HomeMy WebLinkAboutR-1997-091 Preston Gates & Ellis LLPRESOLUTION NO. R-97- 91
A RESOLUTION authorizing and directing the City Manager and the City Clerk of
the City of Yakima to execute a "Consulting Laboratory Agreement"
between the City of Yakima, Battelle Laboratories, and Preston
Gates & Ellis LLP for the purpose of obtaining clean metals
sampling data to assist with the legal analysis related to actual or
potential disputes with Department of Ecology regarding the
renewal of the City's National Pollutant Discharge Elimination
System permit.
WHEREAS, for the past three and one-half years, the City of Yakima Wastewater
Treatment Plant has been operating under an administratively extended National
Pollutant Discharge Elimination System ("NPDES") permit; and
WHEREAS, the City submitted a NPDES permit renewal application with the
Washington State Department of Ecology ("DOE") more than three years ago; and
WHEREAS, on March 28, 1997, a draft NPDES permit was issued to the City; and
WHEREAS, on April 8, 1997, DOE advised the City that the effluent limits in the
draft NPDES permit were being revised to be more stringent; and
WHEREAS, City representatives are in the process of carefully reviewing the
capital, operational, technical, and legal issues regarding any additional effluent
restnctions that are placed upon the new NPDES permit by DOE; and
WHEREAS, the City has retained the law firm of Preston Gates & Ellis LLP to
provide a legal analysis of the legal consequences/issues related to the new NPDES
permit and effluent restrictions; and
WHEREAS, "clean metals" sampling data is necessary to assist with the legal
analysis related to actual or potential disputes with DOE regarding renewal of the
NPDES permit and effluent restrictions; and
WHEREAS. the City does not have the equipment, personnel, or specialized
expertise necessary to provide such "clean metals" sampling data ; and
WHEREAS, Battelle Laboratories has the equipment, personnel, and expertise
necessary to perform "clean metals" sampling data and is willing to do so in
accordance with the terms and conditions of the attached agreement; and
WHEREAS, the City Council has determined that it is in the best interest of the
City to enter into a professional services agreement with Preston Gates & Ellis LLP
and Battelle Laboratories in accordance with the terms and conditions of the attached
agreement. now, therefore,
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The City Manager and the City Clerk are hereby authorized and directed to
execute the attached and incorporated "Consulting Laboratory Agreement" between
the City of Yakima, Battelle Laboratories, and Preston Gates & Ellis LLP for the
purpose of obtaining clean metals sampling data to assist with the legal analysis
related to actual or potential disputes with the Department of Ecology regarding
renewal of the National Pollutant Discharge Elimination System permit.
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ADOPTED BY THE CITY COUNCIL this i day of 'c(Lv , 1997.
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City Clerk
Lynn Buchanan, Mayor
CONSULTING LABORATORY AGREEMENT
THIS AGREEMENT is made and entered into by and between City of Yakima (hereinafter the
"City"), Preston Gates & Ellis LLP (hereinafter "Outside Counsel"), and Battelle Memorial
Institute, Pacific Northwest Division (hereinafter the "Consulting Laboratory").
WHEREAS, Outside Counsel and the City have determined that retention of Battelle Pacific
Northwest Division, a laboratory familiar with analysis of "clean metals" sampling data is
necessary to assist with legal analysis relating to the City's dispute with Ecology regarding
renewal of the City's NPDES permit.
NOW, THEREFORE IT IS HEREBY UNDERSTOOD AND AGREED by and between Outside
Counsel, the City and Battelle Pacific Northwest Division ("Consulting Laboratory") as follows:
Services To Be Performed by Consulting Laboratory
1. Consulting Laboratory agrees to provide consulting services to Outside Counsel as set
forth in Exhibit 1 hereto. Additional services or analyses outside those listed in
Exhibit 1, may be performed upon mutual agreement in writing.
2. Outside Counsel and the City will not attempt to prejudice the outcome of the analysis
performed by Consulting Laboratory. The manner and means of conducting the work are
under control of Consulting Laboratory. The work is subject to the City's and Outside
Counsel's general right to review and supervise. Outside Counsel and Consulting
Laboratory intend and agree that an independent contractor relationship is created by this
contract.
