HomeMy WebLinkAbout1990 Ordinance No. 009CIIDI!Wa NO. q
SERIES CR 1990/
BY Al1l'IDU'N
.:It 11-8'0
"'-20-80
CXllllCIL BILL NC. 8
nmaxx:m P,'i cxxn::n.
MDIBER IIM'!WIAY
10 (a)"
l\11 CIIDI!wa: APPl10VIN. l\11 AGRmlENl' Fa\ COISULTING SERVICES BE'lwml GfX:lnWIS,
m:. l\Nll THE CITIES OF L1ll<EH:Xlll, LITIU:l'CN, E2lGLEHXXl l\Nll 111 J\GRmlEm' FCR THE
CXMOl DEFENSE l\Nll SIIARm3 OF Tl:X:IINICAL SERVICES BE'lWEEll 'l'.IIE CITIES OF
L1ll<EH:Xlll, LITl'LEICN AND EN.Ll:lo:lD RELATOO TO THE IOIRY !.ANDFILL SUPERnH>
SITE.
l'IIERFJIS, the cities of Lakewood, Littleton, and Englewood require
professional technical services and expertise with respect to the In.,ry
Landfill SUperfund Site; and
WHEREI\S, these Cities and certain other potentially responsible parties
have entered into an Aaninistrative Order on Consent with the united States
Environnental Protection J,qe~ and the State of Colorado to conduct a
feasibility study for the In.,ry Landfill;
NOO, ~, BE IT C!IDAINED BY THE CI'N CXXN:IL OF THE Cl'N CF
J:NGLElO'.lD, OJLCIU\DO, AS FOLLOWS:
Jection l, 'ttle consul ting agreement for technical services between
GeoTrans, Inc., Inc. and the Cities of Lakewood, Littleton, and Englewood is
hereby approved. Said consulting agreement contains generally:
l. Consultant shall provide certain s,rvices as agreed upon and certain
extra services upon a properly executed Task Order fran the Cities
or City.
2. 'lbe Agreement will camence on the date of execution by the parties
and will terminate upon Notice of Termination sent by Cities to
Consultant by certified mail to Consultant's Colorado office or upon
30 days written notice to the Cities by Consultant.
3. Ci ties shall pay Consultant an hourly rate as agreed upon by the
parties and direct project costs. 'lbe hourly rates shall be agreed
upon by the parties before Septesrber 15 of each year of this
Pqreement. Invoices will be provided to the Cities rronthly, and
Cities shall pay Consultant within 30 days of receipt of such
invoice by the Ci ties and upon Consultant's satisfactory carpliance
with the ter:rns and conditions of the Pqreement. Fi"fty percent of
Consultant• s invoices shall be paid by Lake,,ood and fifty percent by
Littletor,/Englewood,
4 , Ci ties shall ensure that Consultant has access to the site or
property necessary to perform its work and shall supply infOI11111tion
to Consultant pertinent to the work to be perfonned.
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s. Conaultant is recognized as an expert in this field and it shall
perfom the service, in a safe, good and workmanlike manner in
accordance with the highest recognized standarda of good practice u
would other recognized experts under the sane or similar oonditioNJ,
6. Consultant shall be in full OC1Tpliance with all applicllble laws,
statute,, ordinancea, orders, rules, regulatioNJ, and safety plllUI
of fedm:al state and local govemrents in ,mose jurisdictions such
activities are perfomed. Consultant shall obtain all pemits,
licenses, certificates, or approval necessary to perfom its
services.
7. Consul tan\: shall exercise chJe care with respect to hazardous
substances and shall notify Cities imrediately if there is any
injury or damage arising out of the discharge, disbursal, release or
escape of mroke, vapors, soot, fun-es, acids, alkali, irritants,
contaminants or pollutants into and upon land, atm:lsphere, body of
water.
8. Cities will notify Consultant of any known deficiency or
unsatisfactory work by Consultant under this Agreeirent, and said
deficiencies shall be remedied in accordance with the Agreerent.
9. Consultant acknowledges and agrees and all oontract doc\l:rent• are
dee!red oonfidential, are CMned exclusively by the Cities , and are to
be returned to the Cities within 30 days after cxrrpletion of
services under the contract '
10. Consultant shall obtain and maintain in effect at all tin-es during
its perfomance of services under this Agreerrent, insurance
sufficient to cover liabiliti es as shown in the Agreerrent, but the
lll1"0Ullts of insurance shall not be deem!!d a limitation of
Consultant's liability under this Agreerrent .
11. Consult ant shall indemnify and save harmless the Cities and their
political subdivisions fran and against any and all claims, demands ,
liability, damages, suits, response oosts, actions, or any other
costs, causes of action of every kind or nature.
12. Consultant shall be excused fran performance of its services for a
Task Ord~r in the event of force majeure.
13. consultant shall not discriminate against any enployee or applicant
for enplOVlll?nt.
section 2. 'nle agreement for cannon defense in sharing technical
services ~the City of Lakewood, City of Littleton, and the City of
Englewood is hereby 9R>roved. Said agreerrent for canron defense and sharing
of technical services contains generally:
1, Purpoae of the agreerrent is to further the rendition of
pro!esaional , legal and technical services in anticipation of ·
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litigation or negitiations and tc-share the direction, costs, fees r,,
and e,q,enaes of pi'Ofessional environnental oonsulting services '
provided by Geo'l'ra.1s, Inc.
2. nie City shall share the services of GeoTrans, Inc. to provide the
expertise necessary to evaluate and participate in the technical
aspects of the growid water o.u. and other q,erable units, if any .
and other technical activities at In,,ry Landfill.
3. Lake,,,ood shall contribute 50\ and Littleton/Engle-«Xld shall
contribute 50\ of the oosts of services provided by GeoTrans, Inc. ,
to the extent that services are provided for the !llltual benefit of
~ and Littleton/Englewood. In the event that GeoTrans, Inc.
provides services exclusively for the benefit of Lakewood or
· Littleton/Engle-«Xld, the City for whan those services were provided
shall bear lOO'X, of the costa of those exclusive services.
4. Littleton/Englewood shall pay to Lakewood the aroowit of $42,028.00
as re:intmr~arent for costs incurred by Lakewood for services
provided by GeoTrans,. InC. up to and including the effective date of
this Agreerent.
5. All activities to be perforrred by GeoTrans, Inc. shall be pursuant
to Task orders in accordance with the Technical Assistance
l\greenent.
6. Littleton/Englewood shall be entitled to receive all work, project (._,'
notes, reports and any other doclments prepared by GeoTrans, Inc.
prior to the effective date of this l\greemant which relate to the
current water o.u. and other activities at the In,,ry ta,,dfill which
are in the cx:mron interests and nrutual benefit of the Cities.
7. Infoil!llltion disclosed by or between Lakewood and Littleton/Englewood
is in furtherance of the rendition of professional, legal and
technical services and shall not be a waiver of any privilege
available to the parties.
e ,\11 atrnrney client cannunications or work product infoil!llltion shall
be ;,rivileged and held in strict confidence by all persons and shall
bf , used ~nly in connection with matters related to the In,,ry
•..andfill Superfwid Site. 'nle parties shall take all necessary and
awropriate rreasures to insure that any person who is granted access
to any shared infoil!llltion or participates in work on joint nutual
defense projects or who otherwise assists any COW!Sel in connection
with the performance of services rendered pursuant to this Agreement
is familiar with tt.e terms of this Agreerent. nie parties do no-
warrant, indemnify, or asSllll! any liability to or for el'Ch other for
the servic,,,s provided by GeoTrans, Inc. pursuant to this ~t.
9. Ccmni tlll!nts to contri 'Jute 11'0nies wider this l\greement shall
terminate upon full ar d final ca,pletion as detenni.ned by the Citiea
of all services provii:ied by GeoTrans, Inc. for the nutual benefit of
the Citiea and final payirent by the Cities of all crn1tributi0118 for
0
those services or by thirty clays wd tte:, notice for rny reason or by
breach of the Agreement.
10. If the parties fail to make pay,rent for services provided said
parties shall be considered to be in default and shall be in breach
of the Agreement, however the party -.no oomti.ts the breach shall
have 30 clays after the mailing of written notice of said breach in
which to correct or abate the breach and avoid termination. If a
party breaches the Agreement or terminates the Agreement for any
reason other than a conflict of interest it will not raise an
objection to the continued retention of GeoTrans, Inc. by the other
party.
11. In the event of a conflict of interest each party shall be entitled
to retain and use for any purpose the work product, project notes,
reports and any other doculrents prepared by GeoTrans, Inc. prior to
the elate of the conflict. Conflicts shall not preclude the Ci ties
fran continuing to jointly use the services of GeoTrans, Inc. under
the Agreement which are not subject to the conflict of interest, nor
shall such conflict waive privileges or remove the requirements of
confidentiality set out in the Agreer.ent.
