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HomeMy WebLinkAbout1978-07-04; City Council; 5463-1; Agreement Preparing Biological Components of Application for Modification of Secondary Treatment Requirement for Discharge into Marine Waters by Encina Water Pollution Control Facilityc CITY OF CARLSBAD AGENDA BILL NO. v5~J - t^t^o ji^^^ */ Initial:— -*'We*mf~~ Dept. Hd DATE: July 4 - 1978 C. Atty.J/§3_ DEPARTMENT; Water Pollution C. Mgr. SUBJECT: Agreement for Preparing Biological Components of an Application for Modifica- tion of Secondary Treatment Requirement for a Discharge into Marine Waters by the Encina Water Pollution Control Facility. Statement of the Matter At a special meeting on June 21, 1978, the Encina Joint Advisory Committee reviewed a pro- posal from Planktonics for marine biologist services in connection with filing an applica- tion for modification of secondary treatment requirements. The contract is an important part of preparing an application to the EPA justifying meet- ing a lesser degree of treatment than now required by Federal Law. The savings to the Encina Agencies in meeting the lower standard could be as much as $4 million in construc- tion cost alone. Exhibits A. Minutes of the June 21, 1978 JAC meeting. B. Resolution No.vj"'*/7& approving the agreement with Planktonics for preparing biolo- gical components of an application for modification of secondary treatment require- ments for a discharge into marine waters by the Encina Water Pollution Control Facility. Recommendation If Concil concurs, they should adopt Resolution No. ^~^/ 7fo authorizing and directing the Mayor to execute the agreement with Planktonics for preparing biological components of an application for modification of secondary treatment requirements for a discharge into marine waters by the Encina Water Pollution Control Facility. Council action: 7-5-78 Resolution No. 5476 was adopted, approving an agreement between the City of Carlsbad and Planktonics for preparing biological components of an application for modification of secondary treatment requirements for a discharge into marine waters by the Encina Water Pollution Control Facility. G ENCINA JOINT POWERS MINUTES OF THE SPECIAL JOINT ADVISORY COMMITTEE MEETING HELD ON WEDNESDAY, JUNE 21, 1978 AT THE ENCINA WATER POLLUTION CONTROL FACILITY CONFERENCE ROOM Ed Stiles, Chairman Stanley Mahr, Vice Chairman 1. CALL TO ORDER Vice Chairman Stanley Mahr called the meeting to order at 10:15 A.M. ROLL CALL Present; Vista Santitation District City of Carlsbad San Marcos County Water District Leucadia County Water District Encinitas Sanitary District County of San Diego JAC Administrator JAC Counsel Encina Joint Powers Absent: Buena Sanitation District Guests; Blade Tribune County of San Diego Leucadia County Water District Joe Zapotocky, Dan Carr Mary Casler, A. J. Skotnicki Jim McKay, Stanley Mahr Dick Hanson, Stan Van Sickle Mark Schneider, Jack Filanc Jim Frandsen Ron Beckman Roy H. Gann, Esq. Les Evans Ed Stiles, Bill Dominguez Jim Esterbrooks Keith Boger, Gary Decker Eric Elliott, Regina Ash 2. CONTRACTS FOR PREPARING APPLICATION FOR MODIFICATION Vice Chairman Mahr asked Mr. Evans to present the agenda item. Mr. Evans reviewed the status of the Proposed Regulations for Applica- tion. JOINT ADVISOI^SPECIAL COMMITTEE MEETING MINUTES - JUNff^l, 1978 He explained that Final Rules and Application Procedures have not yet been published and that, under the Proposed Rules, Encina could not meet the requirements for modification. He added that there was not enough time to perform all the tests required in the Proposed Procedures before the September 24, 1978 deadline and that the costs of preparing the application would probably not be grant eligible. Mr. Skotnicki questioned why we would not be able to meet the re- quirements for modification. Mr. Evans explained that the Proposed Rules would require that En- cina be able to meet the treatment standard of the California Ocean Plan without any upgrading of the existing process. Complying with the Ocean Plan would require some upgrading, although less than full secondary. Mr. Evans then outlined three alternatives (1) not apply for the application; (2) submit an application based primarily on existing oceanographic information; or (3) enter into an intensive oceano- graphic testing program and attempt to develop as complete an ap- plication as possible. The costs of alternatives (2) and (3) were estimated at $25-30,000 and over $100,000 respectively. Mr. Evans recommended that alternative (2) be pursued through several contracts. Mr. Evans then introduced four proposed contracts for assistance to the Encina Agencies in preparing the application. a. CALIFORNIA ANALYTICAL LAB FOR TESTING The first contract proposed by Mr. Evans was for the laboratory analysis portion of the application. The cost of the service was estimated by California Analytic Lab in Sacramento at $1,600 per sample for organic testing. Mr. Evans indicated that at least two samples would be necessary plus more extensive test- ing of those pollutants found to be present in the Encina in- fluent. Mr. Evans recommended that the City of Carlsbad be asked to pre- pare a purchase order for chemical testing, in accordance with the applicable fee schedule, at a cost not to exceed $5,000. b. PLANKTONICS FOR MARINE BIOLOGIST The second contract introduced by Mr. Evans was for marine biol- ogist services. The work would consist of preparing the biolo- gical assessment portions of the application and the monitoring - 2 - JOINT ADVISOR^pgPECIAL COMMITTEE MEETING MINUTES - JUttfC*!, 1978^ program. The firm of Planktonics in San Rafael was recommended by Mr. Evans to perform this work. He indicated that Mr. Eric Elliott (LCWD), who is himself a biologist, had reviewed the qualifications and felt that they were well suited to perform the required service. Mr. Evans recommended that the City of Carlsbad be authorized to contract with Planktonics for biological assessment services on a time and materials basis at a cost not to exceed $10,000. C. SAN DIEGO COUNTY FOR INDUSTRIAL WASTE PLAN The third contract for preparation of the application was pro- posed by Mr. Evans to be entered into with San Diego County. Mr. Decker of the Industrial Waste Division of the Department of Sanitation and Flood Control indicated that he could prepare the industrial waste portion of the application at a cost of only a few thousand dollars. Mr. Evans recommended that we authorize the above work, d: BROWN AND CALDWELL FOR OCEAN OUTFALL EVALUATION The fourth and final contract introduced by