HomeMy WebLinkAbout1978-07-05; City Council; Resolution 54761
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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 TF33ATMENT
REQUIREMENTS FOR A DISCHARGE INTO MARINE WATERS BY THE
ENCINA WATER POLLUTION CONTROL FACILITY
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 I
1978, by the following vote, to wit:
AYES: Councilmen Packard, Skotnicki, Anear, Lewis and
NOES: None Counc i 1 woman Cas1 er
ABSENT: None
ATTEST :
- RONALD C. PACKARD, Mayor
Margaret E. Adams
MARGARET E. ADAMS, City Clerk
By:
(SEAL)
AGREEMENT FOR PREPARATION OF BIOLOGICAL
COMPONENTS OF AN APPLICATION FOR E'IODIFICATION
OF SECONDAR'J TREATmNT 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 treament
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 €or the compensation set forth herein; and
1 personnel whose services are available
e es in
numbers of manhours required for each are as follows:
-1-
I
.>
BIOLOGY SERVICES
Labor Category
Task 1
Principal Biologist
Assistant Biologist
Task 2
Principal Biologist
Assistant Biologist
Task 3
Principal Assis tan t
Assistant
Biologist Biologist
Biologist
Biologist
Task 5
Principal Biologist Assistant Biologist
Task 6
Principal Biologist
Assistant Biologist
Task 7
rincipal Biologist
ssis tant Biologist
Task 8
Principal Biologist
Assistant Biologist
Approximate
Manhours
32
0
64
40
24
(1
24
0
24
24
40
24
8
0
24
0
-2-
..
Task 9
Principal Biologist
Assistant Biologist
Task 10
Principal Biologist Assistant BjloloGist
16
0
24
0
NOW, THEIZEFORE, City and Consultant agree as follows:
I. Scope,of Consultant's Services
Consultant agrees to perform those services which are more
particularly described hereafter.
party to be charged, duties of Consultant shall not be construed to
Unless modified in writing by the
ices specifically set forth herein.
The work to be included hereunder shall be the work necessary
for the preparation of the biologicalcomponent of an application to
*
the EPA and SWRCE 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
Y3", which is attached hereto and incorporated herein by reference.
. 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 commencenent of the work and the schedule
of progress and completion.
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e ai I< .. . *I. .. ,+
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.
711. 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
Exhibit "B". Compensationof non direct salary costs shall be as set forth
in the written authorization for special services or as specifically
detailed fn Exhibit "B",
IV. Responsibility of Cons'ultant
he Consultant is employed to render a professional service only -
i 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
rranty or representation as to his ability to obtain or assist in the
taining of a waiver as contemplated herein other than Consultant will
his professional skills in attempting to do so.
The Consultant shall indemnify and hold the City and all of its
I 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
i .? -- .
1.
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.:'
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-1 to 40 CFR Part 35, Subpart E as published in the Federal Register
on December 29, 1976.
City for the actions of persons and firms performing subcontract work,
The Consultant shall be responsible to the
t the time subcontracted services are anticipated, the
onsultant shall notify City of the nature of and need for such
ervices and id-entify the proposed subcontracting firm. The Con-
sultant must receive written approval from the City prior to
utilization of any subcontractors.
-5-
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
x
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
bcontractor of a
his work unless
estion approved in
ohibited Interest
writing by the City.
Consultant shall bind every subcontractor and every
subcontractor by the terms of this contract applicable
specifically noted to the contrary in the subcontract
No official of the City who is authorized in
behalf of the City to negotiate, make, accept, or
such capacity on
approve, or take part
in negotiating, making, accepting, or approving of any architectural,
engineering inspection, construction, or material supply contractor,
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'7 .,. ,
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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 la% 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"
published in the Federal Register dated December 29, 1976 as
Appendix C-1 to Part 35 of Title 40 of the Code of Federal Regulations, - -
are attached hereto and incorporated herein by reference as Exhibit
llC"i Engineer therein shall incluze Consultant as used herein.
XIII. Effective Date
This Agreement shall be effective on and from the day and year
first above written.
VINCENT F. BIONDO, JR.
