applicable regulatory bodies; and
WHEREAS, District is receiving a grant from the U.S. Environmental Protection
Agency for the proposed project, and desires that this Agreement shall be in accord-
ance with the Amendments to Title 40 of the Code of Federal Regulations, Part 35, as
published in the Federal Register of December 17, 1975; and
WHEREAS, Engineer has available and offers to provide personnel and facilities
necessary to accomplish the work within the required time; and
WHEREAS, such available and offered personnel include the following categories
of professional employees whose services are available for work on this project for
the approximate number of manhours over the project period as follows:
EXHIBIT A
faiiUM .-garm
cPreliminary Design Services
T<=ihnr Category
Chief Engineer
Managing Engineer
Supervising Engineer
Principal Engineer
Senior Engineer
Engineer
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Approxlmate manhours
141
584
348
240
996
840
NOW/ THEREFORE, District and Engineer agree as follows:
I. Scope of Engineering Services
Engineer agrees to perform those services which are more particularly de-
scribed hereafter. Unless modified in writing by the party to be charged, duties of
Engineer shall not be construed to exceed those services specifically set forth
herein..
A. Planned Engineering Services
Engineer agrees to perform those tasks described In Exhibit "A" Planned
Step 2 Engineering Services, which is attached hereto and incorporated
herein by reference. Compensation for planned services shall be as provided
in Exhibit "B", which is attached hereto and incorporated herein by reference.
B. Special Engineering Services ' .
' District and Engineer agree that certain of the work contemplated to be
performed by Engineer cannot be defined sufficiently at the time of execution
of this Agreement, and that incidental engineering work related to the project
and not covered in Exhibit "A" may be needed during performance of this
Agreement. It is intended that such categories of work be classified as
Special Engineering Services. Special engineering services may include,
but are not limited to, the following:
1. Additional copies of contract drawings, specification and other
documents above the number specified to be furnished under Article I .A.,
Planned Step,2 Engineering Services and handling and mailing of these
copies, .
2. Offset printing and binding of reduced plans and specifications.
The services shall also include the procurement and supervision
of subcontractor retained for this work.
3. Assistance, as requested, to District as expert witness in arbitration
or litigation arising from the Implementation of the project.
4. Provision of engineering services and/or the services of Engineer's
attorney for the purpose of preparing documentation and presentations
incident to any bid protest hearings including those in accordance
with 40 CFR 35.939.
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5. Provide assistance to District during bidding periods to include
distribution of plans and specifications, preparation and printing of adden
attendance at a pre-bid conference, site tour and Equal Employment
Opportunity meeting, tabulation and analysis of results of bidding,
. recommendations as to award of construction contract and consultation
to District prior to award of construction contract.
6. Plotting, computing and filing descriptions of easements and rights -
of-way.
7. Assistance to District in preparing of applications and requests for
aid from the state agencies and federal government for construction
grants.
8. Assistance to District in obtaining any permits required by local,
state or federal governments.
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9. Additional copies of operation and maintenance manuals above the num-
ber specified to be furnished "under Article I.A., Planned Step 2 Engineer!]
Services and handling and mailing of these copies.
10. Preparation and participation in hearings before the State Water
Resources Control Board, the Environmental Protection Agency, or
other funding or regulatory agencies except as otherwise provided
for in Article I.A, Planned Step 2 Engineering Services.
11. Additional engineering services required to Implement recommendations
of the Value Engineering (VE) analysis.
12. Designs prepared at the request of the District for alternative methods
of treatment or construction than those actually designed. These
designs do not include minor changes In design following the
50 percent submittals, providing these minor changes do not conflict
with the scope of design services described in Article I.A., Planned
Step 2 Engineering Services.
13. Assistance to District in preparing for and meeting with representatives
of the SWRCB to discuss Grant Eligibility for the Encina Phase III
Project.
14. Detailed field verification of as-constructed conditions.
15. Assistance to District in updating the financial plan and revenue
program.
16. Assistance to District regarding Institutional arrangements.
/*">».. • • •
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17. Provision of additional services associated with the preparation
of additional contract documents for "fast tracking" part or parts
of the project.
18. Provision of engineering services to assist the District in applying
for a modification of the secondary treatment requirements.
19. Assistance to District in preparing the Construction Management
Plan required by the State Water Resources Control Board.
20. Assistance as necessary to the construction management consultant.
21. Consultation or other services on matters not otherwise provided
in this Agreement.
II. Authorization, Progress and Completion
Specific authorization to proceed with the work described in Exhibit "A" shall
be granted in writing by the District. The Engineer shall not proceed with the work
without such authorization. Such authorization shall set forth the date of commence-
ment of the work and the schedule of progress and completion. If the authorization
to proceed with the work described in Exhibit "A" occurs subsequent to September 30,
1978, it shall constitute an increase in scope of work and Engineer shall be entitled
to an appropriate increase in compensation.
For special engineering services, the authorization by the District shall be
in writing and shall include the definition of the work to be done, the schedule for
commencing and completing the work and the basis for compensation for the work.
III. Compensation .
For the services described in Exhibit "A" which are to be performed by the
Engineer, the District agrees to pay, and the Engineer agrees to accept, compen-
sation in accordance with the schedules set forth in Exhibit "B". Compensation
fpr special engineering services shall be as set forth in the written authorization
for special services or as specifically detailed in Exhibit "B".
IV. Responsibility of Engineer
The Engineer is employed to render a professional service only and any
payment made to it is compensation solely for such services as it may render and
recommendations it may make in the design of the project. The Engineer makes
no warranty, either expressed or implied, as to its findings, recommendations,
specifications or professional advice other than they were promulgated after follow-
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ing a practice usual to the engineering profession. The Engineer makes no warranty
or representation as to his ability to obtain or assist in the obtaining of grants as
contemplated herein other than Engineer will use .his professional skills in attempting
to do so.
The Engineer shall indemnify and hold the District and all of its officers,
principals, agents and employees harmless from any liability for injuries to
persons or damage to property which arise from negligent acts by the Engineer in
performing services under this Agreement.
V. Integration
This Agreement represents the entire understanding of District and Engineer
as to those matters contained herein. No prior oral or written understanding shall
be of any force or effect with respect to those matters covered hereunder. This
Agreement may not be modified or altered except in writing signed by the party to be
charged.
VI. Ownership of Documents
Any plans, studies, sketches, drawings or specifications supplied, as
herein required, are the property of the District. In the event this contract is
terminated, any documents, plans, specifications and drawings shall be delivered
forthwith to the District.