~-Stewart Fonda, Director of Littleton/Englewood Bi-City
Wastewater Treatnent Plant, is authorized to sign for and on behalf of the
Bi-city Treatirent Plant.
Introduced, r ead in full ., and passed on first reading on the 5th clay of
March, 1990.
Published as a Bill for ar, Ordinance on the 8th clay of March, 1990 .
Read by title and passed on final reading on the 19th clay of March,
1990.
Published by title as Ordinance No. C, , Series of 1990, on the 22nd day
of March, 1990. f-"
~ '/J ~d-,dl~
=;L £tjf
Patricia H. Crow, City Clerk
I, Patricia H. Crow, City Clerk of the City of Englewood, Colorado,
hereby certify that the foregoing is a true copy of the Ordinance passed on
f!,nal reading and published by title as Ordinan~: ~ries oL.
. ~~,$ .
Patri2 &· H. Crow
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DATE
March 5, 1990
INITIATED BY
STAFF SOURCE
ISSUE/ACTION PROPOSED
COUNCIL COMMUN I CA Tl ON
AGENDil ITEM
12 (a)
SUBJECT Agreement for Technical
Assistance at the Lowry
Landfill Cleanup Site.
Bi -City Supervisory Committee
Stewart Fonda, Director of Bi-City WWTP
The action proposed is to approve, by ordinance, an Agreement for Technica l
Assistance at the Lowry Landfil 1 Cleanup Site with Geo Trans Inc., Boulder, Colorado
and an agreement to share those technical services with the City of Lakewood.
PREVIOUS COUNCIL ACTION
Council has been briefed on numerous occasions regarding our potential, and
substantial l iabi 1 it i es associated with the Lowry Ltndfil l and steps being taken to
mitigate that liability. The following formal actions have been taken regarding the
Lowry Landfi 11 issue:
-The City entered into an Admi ni st rat ive Order on Consent as a Potent 1al ly
Responsible Party (PRP) at the Lowry Landfill Superfund Site on September 29,
1988.
-The City joined the Lowry Coal it ion to perform the Remedial Investigation/
Feasibility Study (RI/FS) at the Lowry Landfill on September 29, 1988.
STAFF ANALYSIS
Taking part in the Remedial lnvesti9ation/Feasibility Study process as a Potenthll)
Responsible Party is extremely complicated and requires significant legal a·nd
technical assistance . Legal assistance has been obtained from the firms Hill and
Robbins, and freedman, Levy, Kroll & Simonds. This agreement will provide the
technical assistance needed to support participation in the Remedial Investigation/
feasibility Study process .
Not obtaining technical assistance w111 hinder the efforts to protect the two
Cities' (Littleton and Englewood) position and interests in ';he cleanup effort.
The City of Lakewood has retained GeoTrans, Inc ., for technic~l assistance . Because
Lakewo~d',s involvement at Lowry is the same as the Bi-City's :nvolvement, making the
potential for confl 1ct of interest remote, an agreemEnt for the , sharing of r.rvic~.
was pursued .
The attached agreements were developed and are presented for approval. GeoTrans has I""'\
been evaluated by staff and counsel and is fully qualified to provide technical \ ·
assistance at the Lowry site . If another technical firm is obtained, our costs w111
·be higher, since there will be no cost sh aring for the work provided .
Th1s proposed· Lakewood agreement establishes the "ground rules" for sharing the
technical services of GeoTrans. It also provides for reimbursement of a portion of
service costs to Lakewood for work GeoTrans hu already performed that w111
specifically benefit the Bi-City WWTP. Work performed solely for the benefit of
Lakewood 1s not included .
BACKGROUND
The City, through its role in the Bi-City plant, has participated with Littleton,
other municipal it 1es, and certain private sector interests in negot ht i ans with EPA
over the extent of our liability in cleaning up the hazardous waste problems at the
Lowry Landfill. The need for technical assistance for the Lowry Landfill cleanup
was recognized early in the cleanup negot1ation process . Several firms were
considered to provide this assistance; however, many of the qualified firms were
already performing work associated with Lowry and the possibility of conflict of ·
interest prevented retaining them. One firm was identified, but finally not
utilized because labor charges were deemed too high.
The use of GeoTrans is another of our ongoing efforts to get the expertise we need
at the least possible costs . Sharing this resource with Lakewood enables us to
benefit from the capable research and assistance of GeoTrans at a substantially
lower cost than we could obtain otherwise.
FINANCIAL
The inithl cost of the GeoTrans agreement is $42,028 . This amount pays for work
already conducted by GeoTrans which benefits the Bi-City Wastewater Treatment Plant .
Additional expenses of the GeoTrans agreement will not exceed an additional $200,000
and will be shared 50/50 between the Bi -City Wastewater Treatment Plant and the City
o,f Lakewood. Englewood and Litt leton will share in the Bi-City 's cost on a 50/50
r atio. Thus , Englewood's cost will be S21,0!4 (1/2 of the in1t1al $42,028) and up
to an additional $50 ,000 for the remaining work. The sewer fund of Englewood has
sufficient funds to cover its share.
0
AGR!!!KZNT
POR
TECHNICAL ASSISTANC!
AT TB!
LOWRY LANDFILL SOP!!RFUND SIT!
COLORADO
TABLI or CONTENTS
Recitals •••••••••••••.•••••••.•••.•• • ••. •..... l
l .
2.
3.
Scope of services ............................... .
l.l
1.2
l.3
l.4
Ba ■ic Service ■ ••••••••••• , ••••••••••••
Extra Service ■ ••••••••••••••••.•••••••
Exclu ■ive Service ■ ••••••••••••••••••••
Reque ■t !or Service ■ ••••••••••••••••••
Task Order ■ and Prioritie ■ ••••••••••••••••••••••
2.1
2.2
Ta ■k Orders .......................... .
Prioritie11 •••••••••••••••.••••••••••••
Term of Agreement: Suspension ot Task;
Immediate Termination •••.••••••••.••••••••••.•
3.1
3.2
3.3
3.4
3.5
Term of Agreement ••••••.••.••••.•. .-.•••
Termination by Cities •••••••••••.•••••
Termination by Consultant ••••••..•••.•
Termination by Co~pletion •••••••••••••
Unperformed Services ••• : ••••••••••••••
4. Compensation and Terms of Payment •••••••••••••••
6.
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
General Terns •.•••••••••.••••••••.••••
Consultant's Fees and Costs •••••••••.•
Hourly Fee Basis ••••••••••••••.•••..••
Total Contract Payment ••••••••••••.•.•
Estimates ••.••••....••••••••••••••••• :
Excluded Direct Peyment Items •.••.••.•
Invoices, Progress Reports,
and Payments Procedures .•••.•••••••
Payment by Cities ••••••••..••••.••••••
Audit Examination .•••••••••••••••.••••
Cities' Responsibility •..••.•.•.••.•••••••••••.•
s.1
5.2
5,3
Sita Access .......................... .
Information .•.•.•••••••.•.••••••••••••
Cities' Review .•.•..••••••••••.••.....
Standard of Services, Repre ■entations,
rarranties and Covenants by Consultant •.•••••
6 .Jl Recognized Expert ................... ..
6.~ Recognized 'Standards of Good I Practice •••••.••.••••••••••••••••••
2
2
3
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3
3
3
3
3
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4
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7.
8.
9.
10.
11.
12.
13.
6.3
6.4
6.5
6.6
6.7
6.8
Compliance with standard ■ and
Law• by Con ■ul tant •••.••••••..•.•••
Permit• tor Ta ■k Order ■ •••••••••••••••
Field Work and Safety Plan• ••••••••••
Hazardou ■ Sub ■tance ■ ••••••••••••••••••
Report• ot Environmental
Contamination ••••••••••••••••••••••
Assurance ■ From Vendors and
Subcontractor ■ •.•.••••..•••••••..••
Non-compliance .•••••••••••••••••••••••••••••••••
7.1
7.2 Non-Compliance Remedy •••••••••••••••••
Notification ••••••.•••••.•••••••••••••
Contract Documents ••••••••••••••••••••••••••.•••
a.1
8.2 Ownership ot Documents ••••••••••••••••
Return ot Contract Documents
to Cities ••••••••••••••••••••••••••
Confidential Information •••••.••••••••••••.•••••
9.1
9.2
9.3
9.4
Insurance
10.1
10.2
10.3
10.4
Confidentiality ot All Contract
Documents ••••••••••••••••••••••••••
Use or Disclosure Limited ••••••••••.••
Technical Articles ••••••••••••••••••••
Permitted Uses ...•.•............ · ...•..