City Attorney
APPROVED AS TO FORkij
YINCEN'F: E, BIONDO, 3R.% City Attornex
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 Wean
Water Act began with their inception as bills in the House and Senate
and followed them through House-Senate Conference to finall passage and
signing in December, 7977. Following detailed review of the proposed
.
rules I have gained added unders tandi ng of the appl i cati on requirements
through 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 Di ego Gas and Electric Company Cal ifornia Department of
Fish and Game- Long Beach and Sacramento Offices Bureau of Land Management
Outer Continental Shelf Program, San Diego County Flood Control, the
Task 3. Preliminary Preparation of the Application to Determine Data Gaps
Preparation of the appl i cation in a prel iminary form wi 7 7 actual 1y
take place simultaneously with Task 2 and should make apparent any types of
EXHIBIT "A" A-1
informatidn 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
and Chemical Sampl i ns
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.
short-term sampling program would be only to fill gaps of information
which would either greatly enhance the application and it‘s opportunity
Let me stress, that the purpose of such a
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 appl i cation technical informa ti on.
Task 6. Preparation of Bioloqical Sections of Application
Information of a biological nature is required at six points in the
iver application. Two of these are major sections unto themselves:
1) Appendix XI1 - Biological Conditions Summary and (2) a Biological
oni tori ng Program P1 an.
oncerning the effects of physical or chemical conditions on the biological
The remaining four are responses to questions
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
appl i cation.
A-2
Task 7. Presentation of Findings to Encina Joint Powers Sewerage
Agency Board
Approximately two weeks before the September 24, 1978 dead1 i ne
for EPA receival of waiver application, the completed biological portions
of the application would be presented to the Agency Board for their
corriments 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 a79 consultants on the
physical , chemical ,a and biological portions of the application preparation,
My past consulting experience with County Puhl ic 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.
presentation of the effects which the EWPCF discharge has had on the
marine environment should facilitate EPA's comprehension of the waiver
A clear, concise
application, bring it specifically to their attention, and hopefully
result in di
tation of the biologica7.components of the application -at either the
San Francisco, Region IX, EPA Office, or in the San Diego area per your
choi ce.
atus, I would provide a - ._.
A- 3
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.
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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 biolo9ist'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,
ntal 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.
(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.
provided for under an hourly rate engineering service is not
In the event the entire scope of work
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.
. Limitation of Cost and Time
It is estimated that the price ceiling given in Paragraph C of
this Exhibit and the time €or completion given in the authorization will
not be exceeded.
perform the work specified in Exhibit "A" of this agreement within the
estimated cost and time of completion.
The Consultant agrees to use his best efforst to
I€, 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 laker
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
shall ified-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 reasonabl 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"
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
3. 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,
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 the thereafter.
I 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.
The hourly billing rate and costs for each labor catecrory. (2)
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:
Professional Services of Biologists
Cost Reimbursement:
Basis of Compensation:
Principal Biologist
Assistant Biologist
Cost Ceiling
Direct Nosalary Cost
Estimated Total Costs
Cost Ceiling
$1150
$1150
Hourly Rate
$ 25.00
$ 12.00
$8,056-00
Page 5 of Exhibit B
RULES AND REGULATIONS
Title 4U-Protection of Environmant
PROTECTION AGENCY
SUBCHAPTER U-GUANTS ,
CHAPTER I-ENVIRONMENTAL
1E'ItL G55-2)
PART 35--STATE AND LOCAL
' ASSISTANCE
Subaeresments Under Grants for Con- structlon of Treatment Works; Technical Amendments
i&rNDrx c-I
xtxa;qrmmo PROVISZONMOXSULTXNG
' XNCKNELBINO ACREEXEN18
1. Oencral. -2. Respoilsiblllty of the engineer. 9. Scope of work. 4. Changes. - . 6. Ternunotlon. 0. JlemedLes. 5'. Payment. 6. Project dealgn. 0. Audlt; 8cces4 torecords. 10. Prlce reduction for detective coet or
11. Subcontracta. 12. Labor standarde. 13. Equal employment opportunfty. 14. Utlllzatlon of brnall or inlnorle busl-
36. Covenant agalnst contlngent fees.
1G. Gratultlos. 17. Pfitonts. 18. CopyrlghW and r1ght.a In dsb,
prlcirig data.
ness.