VTI. Subcontracts
Engineer shall be entitled, to the extent determined appropriate by the
Engineer, to subcontract any portion of the work to.be performed under this project.
Engineer shall negotiate and administer subcontracts in accordance with Provision
11 of Appendix C-l to 40 CFR Part 35, Subpart E as published in the Federal Register
on December 29, 1976. The Engineer shall be responsible to the District for the
actions of persons and firms performing subcontract work.
At the time subcontracted services are anticipated, the Engineer shall notify
District of the nature of and need for such services and identify the proposed sub-
contracting firm. The Engineer must receive written approval from the District prior
to utilization of any subcontractors.
The Engineer is authorized by the District to subcontract work having a cost
which will not exceed 40 percent of the total amount of compensation due under this
Agreement. In the event Engineer desires to subcontract work having a cost in
excess of 40 percent, the work shall be subject to the approval of the District and
this Agreement shall be amended.
VHI. District's Project Officer
The District's Project Officer, who shall be empowered to act for the District
in accordance with the provisions of this Agreement, where such acts are not con-
trary to law or District ordinance, shall be the General Manager of the Encina Water
Pollution Control Facility or as appointed by the District.
PC. Engineer*s Prolect Officer
The Engineer's Project Officer, who shall be empowered to act for the Engineer
in accordance with this Agreement in all matters relating to the technical administratior
of services to be provided, shall be the Engineer's duly appointed Project Manager for
the work. The Project Manager shall be Mr. Graham T. Fraser. In the event Mr.
Fraser, for any reason, cannot fulfill the duties of the Engineer's Project Manager,
the assignment shall be filled by either Mr. Donald R. Lee or Mr. Michael G. Hoover.
The Engineer shall notify the District, in writing, when circumstances require any
such change in assignment. Other substitution other than those individuals
listed above shall only be with the prior written approval of the District.
X. EPA Required Terms and Conditions
The "Required Provisions - Consulting Engineering Agreements" as published
in the Federal Register dated December 29, 1976 as Appendix C-l to Part 35 of Title
40 of the Code of Federal Regulations, are attached hereto and incorporated herein
by reference as exhibit "C".
XI. Effective Date
This Agreement shall be effective on and from the day and year first above
written.
IN WITNESS WHEREOF, we have hereunto set our hands and seals.
ATTEST: ' VISTA SANITATION DISTRICT
By
Approved by Resolution No. BROWN AND CALDWELL
a California Corporation
• on •
By ;
APPROVED AS TO FORM ,. Vice President
Date
EXHIBIT "A1
PLANNED STEP 2 ENGINEERING SERVICES
The planned engineering services to be provided under this Agreement include:
(1) Preliminary Design Services and (2) Basic Step 2 Services.
A. Preliminary Design Services
Preliminary design services are required to properly accomplish the basic
Step 2 services. The following preliminary design tasks shall be performed by
Engineer:
Task 0 - Management
Management of Preliminary Design Services includes supervision
of project staff, review of engineering work by managerial level
engineers, and correspondence with District.
Task 1 - Procurement arid Supervision of Subcontractors
Procurement and supervision of subcontractors includes those
services necessary for the procurement of subcontractors for both
preliminary design services and basic Step 2 services and supervision of
of subcontractors providing preliminary design services.
Task 2 - Geotechnical Investigations^
Geotechnical investigations over the treatment plant site will
be conducted by a qualified geotechnical consultant. The
investigations include test borings, soil analyses and founda-
tion exploration studies to obtain geotechnical data and
recommendations necessary for the project design.
Task 3 - Surveys \
Surveying of the Encina WPCF site will be performed by qualified
surveyors. The work includes aerial and ground surveys, detailed
layout of existing facilities, establishment of ground control work
Including lines and grades, base lines, monuments and topography
and related office computations and drafting.
Task 4_ ~ Preliminary Architectural
Preliminary architectural work includes architectural services
necessary for the "10 percent design submittal" required by the
State Water Resources Control Board. The work includes consultation,
preparation of drawings for the 10 percent submittal and attendance
at meetings.
A-2
Task 5 - Corrosion Protection Study
Under this task, the project site conditions will be investigated
and a letter report will be prepared to identify the need to provide
a corrosion protection system for piping and appurtenances buried
tn aggressive soils.
Task 6 - Preparation of Preliminary Design Report
The work will consist of consultation to the District and preparation
of a report which will be an attachment to the Preliminary 10 Percent
Design Report (Task 7). The work is necessary because of changes
that have occurred in the plant's discharge requirements, changes
in technology and changes in costs, particularly energy costs, that
have occurred since the project report was written in early 1975.
In addition, several high maintenance areas have been identified in the
existing plant. These areas are to be evaluated to determine the cost-
effectiveness of retaining or replacing the equipment. The subtasks
to be performed by the Engineer are as follows:
1. Review of Biological Secondary Treatment Process. The review
will update the alternative analysis section of the project
report with respect to the selection of biofiltration, activated
sludge and a relatively new biological process developed since
the project report, i.e. the Rotating Biological Contractors
(RBC's).
2. Review of Submerged Launders and Air Skimming. Submerged
launders and air skimming were recommended for improved oil
and grease removal and for odor control. Recent changes in the
grease and oil discharge requirements and reported operating
difficulties with submerged launders warrants a review of the
need for these systems. The need to add helical skimmers to
tanks 1 and 2 and the modification of the helical skimmer in
tank 5 will be reviewed.
3. Review of Odor Control Systems. Odorous air collected from
the aerated grit tank, primary sedimentation tanks, all open
channels, the sludge dewatering building and from the biofilters
is recommended, in the project report, to be deodorized in bio-
logical scrubbing towers. Recent reported operating difficulties
with similar odor removal systems at other locations suggest
that a review of the effectiveness and utility of this system
compared with other odor removals systems be conducted. This
review is needed to insure the most effective system is provided
in view of recent cease and desist orders received by the plant
for odorous emissions.
•4. Review of Screening and Screening Handling Systems. The projec
report recommends providing one new mechanically cleaned bar
screen and screenings grinding pump and the relocation of the
barscreen and grinding pump. Critical depth hydraulic
A-3
control sections are recommended to be provided downstream
of each screen to improve screen efficiency by reducing the
rate of flow through the screen. The screenings grinder pumps
discharge the ground screening back into the flow. This review
shall determine if the existing mechanically cleaned screen
should be replaced or repaired and also determine special fea-
tures to be incorporated in the specifications to reduce future
screen maintenance. The need for the proposed hydraulic
control sections downstream of the screens will also be reviewed,
The review will identify and evaluate systems for conveying the
screenings to a storage hopper for landfill disposal. Screen
control alternatives will also be evaluated.