Mr. Evans concerned physical assessment of the ocean outfall. He indicated that the work to be accomplished required computer simulation of initial dilution under various current, salinity, wind, flow and biolo- gical conditions. Mr. Evans recommended that Brown and Caldwell be authorized to perform this service under the Special Engineering Services section of the Step 2 Agreement at a cost not to exceed $5,000. Mr. Zapotocky asked if the Regional Board would have any input into the application for modification. He wanted to know if our solids handling problems would also affect our application for modifica- tion. Mr. Evans indicated that the RWQCB input would be limited to water quality considerations and not odors insofar as the application. Mr. Schneider asked if anyone had considered how much money would be saved if the application for modification were successful. Mr. Evans indicated that it would probably eliminate the need for one-half of the secondary processes, saving the majority of the local - 3 - JOINT ADVISORY SPECIAL COMMITTEE MEETING MINUTES - JUNE W 1978 share of non-grant eligible costs. He guessed that it might mean as much as six or seven million dollars. Mr. Schneider moved that the General Manager be authorized to pro- ceed with the proposed contracts for preparing the application for modification. Ms. Casler seconded the motion which was unanimously adopted. There being no further businss, the meeting adjourned at 11:00 A.M. Respectfully submitted, /) £ Les Evans /mgt - 4 - 1 2 3 4 5 _ ENCINA WATER POLLUTION CONTROL FACILITY 6 o •i -i •jo •tc •i g n« •jo TO 20 23 26 27 28 o RESOLUTION NO. 5476 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT BETWEEN THE CITY OF CARLSBAD AND PLANKTONICS FOR PREPARING BIOLOGICAL COMPONENTS OF AN APPLICATION FOR MODIFICATION OF SECONDARY TREATMENT REQUIREMENTS FOR A DISCHARGE INTO MARINE WATERS BY THE BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows : 1. That that certain agreement between the City of Carlsband and Plank- tonics for preparing biological components of an application for modification of secondary treatment requirements for a discharge into marine waters by the Encina Water Pollution Control Facility, a copy of which is attached hereto, marked Exhibit "A", and made a part hereof, is hereby approved. 2. That the Mayor of the City of Carlsbad is hereby authorized and di- rected to execute said agreement for and on behalf of the City of Carlsbad. an adjourned PASSES, APPROVED AND ADOPTED at / regular meeting of the City Council of the City of Carlsbad, California, held on the 5th _ day of July _ ( 1978, by the following vote, to wit: AYES: Councilman Packard, Skotnicki, Anear, Lewis and NOES: None Councilwoman Casler ABSENT: None 22 RONALD C. PACKARD, Mayor ATTEST: 24 Margaret E. Adams 25 MARGARET E. ADAMS, City Clerk By:/_ (SEAL) Deputy City Clerk c AGREEMENT FOR PREPARATION OF BIOLOGICAL COMPONENTS OF AN APPLICATION FOR MODIFICATION OF SECONDARY TREATMENT REQUIREMENTS FOR A DISCHARGE INTO MARINE WATERS BY THE ENCINA WATER POLLUTION CONTROL FACILITY IN THE CITY OF CARLSBAD, CALIFORNIA THIS AGREEMENT made and entered into as the 5th day of July , 1978 by and between PLANKTONICS hereinafter referred to as "Consultant" and the CITY OF CARLSBAD, hereinafter referred to as "City". WITNESSETH: WHEREAS, the City is Administrator of the contracts for the approved budget of the Joint Sewer System; and WHEREAS, the City has been authorized by the Encina Joint Advisory Committee to contract for marine biologist services for preparing an application for modification of secondary treatment requirements at the Encina Water Pollution Control Facility; and WHEREAS, the firm of PLANKTONICS has submitted a proposal in writing to perform the consulting services; and WHEREAS, it is advantageous for the City to retain the services of PLANKTONCIS as Consultant to perform the services in the manner, •* at the time, and for the compensation set forth herein; and WHEREAS, the professional personnel whose services are available for work in performance of the services herein and the approximate numbers of manhours required for each are as follows: — T — o BIOLOGY SERVICES Approximate Manhours Labor Category Task 1 Principal Biologist 32 Assistant Biologist 0 Task 2 Principal Biologist 64 Assistant Biologist 40 Task 3 Principal Biologist 24 Assistant Biologist 0 Task 4 Principal Biologist 24 Assistant Biologist 0 Task 5 Principal Biologist ' 24 Assistant Biologist 24 Task 6 Principal Biologist 40 Assistant Biologist 24 Task 7 Principal Biologist 8 Assistant Biologist 0 Task 8 Principal Biologist ' 24 Assistant Biologist 0 Task 9 Principal Biologist 16 Assistant Biologist 0 Task 10 Principal Biologist 24 Assistant Biolocrist 0 NOW, THEREFORE, City and Consultant agree as follows: I. Scope of Consultant's Services Consultant agrees to perform those services which are more particularly described hereafter. Unless modified in writing by the party to be charged, duties of Consultant shall n6t be construed to exceed those services specifically set forth herein. The work to be included hereunder shall be the work necessary for the preparation of the biological component of an application to the EPA and SWRCB for modification of the requirements for secondary • treatment in accordance with Section 44 of the Clean Water Act of 1977. (P.L. 95-217). A. Consultant Services Consultant agrees to perform those tasks described in Exhibit "A", which is attached hereto and incorporated herein by reference. Compensation for agreed services shall be as provided in Exhibit "B", which is attached hereto and incorporated herein by reference. •II. Authorization, Progress and Completion Specific authorization to proceed with the work described in Exhibit "A" shall be granted in writing by the City. The Consultant shall not proceed with the work without such authorization. Such authorization shall set forth the date of commencement of the work and the schedule of progress and completion. -3- For special consulting services, the authorization by the "City 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 Consultant, the City agrees to pay, and the Consultant agrees to accept, compensation in accordance with the schedules set forth in i Exhibit "B". Compensation of non direct salary costs shall be as set forth in the written authorization for special services or as specifically detailed in Exhibit "B". IV. Responsibility Of Consultant The Consultant 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 connection with • preparation of the biological component of the application for waiver