... ········ ···························
Insurance Coverage. • . • • • . • . • • • • . •..•.
Insurance Compliance •••••..•••••.....•
Cities Named Insured .•••..•••••.••••••
Special and Additional Insurance .•.•••
Indemnification •.••••••••.••.•.•...••..••.•.••••
Independent Contractor .•.•••••.••••.••••••..••.•
The Parties' Representatives •.•.••.•..••.•.•.••.
13.1
I
13.2
I
j
Consultant's Designated
Representative and Project
Manager ........................... .
13.1.1 Designated
Representative ......... .
13. 1. 2 Project Manager ........... .
Cities ' Designated Representative .... .
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10
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11
11
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12
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12
12
13
13
13
13
13
14. Delegation and Non-Assignment .••...••.•..••...•• 13
14.l Delegation and Consultant's Spacial
Expertise ......................... .
l4. 2 Non-Assignment ..••.•.....••••.•••..•.. l3
14
15. Force Majeure •••..••.••••.••••••••..•...•...•••• 14
16. Changes .•.•••.•••.••••....•..••..•••.•.•••.•• 14
17. Entiret.y ..•.•••....•...•...••••.•••..••••.•••. 14
18. Time is ot the Essence •..•.•.........•• , ..••..•• 14
19. Miscellaneous Matters .••.....••.•.......••...•.. 15
19.l hgreement to Pertonn Necessary Acts ••.
19. 2 Amendments .••....••••..••..•••.••..•..
19.J Successors and Assigns ...•..•..•••....
19.4 Validity ot Agreement ........•..•.....
19. s Notices •...•.••....•.•..........••..••
19. 6 Governing Laws ..•...•..•.....•.••....•
19. 7 Dispute Resolution .....•.••......••..•
19.8 Preparation ot Agreement and Task
Orders •....•.•..•..•.....•...•..•••
19. 9 counterparts •.•....•.......•..•... , ...
20. Anti-Discrimination ....... , ..........•..• ,· ..•...
15
15
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16 CJ 16
I
(,
THIS AGREEMENT is entered into this "u"=;;----day ot ____________ , 1990, among the "Cities",
City ot Lakewood,
a municipal corporation ot the State ot Colorado
445 South Allison Parkway
Lakewood, Colorado 80226;
City ot Littleton,
City ot Englewood,
municipal co~orations ot the State ot Colorado,
acting through the
Littleton/Englewood Bi-City Wastewater Treatment Plant,
a joint ver,tura between tha Cities ot
Littleton and Englewood, Coloradc,,
2900 South Platte River Drive
Englewood, Colorado 80110
and "Consult nt",
GeoTrans, Inc., a Virginia corporation,
3300 Mi tchell Lane
Suite 250
Boulder, Colorado 80301
Recitals
A.· Tha Cities and Consultant desire to enter into this
Agreement tor the purpose o! governing their overall relationship
!or services provided by Consultant related to the Lowry Landfill Supertund Site ("Site");
B. The Cities require professional technical services and expertise with respect to the Site;
C. Lakewood and Consultant entered into an Agreement
dated August 2, 1988 ("the Original Agreement") !or the provision ot protessional technical services tor the Site;
0. Lakewood and Consultant entered into a First Amend-ment to the Original Agreement dated March 10, 1989;
I
I
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E. The Ci ties and certain other potentially res pons-(\
ible parties ("PRPs") hava entered into an Administrative Order
on consent with the United sta tes Environmental Protection Agency
( "EPA ") and the State of Colorado captioned In the Matt,r of
towry Landfill shallow Groundwater and subsurface Liquid• and
peep Groundwater operable unit Remedial Invastigation/feasi~Ulli
studyries) Proceeding under sections 104(b) and 122rd)(3). of th•
compreh•n ■ive Environmental Response. compensation and liability
Act of 1geo. a ■ amended by the superfund Amendments and Reauth-
orization Act of 1986, 42 u,s.c. §§96Q4(b). 9622(e)(3). which
requires the Cities and certain other PRPs to conduct a Remedial
Investigation/Feasibility Study for the Lowry Landfill Shallow
Groundwater and Subsurface Liquids and Deep Groundwater Operable
unit ("Groundwater OU");
F, Lakewood has been using Consultant's services to
provide technical expertise in anticipation of litigation with
EPA, the State of Colorado and other PRPs and for Lakewood'•
participation in the Groundwater OU et the Site;
G. Littleton/Englewood seeks to rc,tain Consultant in
anticipation of litigation and for participation in the Ground-
water OU;
H. The cities require Consultant's services to provide
technical expertise in anticipation of l'itigation, in furtherance
of the rendition of legal services, and for the Cities participa-
tion in the Groundwater OU at the Site;
I. The Cities· also seek to minimize the expense of
trial preparation, litigation and response cost' allocation by
sharing the Consultant's technical expertise;
J. The Cities have entered into an Agreement for Com-
mon Defense an1 Sharing of Technical Services, which incorporates
this Technical Assistance Agreement .
NOW TH :~REFORE, in corsideration of the premises, provi-
sions, and mutual commitments made in this Agreement, the parties
agree as follows:
l. scope or services
l. 1 Basic Services consultant shall perform,
upon the Cities' request and pursuant to Task Orders as described
in Section 2, below, the Scope of Services as outlined in Attach-
ment I, Scopa of Services.
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1.2 Extra services The consultant shall provide
s .. rvices in addition to those described in Attachment I upon
receipt of a properly executed Task Order from the Cities or a
City.
1. J Exclusiya services The consultant shall
provide services exclusively for the benefit ot either Lakewood
or Littleton/Englewood upon receipt of e written Task Order from a City and a certified statement that a copy of the Task Order
and any amendments thereto have been provided ·to the other city.
l. 4 Request for Serv.i.c.u. Consul tent shall be
available to the Cities on an as requested basis and Consultant
expreHly acknowledges that the Cities, at their discretion, may
or may not issue any Task orders for, or request any, work under
this Ag i~eement.
2. Task orders and Priorities
2. l Task Ord en All Services will be for pro-
jects in connection with the Sita. Services shall be perfomad
pursuant to Task Orders signed on behalf of each City and Con-
sultant in the form of Attachment II which, upon execution by the
parties, shall automatically become a part ot this Agreement,
Each Task Order is deemed to create a separate agreement, or may
amend and modi f y a previous Task order and, ~-,$ amended, shall be
deemed to create a separate agreement, anu each and every Task
Order shall be governed by this Agreement. References to this
"Agreement" shall include the Task Orders unless the context
expressly requires otherw"Je,
2.2 Priorities In all instances possible, the
Task Orders and thi~ ~greement shall be given full e~tect but, if
a conflict exists , t ,1e provisions of this Agreement shall con-
trol, unless the ~:.,;k Order expressly provides otherwise. The
provisions of a later exe•:uted Task Order shall control those ot
an earlier Task Order unless the context requires otherwise.
3 a . Term of Agreement; Suspension of Task i Immediate
Termination
3.1 Tern of Agreement This Agreement will com-
mence on the date of execution by ~he parties and will continue
until temination.
I J. 2 Termination by cities The perfomanca of
ar:y work undllr any Task Order may, i n whole or in par ·., be t e r-
mina t ed by 'the Cities for their convenience at any time. The
effective d+te of termination by the Cities shall be no earlier
than the c ate written no tice ("Notice of Termination") is
received bylthe Consultant. Any such termination shall be effec-
0 tiva upon receipt by Consultant of the Not i.ca of Terninatior.
unless otheniise stated sent by certified .c.a ~l to Consultant's
Colorado office at the address above. such Notice of Termination
shall specify the extent to which p e rforn11nce of t he work under
this Agreement or a ny Task Order s hall be terninated and the
affective date of such termination .
3. 3 Termination by cons,ultant ':'.'ha consultant
may terminate this Agreement tor any reason with 30 days prior
written notice to the Cities. In the event of a material breach
of this Agreamer,t by the Cities, the Consultant may terminate
this Agreement if the Consultant gives the Ci:ies written notice
by certified mail of the material breach and the Cities have
failed to cure the specified material breach within seven (7)
days of receipt of the written notice.
3. 4 Termination by completion This Agreement
sh~ll expire upon completion ot the Groundwater OU FI/FS which is
anticipated to occur during calendar year 1992,
. 3.5 unperforned services Notice of t ~rmination
or suspension of Services under a specific Task Order by the
Cities shall not ~uspend or terminate or be grounds to suspend or
terminate any unp,,rformed Services, promises, or covenants to be
kept and perforned under any other Task Orders and this Agreementc
unless the Cities also give express notice that the Consultant's
performance with respect to one or more specific Task Orders or
this . Agreement, or both, is suspended or terminated, or both .