5. Review of Grit Systems. The project report recommends utiliz-
ing recessed impeller centrifugal pumps pumping to centrifugal
separators and final washing of the heavy fraction from the
centrifugal separator in a helical flight type grit washer. The
grit is then discharged to a hopper for landfill disposal. The
review will identify and evaluate alternative grit removal,
separation, conveying and storage systems.
6. Primary Sludge Pumping Study. The project report does not
address primary sludge pumping. Recent maintenance reports
indicate reduced sludge pump capacity and extremely high sludge
pump maintenance. The study will evaluate other types of
primary sludge pumping systems and determine if it is cost-
effective to replace the existing primary sludge pumps with new
lower maintenance pumps.
7. Sludge Dewaterinq and Cake Handling Study. The project
report recommends the addition of a second centrifuge at
ground level in the position reserved for it on the existing
centrifuge structure. The existing centrifuge is experiencing
high maintenance costs. This study will evaluate alternative
sludge dewatering techniques to determine the most cost-
effective sludge dewatering system for the Phase III expansion.
If centrifuges are found to be cost-effective the study will
determine if it is cost-effective to elevate both centrifuges to
eliminate the need for the conveyor belt systems.
8. Energy Conservation and Reclamation Study. The project report
recommends the utilization of sludge gas as a fuel for engines
driving on-site power generators, the power so generated to be
used for operating other plant equipment. The project report
proposed to utilize the heat from the engines as a source of
heat for the plant anaerobic digestion process. The study
will identify the best alternative for energy utilization in the
Encina WPCF. The study shall identify the amount of energy
required under various discharge requirements and quantities
of sludge gas available under each treatment arrangement.
The following will be examined to determine the most cost-
effective energy and resource management alternative;
a. Full gas management, as proposed in the February
1975 Project Report.
b. Utilization of digester gas for digester heating only.
c. Sale of excess digester gas.
d. Cogeneratlon, in parallel with the electric utility.
e. Direct drive of selected plant loads using gas engines.
The study will include an evaluation of overall plant energy •
and operating costs under each alternative and will include
costs associated with providing necessary standby power for
reliability as required by EPA regulations.
9. Biofilter Pumping Station Study. The project report recom-
mends four constant speed pumps be provided and variable
flows be accommodated by hydraulically varying the recycle
quantity to maintain a constant hydraulic load to the biofilters.
The variation in the recycle rate is achieved by the action of a
weir and the limiting hydraulic capacity of the constant speed
pumps. Also, this system minimizes the size of the wet well.
The study will review and compare the cost and utility of this
control system with a system with four constant speed pumps,
two variable speed pumps and a wet well/dry well system.
10. Btoflocculation Study. The project report does not include a
bioflocculation stage between the biotowers and the secondary
sedimentation tanks. The need for such a facility shall be
determined.
Task 7 - Preparation of the Preliminary 10 Percent Design Report
The preparation of the Preliminary 10 Percent Design Report will
comply with the State Water Resources Control Board Clean Water
Grant Bulletin No. 26. The Preliminary Design Report, prepared
under Task 6, will be attached and made part of the Preliminary 10
Percent Design Report for presentation to the Value Engineering (V.E.)
team. The information to be prepared, assembled and presented shall
be as follows; process schematics, design criteria with supporting
calculations regarding process unit sizing, solids balance sheet
and preliminary service building floor plans.
A-5
Task 8 - Asmstance Associated with V.E. ArHifysis
Assistance and consultation, as necessary, to the District and the
V.E. team by the Engineer before, during and following the conduct
of the V.E. analysis. This work includes the response to the
comments and recommendations in the value engineers report, and
final preparation of the "10 Percent Design Completion Level Submittal"
to the State Water Resources Control Board. Additional preliminary
design studies required as a result of V.E. analysis shall be considered
a Special Engineering Service.
Task 9 - Review Meetings
Preparation for, travelling and attendance at meetings requested
by the Engineer or District to review the preliminary design services
described in the foregoing tasks. Review meetings will include
3 trips to sewerage agencies within California and one trip outside
of California to review treatment processes and techniques applicable
to the design of the Encina Phase III Expansion.
B. Basic Step 2 Services
The scope of work in the Basic Step 2 Services shall include (1) design tasks and
(2) the draft submittal of the Operations and Maintenance Manual for the Phase III
Enlargement and Upgrading of the Encina WPCF. The detailed scope of the Basic
Step 2 Services will be defined towards the end of the period scheduled for the
conduct of the preliminary design services.
C. Time Schedule
It is intended that the Preliminary Design Services under this agreement be
conducted and substantially completed to prepare a detailed scope of work for the
Basic Step 2 Services-. Specific time schedule .for reports to be provided under this
Agreement shall be as follows:
a. Preliminary 10 Percent Design Report. The 10 Percent Design Report for
use by the Value Engineering team shall be submitted to the District
.within 100 calendar days following the Notice to Proceed. Up to fifteen
copies of the Preliminary 10 Percent Design Report shall be delivered to
the District.
b. 10 Percent Design Completion Level Submittal. The 10 Percent Design
Completion Level Submittal required by the State Water Resources Control
Board will be submitted to the District within 10 calendar days following
receipt of the Value Engineering Team's comments. This schedule shall
not apply if there are additional preliminary design studies required as a
result of the V.E. Analysis. Up to fifty copies of the 10 percent submittal
shall be delivered to the District. One unbound copy shall be delivered
to the District.
c. Basic Step 2 Services. The 99 percent submittal of the design tasks will
be submitted to the District within 304 calendar days following Notice to
Proceed.
EXHIBIT "B"
COMPENSATION
A. Compensation
Compensation for services provided under Article I, "Scope of Engineering
Services" shall be in accordance with the methods described in this Exhibit
and the specific amounts listed in Paragraph C. Compensation Schedule, or as
may be later mutually agreed to at the time of authorization.
Compensation for each authorized phase of the work or engineering service
shall be on the basis of: (1) firm fixed-price, (2) cost reimbursement, (3) hourly
rate or as may be later mutually agreed to at the time of authorization:
1. Firm Fixed-Price Basis
Compensation for each phase of the work or engineering service authorized
on a firm fixed-price basis shall be as listed in Paragraph C, Compensation
Schedule, of this Exhibit or as may be mutually agreed upon at the time of
authorization.
