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HomeMy WebLinkAboutC80-045 Franklin Associates Resource Recovery Feasibility StudyCONTRACT BETWEEN THE COUNTY OF EAGLE (COLORADO) AND FRANKLIN ASSOCIATES, LTD. FOR RESOURCE RECOVERY FEASIBILITY STUDY 1960 FA56E QW0 THIS CONTRACT, made and entered into this 30 day of September, 1980, by and between the COUNTY OF EAGLE, STATE OF COLORADO, a body corporate and politic, by and through its Board of County Commissioners, hereinafter referred to as the "Board" and FRANKLIN ASSOCIATES, LTD., hereinafter referred to as "FAL WHEREAS, the Board has the legal authority pursuant to Sections 30-11-101 and 30-11-103, C.R.S. 1973, as amended, to enter into agreements in relation to the property and concerns necessary to the exercise of the County's corporate or administrative powers; and 1 T WHEREAS, the Board onS o �e� 5, 1906, entered into an agreement with FAL to conduct a Phase I resource recovery feasibility study; the purpose of which was to determine the economic feasibility of a resource recovery facility to dispose of municipal solid waste from the Gore and Eagle River valleys, wood by-products from a sawmill in Eagle, and construction wastes, with potential recovery of energy and/or materials, dependent upon available markets for said energy and/or materials; and WHEREAS, Phase I was the first phase in a possible three-phase project, i.e., Phase II, Procurement Planning, and Phase III, Procurement; Phase II being contingent upon the Board's approval to proceed therewith upon satis- factory completion of Phase I and, likewise, Phase III being contingent upon the Board's approval to proceed therewith upon satisfactory completion with Phase II; and t h f WHEREAS, the Board hereby determines that Phase I has been satisfactorily completed and hereby desires to proceed with Phase II resource recovery project procurement planning study; and WHEREAS, the Board desires to enter into an agreement with a consulting firm to conduct the Phase II resource recovery procurement planning study which is partially funded by an Urban Policy Grant from the U. S. Environ- mental Protection Agency, as directed under the President's Urban Policy issued on March 27, 1978, to carry out a program of financial assistance to urban areas for solid waste resource recovery project planning and feasibility analysis, authorized under Section 4008(a)(2) of the Resource Conservation and Recovery Act of 1976. The purpose of Phase II, Procurement Planning, is to define elements of the resource recovery project based on the political/ public decision to proceed past Phase I and all previous data, to develop strategies for removing any institutional barriers, for attracting new energy markets and for furthering waste supply and market commitments, and to estimate the costs of the project; and WHEREAS, if, after review of consultant's data compiled during the Phase II study, the Board resolves to proceed with Phase III, Procurement, funding for Phase III will be applied for; and WHEREAS, the Board desires to retain FAL as consultants for Phase II resource recovery procurement planning study. NOW, THEREFORE, for and in consideration of the mutual covenants, conditions, and promises contained herein, the parties hereby agree that: SECTION ONE GENERAL TERMS AND CONDITIONS (a) The Board and FAL agree that the following provisions shall apply to the work to be performed under this contract and that such provisions under this Section One shall supersede any conflicting provisions set forth in other Sections of this contract. (b) This contract is funded in part by a grant from the U. S. Environmental Protection Agency. Neither the United States nor any of its departments, agencies or employees is a party to this contract. This contract is subject to regulations contained in 40 CFR Part 33 in effect on the date of execution of this contract. (c) The rights and remedies of the Board provided for in this Section One are in addition to any other rights and remedies provided by law or under the provisions of any other Section of this contract. (d) This contract shall be governed by the laws of the State of Colorado and/or applicable laws of the United States. (e) This contract and Exhibit 1 entitled "Phase II: Procurement Planning, Statement of Work"; Exhibit 2 entitled "Proposed Work Plan for Phase II Resource Recovery Procurement Planning," as submitted to Eagle County on 11 July 1980; and Exhibit 3, "Letter from William E. Franklin to Jo Ann Deighan regar in the EP Urban Grants Workshop �� Expenses, 22-24 October, 1980' comprise he entire contract between the Board and FAL, and said Exhibits 1, 2 and 3 are annexed hereto and incorporated herein by reference and are as fully a part of this contract as if fully set forth herein. (f) This contract supersedes all negotiations, conversations or discussions heretofore had between the parties related to this contract. This contract shall not be deemed nor construed to be modified, amended, rescinded, cancelled or waived, in whole or in part, except by written amendment signed by the parties hereto. (g) In the event of any irreconcilable conflict, inconsistency, or incongruity between the