of secondary treatment. The Consultant makes no warranty, either expressed or implied, as to its findings, recommendations, specifications or professional advice other than they were promulgated following a practice usual to the Consultant's profession. The Consultant makes no warranty or representation as to his ability to obtain or assist in the obtaining of a waiver as contemplated herein other than Consultant will use his professional skills in attempting to do so. The Consultant .shall indemnify and hold the City 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 Consultant in performing services under this Agreement. V. Integration This Agreement represents the entire understanding of City and c Consultant 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, graphics, reports or data supplied, as herein required, are the property of the City. In the event this contract is terminated, any documents, graphics, reports, data and drawings shall be delivered forthwith to the City:.' VII. Subcontracts Consultant shall be entitled, to the extent determined app- ropriate by the Consultant, to subcontract any portion of the work to be performed under this project. Consultant 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 Consultant shall be responsible to the City for the actions of persons and firms performing subcontract work.• At the time subcontracted services are anticipated, the Consultant shall notify City of the nature of and need for such services and identify the proposed subcontracting firm. The Con- sultant must receive written approval from the City prior to utilization of any subcontractors. o The Consultant is authorized by the City 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 Consultant desires to subcontract work having a cost in excess of 40 percent, the work shall be subject to the approval of the City and this Agreement shall be amended. VIII. Assignment of Contract The Consultant shall not assign this contract or any part thereof or any monies due or to become due thereunder without the prior written consent of the City. IX. Subcontracting If the Consultant shall subcontract any of the work to be performed under this contract by the Consultant, he shall be fully responsible to the City for the acts and omissions of his subcontractor and of the persons either directly or indirectly employed by the sub- contractor, as he is for the acts and omissions of persons directly employed by him. Nothing contained in this contract shall create any contractual relationship between any subcontractor of the Consultant and the City. The Consultant shall bind every subcontractor and every* subcontractor of a subcontractor by the terms of this contract applicable to his work unless specifically noted to the contrary in the subcontract in question approved in writing by the City. X. Prohibited Interest No official of the City who is authorized in such capacity on behalf of the City to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of any architectural, engineering inspection, construction, or material supply contractor, -6- o or any subcontract in connection with the construction of the project shall become directly or indirectly interested personally in this contract or in any part thereof. XI. City's Project Officer The City's Project Officer, who shall be empowered to act for the City in accordance with the provisions of this Agreement, -where such acts are not contrary to law or City ordinance, shall be the General Manager of the Encina Water Pollution Control Facility or as appointed by the City. XII. 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" -, Engineer therein shall include Consultant as used herein. XIII. Effective Date This Agreement shall be effective on and from the day and year first above written. WHEREOF, we have hereunto set our hands and seals. CITY OF CARLSBAD RONALD C. PACKARD, Mayor PLANKTONICS , a sole proprietorship APPRO VED-A'S" TO FORM: VINCENT F. BIONDO, JR. ~ City Attorney APPROVED AS TO FORMJ VINCENT F, BIONDO, JR., City. Attorney By By, Paul S. Cook, Assistant -7- Task 1. Understanding of the Criteria and Procedures Developed by the EPA At the present many questions exist concerning the interpretation of portions of the proposed application as well as the amendments of the Clean Water Act. My close contact with the 1977 changes in the Clean Water Act began with their inception as bills in the House and Senate and followed them through House-Senate Conference to final passage and signing in December, 1977. Following detailed review of the proposed rules I have gained added understanding of the application requirements th'rough telephone conferences with staff of EPA in Washington, D.C., of Region IX, and of the State Water Resources Control Board. Information of a biological nature is required at six points in the waiver application. Because Final Regulations will not be published until •July, a small time will be required during that month to assure a complete interpretation of the new regulations. Task 2. Review of Available Data The past studies which the Encina Joint Powers' Regional Sewerage Agency or its predecessors have had conducted will quickly form the base information for the waiver application. Additional sources of past studies which could potentially provide data for use in the application include Dr. Wheeler J. North (kelp biologist), Scripps Institute of Oceanography, the Southern California Coastal Water Research Project (SCCWRP), San Diego Gas and Electric Company, California Department of Fish and Game - Long Beach and Sacramento Offices, Bureau of Land Management Outer Continental Shelf Program, San Diego County Flood Control, the State Water Resources Control Board, and the San Diego Regional Water Quality Control Board. Each of the previous sources will be investigated to the fullest extent." Task 3. Preliminary Preparation of the Application to Determine Data Gaps Preparation of the application in a preliminary form will actually .take place simultaneously with Task 2 and should make apparent any types of EXHIBIT "A" A-l information which are not currently available to the Agency but are required in the application and therefore should be included in an immediate short-term study or collection of data. Task 4. Coordination of Short-Term Biological Sampling with Physical andChemical Sampling If significant gaps of data on the EWPCF outfall can be corrected by a short-term sampling program during July, August, and/or the first two weeks of September, then that data collection and analysis would be accomplished at the same