2., Cost Reimbursement Basis
: Compensation for each phase of the work or engineering service
authorized on a cost reimbursement basis shall be the cost reimbursement
plus a fixed professional fee, as defined herein.
a. ^ost Reimbursement _ ( '
The cost reimbursement portion of the compensation shall be
the sum of direct labor costs, indirect costs and other direct costs,
as herein defined. The cost reimbursement for each designated
engineering service shall not exceed the cost ceiling listed in the
compensation schedule without formally amending this Agreement.
CO Direct Labor Costs
Direct labor costs shall be the total number of hours worked
on the job by each employee times the regular rate for such
employee's labor category. Direct labor costs for principals, who
are defined as professional engineers assigned to the corporate
staff of Engineer, will be based upon the actual rate of pay for
those individuals. Direct labor rates shall be revised annually
for periods of October 1 through September 30 to generally reflect
relevant changes in the U.S. Department of Commerce Consumer
Price Index.
(2) Indirect Costs
Indirect costs shall be the product of all direct labor costs
multiplied by an overhead rate.
A billing overhead rate of 1.45 shall be used for interim
reimbursement purposes. The Engineer, as soon as possible
but not later than ninety (9Q) days after the expiration of his
fiscal year, or such other period as may be mutually agreed
upon, shall submit to the District a proposed provisional over-
head rate or rates for that period based on the Engineer's actual
cost experience during that period, together with supporting
cost data. Negotiation of provisional overhead rates by the
Engineer and the District shall be undertaken as promptly as
practicable after receipt of the Engineer's proposal.
Allowability of costs and acceptability of cost allocation
methods shall be determined in accordance with the applicable
portions of the Federal Procurement Regulations, 41 CFR 1-15.4
as in effect on the date of this Agreement.
The results of each negotiation shall be set forth in an
amendment to this Agreement, which shall specify (1) the agreed
negotiated provisional rates (2) the bases to which the rates apply,
and (3) the periods for which the rates apply.
Pending establishment of negotiated provisional overhead
rates for any period, Engineer shall be reimbursed at billing
overhead rates as provided in the Agrement, subject to appro-
priate adjustment when the negotiated provisional rates for that
period are established. To prevent substantial over or under
payment, and to apply either retroactively or prospectively,
billing overhead rates may, at the request of either party, be
revised by mutual agreement. Any such revision of billing over-
head rates shall be sot forth in an amendment to this Agreement.
Any failure by the parties to agree on any rates under this
clause shall be subject to the "Remedies" clause (Provision No. 6,
•Exhibit "C") of this Agreement.
Negotiated provisional overhead rates negotiated by the
parties to this Agreement shall be used to adjust all interim
billings as soon as such rates are established.
Negotiated provisional overhead rates shall be subject to
review and revision by the cognizant audit authority"designated
by the EPA Project Officer, and shall be adjusted either upward
or downward in accordance with EPA rulings following interim or
final audits. Indirect costs for cost reimbursement work under
this Agreement shall be the product of direct labor costs multi-
plied by the final audited overhead rate.
B~2
(3) Other Direct Costs
Other direct costs shall be billed at cost and shall include
the following:
(a) Services directly applicable to the work such as computer
rental and ptugramming costs, special consultants,
borings, laboratory charges, commercial printing
and binding, and similar costs that are not applicable
to general overhead.
(b) Identifiable reproduction costs applicable to the work
such as printing of drawings, photostating, multi~
llthing, printing and similar costs »
(c) Identifiable communication expenses such as long
distance telephone, telegraph, cable, express
charges, and postage other than for general corre-
spondence.
(d) Living and traveling expenses of employees when
away from home office on business connected with
work except for automobile travel which shall be
billed at the rate of 20 cents per mile.
(f) Subcontracted services.
Costs described above shall be payable up to a cost ceiling
listed in the compensation schedule. In the event the entire scope
of work provided for under a cost reimbursement engineering service
is not completed within the cost ceiling established for such a
service, Engineer shall continue with all or any part of the work
for which an amended cost ceiling is established, but not otherwise
b. Fixed Professional Fee
The fixed professional fee portion of the compensation shall be
the amount listed in the compensation schedule and it shall not be
increased except in the event there is an amendment to this Agreement
that increases the scope of work.
3. Hourly Rate Basis
Compensation for each phase of the work or engineering service authorize
on an hourly rate basis shall be the sum of direct salary costs and direct non-
salary costs, as herein defined.
B-3
a. Direct Salary Cost
Direct salary cost shall be the total number of hours worked on
the job by each employee times an hourly billing rate for such employee's
labor category. The hourly billing rate for each employee category shall
be the sum of: (1) the regular direct labor rate, (2) the indirect costs
rate and (3) a professional fee rate. Direct salary rates shall be
revised annually for periods of October 1 through September 30 to
generally reflect relevant changes in engineering salary costs and
relevant changes in engineering salary costs and relevant changes in
the U.S. Department of Commerce Consumer Price Index.
b. Direct Nonsalary Cost
Direct nonsalary cost shall be actual costs and shall include
the following:
(1) Services directly applicable to the work such as computer rental
and programming costs, special consultants, b.orings, laboratory
charges, commercial printing and binding, and similar
costs that are not applicable to general overhead.
(2) Identifiable reproduction costs applicable to the work such
as printing or drawings, photostating, multilithing, printing
and similar costs.
(3) Identifiable communication expenses such as long distance
telephone, telegraph, cable, express charges, and postage
other than for general correspondence.
(4) Living and traveling expenses of employees when away
from home office on business connected with work except
for automobile travel which shall be billed at the rate of
. 20 cents per mile.
(5) Subcontracted services.
Compensation for any engineering service on an hourly rate basis
shall not exceed the price ceiling listed in the compensation schedule
for given service, or if none is shown, shall not exceed the price
ceiling agreed to at the time of authorization of the service, without, •
approval by the District's Project Officer. In the event the entire scope
of work provided for under an hourly rate engineering service is not
completed within the cost ceiling established for such service, Engineer
shall continue with all or any part of the work for which an increased
cost ceiling is established, but not otherwise.
B-4
4. Limitation of Cost and Time
It is estimated that the cost ceiling (for services authorized on a cost
'reimbursement basis) and the price ceiling (for services authorized on an
hourly rate basis) given in Paragraph C of this Exhibit and the time for com-
pletion given in the authorization will not be exceeded. The Engineer agrees
to use his best efforts to perform the work specified in Article I within the
estimated cost and time of completion. If, at any time, the Engineer has .
reason to believe that the cost ceiling or price ceiling will be greater or
substantially less than the then ceilings indicated in Paragraph C, the Engineer
shall notify the District in writing to that effect. The notification will state
the revised cost ceiling or price ceiling for performance of the services and,
if applicable, the revised time for completion. Such notification will be sub-
mitted to the District at the earliest possible date and in no event later than
30 days prior to scheduled completion of the work.