This provision shall not be deemed a release or waiver of Consul-
tant's liabilities (including liability for damages) or a relin-
quishment of Cities' rights and remedies for any acts or omis-
sions ot Consultant, its affiliated persons and firns, or any of
their officers, employees, agents, vendors, subcontractors, and
consultants under a Task Order and this Agreement.
4. ~oensation and Tr ,rns of Payment
4 .1· General . •~ Throughout the term of this
Agreement, Cities will pay Cnnsultant as compensation for the
Services perforned under Tas ;; Orders according to the terns
of payment specified in this Section 4 and the Task Orders.
Consultant's schedules, policies, regulations, exhibits and the
like, even when attached and incorporated by reference to this
Agreement or a Task Order, shall not control or alter the follow-
ing terns and conditions of payment unless ~xpressly agreed to by
Cities in t~e Task Order.
I 4 . 2 consultant's fees and costs Attached to
this Agreem♦nt is Attachment III , Consultant• s currently effec-
tive sched4le for hourly rates and direct project costs.
Attachment lII rates shall be effective thrbugh September 30,
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1990. Work performed after September 3v, 1990, and after
September 30 of each succuJing year of this Agreement will ba
charged at rates to be mutually agreed upon by all parties,
The Consultant shall provide to the Cities proposed new hourly
rates and direct project costs on or before September 30 of each
year of this Agreement. The Cities shall have 15 days or until
October 15 cf each year of this Agreement to approve or dis-
approve the proposed new rates and costs. If the proposed rates
and costs are approved by the Cities, Notice shall be given to
consultant and they ·will be effective retroactively to October l.
In the event the Cities disapprove t·1e new rates and costs, which
disapproval must be given no later than October 15, the Cities
and the consultant may enter into negotiations to determine mutu-
ally agreeable new rates and costs. If such rates and costs ara
mutually agreed upon, the new rates and charges shall be effec-
tive retroactively to October l unless otherwise mutually agreed
upon in writing, I!, following negotiations, the new rates and
costs cannot be agreed upon, either of the Cities or the Consul-
tant may terminate this .\greement; provided, however, that any
work performed by Consulta~t after October l shall be paid by the
Cities _at the proposed huurly rates and costs submitted by
Consultant on or before September 30 .
4. 3 Hourly Fee Basis Periodic payn,ents will be
based upon the time charged by hourly rates for professional ,
technical, and administrative personnel performing the Services.
4. 4 Total contract Payment The total payn,ent
for services performed under this Agreement, the Original Agree-
ment between Lakewood and Consultant and the Task Orders under
this Agreement shall not exceed Two Hundred Thousand Dollars
($200,000.00). The tot3l payn,ent ar,unt may be changed only by
written amendment o f this Agreement.
4. 5 Estimates For specific Services requested
by the Cities, the Consultant shall , in a written proposal, out-
line the services to be performed, the schedule for performance,
and the total estimated fees and costs. Any charges over and
above Consultant's estimated totals must be approved in advance
by the Cities' designated repres2ntative . The consultant's pro-
posal shall be in the form of Attachment II.
4. 6 Excluded r.irect Pavment Items The routine
use of offices, equ i pment, v ehicles, supplies , and personnel
(other than personnel charging at hourly rates authorized by a
Task Order)· normall y associated with the operation of Consul-
tant's business will not be invoiced directly, to Cities and are
deemed to b~ included in the method of payment agreed to in this
Agreement . iDire ct project costs are outlined in Attachment III,
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4.7 1nvoic11, Proaress Reports, ond Pomant Procedures Invoices will provided to the cities monthly. Invoices
shall ba separate for each Task Order. Each invoire shall be
accompanied by a brief billing summary and progress description
of each Task Order project; including the contract amount,
billed-to-data amount, remaining amount, direct project costs,
and a brief description of the activities undertaken, t _he hourly
rate and the hours spent by each employee on the activities and a
statement of any potential costs in excess of the Consultant's
Htin,ata for the Task. The invoice amount, billing summary and
progress description shall be satisfactory to the Cities' desig-
nated repre sentatives before payment on any unpaid invoice.
4.a Payment by cities
(a) . The Cities shall pay the Consultant
within 30 days of receipt by each City of the Consultant's
invoice. Payment of the invoices is subject to Consultant's
satisfactory compliance with the terms and conditions of this
Agr e ement including Sections 6 and 7 and any pertinent Task
Orders, In the event that payment is not received from either or
both of the Cities within 40 days of each Cities receipt of the
invoice; the Consultant shall notify the Cities, in writing , of
the failure to make payment. If payment is not received wi t hin
47 days of each Cities receipt of the Consultant's invoice, the
Consultant may cease work on any pertinent Task Orders.
(l-) Consultant's invoices shall be paidc
fifty percent (50\) by Lakewood and f :·ty percent (50\) by
Littleton/Englewood. In the event consultant provides services
exclusively for the benefit of Lakewood or Littleton/Englewood,
pursuant to section l. 3, the City receiving t:he exclusive bene-
fits shall pay one hundred perecent (100\) of all costs, subject
to paragraphs (a) and (b) of this Section.
4. 9 Audit Exarnipatiop Records of consultant's
Standard Time Charges pertaining to the project shall be kept on
a generally ·recognized accounting basis and shall be available to
the Cities or their authorized representative at mutually conven-
ient times .. It is agreed that the Cities' authorized repesenta-
tives shall have access to any books, documents, papers, and
records of Consultant whict are directly pertinent to this Agree-
ment for the purpose of malting audit examinations, excerpts, and
transcripts. It is agreed that any such examination shall be
permitt ed at the Col,rado office of consultant, upon reasonable
notice given by the Cities .
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s. cities' Responsibility
s. 1 site Acceu
consultant has access to· ·the Sita
property necessary for Consultant
Agreement.
The Cities shall ensure that
or any other public or private
to perforn its work under this
s.2 In!ornation It is the cities' policy to
supply infornation to Consultant for use in perforning services
which is not knowingly incomplata or inaccurate. The Cities
shall provide, at their discretion, all reasonable, relevant and
applicable infornation in their possession which is pertinent to
the work to ba perforned.
s. 3 cities' Review Upon request by the con-
sultant, the Cities' representatives shall review all studies,
reports, sketches, estimates, proposals and other documents
presented by consultant and render decisions and opinions per-
taining to such request within a reasonable time so as not to
delay Consultant's work.
6. standard o! servi¢es. Representations. warranties
ond covenants bv consultant
Consultant represents, warrants, and covenants to
the Cities that:
6.1 Recognized Expert consultant customarily is
engaged in, and is a recognized expert for, the business set
forth in Section l, above, in the Scope of Services and Task
Orders and Consultant shall perform the Services in a safe, good
and workmanlike manner.
6 .2 Recognized standards of Good Practice
Consultant performs its Services in accordance with the highest
recognized standards of good practice, exercising that reasonable
degree of highest care, skill, and ability which is ordinarily
employed by other recognized exper·cs under the same or similar
conditions.
6. 3 compliance with standards and Laws by
Consultant consultant certifies that before commencing Services
it shall be, in full compliance with all applicable laws, s'ta-
tutes, ordinances, orders, rules, regulations, and safety plans
(now or hereafter enacted or promulgated) of the federal, state,
and local governments in whose jurisdictions such activities are
p i,rformed under this Agreement including the Comprehensive
~nvironmental Response, Compensation, and Liability Act of 1980,
as amended, j the Super fund Amendments and Reauthorization Act of
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1986, the Resource Conservation and Recovery Act of 1976, as
amended, the Hazardous and Solid Waste A.11endments r,f 1984 and,
where applicable, tha state counterpart statutes.
6. 4 Penn its for Task orders Whan necessary
under any Task Order, and unless otherwise agreed in writing, the
Consultant shall timely obtain all permits, licenses, certifi-
cates, or approvals necessary to the performance of the Services
for a Task Order and required to comply with applicable laws,
statutes, ordinances, orders, rules, regulations, and ~afety
plans of the federal, state, and local governments, and shall.
keep each of them up-to-date . consultant shall furnish Cities
with copies of all permits, licenses, certificates, or approvals
required to be obtained pursuant to the preceding subsection.
consultant will provide Cities with copies of renewals of such
permits as they are obtained , and will immediately notify Cities•
designated representative of any revocation, denial, lapse, or
cancellation, and copies thereof and the grounds therefor, of any
permit, license, certificate, or approval .