1. GWZRAL . (a) The Owner and the Englncer agree that the following provlslons shsll apply to ,the IEPA grant-e>lglble WOrK to be performed under tlrls ngreenrent and that such pro-
wlslons of this agreemeat. (b) The work under thls agreement 1s funded In part by o gmnt from the US. En- vtronmentR1 Protrctlon Agency. h'elther the Unlted States nor the U.S. Envlronmorital Protectlon Agency (herelooft&. '%PAY) Is o party to thls ngreemerit. Thh rgreenient whtch covers grant-ellglble work Is 6ubject to regulatlons conttrlnecl In 40 CFR 35.936. 35.037. and 35.939 !I! elfect OR the date of executlon of thb agreement. As used in these clausrq. the word?, "the date of execution of thb agreement" mean the date of execu:lpn
VklOnS bhRll supersede MY COnfilCtlng pro-
to any other rlghtr find remedles provlded by law or under thb agreement.
2. X:rsrowsrsrL.ar OF THE ENGIKEEX
(n) The Xriglncer shdl bo rcsponslbla for the prolrssloii~ q;iallLy. tcchnlefd accu~gr. tlmcly coinpletlon. Rntl the coord!narlun or all clcsl&tci. clrawlngs. 6peclttcatronr. rewor-s. and other servlc+s furirlslied by the En&.?+er under L~IS n,;rcenieril. Thc L:n&laeerr s>alL wtthout ntld1rlol~3l co:~ipeii~a~Lori. correct or revlro riiy errom. OintsAoiib or other def.c!en- cles in his drhigtS. drawlnigs, tpeclltar:ons. reports find artier servxes. (b) The Eiiglnurr sli:\lL perform such pco- fcs$lotial aervlces h~ niny be neccsq to 3c- compllslr the work requtred ta be perfamed under thb agrament, 111 acclrrdxxc utth. thls bgrremetit ai:d applicobk IlPA tw\;rL'e- nients In efi'xt oa the dtlw of execucla of tbls agreement. (c) Approval by the Owner or EP.% of drawings. dealsos, speclllcntlonr re-. tnd tncldent8l enylnrcrlrig work or matenals fur- nlshed hereunder shall not ln my ~3y rr?- Iteve the Englneer of rcspouslbtllty for the technlcnl adequacy of lit% work. Nelthez :he Owner's nor UA's revlew. approval or s- ceptance of.nor payment for. siiy ol tt?c serv- ices shall be corlstrurd to operaw RS a wrlver of any right.* uiidet this agmtrlient or tf &7y cow of ocriori nrlslng out. of the wrfoa- ance of thls qreement. (d) The Engltirer shall be &ad remsln II- able In occordatice wlth nppllcsble tsw for 811 damages to Lhe Owner or BZ'A causd by the Cngtnetr's negligent performance of &iy of the scrvlcrv iramkihd unriar this K:M- ment. except for errors. ornlsdons or crter deficlrnrlcs eo the extent &ttrlbu:&bie to :he Qwner. Owarr-furnlshed Unta or my ta::& pnrty. The Endtneer shall not bc rbpons!bie for any the cielays tn the proji-c= wk.4 by clraumitances bcyonct the EnglnMr's cor.::^:. Whero new ormlvancetl procisei. met.hc4r or technology (we 40 CkR. 35.838) &re recam- mended by the Engineer wid ore ytlllzed. :he Englnecr shall be llablo only for gru.5 xegll- gence to the extent of iuch uLi?ltnttim.
3. SCOPE OP WORK
.
The servlces to be rendered by the EnpL3eer tihnll include &I: scrvlcrs requlrrd M CCLT- plete the task or Step In rIccordmce wizh 6p- pllcnble EPA ?e:;ulutlons (40 Cm PL-. -3. SubDart E In effect on the date of extcu::on
Of thts agmement) to the extent of the wpt of work w defined lLud set out t? tha cz~i- nwrlng bervlcev ngreement to whkh rhw provlslonr, are attached.