The District shall not be obligated to reimburse the Engineer for costs
incurred in excess of the estimated cost ceiling or price ceiling set forth
in Paragraph C. The Engineer shall not be obligated to continue performance
under the agreement or otherwise incur costs in excess of the estimated cost
ceiling or price ceiling set forth in Paragraph C, unless and until the District
shall have notified the Engineer in writing that such estimated cost ceiling
or price ceiling has been increased and shall have specified in such notice
a revised estimated cost ceiling or price ceiling which shall thereupon con-
stitute the estimated cost ceiling or price ceiling for performance of this
agreement.
If, after such notification, additional funds are not allotted by the end
of the period scheduled for completion, or an agreed date substituted therefor,
the District will, upon written request by the Engineer, terminate this agree-
ment pursuant to the provisions of the termination clause. The termination
date shall be the originally scheduled completion date or an agreed date sub-
stituted therefor. If the Engineer, in the exercise of his reasonable judgment,
estimates that the funds available will allow him to continue to perform services
covered in this agreement for a period extending beyond such date, he shall
specify the later date in his request, and the District, at his discretion may
terminate this agreement at that later date.
B. Payment of Compensation '
Charges determined on the basis of this exhibit shall be billed monthly to the
District and payment in full by the District shall be made within a reasonable period
of time. Brief monthly project progress reports shall be included with the invoices an
shall include a summary of activities related to progress of the project for the invoice
period. Monthly invoices shall contain the following information for each type of
compensation:
B-5
1. Cost Reimbursement Basis
For the cost reimbursement portion of the compensation, invoices shall
include the following: (1) each labor category and the total number of hours
worked by employees in that category, (2) direct labor rate and costs for
each labor category, (3) total indirect costs, and (4) each general category
of other direct costs. For the fixed professional fee portion of the compen-
sation, invoices shall include the percent of the total fixed professional fee
to be paid each month in accordance with the tabulated amounts shown for
each engineering service listed in the compensation schedule.
2. Hourly Rate Basis
Invoices for engineering services authorized on an hourly rate basis
shall include the following: (1) each labor category and the total number of
hours worked by employees in that category, (2) the hourly billing rate and
costs for each labor category, and (3) each general category of other direct
costs.
C. Compensation Schedule
For each engineering service authorized under this Agreement, compensation
shall be in accordance with the applicable portions of this Agreement and the
following schedule:
1. Planned Engineering Services
Compensation for the planned engineering services (Article I.A.) shall
be as follows:
a. Preliminary Design Services (Exhibit "A", Paragraph A)
Basis of compensation: Cost Reimbursement
Cost ceiling $ 189,004
Fixed professional fee $ 21,772
Portion of fixed professional
fee, payable monthly 1/4
b. Basic Step 2 Services (Exhibit "A", Paragraph B)
Compensation for these services shall be on a cost reimbursement
basis. The compensation shall be determined by mutual agreement'
between District and Engineer prior to authorization. A maximum
allowance (cost ceiling plus fixed professional fee) of $ 1,281,520
shall be established for these services. The District's Project Officer
may authorize the engineer to proceed with these services provided
the agreed upon compensation is no greater than this maximum allowance.
B-6
This allowance shall not be increased without an Amendment to this
Agreement that has been approved by all the member agencies in the
Encina Joint Powers.
2. Special Engineering Services
Compensation for special engineering services (Article I.E.) shall be
agreed to at the time of authorization. An allowance of $ 200,000 shall be
established for such special engineering services as may be authorized by
the District's Project Officer in accordance with Article II. This allowance
shall not be increased without an amendment of this Agreement.
B-7
EXHIBIT "C"
RULES AND REGULATIONS
Title 40—Protection of Environment
CHAPTER I—ENVIRONMENTAL
PROTECTION AGENCY
SUBCHAPTER B—GRANTS
(FBI, 655-2]
PART 35—STATE AND LOCAL
ASSISTANCE
• Subagreements Under Grants for Con-
struction of Treatment Works; Technical
Amendments
APPENDIX C-l
PROVISIONS — C7ON3OT.TINO
ENCINEMINO AGREEMENTS
I. General.
•2. Responsibility of the engineer.3. Scope of work.4. Changes.6. Termination.
0. Remedies.
V. Payment.8. Project design.
9. Audit; access to records.
10. Price reduction for defective cost orpricing data.
II. Subcontracts.12. Labor standards.13. Equal employment opportunity.
14. Utilization of small or minority busi-ness.
•15. Covenant against contingent lees.16. Gratuities.17. Patents.
18. Copyrights and rights in data.
* 1. GENERAL
. (a) The Owner and the Engineer agree
that the following provisions shall apply to
.the EPA grant-eligible work to be performed
under this agreement and that such pro-visions shall supersede any conflicting pro-
visions of this agreement.
(b) The work under this agreement Isfunded In part by a grant from the U.S. En-
vironmental Protection Agency. Neither theUnited States nor the U.S. EnvironmentalProtection Agency ( hereinafter, "EPA") Is a
party to this agreement. This agreementwhich covers grant-eligible work is subject
to regulations contained in 40 CF& 35.936,35.037. and 35.939 in effect on the date ofexecution of this agreement. As used In these
clauses, the words "the date of execution ofthis agreement" meau the date of execution
of this agreement and any subsequentmodification of the terms, compensation or
scope of services pertinent to unperformedwork.
(c) The rights and remedies of the owner
provided for in these clauses are in additionto any other rights and remedies providedby law or under this agreement.
2. RESPONSIBILITY or THE ENGINEER
(a) The Engineer shall be- responsible forthe professional quality, technical accuracy,timely completion, and the coordination ofall designs, drawings, specifications, reports.
and other services furnished by the Engineerunder this agreement. The Engineer shall,
without additional compensation, correct or
revise any errors, omissions or other deficien-cies In his designs, drawings, specifications,
reports and other services.
(b) The Engineer shall perform such pro-fessional services as may be necessary to ac-complish the work required to b« performed
under this agreement. In accordance wltb.this agreement a)id applicable EPA require-ments in effect on the date of execution of
this agreement.(c) Approval by the Owner or EPA ofdrawings, designs, specifications, reports, and
Incidental engineering work or materials fur-
nished bereunder shall not In any way re-lieve the Engineer of responsibility for thetechnical adequacy of his work. Neither th«
Owner's nor EPA's review, approval or ac-ceptance of, cor payment for, any of the serv-
ices shall be construed to operate as a waiver
of any rights under this agreement or of anycause of action arising out of the perform-ance of this agreement.