6. s Field work and Safety Plans It is antici-
pated that the Consultant's work shall consist primarily of
office, work and will not involve substantial field work •. However,
where any Task Order calls for field work, including oversight
act i vities at the Lowry Landfill Superfund Site, the Consultantr"'
shall be responsible to plan for and take appropriate precautions,
to avoid risk and mitigate in;,e1ry or damage to the environment "--
and the public health and weltare. The Consultant shall comply
with or develop as necessary and appropriate all health or opera-
tional s afety plans· applicable by law or otherwise to any field
work on any site for any Task Order under this Agreement .
6 .6 Hazardous substances consultant shall exer -
cise due care with respect to hazardous substances, taking into
consideration the characteristics of such hazardous substance, in
light of all relevant facts and circumstances; shall take precau-
tions against foreseeable acts or omissions of consultant or any
of its subcontractors and the consequences that could foreseeably
result from , such acts or omissions; and shall inform the Ci ties
of the precautions by immedi a te notice to Ci ties' designated
representatives.
6.7 Reports of Environmental contamination It,
in the course of performing Services, under any Task Order there
is any injury or damage aris i ng out of the discharge, disbursal,
release or escape of smoke, v apors , soot , fumes, acids, alkali ,
toxic chemicals, liquids or gases, waste materials, or other
irritants, contaminants or pollutants into and upon land, the
atmosphere ~r any water course, body of water, or subterranean
water caused by any act of the Consultant , the Consultant shall
forthwith notify Cities• designated representative , given by the
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most practicable means available.. If injury or damage occurs,
consultant's project manager shall investigate and confer with
cities' designated representatives tu determine the ~ource,
nature, and extent of the injury or damage and whether the cause
by discharge, release, or escape was suadan and accidental or by
other continuing or regular activity. Consultant agrees, it
requested by cities, to fully cooperate and assist to take immed-
iate and appropriate measures necessary to minimize injury and
damage and pr,tect the public health, welfare and environment.
6. a Assurance, from vendors and subcontractor,
consultant sh,:t l obtain from all vendors and subcontractors of
consultant wr :i •;tan assurances of the star,•3ard of services, Repre-
sentations, W,.rranties and Covenants in all the preceding subsec-
tions of this Sertion 6, stating that they are for the benefit of
cities, to the same extent as made herein pursuant to this Agree-
ment by Consultant .
1. Non -comcliijoce
1.1 Non-compliance Remedy If the cities deter-
mine ·that any work performed by the Consultant is not in compli-
ance with the terns and conditions of this Agreement, including
Sections 6 and 7, or any ~ertinent Task Order, the Cities shall
notify the Consultant. If such work is caused by or due to the
negl :gence, gross negligence, or intentional acts of the Consul-
tant, the Consultant shall, at the request of the Cities, correct
any such work in a timely fashion, at its own expense, without
further obligation or liability on the part of the Ci<:ies. If
such wor.lt is caused by a force maj eur event as set forth in
Secti~n !5 of this Agreement, the Cities may request the Consul-
tant to correct such work. The Consultant shall, upon request,
prepare an estimate to correct such work, which shall be done at
the Cities' expense.
7 . 2 Notification Within six months after the
completion of all Services under this Agreement , Cities will
notify Consultan t of any work by Consultant not in compliance
with the terns and conditions under this Agreement and the Task
Orders including the Standard of Services, Representations,
Warranties and Co.venants by Consultant or its vendors or subcon-
tractors.
a. contract Documents
a.1 ownership of Documents All maps, drawings,
records, field notices, data , te~t results, reports , plans , spe-
cifications, calculations, estimates , operating and maintenance
procedures, , and other informat i on, documents, or materials
( except Consultant's previously existing computer software prc,-
grams or p~oprietary processes other than those developed . in
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accordance with this Agreement) received or produced in accor-
dance with this Agreement by Consultant or its vendors or subcon-
tractors (co llectively called the "contract documents") are and
shall remain Cities' property .
a.2 Return or contract Documents to Cities upon
request, and in any event within 30 days after completion of
services, as to all contract documents received or produced by
consultant and its vendors and subcontractors for this Agreement
or any Task Orders, Consultant shall deliver, in any reasonable
manner prescribed by Cities to Cities' designated representa-
tives, such contract documents. Subject to the provisions on
Confidentia l Information in Section 9, below , Consultant, but not
~ts vendors, subcontractors, or oth~r third parties, may retain
cc>pias for Consultant's files.
9. conf 'dential -Infornation
9.1 confidentiality of All contract Documents
Consultant acknowledges and agrees that all contract documents
are deemed confidential and proprietary informa~ion, owned exclu-
s lvely by the Cities.
9.2 use or Disclosure Limited consultant recog-
r,izP.s that its sc,rvices are being provided in furtherance of th:c
rendition of '.egal :.:ervices and in anticipation of litigation
Consultant agrees and covenants not to use or disclose to third
parsons any of Cities' confidential -~r privileged informa.tion
which becomes known to Consultant except (a) to a governmental
authority having authority ov er the information whose regulations
ussure confidentiality of the Cities' contract documents, and
then to the extent possible , Consultant shall not disclose con-
tract documents to a governmental authority before 10 days
advance notice to Cities' designated representative, and the
lapse of such time for a successful objection by the Cities; and
(b) for use in connection with a Task Order and when approved in
writing in advance by the Cities' designated representatives.
, 9 .3 Technical Artirw consultant will not
publish , in . any technical articles or otherwise, Ci tie.,;' confi-
denti a l information without the Citi es' prior consent .
9 .4 Permitted Uses consultant may use and pub-
lish Cities' nam e and a br i ef , general descr i ption of the Ser-
vices provided to Cities by Consultant in describing Consultant's
experience and qualif i cati ons to other clients or potential
clients.
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10. Insurance
10. 1 imronce coverage For Consultant's opera-
tions, consultant shall obtain and maintain in effect at all
times during its performance of Services under this Agreement the
following insurance, in the following amounts:
Inauranca coveroaa
1) Comprehensive General
Liability Bodily
Injury and Property
Damage Liability and
Completed Operations
2) Automobile Liability
(Including owned and Non-
owned Automobiles)
Bodily Inj ury and Property
Damage Liability
,3) · Environmental Impairment
Liability Insurance
4) Worklllen's Compensation
Employe~'s Liability
Limits !Minimum)
Each
Occurrence
Aggregate
Each
Occurrence
Each Claim
·Aggregate
Each Accident
$1,000,000.00
$1,000,000.00
$1,000,000,00
$5,000,000.00
$5,000,000.00
statutory
Statutory
10.2 Insurance Compliance consultant shall fur-
nish cities. with certificates evidencing such coverage. The
insuring company shall be authorized to do busines s in the state
in which the Site is located and the insuring company, in all
respects deemed material by the Cities, including the insurance
company 's ratings and net worth, shall be acceptable to the
Cities. Consult ant shall provide the cities' Risk Manager with
30 -days advance notice prior to cancellation, annulment, or
material amendment. Consultant shall not .commence Services and
no obligation to pay Consultant shall arise until consultant has
provided evidence of such insurance coverage to Cities. If the
Consultant is unable to obtain any insurance listed in Section
10.1 above, i the consultant sha~ 1 certify same in writing to the
Cities expl~ining the efforts made to obtain the insurance and
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the reasons for Consultant's inability to obtain same. The
cities may agree to obtain such insurance at their own expense.
· 10. J cities Naroed Insured All Automobile Lia-
bility and General Liability policies shall include the Cities as
additional named insureds by policy Qndorsement.
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10.4 special and Additional Insurance cons1i1tant
agrees to diligently review the services as work progre1,ses with
respect to any possible need for special insurance and, before
any insurable event arises, recommend to Cities accordingly and
provide reliable information to Cities' designated representa-
tives on the cost of premiums and expenses for, and the availa-
bility of, the coverage recommended by Consultant. If Cities
agrees to reimburse Consultant for the costs of additional cover-
age as evidenced by a Task Order and requests that Consultant
furnish additional insurance or bonds, or both, Consultant,
consistent with the provisions of this Section and the Task
Order, within JO days of such notice, shall purchase the addi-
tional insurance or bonds and, if applicable to one or more of
its subcontractors, cause insurance or bonds, or both, as the
case may be, to be purchased for such subcontractors.
11. Indemnification
Consultant shall indemnify and save harmless the,.,....,..
cities and their political subdivisions from and against any and\...
all claims, demands, liability, damages, suits, response costs,
actions, or any other costs, causes of action of every kind or
nature, including those arising under the Comprehensive Environ-
mental Response, Compensation and Liability Act, as amended, and
the Resource Conservation and Recovery Act, as amended, which may
be brought against the Cities arising out of (a) the negligent,
grossly negligent or intentional acts of the Consultant, or its
employees or agents or subcontractors, (b) the errors or omis-
sions of the Consultant or its employees or agents or subcontrac-
tors, (c) the breach of this Agreement, the Scope of Services,
the Standard of Services, Representations, Warranties and
Covenants by the Consultant , its employees or agents or subcon-
tractors, or (d) the violation of any federal, state, local or
common laws, by the Consultant or its employees or agents or
subcontractors. This indemnification shall include costs of
defense and reasonable attorneys' fees.