provisions contained in this contract document and any of the provisions contained in any of the exhibits incorporated herein by reference, the provisions contained in this contract document shall in all respects govern and control. (h) FAL will submit monthly progress reports at the time monthly bills are submitted, task reports at the conclusion of each task of which such task reports will comprise the draft final report, and a final report at the conclusion of the project, according to the schedule in SECTION THREE, COMPLETION STAGES. These reports become the property of the Board and may be used in preparing applications for funding of Phase III of said project. (i) The Board understands that FAL does not undertake research to endorse products or services and agrees not to use FAL's name for advertising, sales promotion or publicity purposes without the written approval of FAL's president. Also, if the Board intends to distribute any FAL project report outside its own organization, committees, or other governmental agencies, the report shall be used in its entirety unless a summary or abridgment has been first approved in writing by FAL. SECTION TWO SCOPE OF WORK FAL shall in the scope of their work perform the tasks as outlined in the Statement of Work (Exhibit 1) and in FAL's Proposed Work Plan (Exhibit 2), with the addition of a subtask in Task 201 of an in-depth investigation of the feasibility of a scenario involving district heating. SECTION THREE COMPLETION STAGES FAL shall submit a Task Report at the completion of each task of the Statement of Work in Exhibit 1 and Proposed Work Plan in Exhibit 2, according to the schedule below. Draft final report and final report are due no later than the dates indicated below, unless a different date is mutually agreeable in writing to FAL and the Board. 0 TASK REPORT TASK NUMBER DUE DATE PUBLIC MEETING SCHEDULED 201 15 January 1981 202, 203, 204 6 March 1981 __. 205, 206, 207, 208 10 April 1981 209, 210, 211 15 June 1981 (Draft Final Report 212 (FINAL REPORT) 15 July 1981 213 --- SECTION FOUR DUTIES OF COUNTY 27 January 1981 24 March 1981 28 April 1981 (Decision to Proceed) 23 June 1981 4 August 1981 22 September 1981 (Decision to Proceed) The County of Eagle by and through its Board and its various agencies and departments shall provide to FAL the following information, facilities and equipment and shall provide the following duties in the preparation } of the respective study by FAL: 1. Provide in-house staff as outlined in the Statement of Work (Exhibit 1); 2. Provide copies of existing information in the County's possession concerning solid waste disposal; 3. Provide continual guidance and evaluation of the progress of the study and assist FAL in field work and in determining the format of the final report; 4. Provide work space within the Environmental Health office, with free local phone service, including toll-free lines to Vail. SECTION FIVE COMPENSATION AND SCHEDULE THERETO (a) The total fee to be charged by FAL for the performance of this contract shall not exceed $129,980, as outlined in FAL's Proposed Work Plan (Exhibit 2). In the event the Board decides not to proceed with the Phase II Study past Task 208, at completion of which a Public Hearing shall be held to consider whether to proceed, FAL will receive maximum compensation of $89,231, which includes maximum payment of $83,865 for the completion of Tasks 201-208, inclusive, as outlined in the "Cost by Category by Task Group," page 34 of FAL's Proposed Work Plan (Exhibit 2); completion of one-third of Task 209 at $3,800, as 6 u outlined in "Figure 2, Project Schedule," page 30, and "Cost by Category by Task Group," page 34 of FAL's Proposed Work Plan (Exhibit 2); and expenses estimated at $1566 for required attendance at the EPA Urban Grants Workshop, 22-24 October 1980, as documented in "Letter from William E. Franklin to Jo Ann Deighan, Project Manager, dated September 16, 1980," regarding said workshop (Exhibit 3). (b) FAL shall be compensated on a monthly basis. Each request for payment shall itemize the direct labor costs; labor fringe benefits @ 31.5% of direct labor costs; overhead at 85% of total labor costs; air fares, per diem and auto expenses; other costs (task reports, final report, slides, office copies, long distance, courier, etc., as outlined on page 33 of FAL's Proposed Work Plan, under "Other Costs"); subcontracts; and fee at 9.5% of total FAL costs, excluding subcontracts, as outlined on page 34 of FAL's Proposed Work Plan. Each request for payment shall be accompanied by, or preceded by, a monthly progress report. The final 10% of payment of not more than $12,988 will be withheld until completion of the Phase II work, which is the Public Hearing scheduled at the end of the project. (c) Said fees hereinabove are only a maximum amount and do not represent a commitment or guarantee on the part of the Board to pay such amount unless monthly bills submitted substantiate said maximum amount, as provided for in paragraph (a) above. All payments for work done herein are contingent upon satisfactory progress of the work and the work itself being satisfactory to the Board. Payment on approved invoices