(d) The Engineer shall be and remain li-able In accordance with applicable law forall damages to the Owner or EPA caused by
the Engineer's negligent performance of anyof the services furnished under this agree-ment, except for errors, omissions or other
deficiencies to the extent attributable to theOwner, Owner-furnished data or any thirdparty. The Engineer shall not be responsible
• lor any time delays In the project caused byciroumsta.nces beyond the Engineer's control.Where new or-advanced processes, methods or
technology (see 40 CFR 35.908) are recom-mended by the Engineer and are utilized, theEngineer shall be liable only for gross negli-
gence to the extent of such utilization.
3. SCOPE OP WORK
The services to be rendered by the Engineershall include all services required to com-plete the task or Step in accordance with ap-
plicable EPA regulations (40 CFR Part 35,Suboart E in effect on the.date of executionof this agreement) to the extent of the scope
of work as denned and set out In the engi-
neering services agreement to which theseprovisions ere attached.
4. CHANGES
(a) The Owner may, at any time, by writ-
ten order, make changes within the generalscope of this agreement In the services orwork to be performed. If such changes causean Increase or decrease. in the Engineer'scost of, or time required for, performance of
any services under this agreement, whetheror not changed by any order, nn equitableadjustment shall be made and this agree-
ment shall be modified in writing accord-ingly. Any claim of the Engineer for adjust-ment under this clause must be asserted In
writing within at) days from the date of re-ceipt by the Engineer of the notification ofchange unless the Owner grants a furtherperiod of time in-fore the date of final pay-
ment under this agreement.
COPY
FEDERAL REGISTER, VOt. 41, NO. 251— WEDNESDAY. DECEMBER 29, Iv76
C-l
RULES AND REGULATIONS
/>•) No. services for which an additional«vjmp»iuu»tlon will be charged by the Engi-•i.nr shall b« furulahed without the writtenauthorization ot the Owner.
(c) In th» event that there la a modifica-
tion of EPA requirements relating to thenervlces to be performed under this agree-
ment subsequent to the data of execution ofthis, agreement, the increased or decreasedcost of performance of the service* provided
for In this agreement shall b« reflected in anappropriate modification of this agreement.
5. TERMINATION
(a) This agreement may be terminated in
whole or in part In writing by either party inthe event of substantial failure by the otherparty to fulfill its obligations under this
agreement through no fault of the terminat-ing party: Provided, That no such termina-
tion may be effected unless the other partyis given (1) not less than ten (10) calendar
days written notice (delivered by certifiedmail, return receipt requested) of Intent to
terminate and (2) an opportunity for con-sultation with, the terminating party prior
to termination.
(b) TUU agreement may be terminated inwhole or in part In writing by the Owner
for iU convenience: protected. That suchtermination ia for good cause (such as forlegal or financial reasons, major changes inthe work or program requirements, initiation
of a new Step) and that the Engineer is given
(.1) not less than ten (10) calendar dayswritten notice (delivered by certified mall,
return receipt requested) of intent to termi-
nate nod (2) An opportunity for consulta-tion with the terminating party prior to
termination.(c) If termination for default is effected
by the Owner, an equitable adjustment inthe prlco provided for In this agreement shallbe made, but (1) no amount shall be allowed
for anticipated profit on unperformed serv-ice* or other work, and (2) any payment due
to the Engineer at the time of germination
may be adjusted to the extent of any addi-tional cost* occasioned to the Owner by rea-son ot the Engineer's default. If terminationfor default U effected by the Engineer, or if
termination for convenience is effected bythe Owner, the equitable adjustment shall
Include a reasonable profit for services orother work perfftrmed. The equitable adjust-ment for any termination shall provide for
payment to the Engineer for services ren-dered and expenses incurred prior to the
tcrmlnaUon. in addition to termination set-"CTfitn* ccct* r"**^cn*??!r Iric'irro^ by ths En-
gineer relating to commitments which hadbecome Arm prior to the termination.(d) Upon receipt of a termination actionpursuant to paragraphs (a) or (b) above, the
{engineer shall (1) promptly discontinue oliservices affected (unless the notice directsotherwise), and (2) deliver or otherwise make
availabln to the Owner all data, drawings,specifications, reports, estimates, summaries.and such other information and materials as
may have been accumulated by the Engineerin performing this agreement, whether com-
pleted or in. process.' (e) Upon termination pursuant to para-graphs (a) or (b) above, th« Owner may take
over the work and prosecute the same tocompletion by agreement with another party
or otherwise. Any work taken over by theOwner for completion will be completed at
the Owner's risk, and the Owner will holdthe Engineer from all claim* and
arising out of Improper use of the
Engineer's work.
(J) If. utter termination for failure of th»
Engineer to f ulflll contractual obligations. Itis dotermlntrtl that the" Engineer had not so
failed, the termination shall he deemed t->
have been effected for the convenience of theOwner. In such event, adjustment of the'
price provided for In this agreement shall benude as provided in paragraph (c) ot thisclause:
6. REMEDIES
Except as may be otherwise provided Inthis agreement, all claims, counter-claims,
dLtputes and other matters In question be-tween the Owner and the Engineer arising •out ot or relating to this agreement or thebreach thereof will be decided by arbitration
if the parties hereto mutually agree, or In acourt of competent jurisdiction within the
State in which the Owner is located.
7. PAYMENT
(a) Payment shall be made in accordancewith the payment schedule incorporated in
this agreement as soon as practicable uponsubmission, of statements requesting pay-ment by the Engineer to the Owner. If nosuch payment schedule is incorporated inthis agreement, the payment provisions, of.
paragraph (b) of this clause shall apply.(b) Monthly progress payments may be re-quested by the Engineer and shall be made
by the Owner to the Engineer as soon as prac-ticable upon submission of statements re-questing payment by the Engineer to theOwner. When such progress payments are
made, the Owner may withhold up to tenpercent of the vouchered amount until sat-
isfactory completion by the Engineer of workand services within a Step called for under
this agreement. When the .Owner determinesthnt the work under this agreement or any
specified task hereunder is .substantiallycomplete and that the amount of retained
percentages is in excess of the amount con-sidered by him to be adequate for the pro-
tection of the Owner, he shall release to theEngineer such excesss amount.