3. Consulting Laboratory understands that the services required under this Agreement are
provided to assist the City in a dispute regarding the permit renewal process.
4. Unless otherwise authorized by City or Outside Counsel, Consulting Laboratory shall
keep all information relating to this Contract and Work hereunder confidential. The
foregoing, however, shall not be construed to restrict or otherwise create any liability for
disclosure of information which a) is already available to the public, b) known to the
Consulting Laboratory, c) subsequently received from an independent third party who
was under no obligation of confidentiality to the possessor of the information, d)
independently derived by the Consulting Laboratory at a later date, or e) Consulting
Laboratory is required to produce under law, subpoena, or order of court, provided,
however, that Consulting Laboratory shall first notify City and Outside Counsel so that
they shall have an opportunity to oppose such disclosure. In any event, the requirements
set for the above shall not extend beyond six (6) years from the date of disclosure to
Consulting Laboratory.
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5. City our Outside Counsel may use the results as they see fit, subject to the following:
a. City and Outside Counsel agree not to use or imply the Consulting Laboratory
name for advertising, promotional purposes, raising equity, recommending
investments, or in any way that implies endorsement by Consulting Laboratory.
City, Counsel or Consulting Laboratory may publicly disclose, in a news context,
the fact that an agreement has been entered into, including the name of the City,
Counsel or Consulting Laboratory and the general nature of the Project.
b. In view of public interest involved and the needs of the City and Outside Counsel,
Consulting Laboratory hereby grants approval to use the information resulting
from such services outlined in Exhibit 1, as evidence in litigation, disputes, and
other legal action pending or contemplated. City and Outside Counsel agree to
notify Consulting Laboratory in advance of any such use. The appropriate
Consulting Laboratory staff would be available to explain or interpret the research
and the results, as well as to authenticate same, at City or Outside Counsel's
expense. However, it is agreed that Consulting Laboratory staff shall not
otherwise be called upon by City or Outside Counsel to appear as an expert
witness or provide opinion testimony in such proceedings.
All right, title, and interest to any inventions, improvements, copyrights, and discoveries
conceived or actually reduced to practice by Consulting Laboratory shall belong to
Consulting Laboratory.
Consulting Laboratory will provide a high standard of professional service. Neither
Consulting Laboratory nor its employees or agents shall have any liability for damages,
including but not limited to consequential damages, arising out of or in connection with
City or Counsel's use or inability to use the Project results except for such damages
arising out of Consulting Laboratory's negligence or error in performing Work.
CONSULTING LABORATORY PROVIDES NO WARRANTY OR GUARANTEE
OF RESULTS, INCLUDING WARRANTIES OF FITNESS FOR PURPOSE OR
OF MERCHANTABILITY FOR ANY ITEM OR RESULT THAT MAY BE
DELIVERED UNDER THIS AGREEMENT. THERE ARE NO WARRANTIES
THAT EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
6. This contract is personal and Consulting Laboratory may not assign or delegate this
contract, or any part of it, or any right to any money to be paid under it, except with the
written consent of Outside Counsel.
7. No claim for additional services, not specifically provided in this contract and requested
by Outside Counsel, performed or furnished by the Consulting Laboratory, will be
allowed, nor may the Consulting Laboratory do any work or furnish any material not
covered by the contract unless the work or material is ordered in writing by Outside
Counsel.
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8. All written reports, graphs, analyses, computer programs, drawings, notes, and other
work developed in the performance of this Agreement (the "Work") are and remain the
joint property of the City and Consulting Laboratory. The Work may be used by the City
for any purpose without additional compensation to the Consulting Laboratory. The
Consulting Laboratory agrees not to assert any rights and not to establish any claim under
the patent or copyright laws with respect to the Work. The Consulting Laboratory, for a
period of three years after final payment under this contract, agrees to furnish and provide
access to the Work at the request of Outside Counsel.
Consideration
10(a) The City agrees to pay Consulting Laboratory for the Work performed under this contract
at the rates set forth in Exhibit 1, attached hereto.