will be made within 20 days of approval and not later than 30 days after submission, subject to substantiation as outlined above. SECTION SIX PERSONNEL FAL represents that it has, or will secure at its own expense, all personnel required in performing the duties under this contract. Such personnel shall not be employees of nor have any contractual relationship with the Board. All of the services required hereunder will be performed by FAL or under its supervision, and all personnel engaged in the work shall be fully qualified and shall be authorized under state and local law to perform such duties. SECTION SEVEN SUBCONTRACTS (a) Any subcontractors and outside associates or consultants required by FAL in connection with the services covered by this contract will be limited to such individuals or firms as were specifically identified and agreed to during negotiations, or as are specifically m authorized by the Board during the performance of this contract. Any substitutions in or additions to such subcontractors, associates, or consultants will be subject to the prior approval of the Board. (b) FAL may not subcontract services in excess of thirty percent of the contract price to subcontractors or consultants without prior written approval of the Board. (c) All subcontracts entered into by FAL shall be submitted to the Board, without unreasonable delay. SECTION EIGHT ASSIGNABILITY FAL shall not assign, transfer, convey, pledge, sublet or otherwise dispose of this contract without prior written consent of the Board, except as provided for in SECTION SEVEN, SUBCONTRACTS, paragraph (a) above. SECTION NINE EQUAL EMPLOYMENT OPPORTUNITY In accordance with EPA policy as expressed in 40 CFR 30.420-5, FAL agrees that they will not discriminate against any employee or applicant for employ- ment because of race, religion, color, sex, age or national origin. SECTION TEN UTILIZATION OF SMALL AND MINORITY BUSINESS In accordance with EPA policy expressed in 40 CFR 33.130, FAL agrees that qualified small business and minority business enterprises shall have the maximum practicable opportunity to participate in the performance of EPA grant -assisted contracts and subcontracts. SECTION ELEVEN COVENANT AGAINST CONTINGENT FEES FAL warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or under- standing for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees. For breach or violation of this warranty, the Board shall have the right to annul this contract without liability or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or con- tingent fee. SECTION TWELVE GRATUITIES (a) If it is found, after notice and hearing, by the Board that gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by FAL, or any agent or representative of FAL, to any official, employee or agent of the Board or of EPA with a view toward securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performance of this contract, the Board may, by written notice to FAL, terminate the right of FAL to proceed under this contract and/or may pursue such other rights and remedies provided by law or under this contract: PROVIDED, That the existence of the facts upon which the Board makes such findings shall be in issue and may be reviewed in proceedings pursuant to the Remedies clause of this contract. (b) In the event this contract is terminated as provided in paragraph (a) hereof, the Board shall be entitled (i) to pursue the same remedies against FAL as it could pursue in the event of a breach of the contract by FAL, and (ii) as a penalty in addition to any other damages to which it may be entitled by law, to exemplary damages in an amount (as determined by the Board) which shall be not less than three nor more than ten times the costs incurred by FAL in providing any such gratuities to any such officer or employee. SECTION THIRTEEN AUDIT; ACCESS TO RECORDS (a) FAL shall maintain books, records, documents and other evidence directly pertinent to performance on EPA grant work under this contract in accordance with generally accepted accounting principles and practices consistently applied and 40 CFR 30.605, and 30.805. FAL shall also maintain the financial information and data used by FAL in the preparation or support of the cost submission required under 40 CFR 33.510-3 in effect on the date of execution of this contract and a copy of the cost summary submitted to the Board. The United States Environmental Protection Agency, the Comptroller General of the United States, the United States Department of Labor, the Board (and the State, where applicable) or any of their duly authorized represen- tatives shall have access to such books, records, documents and other evidence for the purpose of inspection, audit and copying. FAL will provide proper facilities for such access and inspection. (b) FAL agrees to include paragraphs (a) and (b) of this clause in all his contracts and all tier subcontracts directly related to project performance which are in excess of $10,000. e 4 SECTION FOURTEEN REMEDIES Except as may be otherwise provided in this contract, all claims, counter -claims, disputes and other matters in question between the Board and FAL arising out of or relating to this contract