(c) Mo payment request made pursuant toparagraph (a) or (b) of this clause shall
exceed the estimated amount and value ofthe. work and services performed by the En-
gineer under this agreement, which esti-mates shall be prepared by the Engineer and
supplemented or accompanied by ouch sup-porting data as may be required by. the
Owner.(d) Upon satisfactory completion" of the
work performed hereunder, and prior to finalpayment under this agreement for suchwork, or prior settlement upon terminationof the agreement, and as a condition prec-
edent thereto, the Engineer shall execute•and deliver to the Owner a release of allclaims against the Owner arising under or byvirtue of this agreement, other than ouchclaims, if any, as may be specifically ex-
empted by the Engineer from the operationot the release In stated amounts to be set
forth therein.
B. PROJECT DLSICN
(a) In the performance of this agreement,
the Engineer shall, to the extent practicable,provide for maximum use of structures, ma-chines, products, materials, constructionmethods, and equipment which are readilyavailable through competitive procurement,
or through,standard or proven productiontechniques, methods, and processes, consist-ent with 40 CFB 35.036-3 and 35.936-13 in
effect on the dute ot execution of this agree-ment, except to the extent that advanced
technology may be utilized pursuant to 4.0CFB 35.008 in effect on the date of execution
of this agreement.(b) The Engineer shall not, in the per-
formance of tho work culled for r>y thisagreement, produce a desi(jn or specification
such as to require the use of structures,machines, products, materials, constructionmethods, equipment, or processes which are
known by the Engineer to be available onlyfrom a sole source, unless such use has beenadequately justified in writing by the Engi-neer.(c) The Engineer shall not, in the per-formance of the work called for by thisagreement, produce a design or specificationwhich would be restrictive in violation ofSec. 204(a) (6) of the Federal Water Pollu-
, Uon Control Act (PL 02-600). This statuterequires that ixo specification for bids orstatement of work shall be written in sucha manner as to contain proprietary, exclu-sionary, or discriminatory requirements other •
than those based upon performance, unlesssuch requirements are necessary to teat or
demonstrate a specific thing, or to providefor necessary interchangeablllty of parts andequipment, or at least two brand names or
trade namea of comparable quality or utilityare listed and are followed by the. words "orequal." With regard to materials, if a single• material is specified, the Engineer must b»
prepared to substantiate the barta for theselection of the material.
(d) The Engineer shall report to the Ownerany sole-Bource or restrictive design or spec-
ification giving the reason or reasons whyit is considered necessary to restrict thedesign or specification.(e) The Engineer shall not knowingly spec-
ify or approve the performance of work ata facility which is in violation ot Clean Airor Water standards and which 1s listed by the
Director of the EPA Office of Federal Activi-ties pursuant to 40 OFB Part 15.
9. Auorr; ACCESS TO RXCOEDS,
(a) The Engineer shall maintain books,
records, documents and other evidence di-rectly pertinent to performance on EPA
grant work under tills agreement in accord-ance with generally accepted accountingprinciples and practices consistently applied,and 40 CFR 30.C05, 30.805, and 35,935-7 ineffect on the date ot execution of this agree-ment. The Engineer shall also maintain the
financial information and data used by theEngineer in the preparation or support of
«the cost AUbmission required pursuant to 40CFB 35.937-6(b) in effect' on the date ofexecution of this agreement and a copy ofthe cost summary submitted to the Owner.
The United States Environmental ProtectionAgency, the Comptroller General of theUnited States, the United States Departmentof Labor, Owner, and (the State water pollu-tion, control agency) or any of their duly
authorized representatives shall have aeeessto such books, records, documents and other
evidence for tho purpose of Inspection, auditand copying. The Engineer will provide prop-,er faculties for such access and Inspection.'
(b) The Engineer agrees to Include para-graplis (a) through (e) of this clause ui all
his contracts and all tier subcontracts di-rectly related to project performance which
ore in excess of $10,000.(c) Audits conducted pursuant to tMs pro-vision shall be In accordance with generally
accepted auditing standards and establishedprocedures and guidelines of the reviewingor audit agency (les).
(d) The Engineer agrees to the disclosure
of all information and reports resulting fromaccess to records pursuant to paragraphs (a>
and (b) above, to any of the agenciH, re-ferred to in paragraph (a) above, provided
that the Engineer is afforded the opportunityfor an audit exit conference and an opportu-nity to comment and submit any Buprx.nln,;tlocxunentatlou on the pertlm-ut portions of
the draft audit report and that the finalaudit report will Include written commentsot reasonably length, if any, of the Engineer.
(e) Ifccordu under paragraphs (a) and (b)
above »Uhll be maintained and made avail-
FEDERAL REGISTER. VOl. 41. NO. 251—WEDNESDAY, DECEMBER 29, 1976
C-2
able during performance- on EPA grant work
under thU agreement and untu three yearsfrom date of ttnal EPA grant payment for theproject. In addition, those records which re-late, to any "Dispute" appeal under an EPA
grant agreement, or litigation, or the settle-
ment of claim* arising out of such perform-.•nc», or costs or Items to which an-auditexception ha* been taken, Khali be main.
tamed and. made available until three yeanafter the date of resolution of such appeal,litigation, claim or exception.
10. PMC* BxDucnoM Kin Dencnva COST OBPWCIKO DATA
' (This clause it applicable if the amount ofthii agreement exceeds $100,000.)
(a) If the Owner or EPA determines that-
any price, including profit, negotiated Inconnection with thU agreement or any costreimbursable under this agreement waa In-
creased by any significant sum* because tt»Engineer or any subcontractor furnished In- 'complete or Inaccurate cost or pricing data
or data not current as certified in his certifi-cation of current cost or pricing data (EPA
Form 6700-41), then such prie» or cost orprofit shall t>e reduced accordingly and theagreement-shall be modified In writing to re-
flect such reduction.(b) Failure to agree on a reduction shallbe eubject to the Remedies clause of this
agreement.
(NOTE—Since the agreement it subject to
reduction under this clause by reafon of de-fective cott or pricing data submitted in con-
ncctto» with certain subcontracts, the Engi-
neer may wish to include o clause in eachtuch subcontract requiring the subcontractor
to appropriately indemnify the Engineer. Itfa alto CTpectedJhat any subcontractor tub-feet to tuch indemnification will generally•require substantially similar indemnification
for defective cost or pricing data required tobe submitted by hit lower tier subcontrac-
tort.)
II. SUBCONTRACTS
(a) Any subcontractors and outside asso-ciates or consultants required by the Engi-
neer In connection with the services covered
by this agreement will be limited to suchIndividuals or firms as were specifically
identified and agreed to during negotiations,
or as are specifically authorized by the Ownerduring the performance of this agreement.