time and with the same facilities as any physical/ chemical data which is needed. Let me stress, that the purpose of such a short-term sampling program would be only to fill gaps of information which would either greatly enhance the application and its opportunity for approval by EPA or which would hinder its chance for approval if not *included. Task 5. Data Analysis •» Analysis of any data which had been collected during July, August and September would be completed and its significance included in the waiver application technical information. Task 6. Preparation of Biological Sections of Application Information of a biological nature is required at six points in the waiver application. Two of these are major sections unto themselves: (1) Appendix XII - Biological Conditions Summary and (2) a Biological Monitoring Program Plan. The remaining four are responses to questions concerning the effects of physical or chemical conditions on the biological community near the outfall. Work products for the first two will provide complete sections for the waiver application and for the latter four will be provided in a form which can be automatically inserted into the application. A-2 o Task 7. Presentation of Findings to Encina Joint Powers Sewerage Agency Board Approximately two weeks before the September 24, 1978 deadline for EPA receival of waiver application, the completed biological portions of the application would be presented to the Agency Board for their comments and questions. I would expect this to be true also of the total application. Task 8. Coordination with EWPCF Staff and Other Consultants A savings of significant amount can be accomplished for the Agency through close coordination of the EWPCF staff and all consultants on the physical, chemical,-and biological portions of the application preparation. My past consulting experience with County Public Works Departments, Sanitary Districts, Water Supply Districts, State and regional agencies, and engineering consulting firms provides the basis for my recognized project coordination and direction abilities. Task 9. Representation of Biological Components of the Board's Waiver Application to the Environmental Protection Agency In order to assure the fullest consideration for this waiver application, representatives who have prepared the application components should present those to a Region IX staff person. A clear, concise presentation of the effects which the EWPCF discharge has had on the marine environment should facilitate EPA's comprehension of the waiver application, bring it specifically to their attention, and hopefully result in a speedier decision on its status. I would provide a presen- tation of the biological components of the application at either the San Francisco, Region IX, EPA Office, or in the San Diego area per your choice. A-3 c Task 10. Response to Requests for Additional Information The proposed rules for the waiver application make clear EPA's option of requesting additional information after the September 24, 1978 deadline. I would be available for clarification of materials, responding to questions and further discussions as requested by EPA. A-4 EXHIBIT "B" COMPENSATION A. Compensation Compensation for services to be provided by Consultant as set forth in Exhibit "A" of this agreement shall be in accordance with the method described in this exhibit and the specific amounts set forth herein. The compensation shall be on the hourly rate basis. 1. Hourly Rate Basis Compensation for each phase of the work or consulting service authorized on an hourly rate basis shall be the sum of direct salary costs and direct non-salary costs, as herein defined. a. Direct Salary Costs Direct salary cost shall be the total number of hours worked on the job by each biologist's times an hourly billing rate for such biologist's labor category. The hourly billing rate for each employee category shall be in accordance with the rate schedule. 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 typing, computer rental and programming costs, special consultants, borings, laboratory, charges, commercial printing and binding, and similar costs that are not appliacable to general overhead. (2) Identifiable reproduction costs applicable to the work such as printing or drawings, photostating, multilithing, printing and similar costs. Page 1 of Exhibit "B" c (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) Graphics as necessary for preparation of the biological component of an application for waiver of secondary treatment. (6) Subcontracted Services. Compensation for any consulting 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 City'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, Consultant shall continue with all or any part of the work for which an increased cost ceiling is established, but not otherwise. 2. Limitation of Cost and Time It is estimated that the price ceiling given in Paragraph C of this Exhibit and the time for completion given in the authorization will not be exceeded. The Consultant agrees to use his best efforst to perform the work specified in Exhibit "A" of this agreement within the estimated cost and time of completion. If, at any time, Consultant has Page 2 of Exhibit "B" reason to believe that the price ceiling will be greater or substantially less than the then ceilings indicated in Paragraph C, the Consultant shall notify the City in writing to that effect. The notification will state the revised price ceiling for performance of the services and, if applicable, the revised time for completion. Such notification will be submitted to the City at the earliest possible date and in no event later than 30 days prior to scheduled completion of the work. The City shall not be obligated to reimburse the Consultant for costs incurred in excess of the estimated price ceiling set forth in Paragraph C. The Consultant shall not be obligated to continue per- formance under the agreement or otherwise incur costs in excess of the estimated price ceiling set forth in Paragraph C, unless and until the City shall have notified the Consultant in writing that such estimated price ceiling has been increased and shall have specified in such notice a revised estimated price ceiling which shall thereupon constitute the estimated price ceiling for performance of this agreement. If, after notification, additional funds are not allotted by the end of the period scheduled for completion, or an agreed date substituted therefor, the City will, upon written request by the Consultant, terminate .this agreement pursuant to the provisions of the