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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, to vc,Danclle'rn` r..-� Imo rsir• rzT 7rTTw 1DX7 'T'TTT invir't7 r'ATTIm.T!'ii AT'. 7'LTT'`. /'TPV !1L' Al A TITA,i A . Lik 11 1tE tJL. 1 LA/ D 1 11111' t.11 1 l.V Vill-4W V1' 11L1.i ...AL 1 1 V1 a taa�uvac�. 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. sr ADOPTED BY THE CITY COUNCIL this i day of 'c(Lv , 1997. Fes. ATTEST. c-VY1 ij is A 1to id j Ac ng ill frs,„e, zpr. 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. 1 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. 2 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. 3 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 E%Zabe.- / hdy!k_ f TWIlue-// - 97 AGREEMENT APPROVED BY THE CITY OF YAKIMA By Name Title Date a Ai:i tl�c� vta cel -9 ri ATTEST ri4 City Ierk v cn CONTUCT »a _ 5 REKtittlOtIkt 4 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,