4. Crrancz3
(a) The Owner may, at any elme. by %It- ten order, make cbanaes wlthln the g$ceMf scope of this agreement in the service^ cr Work to be performed. If such chaaga caue an Incre.lie or decreua. in the Eagk~er's cost of. or Hmc requlred for, perfmsce ot my servlces wider thls apernent. wbtther or not changed by any order. sn equlsbls adjus:ment shall br made nnd th!% :,;red- ment shall be mcdErd in VT?.tli:$ td~xxi- In&. Any cl:+lm of the EnKlneer for ad~~z- mrnt under thLs Cl3ustt mujt be ajjar-4 I:L wrlting wlthln 30 days froni Lh? G-4 of re- celpt by the niflneer of Ctie not:!2car!on of cli.mge unless the Owrhrr &,-raliw a !urrher period of tln~ befw 'I I %.e data OX fin& pay- ment i?nder fhlb agrczi~~ent.
FEOERAL REGISTER, VOL. 41, NO. 251-WEWESDAY. DECEMBER 29. 1976
C-1
c
c .
RULES AND REGULATIONS
(h) No ServlCae for vhlch an nddttlonal *mllM?l~WUOn wfll b4 cbwqcd hy the En& .Wr .slid1 lw LurItlwhed wlthout tho writtaa autbrrzakon of CQD Owner. (c) In t!e owant thaC there ls D mcdklca- tlon OK EXA requlrsmenb rolattng to thc m-hw ba Prrlormnd uuder tbb wree- meut mbmquent to Lye date of erceutioir of thb agreement, the Incrossed or decrea8ad hXlt of parfw"c4 ol We servlcen provfdad for. In thls agnamant s)lsiI be reflected In an appropsist4 modlbutlan cf thb agreement,
5. TSRMXNAT~OH
(0) ?hlu A8rM"k my he termbated in Whole or in put ln WrltlnS by either pwty In tibe evetrt ol subetantlal faUure by the other gutty to fulttit itJ oblifjacloas under thL agreement through no fsuIt or thb tonniPot. tiig pnrty: ProvW, Thst PO eucb W"a- tlon nioy be effected unlw the other pwtp is given (1) not less thm tan (lo) ~slendq t!~ys written IaOtlCe (CJelIvOrsd by cartiad mall, rotup recalpt rcquaetcd) of intent to termi:\bta and (2) an wportunftr for coo- sultoth wlth the tennlnatlng party prlor 'toternllnstion, . (b) 1W.a sgrbsmant may be krmlnated in whole or la pwt fo. wrtthag by the Own# for l& OonvenIenCa: ptoufded. That such tcrmiiutbn la for gwd cause (such ~9 for legal or drulnclnl rewna, mlor chmgzs ln (he work or program requtrements. lnlttatlon or L new Step) and Lhhat the 7Lnglneet 1J given (I) &rot less thm ten (10) calendar days wrltlen notlce (delivered by certified m%U, tcLiitn receipt requested) or lntent to terml- n&te and (2) an opporttiolty lor consulta- . tion with the termlnstlng party prior to
'
td for in thb agreement &hall ) no raount ahall be bllowod proAt on unperformed mro- Icw or other work, and (2) any paymant stub to $lie ~nginet~~ se tho the of temnatlon mby Be blljucited to the extant of ouy Rddb tloitd c03b occxaConad to the Owner by rea- hoia ut the Engineer% daladt. XI terinlnetlon for llcthtift Is oirected by the Enngllrecr. Of it terininr lion for convonience la efIecttxl by the Ownbr. the equitable objttstment ehaU Include a reaaonalte profit lot aeroices OC other work performed. %'ha equltbble &Just- merit for my termlnntbn ahell provlde far payursnt to the Englneoe for 6bfvIm ren- dered rtnd ewpslws tncumd prlor to the Lomrlintlon. In addition tb tomlnBtlOe set- !!emen: ~-%z=b!p !w-zm! bp th$ Sn- glneer relating to commltmsntv whlch h.*
~BCQR~~ ftrm prior to the termlnntion. (6) Upon rccelpt OZ a tennlnstlon actloro pursuunt to paragraphe (&) or (b) above. the 8;ngiriear shall (l} pmmptty dlacontlnue all bcrvAre* aueeted (unleu, the notice dtrecte
*
ie work and prMw\ItO the same to
Cion by cyFnement wlth anothor party or otirrrwiw. Any work takCQ aver by the Owner for completlon wlll bo compltted al. the Oxiier's risk. and the Owner Wll hold