termination clause. The termination date shall be the originally scheduled completion date or an agreed date substituted therefor. If the Consultant, 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 City, at his discretion may terminate this agreement at that later date.' Page 3 of Exhibit "B" C Notwithstanding anything to the contrary in this agreement, the total cost to City for performance by Consultant as required herein shall not exceed $10,000.00 B. Payment of Compensation Charges determined on the basis of this Exhibit shall be billed and paid in three parts, as follows: (a) Upon completion of Tasks 1, 2 and 3 as set forth in Exhibit "A" to this agreement, Consultant shall submit a billing to City therefor, and payment shall be made by City within a reasonable time thereafter. (b) Upon completion of Tasks 4 to 7, inclusive of Exhibit "A" attached to this agreement, Consultant shall submit a billing to City therefor, and payment shall be made by City within a reasonable time thereafter. (c) Upon completion of Tasks 8, 9 and 10 set forth in Exhibit "A" of this agreement, Consultant shall submit a billing to City therefor, and payment shall be made by City within a reasonable time thereafter. Each billing from Consultant shall contain the following information: (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. (3) Each general category of other direct costs. Page 4 of Exhibit "B" C. Compensation Schedule For each consulting service authorized under this agreement, compensation shall be in accordance with the applicable portions of this Exhibit and the following schedule: (1) Professional Services of Biologists Cost Reimbursement: Basis of Compensation: Principal Biologist Assistant Biologist Cost Ceiling (2) Direct Nosalary Cost Estimated Total Costs Hourly Rate $ 25.00 $ 12.00 $8,056.00 Cost Ceiling $1150 $1150 Page 5 of Exhibit B C EXHIBIT "C" RULES AND REGULATIONS Title 40—Protection of Environment CHAPTER I—ENVIRONMENTAL PROTECTION AGcNCY StIOCHAPTER D—GRANTS |FIU, C55-2| PART 35—STATE AND LOCAL ASSISTANCE Subaereaments Under Grants for Con- struction of Treatment Works; Technical Amendments APPENDIX C-l PROVISIONS— CONSULTING KNCINEOUNO AtHEEMfNTS I. General. •2. Responsibility of the engineer. 3. Scope of work,. 4. Changes. 6. Termination. 0. Hemedlea.V. Payment. B. Project design. 0. Audit; access to records.10. Price reduction lor defective cost or pricing data. II. Subcontracts. 13. Labor standards.13. Equal employment opportunity. 14. Utilization of tmall or minority busi-ness. •16. Covenant against contingent fees. 1C. Gratuities. 17. Patents. 16. Copyrights and rights In data. * 1. GENERAL . (.a) The Owner and the. Engineer agree that ths following provisions shall apply to.the EPA grant-eligible worn 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 Is funded In part by b grant from the U.S. En-vironmental Protection Agency. Neither the United States nor the U.S. Environmental Protection Agency (hereinafter, "EPA") Is a party to this agreement. Thin agreementwhich rovers grant-eligible work Is subject to regulations contained in 40 CFft 35.936. 35.037, and 35.939 In effect on the elate of execution of this agreement. As used In theseClausen, the word* "thu date of execution of this agreement" mean the date of cxecu'.lpn Of this agreement and any subsequent modification of the terms, compensation or scope of services pertinent to unperformedwork. (c) The rights and remedies of the ownor provided for In these clauses are In addition to any other rights and remedies provided by law or under this agreement. 2. itr.spoNsiaii.rry OF TUB ENGINEER (a) The Engineer shall be responsible for the professional quality, technical accuracy, timely completion, anil the coordination of all designs, drawings, specification*, reports, and other services furnished by the Engineer under this agreement. The Ln^tatt-r sliaU. without additional compensation, correct orrevise any errors, omissions or other or.clen- clcs in his dt-Mgtis, drawings, tpeclnca-.lons. reports and other .services.(b) The Engineer Khali perform such pro- fessional services as nmy be necessary to ac- complish the work required to b« performed under this agreement, In accordar.ce with this agreement and applicable EPA require- ments In effect on the date of execution of this agreement. (c) Approval by the Owner or EPA of drawings, designs, specifications, reports, andIncidental engineering work or materials fur- nished hereunder shall not In any way re- lieve the Engineer of responsibility for thetechnical adequacy of his work. Neither tha Owner's nor EI'A's review, approval or tc- ccptance of. nor payment for, auy of tfc* serv- ices shall be construed to operate a.i a waiverof any rights under this agreement or oi aj-.y cause of action arising out of the p*rfonn-ance of [his Agreement. (d) The Engineer shall be aad remain li- able In accordance with applicable Itw for all damages to the Owner or EPA caused by the Engineer's negligent performance of any of the services furnished undftr this tu'ree- ment, except for errors. oml.^>lon-i or ctr.er deficiencies to the extent attributable to theOwner, Owner-furnished data or an/ tal.-cl party. The Engineer shall not be responsible lor any time delays In the pioject oiUicO, bycircumstances beyond the Engineer's cor.:rc!. Where new or-advanccd processes, method* or technology (see 40 CtTl 35.908) are rfcom-mended by the Engineer and are utilized, the Engineer shall be liable only for srcis negli- gence to the extent of uuch utilization- 3. SCOPE Of WORK The cervices to be rendered by the Engineer shall include all services required to com- plete the task or Step in accordance with kp-pllcable EPA rcyulitUons (40 CFTt Pir-. jj, Subcnrt £ in effect on the.dace of execution of this agreement) to the extent of the scop*of work as denned tuad set out In the engi- neering services agreement to which thtte provisions are attached. 4. ClIANOCS (a) The Owner may, at any time, by writ- ten order, mttke changes within the giueralscope of this agreement In the services cr work to be performed. If &uch changes c.\u«ian Increase or decrea.se. In the Enjrlr.ser'B cost of, €>r time required for, performance ofany services under this agreement, whether or not changed by any order, an equitable adjustment shall be made and thU t.^ree- ment shall be modltled In wrltu:^ ooccrxl- ln,;ly. Any claim of the Engineer for ad;\i.->t-niL-nt under thLs clause mu.il be- a^er*.