12. Independent contractor
' : Consultant represents that it is, and warrants and
covenants that it sha~l, perform this Agreement as, an indepen-
dent contractor, and as such, shall have and maintain complete
control eve~ all of its and its affiliates' operations, and their
employees, agents, and subcontractors. Neither Consultant nor · U i
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anyone employed by it shall be, represent, act, purport to act,
or be deemed to be, the agent, partner, representative, employee,
servant, or joint venturer of the Cities or have the authority to
bind the Cities.
13. The Parties' Representatives
13.l
Projact Manager
consultant's Pesianated B1crasentotiv1 and
13.l.l Designated Representatiyn consultant
shall at all times during the course of this Agreement have a
designated representative (or representatives) authorized and
empowered to act for and on the behalf of Consultant on all mat-
ters within the terms of this Agreement and such representative
shall be reasonably available to Cities. Contemporaneous with
the execution of a Task Order under this Agreement, Consultant
shall notify Cities of the name of its designated representative
for the Task Order and such appointment shall remain in effect
until notice of substitution is given by Consultant to Cities.
13.l.2 Project Manager The Project
Manager shall spend as much time on the Task Order project as is
necessary to assure Consultant's performance of the Services.
1J.2 Cities' oesianated Recresentative
Contemporaneous with the execution of a Task Order under this
.._., Agreement, Cities shall notify Consultant of the name of its
designated representative for the Task Order and such appointment
shall remain in effect until notice of substitution is given by
·Cities to Consultant . Said representatives shall have complete
authority to give instructions, recelve information, interpret
and define the Cities' policies and decisions with respect: to
materials, equipment, elements, and systems pertinent to the
scope of services for this Agreement. The Cities' representa-
tives shall not have authority to orally approve work.
14. Deleaaticin and Non-Assignment
14.l Deleaation and consultant's special
Expertise Const•ltant understands that this Agreement is entered
into by Cities"" the basis of Consultant's special expertise and
qualifications to perform the Services and, therefore, Consultant
shall not delegate, orally or in writ i ng, the performance of any
Services unless advance approval has been obtained in a Task
Order from the Cities' designated representative. Any unapproved
delegation shall render tha duties and obligations of the Cities
null and void . Any delegation, whether or not approved by the
Cities, shall not operate to relieve Consultant of its r•sponsi-
bilities, obligations, or liabilities under this Agree·,nent and
the Task Order and, notwithstanding any such delegation ,, Consul-
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tant shall remain responsible, obligated, and liable to tha
Cities under this Agreement and the Task Order.
14.2 ~on-~ssignment Consultant shall not assign
its rights under this Agreement.
1s. rorca Majeura
consultant shall be excused from performance of its
services for a Task Order in the event of and to the extent that
suc:1 performance is materially delayed or prevented by (a) an act
of God or act of war; (b) unf ~reseen strikes or other labor dis-
putes, riots or other civil disturbances, or (c) compliance with
any emergency order of any go v ernmental authority. Consultant
shall give the Cities notice, as soon ·as reasonably practicable
by telephone or telecopier, of the occurrence or anticipated
occurrence of any excusing cirr.umstance affecting it, and shall
exerci se all reasonable efforts to mitigate or eliminate such
c'ircumstance. If requested, Consultant will forthwith supply
Cities with documentation of the excusing circum;tance subject to
Cities•· review and decision of concurrence or objection.
Consultant shall, prior to any suspension of performance in reli-
ance on this Section, take all necessary precautions to protect
the public health, welfare, and environment and mitigate any
potential injury, liability, or damages .
16. ~
Consultant shall make no changes in the Services or
timing of its perfonance under this Agreement or Task Orders
except as is mutually agreed upon by the parties by a Task Order.
Additional Services performed by Consultant without prior auth-
orization from the Cit i es will not entitle Consultant. ·co reim-
bursement or payment . · ·
11. Entirety
Subject to the Task Orders executed under this
Agreement, this comprises the entire Agreement between Cities and
Cor,sul tant and supercedes all prior representations and under-
standings between Citie,: a nd Consultant concerning the subject
matter or in considerat i on thereof .
I
1s. Time is or the Ess~JJS§
Time is of the ess ence {or the performance of Ser-
vices under .this Agreement and each Task Order. Except where the
context expressly requires a d1fferent meaning, all references to
days in a month shall mean calendar days; provided, however , that
the last day, if it falls on a weekend or federal or state holi-
day shall b• deemed to fall on the next business day.
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19, Miscellaneous Matters
19 .1 Agreement to Perform Necessary Acts Each
party to this Agreement agrees to perform any further acts and
execute and deliver any docllll\ents that may be reasonably neces-
sary to carry out the provisions of this Agreement and Task
Orders .
19.2 Amendments The provisions of this Agreement
and Task orders may be waived altered , amende~, or repealed, in
whole or in part, only on the written consent of all parties to
this Agreement. Any amendment or modification of this Agreement
shall require the signature of an officer of both the Cities and
Consultant.
19.3 successors and Assigns 'I·his Agreement and
Task Orders shall be binding on the parties to it and their suc-
cessors in interest and shall inure to the benefit of the Cities
and its assigns and successors in interest.
19. 4 Validity of Agreement It is. intended that
each Section of this Agreement and Task Orde~s shall be viewed as
separate and divisible, and in the event that any Section or part
thereof shall be held to be invalid, the remaining Sections and·
parts shall continua to be in full force and effect.
19.5 ~ Exce~t when another means ·of c~mmu-
nication is expressly authorizec. in this Agreement, al l Task
Orders, notices, claims, requests, demands , authority,. verif ica-
tions, permits , licenses, certificates , approvals, reports, dele-
gations, assignments, and other communications intended to evi-
dence performance or compliance with this Agreement shall be
effective as such only when in writing and shall be deemed to
have b1'!en d•11y given (a) on the date of service if served per-
sonally on the designated representativ e of a party to whom
notice is to be given; (b) within 24 hours after sending by tele-
copier if transmitted to a telecopier in the offi ce of the person
to whom notice i s to be given as a designated representative of a
party; or (c) within four bu s iness days after mailing, if mailed
to the designated representative of a party to whom notice is to
be given, by first class mail, postage prepaid, and in all events
for giving notice the notice shall be properly addressed to the
party at h_is or its add r ess set forth on the first page of this
Agreement, or any other addre s s that a ny p a rty may des i gnbta by
written notic,, to the other .
19.6 Governing Laws This Agreement, as to its
construction and interpretation, shall ba construed in accordance
with, and go,verned by, the laws of the state of Colorado i n which
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Cities are located. Venue of any suit or cause of action under
this Agreement shall be in Arapahoe or Jefferson County,
Colorado.
19.7 Dispute Resolution If a dispute or conflict
of interest arises between the parties relating to thi ■ Agree-
ment, a meeting shall be held promptly between the partiH,
attended by individuals with d~cision-making authority regarding
the dispute or conflict of int•rest, to attempt in good-faith to
negotiate a resolution ·of th~ dispute or conflict prior to either
party pursuing other available rem~dies.
:.9. a Preparation of Acreement and Task order ■ It
is expressly agreed by Consultant and cities that this Agreement
and Ta sk Orders, when signe1 by the parties, have been prepared
by, and shall be deemed in all respects to ba an agreement nego-
tiateG between, the Consulti,,nt and Cities. In case of a non-
resolvable conflict of provisions, the conflict shall not be
resolved on the basis th4~ either Consultant or the Cities (but
not the other) prepared or authored the Agreement and Task
. Orders.·
19.9 counterparts This Agreement and Task Orders
may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitutcl'"""1 one and the same instrument. •
20; Ant.i..-·?'icrimipatiop consultant shall not discrimi-
nate against any dmployee or applicant for employment because of
race, color; age, sex, religion, or national origin. Consultant
shall take affinnative action to ensure that applicants are
employed, and that employees are treated during employment with-
out regard to their race, color, religion, age, sex, or national
origin.
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I I IN WITNESS WHEREOF, the parties have executed tnis
Agreement as or the day and year first ahown above.
CITY OF LAKEWOOD
By:
By:
Nancy Freed
Acting City Manager
Richard J. Plastino
Director or Public Works
ATTEST:.