i\3nii\%% the L-ylneer from all dalma and &wu:w firL4ng out of LmprOper uslt of the EnKincer'e work. (I) If. filter tarmlnstlon for fatiure ofth6 Enelnear tu fu1W COUttUCtUd Ob~1P~b~. is drkymlnad that th6 Englnwbr hRa fatla, the terrninoUon 6hoU be deemed t*
hsve hen affeoted for the couvenlaucs of the Obnrt. Ttr LUCb aveut. adftftsaent of the prlce provld6d for l~ Uw qjrcemont ahd fwr
mAd0 lb3 provided In plWbg+ayh (C) O! thb clnu~: 6, Rz~~xcs
ExcW M may be othcnVi provided h thtv agreement, nll ciplmu, counkr-clgfns, dlsp\tk% and other mstccm la queetlnn be- tween tha Owner naJ tho h3glaere rrlelug out of or reletlug tZ, thln RyreemciJ or the brbsch Ulctrclol will be declded by srbltrbttota if tho yartles hwub niutuallg wee, or in n court of woipekat j~w~sctiou wlthin State in whlch $he Owner lo 1rrcaty.L
7. RAoMrmr '
(e) Payment ah& be made in wecdance wlth the paynieut schedule incorporated In thle agrcement ad soon M practlcrble up- submlsulon of fitatoments requesting pay- mAnt by the Engineer to the Omere If no
GUC~ payment schodrrle fs fncorposeted Ita thb ogrcement, the psyxwnt provkloq og pntngrrrplr (b) of thls clause shall ~pply. (b) Monthly progteucpsynenk rwy be re- quested by the Eogtnear atid shsli be made by the Owner to the Eaglnneer cs BOOG ea pto- tlcable upon Bubmt&slon of statemwts re- questrng psyaent by tlie Engineer to the Owner. When such pr0grc.w payments &re made, thtt Owner may wlthhold up to telr percent of the voucherad aniount u&l¶ sht- fsfactory compleUon by the Engineer ot work and ssrvices wfthin a Step called fop under thla nsreruwnt, When the Owiicr determines tlwt t310 work under thls agreement oi any 9. AW~JIT; ACCES TO Rte0;rw spccltled task hereundet is substantinlly campfete wid that the amount of seSalned perceataga is In excess of tbe omoust cone sidered by him to be fki.t€?q\13k3~or the prom tcction of the Owner, he shrill release to the Enzineer such BxceSRs arnount. (c) No payment request made pursuraut to pat.2gTDph (a) or (b) of thla clnust~ slbll exwed the ustlmoted amount and value or the work &ad services performed by the En- Cheer uoder thls agreement, whlch esti- mates shall be prepared by the EnglneeP and 6upplemtnted or aocompanled by such sup- potting dam d 1113y bo roqulred by the Owner. (d) Upon astleffktory complatldn- of Phrp work performed her&nder, and prlm to mal p&ymerrt under this agreement for rsuch work, or prlor csttlement upon tcrdntatfon OS the apreement, And w I) conUltRjx p~ac- tdent thereto, the Englneer rhdl ewecuts and dcliucr to the Owner I) Pelcam of sIL ctatms agolast the Qwncp arlstng under OP by virtue of thlr agreement. other $ha mcb elalms. It my, os Me7 .bo spectncfblly 0x- empted by tlia Englnwr from tho op0mtloaa of the teleaao in 6t3ted nmounts to be S& tort11 tlierel?:.
B. PitOJWT Ds!ON - (a) In the pertormance of thli, ngreemalrt. the kklglncer shall, to the extent prrrctlceble.
' provlde lor maxiinum use ot structures. ms- chlnm, producb, mnterlnls. ConsLructloa methods, and cqulpment which are readlly ava!lable through competitive procurameut. or through atandard or proven production techniques, method, and procersea, Conslut- ent wltb 40 CPR 36.936-3 and 35.93613 In eRect on tlie date of execution of thls agree- ment axcrpt to the oxtent tbnt aamnced technology may be utlllzed pursuant e0 40 CFR 35.908 In effect ou the date of ewecutlon of tltls usreemant.