*<l l:i writing within 30 days from the d*t« of re-ceipt by the Engineer of the notlttca'-ion of Change unless the Owner i;raiua a further period of tlnm before !i.e date of final pay- ment under this agreement. FEDERAL REGISTER, VOl 41, NO. 551—WfONESDAf, DECEMBER 29, 1976 C-l COPY c RULES AND REGULATIONS <l>l Ho services (or which an additional will b» charged by tho Kngl- b« furnUhed without the writ ton of ua» Owner. (e) In the event that there la t, modifica-tion of EPA requirement* relating to the horvlcx* to be performed under UiU agree-* mciit outwoquent to the date of exceutlou of this. agreement, the incroasad or decreasedcost of performance of the service* provided for. In this agreement shall bo reflected in anappropriate modification of thu agreement. 6. TVKMINATIOlf (ft) This agreement may be terminated in whole or lu part In writing by either party inthe event of substantial failure by the other party to fulfill its obligations under thl*agreement through no fault of the torralrxaU lug party: Provided, That uo such tarmlna- tlon may be effected unlusa the other partyis tflven (1) not less than ten (10) calendar (lays written notice (delivered by cortilledmill, rot urn receipt requested) of intent to terminate tnd (it) an opportunity for con- sultation wlta the terminating party prior 'to termination. <b) This agreement may be terminated inwhole or in part la writing by the Owner for 1U convenience: f'rovtded, That such termination 1> for good cause (such as tor JegaJ or financial reasons, major changes In(he work or program requirement*. Initiation of a new Step) and that tho Engineer is given(I) not less than tea (10) calendar days written notice (delivered by certified mall,return receipt requested) of Intent to termi- nate <vnd (2) an opportunity for consulta- tion with the terminating party prior totermination. (c) If termination for default Is effectedliy the Owner, an equitable adjustment in the pricft provided for la this ngieement nhallbft mode, but (1) no amount shall b« allowed for anticipated profit on unperformed serv- ice* <>r other work, and (2) buy payment dueto the Engineer at tho time of termination may lie adjusted to the extent of any addi-tional coau occasioned to the Owner by rea- son ol the' Engineer's default. If terminationfor clclault La effected hjr the Engineer, or if termination for convenience la oirected bythe Owner, the equitable adjustment ohall Include a reasonable profit for services or other work performed. The equitable adjust-ment for any termination shall provide for payment to the Engineer for sorvlceu ren-dered urid expenses Incurred prior to the termination, in addition to termination set- tifm^nt costs rpiwsi*!** !j^c*irro^ by the En-ftYncer relating to commitment* which had become firm prior to Uie termination.(d) Upon receipt of » termination action pursuant to paragraphs (a) or (b) above, theEngineer shall (1) promptly discontinue alltrrvirei Affected (unless the notice direct* bthuiwite). end (2) deliver or otherwise make available to the Owner all data, drawings,npecincAttons, report*, estimates, summarlefl.nnd Mich other Information and materitUs as may hnve been accumulated by the EngineerIn performing thla agreement, whether com- pleted nr in process.(o| Upon termination pursuant to para- (,'caphs (a) or (b) above, the Owner may takeover the work and prosecute the same to completion by agreement with another party or otherwise. Any work taken over by theOwner for completion will bo completed at the Owner'* rU*. and th» Owner will hold liarmlat* the Engineer from all clalma andclAjiuxea nrUing out of Improper UM of the Engineer's work. (I) If. after termination for failure of _th* Engineer to fulfill contractual obligations. Itis determined that the' Engineer had not B<> failed, the termination vhall be deemed t-» have been effected for the convenience of the Owner. In (such event, ndjti&tiaent of theprice pri>vldc>d for In thin agreement shall b» mode fta provided in paragraph (c) of thisclause; 6. Except M may b« other-win* provided tuthla agreement, all claims, counter-claims, disputes &nd other matters in question be- tween tho Owner nnd tho Engineer ftrlutugout of or relating to thin agreement or the breach thereof will be decided by arbitrationIf the parties hereto mutually agree, or in n court of competent JurUxlictlon within theState in which the Owner 1» located. 7. PAYMENT (a) Payment aliall be made In accordancewith the payment schedule Incorporated lu thla agreement us soon as practicable upon submission of statements requesting pay- ment by the Engineer to the Owner. If noeuch payment cchedule la Incorporated in thlj agreement. tho payment provisions, or paragraph (b) of this clause shall apply. (b) Monthly progress payments may be re-quested by the Engineer mid shall be mada by the Owner to the Engineer na soon as prac-ticable upon submission of statements re- questing payment by the Engineer to theOwner. When such progress payments ure made, tha Owner may withhold up to tenpercent of the vouchered amount until sat- isfactory completion by the Engineer of workand cervices within a Step called for tinder thiM agreement. When the Owner determinesthat tho work under this agreement or any spocltled task hereunder is substantiallycomplete nnd 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, ho shall release to theEngineer sucit excises amount. (c) No payment request made pursuant toparagraph (a) or (b) of thla clause shallexceed the estimated amount and value of the work and services performed by the Ku-fitnocr under this agreement, which esti- mates thull be prepared- by the Engineer andsupplemented or accompanied by such, sup- porting data AS' may be required by theOwner. (d) Upon satisfactory completion" of thowork performed hereunder, And prior to anal payment under this agreement for cuchwork, or prior settlement upon termination of the agreement, nnd as a condition prec-edent thereto, the Engineer shall execute and deliver to the Owner n release of allcl.ilms agalnftt the Owner arising under or by virtue of this agreement, other than truchclaims, if any, us may. bo specifically ex- empted by tlte Englueer from the operationof the release in stated Amounts to be set forth therein, B. PROJECT DIL-SION (ft) in the performance of thin agreement.tho Engineer shall, to tho extent practicable, provide for maximum use of btriicturei, ma-chines, products, materials, constructionmethods, and equipment which are readily available through competitive procurement,or through standard or proven production techniques, methods, and processes, consist-ent with 40 Cf'H 36.030-3 and 35,936-13 in eflect on the dtte of execution of this agree-ment except to the extent that advanced technology may be utilized pursuant to 40CFK 35.!