Any substitutions in or additions to suchsubcontractors, associates, or consultantswill be subject to the prior approval of theOwner.(b) The Engineer may not subcontractservices in excess of thirty percent (orpercent. If the Owner and the Engineerhereby agree) of the contract price to sub-contractors or consultants without prior
written approval of the Owner.
, 13. LABOB STANDARDS
To the extent that this agreement Involves
"construction" (as defined-by the SecretaryOf t*bor). the Engineer agrees that such
construction work shall be subject to the fol-
lowing labor standards provisions, to theextent applicable:(a) Davis-Bacon Act (40 0.S.C. 278a-378a-
7):
(b) contract Work Hours and Safety
Standards Act (40 U.8.C. 327-333);
(c) Copeland Anti-Kickback Act (18 UJ3.O.874); and
(d) Executive Order 11246 (Equal Employ-ment. Opportunity);
and implementing rule*.' regulations, and
relevant order* of the Secretary of Labor orEPA; and the Engineer further agrees that•V.tft "ipr-omont ibcll Ini-lurt" nn»l r^ nubjectto the "Labor Standards Provisions for Fed-erally Assisted Construction .Contract*" (EPA
RULES AND REGULATIONS
Form 6720-4) in effect at the time of execu-
tion of-this agreement.
13. EQUAL EMPLOYMENT OPPORTUNITY
In accordance with EPA policy as expressed
in 40 CPR 30.420-6, the Engineer agrees thathe will not discriminate against any em-
ployee or applicant for employment because
of race, religion, color, sex, age or nationalorigin.
14. TJTUJZATION or SMAU. AND MINORITYBUSINESS
In accordance with EPA policy as expressed
in 40 CPR 35.936-7, the Engineer agrees that
qualified small business and minority busi-ness enterprises shall have the maximum
practicable-opportunity to participate In theperformance of EPA grant-assisted contractsand subcontracts.
19. COVENANT AGAINST CONTINGENT FEES
The, Engineer warrants that no person orselling agency baa been employed or retained
to solicit or secure this contract upon anagreement or understanding for a commis-
sion, percentage, brokerage, or contingentfee, excepting bona fide employees. For breachor violation of this warranty the Owner shall
have the right to annul this agreement with-out liability or in' its discretion to deductfrom the contract price or consideration, or
otherwise recover, the 'full amount of suchcommission, percentage, brokerage, or con-
tlngen,t fee.
• 16. GRATUITIES
(a) If it Is found, after notice and hearing,by the Owner that gratuities (in the form of
entertainment, gifts, or otherwise) were
offered or given by the Engineer, or any agent
or representative of the Engineer, to anyofficial, employee or agent of the Owner, ofthe State, or of EPA with a view toward se-
curing a contract or securing favorable treat-
ment with respect to the awarding or amend-ing, or the making of any determinationswith respect to the performance of this agree-ment, the Owner may, by written notice to
the Engineer, terminate the right of theEngineer to proceed under this agreement ormay pursue such other rights and remediesprovided by law or under this agreement:
Provided, That the existence of the facts
upon which the Owner makes such findingsshall be In issue and may be reviewed in pro-
ceedings pursuant to the Remedies clause of
this agreement.(b) In the event thin agreement is termi-nated as provided In paragraph (a) hereof,the Owner shall be entitled (1) to pursuethe same remedies against the Engineer as it
could pursue in the event of a breach of thecontract by the Engineer, and (2) as a pen-alty in addition to any other damages to
which it may be entitled by law. toexemplary damages in an amount (as deter-
mined by the Owner) which shall be not
less than three nor more than ten times thecosts incurred by the Engineer In providingany such gratuities to any such officer or
employee.
17. PATENTS
If this.agreement involves research, devel-
opmental, experimental, or demonstration
work, and any discovery or Invention arises.or Is developed In the course of or under thisAgreement, ouch Invention or discovery shall
be subject to the reporting and rights provi-
sions of Bubpart D of 40 CPR Port 30. In
effect on the date of execution of this BKI ^ -m«ut. including Appendix B of paid Pnrt :«-i.To such csje. the Engineer ahull report iivtdiscovery or Invention to EPA direct!» <.rW."',:;;!' *^8 Owner, and •*>•>• otn'rwi«e •>••»>.ply with the Owner's resiM.iuibmueu In ac-cordance with said Subpmt l> ot 40 CFH
Part 30. The Engineer hereby agrees that thedisposition of rights to' inventions madt>
under this agreement shall be in accordance
with the terms and conditions of aforemen-tioned Appendix B. The Engineer shall In-
clude provisions appropriate to effectuate thepurposes of this condition In all subcontract*involving research, developmental, experi-mental, or demonstration work.
IB. COPTMOHTB AMD RloilTS IN DATA
(a) The Engineer agree* that any plane,
drawings, designs, specifications, computer
programs (which are substantially paid forwith EPA grant funds), technical reports,operating manuals, and other work submitted
. with a Step 1 Facilities Plan or with a Step 3or Step 3' grant application or which arespecified to be delivered under this agree-ment or which are developed or produced and
paid for under this agreement (referred toin this clause as "Subject Data") are sub-ject to the rights in the United State*, as setforth in Subpart P of 40 CPB Part 30 and In
Appendix C to 40 CFS Part 30, in effect on the
date of execution of this agreement. Includ-ing the right to ua«t duplicate and disclose,
such Subject Data, in whole or in part, in
any manner for any purpose whatsoever, andhave others do so. For purposes of this arti-cle, "grantee" as used in, said Appendix C
shall refer to the Engineer. If the material la
copyrlghtahle, the Engineer may cop/rightsuch, as permitted by said Appendix C, and
subject to the rights la the Government as
set forth in Appendix C, but the Owner andthe Federal Government reserve a royalty-free, nonexclusive, and Irrevocable license to
reproduce, publish and use such material*.
In whole or in part, and to authorize othersto do so. The Engineer shall Include provi-sions appropriate to effectuate the purpose
of this condition in all subcontracts expectedto produce copvrlnhtable Subject Data.
(b) All such Subteot Data furnished bv the
Engineer pursuant to this agreement areinstruments of his services in respect of the
' protect. It is'understood that the Engineer
does not represent such Subject Data to besuitable for reuse oa any other protect or forany other purpose. Any reuse by the Ownerwithout specific written verification or adap-tation by the Engineer will be at the risk of
the Owner and without liability to the Engi-neer. Any such verification or adaptationwill entitle the Engineer to further compen-
sation at fates to be agreed upon by theOwner and the Engineer.
COPY
FEDERAL REGISTER VOl. 41, NO. 251—WEDNESDAY, DECEMBER 29, 1976
C-3