(b) Tho EnRirseer aha!l not, in the pr- formince of llm work cnlled for hy CNS agreement. produce deaieri or 8pWifiCRtlOrP auch ae to require the we 01 structure& mochlncs. products. maktrbia. wnotructlon methofla. cqulpment. or proceSW whlch are
HOERAL ftEClSTE4 VOt 41. NO. 251--WtDN€SDAY, DECEMBER 29, 1976
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.- ~ -. - :_ . .- . . . I . . . . .. . . . ~ . . .. -. .
RULES AND REGULATIONS
nblo durn8 perfom?ca ou D”A Dnnt work Under thls sgrwment ea& untU :hrM yeers from date of lincrl E?.% gmut payment tor the p:OfeCt. In Rddltlou. thcko records which re- Me t~ ap “TrjpuW‘ appenl under an FPA Brant sgresment. or Iltlgatlon. or the sectla- ment of clnlma arbbg out of such perform-. am. Or or Stew to which an.audlt ercoptloa ha bcm taken. shall ba maln- Ued Earlmade W&6bb untit th:co years
* after the dam of rwlutlon or such appoa IkUfptkon. clalm or oxccpzioa.
10. Pnrca Rs.x”x mr Dsserrrvs COOT oa
(This CLWU G applk&b it the amount of thts agreement exceed8 $100.000.)
(a) Iz the Owfier or EPA determlnea ttrnt My prim, lxludlng yroilt. nczotilctod LI cannect!on mth thb agreement or my cost
relmbursabls under thio tsgeexnst ww ln- . CmWd by any 8Lggliicant sw.n.s bxauss &e. Englnerr or my eubcoratT&ctrJT turnbshsd iu- mmglete UT infxcurste cast ob priclng data or dsta not current I% cemlsle4 ln ccrtm- catloa of cu-rcnt cost or prtch!; dit.& (&?A Fvm 67W-41). then huch pr!w of coat or proat ~-31D11 be reduced Pswxdlngly and the s~edment&all be mo&fled 13 ~cittng to sa- llect such mtuctIon.
(b) E’allme to sgree on D Wucitm &all be subJect k, the L-mtxffea CIS- of thb ngreomeat.
(NOTS-Sfm@ the agreement L? subject to reduction under thB cfcbuss by reawn of d6- fec:fue wt or priccng data i?ubm!rted in om- t~ctfoon with certain subcmtroct3, the %?@- nee? may wI;p?c to i1:ciuds a cbrras tn each such subcm&rsc: regufring tiae aulcoztrccfor to ap-prqrfntei;t indemnfly the b’agineer. It ts ako eqxcteci,thnt any scli;cctnlractar sub- ject to strch fzdemnfpcafiott will peiuruily requite cubstantMIy similar Ir.demnffcoth lor defectiua cost w pricing &fa reytired to be sr?bmitted pd ?bb h.’et th dJColrtraC-
WIcnVO DAr&
tors.) 11. 8wc0n?x~crs
(a) Any subcentrf&wa and oublde BF~SO- cia* OP mnsultah requlred by the E3ngt- neer tn connectton with the cenr1c-e~ covered by thls fig-ecm@n$ wlU be lM&d to mch indtvtduolr. or Ilm IU were spclflcallp identlned and .?-$reed to dWng xmgotlatlona. or 08 am ~~Ulcnliy ~rut.h&Wxl by tha Owner during MO pwformancs or tab qwenent. Any SUbYtlhltlOM lh or hddltlow t0 DUCh sut&ntractom asao~tatea. 0: comulbnte wifi be subject to the prior approvaf or the Owner. (b) The EnglTIwiT mSF POt BUbcontract services In excea or thirty percent (or _----- percent. lr tho Owmar and tho EnRfneer hereby ape) or the contract price to sub- contractom or consultant8 wlthout pllor written approvd of tho Owner.