>OB In effect on the date of executionof thla agreement. (b) The Engineer shall not, in the per- formance of tlio work cnlled for by thisagreement, produce a d*uu;n or specification nucb as to require the uae of structtireo,machines, products, materials, const-ruction methods, equipment, or proctssm which are known by the Engineer to be available only from a sole soured, urUtsa such use has b«eii adequately Justified In writing by tbe Engi-neer. (c) The Engineer shall not, In the per-formance of the worlc culled for by thisncrwment. produce a dwltfu or sp*cljic»tiou which would be restrictive In violation ofSec. 20-1 (a) (6) of the FedenU Water rollu- Uon Control Act (I'L 03-&00). Tills sututercrjulret that no specification for bid* orstatement of work shall be written In such a manner M to contain proprletwy, «xclu-olonary, or discriminatory requirements other than those bated upon performiuic*. unlesasuch requirements ore neceb^wy to t«at ordemonstrate n specluc thin;;, or to provide for necessary Intcrchongeabliity of pana audequipment, or at least two brand name*; or trado nwnea of coaiparrtble qu»!ity or utilityare listed and are followed by the. words ''or equal." With reRivrd to mitten&U. If a f.in>;leinaWrlal is tptfCUitd, the tojflnser must be prepared to subsUintiat« the bu>la for tbeselection of the material. (d) The Engineer shall report to the Ownerftny sole-source or restrictive desl?u or (p«c-ific&tlon [;lvlD? the reason or reasons why It Is considered necesviwy to restrict thedesign or specification. (ej Thu Kr.jjlneer shall not knowUveily tspec-ify or approve the pcrlorrniDce of work at ft facility which 13 In violation of Clean Air or \Vttterstaudard9 and which U listed by theDirector of the Ei'A orrice of Federal Activi-ties pursuant to 40 CFR Part 15. 0. AUDIT; Access TO Itccoiua (a) The Engineer chaJl rru-lnUln books, records, documents and other eviiitnc* di-rectly pertlnont to pcrformajic* on EPA <;rant work under this c^ceeridat In accord- wxce with, nonerally accepted Mcouiitini; principles and praeticej eor^lsiently spplled.Mid 40 CPIt 30.COS, 30.805, tod 3503^-7 In clTcct on the date of execution of this agree-ment. Tha Enf,li\t',-r £haJl also m°tlr.:aln tuofinancial information and data u&ed by theh'iiyln*er |tl tne preparation or support of Xhe cost submission requlrtd pursuant to 40 GVB 35.637-<>(b) In e.7»ct on the date ofexecution of this agreement acd a copy of the cost summary submitted to the Owner.The United States iiivlronmental Prott-ctioii Agency, the Comptroller General of theUnited States, the United StaWa Dspaxtnient of l^abor, Owner, and {the St-ita w»t« pollu-tion control agency) or any of their duly authorized reprfr^nUittvea ebtUl have accessto uuch books, record?, documoiila aud other evidence for the purpose of Inspection, auditnnd copying. The Engineer will provide prop- er facilities for such accev* and in^.o^ctlon.'(b) The Engineer agre*» to Uiclude. para-(rraplui (a) through (c) of this clau.-e in all his contracts and all tier subcontract.) di-rectly related to project performance whiuiwe in excess of $10.(/GO. (c) Audlti conducted pursuant to tMs pro-vision shs.ll be in rxcordence with 2-.-tit-rulivaccepted auditing standards and eaUJvli.si-.crd procudtires aud Guidelines of the rcviewlnuor audit uticucy (IM). ' (d) The Engineer agrees to the dUcIoaiueof all Information and reports rosultin^ froi.i access to records pursuant to piirai:ra]>ii.H (:n and (b) above, to any of th* agencies re-fon'td to In paragraph <a) above, provided that tha Engineer IB oflordtd tlie oppf.rinnltyfor an audit exit conference and an opportu- nity to comment and submit any supporting'documentation on the pertinent portions of the draft uudlt report bud thivt the TmiUaudit import will Include written comment* of rcn'...nni<i» length, If any, o/ the Englnefir, (e) lu-cor.iH under pt^rkr^'vphii (*> and (b) above shall >>« maintained and uuide avail- FCOERAL A£CIST£^ VOl. 41. NO. 25) -WECNESOAV, DECEMBER 29, 1976 O2 BEST COPY o •ble- during ptrformanoo on KPA grant workunder this tyrtowtnt «u\d untu three yearsfroM date ol liDftl EPA grant payment for theproject. In (vddltlon. thot-o records which re- late to any "Dispute" appeal under an EPA grant agreement. or litigation, or tho eettle-mcnt of claims arising out of such perform- .«nca, or coats or items to which an audit exception has been taken, snail bo main-tained macLmaUe available- until three, yearnnftsr the date of resolxitlon of such appeal, litigation, claim or exception. 10. PBICK REDUCTION *OR UEFZCTTW COOT o»PRICING DATA (This claims is applicable if the amount ofthlt agreement exceed! tlOO.OOO.) (a) K th» Ownor or EPA determines that any pric*. Including profit, negotiated Inconnection with this agreement or buy costrclinbursablo under this agreement was In- creased by any significant sums bacHU&e li» Engineer or any subcontractor lurntsh&d In-complete- or Inaccurate cost or pricing dataor dat* not current as certliUd in his certifi-cation of current cost or prlctoi; da'ut (EVA l"orrja 6700— 51), then tuch, prlco oj cost orprofit shall tie reduced accordingly and theagreement «h&n ba rnocuitod la w'miag to re« Sect such reduction. (b) failure to agree on a reduction ohallbe eubject to tha liametUes clause or this agreement. (HOTS — Since the agreement Is subject to reduction tinder this clause by tx^o-'on of de-fective cost or pricing data submitted in con-nection inith certain subcontracts, the Rngi- neer may ivisb to inciuds a clause in each,inch subcontract requiring the subcontractor to appropriately Indemnify tha £.'?ipin«er. Ittit olso ezj'ectedjhat any ntucmilractor sub-ject to such indemnification will generally •requite substantially similar imleinniftcatitmfor defectiua cost or pricing data required tobe tubmitti-d by hit lower tier mbcor.'.rac- lori.) 11. B0BCONTRACTS (a) Any subcontractors and outside asso-ciates or consultants required by the Engi- neer In connection wltli the services covered by this bgrecmen't will be limited to suchindividuate or firm* as wera Bpeclflcally Identified and mactd to durin.? negotiations. or Ra are> Rpeclfically authorized by the Ownerduring the perTormanc* of thla egretment. Any substitutions in or additions to suchsubcontractors, fc&soclAtes. or consultants will be subject to the* prior approval of theOwner.(b) The Engineer may not subcontractservices in execcs of thirty percent (or ______ percent. If tho Owner and tho Engineer hereby egret) of the contract price to sub-contractors or consultants without prior written approval ol tho Owner. RULES AND REGULATIONS J-~orm 6730-4) in effect at the time of execu-tion of -this agreement. 