By:
Karen Goldman, City Clerk
APPROVED AS TO FORM:
By:
GEOTRAIIS, INC., CONSULTANT
By: __________ _
Title: __________ _
Roger Noonan, City Attorney
LITTLETON/ENGIEWOOD BI-CITY
WASTEWATER TREhTMENT PLANT
By:
Stewart ,Fonda, Director
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LOWRY LANDFILL TECHNICAL ASSISTANCE AGREEMENT
SCOPE OF SERVICES
Consultant shall provide soma or allot the services listed below
to provide technical assistance for the Cities' participation in
the Groundwater OU for the Lowry Landfill Superfund Site, in
anticipation of litigation and in furtherance or the rendition of legal HrvicH:
l. Identification of sewage sludge composition based on:
a. sewage contributors;
b. tHting sludge disposed of on the traatm ■nt plant site:
c. plant operations;
d. currant flows and sewage characteristics;
a. review of records; and
f. other factors.
2. Evaluation of toxicity, traatability, migration and poten-
tial harmful affect of sludge based on:
a. composition;
b. concentration;
c. soils and ground water at Lowry; and
d. other factors.
3. Evaluation of proposals from other Lowry PRPs for cost sh a -
ing based on the relative volume and toxicity of the slud Q
in comparison to other substances disposed of at Lowry.
ATTACHMENT I
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4. Review o! documents produced by EPA, the Lo~ry Coalition and
others.
5. hrticipation in mHtings with the Cities, EPA, the Lowry
coalition and others.
6. Provide consulta i on to the Cities• attorneys as required by the Cities.
7. Provide expert testimony and iitigation support,.
8. Provide remedial investigation and feasibility study oversight.
9. Prepare documentation and analysis for inclusion in EPA's
adininistrative record.
10. Evaluate propc.sed remedial actions.
11. Other services mutually agreeable to the Cities and Consul tan·t.
ITITLEl
TASK ORDER No,
LOWRY LANDFILL TECHNICAL ASSISTANCE AGREEMENT
PUrpOHI
scope:
Deliverables:
Estimat~d Fee:
Estimated Completion Date:
Costs Payable by Lakewood:
Costs Payable by Littleton/Englewood:
APPROVED: GEOTRANS, INC.
Notice to Proceed
Date:
CITY OF LAKEWOOD
LITTLETON/ENGLEWOOD
BI-CITY WASTEWATER
TREATMENT PLANT
ATTACHMENT II
city .C:nqinHr
Director
AGREEMENT
This Agreement is made and entered into on the ___ day of
, 1990, between the City of Lakewood ("Lakewood")
_a_n_d_t_h_a_C~i_t_y_o-=-f Littleton and the City of Englewood, acting
through the Littleton/Englewood Bi-City wastewa.ter Treatment
Plant ("Littleton/Englewood"),
RECITALS
WHEREAS, Lakewood and Littleton/Englewood (referred to col-
lectively as "the Cities") have bean joint and severally named by
the United States Environmental Protection Agency ("EPA") as
potentially responsible parties ("PRPs") with approximately 200
other entities under the Comprehensive Env i r onmental Response,
compensation and Liability Act of 1980, as a\l'ended by the Super-
fund Amendments and Reauthorization Act of B ~6 ("CERCLA") for an
indeterminate amount of response costs incur=c~ and to be
incurred by the United StatDs and the State of Colorado at the
Lowry Landfill Superfund Sita (Section 6, T4S, R65W, 6th P.M.)
("Lowry _Landfill"): and,
l~EREAS, the Cities have been named as PRPs under CERCLA for
their iisposal of municipal sewage sludge at Lowry Landfill; and,
WHEREAS, the Cities are currently preparing for litigation
with EPA, the State of Colorado and other PRPs to defend against
potential liability and to ensure an equitable allocation of all
government response costs to the Cities with respect to their
disposal of municipal sewage sludge at Lowry Landfill; and,
WHEREAS, the Cities have a col1\lt\unity of interest and are
faced with parallel, col1\lt\on and mutual legal and factual issues
in defending against their potential CERCLA l i ability and ensur-
ing an aquitabl.a allocation of government response costs among
all PRPs; and,
WHEREAS, the Cities and certain other PRPs have entered into
a Second Amended and Restated Administrative Order on Consent
("Consent Order") with the United States Environmental Protection
Agency ("EPA") and the state of Colorado captioned In the Matter
of Lowry Landfill shallow Groundwater and subsurface Liquids and
Deep Groundwater operable unit Remed i al rnyestiaation/Feasibility
study!iesl Proceeding Under sections 194{bl and 122rd1 (Jl. of the
·Com0rchensiv1 Environmental Resconse, comoensation and Liability
Act of 1980. as amended by the superfund Amendments and Reauth-
orization Act of 1986. 42 u.s.c. §§9694Cb1. 9622rd)(Jl. which
requires tho Cities and the other named PRPs to conduct a Reme-
dial Investigation/Feasibility Study for the Lowry Landfill
Shallow Groundwater and Subsurface Liquids and Deep Groundwater
Operable Unit ("Groundwater OU"); and,
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llREREAS, the Cities have incurred litigation, legal, tech-
nical, profea ■ional, and other fees, costs, and expenses as a
result of their obligations under the Consent Order and CER~IA;
and,
llRERJ:AS, in anticipation of litigation and in furtherance of
the ·,:endition of legal and technical professional services for
the common, par~llel and mutual legal interests, the Cities seek
to minimize the expense of trial preparation, litigation and
response cost allocation by sharing technical expertise; and,
WHEREAS, the attorney-client privilege, the work product
privilege, and all other privileges shall be preserved by the
community of interests hotween the Cities in any aqtions by EPA,
the state or by other PRPs at the Lowry Landfill; and,
WHEREAS, Lakewood has retained and has been using the pro-
fessional services of GeoTrans, Inc. ("GeoTrans") to provide
technical environmental expertise in anticipation of litigation
and for Lakewood's participation in the Groundwater OU ~nd other
activities at the Lowry Landfill; and,
WHEREAS, Littleton/Englewood seeks to retain GeoTrans for
potential litigation and for participation in the Groundwater OU;
and, ✓--
WHEREAS, Lakewood has retained the Law Firm of Gorsuch, -
Kirgis, Campbell, Walker and Grover as City Attorney to provide
legal representation in all matters related to the Lowry Landfill
Superfund Site and Littleton/Englewood has retained the Law Firm
of Hill and Robbins to provide legal representation regarding
Lowry Landfill; and,
WHEREAS, GeoTrans has provided professional .:.;r,i ronllental
technical services to Lakewood in anticipation of : itigation and
for participation in the Groundwater OU and has developed infor-
mation, work product, project notes and reports; and,
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
AGREEMENT
l. ~-The Cities are joining in this Agree~ent (1) to
assert common, parallel and mutual legal interests, claims and
defenses, (2) to further the rendition ~f professional, legal and
technical services at the Lowry Landfill, (3) in anticipation of
litigation cir negotiations with or against EPA, the State of
Colorado and other PRPs, (4) to participate in the Gro1Jnd1-1ater OU
and (5) to slhara tl)e direction and costs, fees and ex~,en ■e■ of
professional!, environmental consulting services provided by
GeoTrans, Irle.
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2. ™BAL PR OVISIONS. The Cities shall, as of tha effec-
tive date of this Agreement, share the services of GeoTrans to
provide tha expertise necessary to evaluate and participate in
the technical aspects of the Groundwater OU and other operable
units, if any, and other technical activities at Lowry Landfill
and to assist in trial preparation, litigation and allocation
issues with respe c t to the Citi~s• disposal of municipal sewage
sludge at the Low y Landfill as provided in this Agreement.
3. CONTRIBUTIONS. As of the affective date of this.Agree-
ment, Lakewood shall contribute sot and Littleton/Englewood shall
contribute sot of the cost of services provided by GaoTrans to
the extent that services are provided for the mutual benefit
of Lakewood and Littleton/Englewood. Each City's contribution
shall be paid directly to GaoTrans following receipt of proper
and approved Invoices. In the event GeoTrans provides services
exclusively for the benefit of Lakewood or Littleton/Englewood,
the City for .whom those services were provided shall bear
lOOt of the cost of those exclusive services. In addition,
Littleton/Englewood shall pay to Lakewood the amount of $42,028
as reimbursement for costs incurred by Lakewood for services
provided by GeoTrans up to and including the effective date of
this Agreement. It is agreed these services inure to the mutual
benefit of Lakewood and Littleton/Englewood.
4. SERVIC ES CONTRl,CT. GeoTrans shall be retain ,d by the
Cities pursuant to the Technical Assistance Agreement attached
hereto as Exhibit A.