10(b) Consulting Laboratory agrees to bill Outside Counsel for fees and expenses on about a
monthly basis. Invoices will be billed according to the fixed unit rates as outlined in
Exhibit 1. Upon receipt of a billing, documented as described herein, Outside Counsel
agrees to forward that bill within ten (10) business days to the City. Payment in full by
the City direct to the Consulting Laboratory shall be due within thirty (30) days of receipt
of the bill.
Period of Performance
11. The period of the contract begins April 1, 1997, and ends April 1, 1998. The City or
Outside Counsel, by written notice, may terminate this contract, in whole or in part, at
any time. The City is liable only for payment in accordance with the payment provisions
of this contract for services rendered before the effective date of termination.
Performance may be extended for additional periods by the written agreement of the
parties.
Governing Law
12. This contract is governed by the laws of the State of Washington and all disputes arising
out of this contract which cannot be settled by mutual agreement shall be resolved in the
Washington state courts.
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Amendments
13. The terms of this contract including, but not limited to, the definition of services to be
performed, the period of performance, and the amount of consideration to be paid may be
amended or modified at any time by written agreement of all the parties.
BATTELLE MEMORIAL INSTITUTE
PACIFIC NORTH T DIVISION
By 'rte` By
PRESTON GATES & ELLIS LLP
Name Richard W. Garretson III
Title Contracting Officer
Date 6
Name
Title
Date
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- 97
AGREEMENT APPROVED BY THE CITY OF YAKIMA
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Title
Date
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STATEMENT OF WORK
CITY OF YAKIMA
Battelle, Marine Sciences Laboratory will provide on a monthly basis for a period of two years,
field containers and analyses for a minimum of four (4) water samples for three (3) total
recoverable metals and three (3) water samples for three (3) dissolved metals shown in Table 1.
Inductively coupled plasma mass spectrometry (ICP -MS) and cold vapor atomic fluorescence
(CVAF) following U.S. Environmental Protection Agency (EPA) Methods 1631 and 1638 will be
utilized.
Water samples will be digested for total recoverable metals following the protocol
described in EPA methods 1631 and 1638 and detection limits will be reported as "achieved
detection limits" with each batch of samples analyzed. The techniques selected are based on
past experience with ultra -trace metals analyses and are designed to minimize interference.
Costing associated with the sample analyses and equipment needed appear in Table 2.
We provide procedural blank (one per batch of samples) and standard reference material (one
per batch) analyses at no additional cost.
TABLE 1.
Metals Fraction Method Cost
Cu, Zn, Fe Total Recoverable (TRM) EPA 1638 $190
Cu, Zn, Fe Dissolved EPA 1638 $160
TABLE 2.
Fraction
TRM
Dissolved
Trip Blank
*Does not include
Equipment
Type
Teflon
Teflon
Teflon
cost for analysis.
Equipment
Size
500 ml
250 ml
250 ml
Cost
$20
$20
$20*
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT j
Item No. /
For Meeting Of 7/1/97
ITEM TITLE: Request for Approval of Resolution Authorizing Laboratory Services
from Battelle Laboratories for Data Relevant to the City's National
Pollutant Discharge Elimination System (NPDES) Wastewater
Permit
SUBMITTED BY: Glenn Rice, ACM
Chris Waarvick, Wastewater Superintendent
Paul McMurray, Assistant City Attorney
CONTACT PERSON/TELEPHONE: Chris Waarvick/575-6078
SUMMARY EXPLANATION:
City Council is respectfully requested to authorize the City Manger to enter into a
professional services agreement with Battelle Laboratories and Preston Gates and Ellis
LLP. This work will provide necessary laboratory data in conjunction with the City's
recent wastewater discharge permit. The City has received a draft of its new NPDES
wastewater discharge permit from the Department of Ecology ("Ecology"). Data critical to
complying with the permit conditions and determining the capital conseqences in the out
years of this permit cycle and into the next permit require metals analysis under "ultra -
clean" conditions. These analyses measure concentrations at such low levels (less than
parts per billion) that any contamination can significantly affect the permit levels
determined in the permit. This is especially relevant to determining background levels in
the Yakima River.
(...continued...)