12. Lmoa ~TLWDAUE
To the extent that thls agreement involves “constructlon” (m defined. bp the Szcretnry of Labor), the Englneer agrees that auch constructlon work shall ba subject to the fol- Iowlng labor 8tandnrrlY provislors. to L?e extent applic%b,te: (a) Dsvls-Bncon Act (40 U.8.C. 2788-278a-
(b) Contract Work Hours and Bafetp Ijtaiidarda Act (40 U.8.C. ‘327-333);
(c) Copeland Antk-Klckback Act (I8 U.8.C. 874): and
(d) Exxacutlva Order 11246 (Y.ual Employ- ment OppartuMtp); and ImpXemantlng rules. logulEtlOna and relevant orders or the Secret- of Labor or EPA: and tha Englneer rurthsr agreea that thh sgreomrpt .ihrll inelude nnd ht. 8ub:ect. to the ‘Zabor Btandarbr Provhlolu for 1.M- eraliy hs6G&d Construction CoutracW* (WA
7) :
I’wm 67304) in r::ect at the tlma of excCU- tioir of.thfs agreement. ’
13. EQUAL ENPMYMEN~ Omaro~r~u
Xn accor&~nce wt th EPA pollcy ELS expressed ln 40 CFR 30.4%-6, the Emneer ~ees that he‘ wlll not dtscrlolktu~tc q+lrclt any cm- ployee or applicant for employment because of race. rcllglou. color. ax. qe or nntimal 0rlgLn.
14. UrrUWnOrJ OF S3tN.L AND MINOIUTY
BUlllNl?f+B
Xn Rccordance with EPA pollcy as expressed In 40 Cm 35.0367, the Engturter ageas thst quallRed snanll buslnesv and mlnorlty busl-
MSS enterprises shall have tho maxlnum practicabIs.~pportunlty to part:clpste Ln the performance of EPA grant-asshted contrncts apd eubcontrsta.
1s. COVENANT AGAINST COTGENT BZf4
Tlke werrsnti that no person or wlylls agency hss been employ& oz retained to -licit or secure tfils Contract upon nn spfx”nt or undemCeow ior e c0mxA- slon. percent~ge, broka~ap3, OT contingeit :w,exccptlng bono fide ~mplopee4. For breach or vlolatlon OI thls warranty tAe Owner bzlsll hcva the rlght to Rnniil thb ngreernent with- out tisblltty or In‘ lt3, dtxretion to deduct iron tho contract price OF consldmation. or otherwls rsosor. the full amount c4 such commtsston. percen-e. brokersga. or con- tlngept fee.
18. QUTUITX29
(6) Ii lt h found. after notlce and he3rln:, by tha Owner that gratuities (in th~ fomi of entei-tninment. gifts. or oth.mvlYe] were ozered or over. by the Englcrer. [rr snp ~~eiit or reprmzntstive or the 3qinet.r. to any oCloM. employee or aeent of the Owner, of the Stste, or of EPA with n v!aw towcrd 8e- CU-lRg a coatmct or secur!rg fnvorahla treat mcnt wlth r&spect to the awarding or emend- Ins. or the mnklrg of eny detcrmlnritlons wltli respect to the performance of thls agree- ment. the Owner may, bg wrltkn notice to t!ie Engineer. termlrLnte tho rlsht of tb8 Eu@neer to proceed undw tbh agreement or
provlded by law or under thb egretment: Proylded. That the existence of the facts upon whlch the Owner make8 such Andlngs shnll be ha issue and may bo revlewed In pro- m&;ngs pursusnt to *.e Remedies clause or thls agmement. (h) In the event thla agreement i3 ternb mted a8 provided In pnisgrnph (L) hcrwf, the Owner shsll he entitled (1) e0 purwe the same remedlej ngalnst the Engineer as It could pursue in the event of a breach of the contrac: by the Englneer. and (a) a8 a pal- alty in addltlon to any other darnages to whlch It may be entltled by kW, to exemplary damaaea In an amount (83 deter- mined by the Owner) which shall be not less than three nor more than ten tlmes the costs lncurred by the Englneor In provldlnst sng such gratulties to gny blich ofr?ccr or employee.