5. AUTHORIZATI O~. All activities to be performed by
GeoTrans shall be pu rr.w,r.~ to written Task Orders in accordance
with the Technical Assi ~tance Agreement. All Task Orders
undertak~n by GeoTrans for the mutual benefit of Lakewood and
Littleto11/Englewo od and any amendments thereto shall require the
authorization of b ,,th Lake w od and Littleton/Englewood. All
Task Order~ under take N by GeoTrans for the exclusive benefit of
Lakewood or Littleton/Eng lewood and any amendments thereto shall
require the authori za tion of the City requesting that the ser-
vices be performed and a certified statement that a copy of the
Task Order and any amendments thereto have been provided to the
other City to th i s Agreement.
6. AVAILI\BILITX QI: HQBIS EBQ.llUCl:, Littleton/Englewood shall
be entitled to receive all work product, project notes, reports
and any other documents prepared by GeoTrane prior to the effec-
tive date of this Agreement which relate to the Groundwater OU
and other activities at the Lowry Landfill, which are in the com-
mon interestl and inure to the mutual benefit of the Citie ■• The ·
Cities shal~ each be entitled to receive all work product, pro-
j ece note ■, !reports and any other documents prepared after the
affective date of this Agreement by GeoTrans tor any Task Order
issued for tlhe mutual benefit and common interest of the Cities.
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7. DISCLOSURE, Infornation disclosed by or between Lakewooc
and Littleton/Englewood to the other party to this Agreement,
their attorneys or GeoTrans for the purpose of asserting col!ll1lon
and mutual interests,. claims and defenses: in furtherance of the
rendition of professional legal and technical services: in pre-
paration for and in anticipation of any litigation or negotia-
tions with or age .inst EPA, the State of Colorado and other . PRPs:
and for participation in the Groundwater OU regarding all aspects
of the Lowry superfund Site shall not be deemed a waiver of the
attorney-client privilege·, the work product privilege or any
other privi~ege available to either party.
8. PRIVILEGES/CONFIDENTIALITY. All attorney-client com-
munications or attorney work product infornation, written or
otherwise, and any other col!ll1lunications, information, reports or
documents developed in anticipation of litigation or in further-
ance of the rendition of legal or professional services, by any
parson, entity, or coun3el, received by or from Lakewood or
·Littleton/Englewood or its counsel or GeoTrans or its agents pur-
suant to this Agreement or the Technical Assistance Agreement,
shall be privileged and held in strict confidence by the reci-
pient and by all persons to whom revealed by the recipient pur-
suant to this Agreement or the Technical Assistance Agreement,
and such col!ll1lunications or :nformation shall be used only in
connection with the matters related to the Lowry Landfill
Superfund Site.
Any information exchanged in written or document form and
intended to be kept confidential may, but need not be, marked
"confidential" or with similar legend. If such information
becomes the subject of a public information request or an admini-
strative or judicial order seeking disclosure of such informa-
tion, Lakewood and Littleton/Englewood may sat i sfy their confi-
dentiality obligation s under this Section 7 by notifying the
party that generated the information and by giving such party a
reasonable opportunity to protect the confidentiality of the
information.
Lakewood and Littleton/Englewood shall take all necessary
and appropriate measures to ensure that any person who is
granted access to any shared information or who participates
in work on joint and mutual defense projects or who otherwise
assists any counsel in connection with the performance of ser-
vices rendered pursuant to this Agreement is familiar with the
terms of this Agreement, consents to and complies with such
terms as they relate to the duties of such person. Lakewood and
Littleton/Englewood intend by this section to protect from dis-
closure all· !information and documents exchanged between Lakewood
and Littlettjn/Englewood to the greatest extent permitted by law
regardless df whether the exchange occurred befora execution of
this Agreem~nt and regardless of whether the writing or document
is marked "donfi1ential".
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r"'. The provisions of this section shall not apply to the infor-
mation which is now or hereafter becomes public knowledge without
violation of this Agreement, or which is sought and obtainable
from others pursuant to applicable discovery procedures and not
protected from disclosure by privilege or otherwise,
9. DISCLAIMER, Neither Lakewood nor Littleton/Englewood
warrant, indemnify, or assume any liability to or for each other
for the services provided by GeoTrans pursuant to this Agreement.
10. TERMINATION, The commitments of Lakewood and
Littleton/Englewood to contribute monies under this Agreement
shall terminate upon (1) full and final completion, as determined
by the cities, of all services provided by GeoTrans for the
mutual benefit of the Cities and full and .final payment by the
Cities of all contributions for those services, (2) 30 days'
written notice for any reason by either City to the other, or
(3) breech of the Agreement by one o~ the Cities.
11. JIBEAQI, In the event that Lakewood or Littleton/Englewood
fails to make any payment for services provided pursuant to this
Agreement, said party shall be considered to be in default and
shall be in breech of this Agreement. However, the party who
co11111\its the breach shell have thirty (30) days after ma i '.ing of
written notice of such breech in which to correct or abate the
breach and avoid termination. If the party committing the breech
fails, refuses, or neglects to correct or abate the breach within
such 30-dey period, then the other party et its option may i111111e-
diately terrnina ,:e this Agreement by giving written notice of ter-
mination to the party in default.
12. EFFECT OF BREACH. NOTICE OF TERMINATION OR CONFLICT OF INTEREST, If e Party breaches this Agreement or terminates this
Agreement for any reason other then e conflict of interest, it
will raise not objection to the r,ontinu,id retention of GeoTrens
by the other party.
In the event a conflict of interest arises between Lakewood
end Littleton/Englewood and such conflict of ir,cerest cannot be
resolved by the written consent of each party after good-faith
negotiations,then each party shall be:
a. Entitled to retain end use , for any puroose, all work
product, project notes, reports and any other documents prepared
by GeoTran• prior to the date the conflict arose pursuant to any
Task Order· issued pursuant to this Agreement and the Technical
As s istance Agreement; and
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b. P1acludad from using the services of GeoTrans on the
specific Task order(s) related to the conflict of interest:
except that GeoTrans personnel may be requ i red to inform, at a
joint meeting, any new firm, organization or group of technical
expert ■ retained separately by Lakewood or Littleton/Englewood
about the services performed by GeoTrans on the specific Task ·
Order(■) related to the conflict of interest.
No conflict of interest shall preclude the Cities from con-
tinuing to jointly use the services of GYoTrans under this Agree-
ment on any Task Order(s) related to Lowry Landfill not subject
to the conflict of interest, nor shall such conflict waive any
privileges or remove the requirements of confidentiality set out
in this Agreement.
13. ~-Any written notice provided for herein shall be
deemed properly mailed and delivered when the same is deposited
in the United States mail, postage prepaid and properly addressed
to the party to whom such notice is dir~cted. Proper addresses
of the two parties shall be as follows:
City o f Lakewood
Attention: City Engineer
445 South Allison Parkway
Lakewood, CO 80226
Bi-City Wastewater Treatment Plant
Attention: Mr. Stewart Fonda, Director
2900 south Platte River Drive
Englewood, CO 80110
David w. Robbins, Esq.
Ronald L. Wilcox, Esq.
Hill & Robbins, P.C.
1441 18th Street, suite ~100
Denver, Colorado 80202
Howard Kenison, Esq.
Gorsuch, Kirgis, Campbell, Walker and Grover
1401 17th Street, Suite 100
P. O. Box 17180
Denver, CO 80217-0180
14. l2llrn RESO LIJTIO f. If a d i spute or conflict of intere st
~rises batw~en the parties =Ql Qt :ng to this Agre ement, a meeting
s :1all be he ld promptly between the parties, attended by indivi-
t\uals with clecision-maki.ng authority regarding th• dispute or
conflict of lintarast , to attempt in good-faith to negotiate a
resolution \f the dispute or conflict prior to either party pur-
suing other available remedies. , I . . V
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15, mlll UNDERSTANDING. This Agreement constitute ■ the
entire understanding of the parti•• hereto with respect t o it ■
subject matter and, in the event of any conflict, ■uper1 ed~•
prior agreements or under ■tandir ~•• if any, related to t h~ sub-
ject matter herein. Thi ■ Agre,,ment may be amend*d 0 1 ly in writ-
ing by the partie~ ~~reto.
16, GQYERNING t,Ali, This Agreement shall be 9ov •:.:r,a1I for
ell purpose ■ and in all respects by the law ■ of th~ St~t ~ of
Colorado.
17 , EFFECTIVE llAl'.E, This Agreement shall be effective a ■ of the ___ day of ________ , 1990.
CITY OF LAKEWOOD
Nancy Freed
Acting City Manager
ATTEST:
Karen Goldman, City Clerk
APPROVED:
LITTLETON/ENGLEWOOD BI-CITY
WASTEWATER TREATMENT PLANT
Stewart Fonda
Director
Richard J. Plastino, Director of Public Works
APPROVED AS TO FORM:
Roger Noonan , City Attorney
ATTES,':
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