Resolution X Ordinance _Contract _,Other (Specify)
Funding Source 478 Facilities Fund. Project 1814
APPROVED FOR SUBMITTAL:
City anager
STAFF RECOMMENDATION:
Staff respectfully recommends that City Council approve the attached resolution
authorizing the City Manager to execute the attached contract for laboratory services with
Battelle Laboratories and Preston Gates and Ellis
BOARD/COMMISSION RECOMMENDATION:
COUNCIL ACTION:
battelle sole source
June 24, 1997 cw
The Wastewater laboratory equipment for metals analysis can measure down to the
fractional parts per billion. However, guaranteeing that ambient air conditions or
infinitesimal equipment contamination does not contribute to the analyses is not possible
in the Wastewater laboratory. This does not detract from the value or reliability of data
_ � the .L.....s,...... only in this case, uen iloliovo it
"normaiiy" generated in Wastewater laboratory; only case, believe
necessary to remove all doubt about possible contamination because of the potential
consequences the data leads to in terms of mandated compliance issues.
Battelle Laboratories is the only firm in the Northwest which has a credible history of this
type of analysis under the stringent control conditions required for the City's purposes.
The estimated cost of this contract over its life is estimated at $36,000. The City has
contained a substantial amount of cost by performing the sampling, sample preparation
and delivery to the contract laboratory.
battelle sole source
June 24, 1997 cw
1J,7�cBatteile
7^
Pacitic Northwest Laboratories
Battelle Boulevard
P 0 Box 999
Richland, Washington 99352
Telephone (509) 375-4587
June 10, 1997
Elizabeth Thomas
Preston, Gates & Ellis
701 Fifth Ave.
Suite 5000
Seattle, WA 98104-7078
SUBJECT: WATER SAMPLING TECHNICAL ANALYSES
Battelle No. 27825
Dear Ms. Thomas:
Battelle proposes to undertake the technical services described in the enclosed proposal for a
period of two years at an estimated funding level of $36,000. All work will be done on a fixed
utut rate per analysis as outlined in our proposal.
Enclosed are two copies of our proposal. Execution and return of one copy of this Agreement
along with the advance payment indicated therein to the attention of K9-84 will authorize us to
commence work.
If you have any questions about our proposal, please direct those of a technical nature to Linda
Bingler on (360) 681-3627. Contractual matters should be discussed with myself, on
(509) 375-4587.
We look forward to being of service to your firm and the City of Yakima, and to hearing from
you about our proposal.
Very truly yours,
chard W. Garretson III
Contracting Officer
Enclosure
AMENDMENT TO
CONSULTING LABORATORY AGREEMENT
THIS AMENDMENT TO CONSULTING LABORATORY AGREEMENT (AGREEMENT), fully
executed on July 8, 1997, by and between Preston Gates & Ellis LLP (hereinafter "Outside Counsel"), the
City of Yakima (hereinafter the "city") and Battelle Memorial Institute, Pacific northwest Division
(hereinafter the "Consulting Laboratory") is effective as to the date of the last signature below.
WHEREAS, the City, Outside Counsel and the Consulting Laboratory now wish to change the period of
performance of the original agreement.
NOW, THEREFORE, in consideration of their mutual agreement, the parties hereby agree as follows.
Period of Performance
11. The period of the contract begins April 1, 1997, and ends April 1, 2000 The City or Outside
Counsel, by written notice, may terminate this contract, in whole or in part, at any time. The City
is liable only for payment in accordance with the payment provisions of this contract for services
rendered before the effective date of termination. Performance may be extended for additional
periods by the written agreement of the parties.
WHEREAS, except as expressly amended here in, all other provisions of the AGREEMENT shall remain
in full force and effect.
BATTELLE MEMORIAL INSTITUTE PRESTON GATES & ELLIS LLP
PACIFIC NORTHWEST D V ION
By
Name Betsy Rae Poulson
Title Contracting Officer
Date March 3, 1999
AGREEME APPOV BY THE CITY OF YAKIMA
ii
By
Name
Title
Date
Glenn Rice
A rty
Assistant City Manager
March 24, 1999
By
Name 7r
Title
Date 4 . (- I, rig,