mSY puMUe such other tlghtu and remedlee
I?. PhfENfS
If thls ngreement involves resesrch, devel- opmental. experlmental. or dzmonstratton work and nny dlscovtry or lnventlon nrhrs or Ls developed In the course or or unuer thl- agreement. such Lnventlon or rlL%OVery b‘adl be subject to the nportlng and rlghls provl- 8!0m 02 6u3psf, D or 43 CFR Part 90. fn ef:cct on the date 01 C- , utton of Lhlv ngt 3 -
Iu such -a. the Englnwr 6hf:I report th-f dlscoverg Or lnventlon to EPA dlrstly CJr
ply wlth tho Orner’e respon%lbllltles ln ac- cordance with mfd Subpart D of 40 CFIS
n;tllt. 1IlClcdlRR Ap[>n\dlX ?? (4 FCbfd hrt :‘.I-
tp--*:;: ->.3 m?.z. EyJ ‘h”! QTn?ww f-”-
Fnrc SO. Tho Engfnecr hereby ag-reee thst dlspkiltlon of rlghts to’ luventlolw m under thb sgreemcnt ahall be tn nccotds wlth the term and CnaCltiOns of hlortin tloned Appendtx I3. The Enginear shall clude provhlona approprMo to effectuate pUi-posry of thk concliUon In sli subcontra lnvolvlog research. developmmntel, exp mental. or clemmtmtio~ work.
IS. Cok”r~a AWD R~currs LI) DATA‘
(a) The Engfnatr agrees that any ple c!mwlngs, deslw. sp=clfkstlonq compt progrRius (whlch are subr*%ntlsIlp pdd wlth IIp.4 gmnt fuacb). technlcnl rep0 operetlng &r”Is. and other rpotk submit wlth a Step I Fac!llt!pr Plnn 01 wlth R Ste or Stcp 3 grant sppllcatlon or Wh:ch spec!l?cd M be dellvera3 under thls nqr ment or whfch aro Geveloped or pmdum3 f paid for undcr fbb abvement (referred in thla clau~a M “Subject nz‘c8”) are B ject to the righa In the Vnltcd States. 83 Icrth in SubpseD of 42 CPZ Part 30 end Appndtw C to 40 CFi3 ?art 30. In eXect on dt.a of executlon or thls tqreerr..Jnt, lncl lng fhe rlght t3 use, dupltcatu nu6 di3cl such Subject Data. in F;SoIo or In p8-1-G my manner for any pxposs vhalsoerv. I kcvo others do m. >’or purpmey of thls a cle. “gnmtea“ as us& ln w.id Appen& ehall refer to the winter. Sf Csle, mftt~rfs copyrlghtc~le. the -&Deer msy copy3 such, as permttkd by aald Appendix C, t subject to th4 r1ght.s in the Ckmcrnment set forth in ADpendlx C, but tho Owner I the Federal Oovernment rGen”8 a rapa free, none-xclurrive. and lrrev~ble 1l:env reproduce, publtsh snd use aucb rcnteri in cholo or in part, end to cuthorim ott t~ Go K). Ti:, Errglneer shall include prc
5iQnS appropilate to ezcctuntt: L?e pwy of this condltlon in all 6uScon:racls expcc 9 produce copvrlqhtsb?a Subject Dab.
(b) 2.11 buch Subl- Data :urniuhed bv Eiielneer ptuauaqt to thia wecment Instruments Gp bk servtces In rmpect ot grolect. It L9‘undemtccd that tho Eiiptr
6~x3 not represent such Subject Data w Bultablo foz reuse on any o+hm pml..ct DP nnv other purpcie. Any rwsa by the 0% mfthout specitio vrltten vtri2lcatlon ar ad tstlon by the Enpineer wtli be at the rlsl the Owner nnd without 1laWltp to the, E2 mer. Any snch veri%%tion or Adapta will entltle the Zhgfnee: to further comr
Owner and &he Ehginect. EEtIOn St to & agretd upon bp
._
FEDERAL REGISTER, VOL. 41, NO. 251--WEDNESDkY, DECEMBER 29, 1976
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