13. EQUAL EMPLOYMENT OPPORTUNITY In accordance with EPA policy as expressedIn 40 CF'B 30.420-6, tha Engineer nfp-ces that lie' will not discriminate ajjuluat any em-ploytiu or applicant for employment btcau.r>«of race, religion, color, tuix, age or national orlgtu. H. UTILIZATION OP SMAJLI, /NO MiNoarry. BuaiNcaa In accordance with EPA policy as expressed Jn 40 CFK 35.03&-7, the Englaeer agrees thatqualified small business &nd minority busi- ness enterprises shall have tho maximumpracticable opportunity to participate In thoperformance of EPA erimt-asslsted contractsarid subcontracts. 15. COVENANT AGAINST CONTINGENT FEES 13.STANDARDS To the- extent that this agreement involves"construction" (as defined' by the Secretoryof Labor). the Engineer agrees that suchconstruction work shall be subject to the fol-lowing labor standards provisions, to theextent applicable:(a) Davis-Bacon Act (40 U.8.C. 278a-376a- 1):(b) Contract Work Hours and SafetyStandards Act (40 U.8.C. 327-333) ; (c) Copeland Antl-KlckbacX Act (18 UB.C. 874); and (d) Executive Order 11248 (Kqual Employ- ment Opportunity); and implementing rules, reflations, andrelevant order* of tho Secretary of Labor orKPA; and th» ITnglneer further agreea that this 'if'timipf shell In^lurt*. ond r>p subjftctto th» "Labor Standards V^rovLilons for 1-Vd- erally AuUUd Coastnictlon.Coutracta" (t'l'A Tha Englnfcer warrants that no person orcelling agency has been employed or retained to solicit or secure this contract upon anREreement or underelrJidUiij for a commis- sion, percentnge, brokerircje, or contingentfeu, excepting lx<na Jitla employees. For breachor violation of this warranty tils Owner bhsJl hr.vo the right to annul thb agreement with-out liability or lu Its tllscretion to deductfrom tho contract price or consideration, orotherwise- recover, tho full amount of ouchcommltalon, percentage, brokerage-, or con- tingent fee. 18. OnATUrrirs (ft) If It Is found, after'notlce and hearing.by tha Owner that gratuities (In tho form ofentertainment, plfta, or otherwise) were oITered or plver. by the Engineer, or any agentor representative of the Engineer, to enyoMclM, employee or Bgcnt of the Owner, of the State, or of EPA with a view toward se- curing a contract or securing -favor/ibis treat-ment v.'lth respect to tho awarding or amend-ing. or the making of any determinations with respect to the performance of thla agree- ment, tho Owner may, by written notice to the Engineer, terminate the right of th»Engineer to proceed under this agreement ormay pursue EUCU other rlghta and remediesprovided by law or under this agreement: Provided. That the existence of the factsupon which the Owner makes such findings6hn.ll bo in Issue and may ba reviewed In pro-ceedings pursuant, to the Remedies cUoise of this agreement. (b) "in the event this agreement Is termi-nated as provided in paragraph (a) hereof,tho Owner shall be entitled (1) to purouetho earn* remedies apalnst the Engineer as it could pursue In the event of ft breach of thecontract by the Engineer, and (3) na a pen-alty In addition to any other damages to which It may be entitled by law, to exemplary damages In nn amount (n» deter-mined by the Owner) which shall be not less than three nor more than ten times the costs- incurred by the Engineer In providingany such gratuities to any such ofilcvir oremployee. 17. PATENTS If this agreement involves research, devel-opmental. experimental, or demonstration work, and any discovery or Invention nrMrsor Is developed In the course of or under ihM (\Kreement, such Invention or discovery bK<iU be subject to the reporting and rights provi- sions of Bubpart 1) of 10 Cfr'R Part 30. In e/fect on the date ol <•.. * utlon of this BKI.'! •meut. Including AppriuiU n t.-i ?t»lci Pnrt :<•'!.lu such CAje, the r;ngUie«r sht!1. report lh-»discovery or Invention to EPA directly r,r it-.-".:;;!- *v.s O?.T.rr, r.nd ••»-.<! OTHTWIW p--«»-ply with the Owner's responilbllltles In ac-corclunco with tald Subpari D of 40 CKH Part SO. Tho Engineer hereby ngrex» that thi disposition of rights to' inventions inailt Under thla agreement shall be In occordanctwith the terms and conditions of aforemen- tioned Appendix B. Tho Engineer shall in-clude provisions appropriate to effectuate tinpurposes of thla condition In all oubcontracuinvolving research, developmental, experi- mental, or demonstration work. 18. COJ-TKIGHTS AND Riairrs IN DATA (a) The Engineer agrees that any plans drawings, designs, specifications, compute:programs (which are substantially paid foiwith EPA grant funds), technical reports operating manuals, and other r.-ork subnilUix with a Step 1 Facilities Plan or with a Step '.or Step 3 grant nppllcatlon or which nnspecified to ba delivered under this agree- ment or which are developed or produced nm paid for under this agreement (referred Uin thla clauao t.s "Subject Dita") are sub-ject to the rights in the United States, as BCI forth in Subjiart X) of 40 Cl'rl Part 30 and lr Appendix C to 4O CPR Part 30. In clJec' on tindai« Of execution of this fcijrermant. Incluc!ing the rl^ht to use, duplicate and disclosesuch Subject Data, in whole or In pjxrt, ii any manner for any purpose r/hatsoevrr, anchave others do eo. for purpoes of this art!cle. "grantee" £48 used la f.alcS Appendix Cshall reler to the Engineer. IX ths inatirlal 1, copyrlghttible. the 3Jr.giaeer rnny copyrlghsuch, as permitted by Eald Anoendlx C, aiusubject to th& rights In the Government iv set forth in Appendix C, but tho Owner tiru the Federal Government resen-o a royaltyfree, nonexclusive, and Inevoci'ola license tcreproduce, publish and use t\ic~n ir.aterlniH in whole or in part, and to tuLhori-ie other tu do so. Tho Eriginter shall lucluJe provlKlons appropriate to t^ectuste the puj-po«' of this condition in all subcontract* expcctei to produce copvrishtablo Subject Dat^. (b) All buch Eublect Data furnished bv th Engineer pureua.nl to this Ejrreeinent arInatrurnents cf his services in respect of Oi prolect. It is 'understood that tho Rnptr.et docs not represent such Subject D.ita to t,6Ultabl9 for reusa on any othtrr prot.'ct or i<. any other purpose. Any reuse by th* Ov/r.twithout specific written verification or nduptatlon by the Enpineer will be ivt tho risk o th& Owner and without liability to the. Eupinecr. Any such verification or adaptatlo-will entitle the Engineer to further compen cation at fates to be agreed upon by th Owner and the Engineer. COPY FEDERAL REGISTER. VOL. 41, NO. 251—WEDNESDAY, DECEM&fcft 29, 1974 C-3