or the breach thereof will be decided by arbitration if the parties hereto mutually agree, or in a court of competent jurisdiction within the State of Colorado. SECTION FIFTEEN LIABILITY FAL agrees that all work performed by FAL pursuant to this contract is performed at the sole risk of FAL notwithstanding the Board's express or implied prior approval or review of work to be performed. FAL agrees to indemnify and hold harmless the Board for any damages, claims, liabilities or rights arising out of FAL's performance of work pursuant to this contract. SECTION SIXTEEN COST OF LITIGATION FAL covenants and agrees to and with the Board that in case the Board shall, without any default on its part, be made a party to any litigation commenced by or against FAL with respect to the performance of the work herein, then FAL shall and will pay all costs in connection with such liti- gation and that FAL shall pay all costs and reasonable attorney's fees which may be incurred by the Board in enforcing the covenants and agreements of this contract. SECTION SEVENTEEN CHANGES (a) The Board may, at any time, without notice to any surety, by written order designated or indicated to be a change order, make any change in the work within the general scope of the contract, including but not limited to changes: 1. In the specifications (including drawings and designs); 2. In the method or manner of performance of the work; 3. In the Board -furnished facilities, equipment, materials, services, or site; or 4. Directing acceleration in the performance of the work. (b) FAL may not implement project changes without prior written approval of the Board. Any project changes proposed by FAL must be submitted to the Board in writing. (c) Any other written order or an oral order (which terms as used in this paragraph (c) shall include direction, instruction, interpreta- tion or determination) from the Board, which causes any such change, shall be treated as a change order under this clause: PROVIDED, That FAL gives the Board written notice stating the date, circumstances, and source of the order and that FAL regards the order as a change order. (d) Except as herein provided, no order, statement, or conduct of the Board shall be treated as a change under this clause or entitle FAL to an equitable adjustment hereunder. (e) If any change under this clause causes an increase or decrease in FAL's cost of, or the time required for, the performance of any part of the work under this contract, whether or not changed by any a order, an equitable adjustment shall be made and the contract modified in writing accordingly: PROVIDED, HOWEVER, That except for claims based on defective specifications, no claim for any change under (c) above shall be allowed for any costs incurred more than 20 days before FAL gives written notice as therein required: AND PROVIDED FURTHER, That in the case of defective specifications for which the Board is responsible, the equitable adjustment shall include any increased cost reasonably incurred by FAL in attempting to comply with such defective specifications. (f) If FAL intends to assert a claim for an equitable adjustment under this clause, they must, within 30 days after receipt of a written change order under (a) above or the furnishing of a written notice under (c) above, submit to the Board a written statement setting forth the general nature and monetary extent of such claim, unless this period is extended by the Board. The statement of claim hereunder may be included in the notice under (c) above. (g) No claim by FAL for an equitable adjustment hereunder shall be allowed if asserted after final payment under this contract. SECTION EIGHTEEN TERMINATION (a) This contract may be terminated in whole or in part in writing by either party in the event of substantial failure by the other party to fulfill its obligations under this contract through no fault of the terminating party: PROVIDED, That no such termination may be effected unless the other party is given (1) not less than ten (10) calendar days written notice (delivered by certified mail, return receipt requested) of intent to terminate and (2) an opportunity for consulta- tion with the terminating party prior to termination. (b) This contract may be terminated in whole or in part in writing by the Board for its convenience: PROVIDED, That FAL is given (1) not less than ten (10) calendar days written notice (delivered by certified mail, return receipt requested) of intent to terminE.te and (2) an opportunity for consultation with the terminating party prior to termination. (c) If termination for default is effected by the Board, an equitable adjustment in the price provided for in this contract shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed services or other work, and (2) any payment due to FAL at the time of termination may be adjusted to the extent of any additional costs occasioned to the Board by reason of FAL's default. If termination for default is effected by FAL, or if termination for convenience is effected by the Board, the equitable adjustment shall include a reasonable profit for services or other work performed. The equitable adjustment for any termination shall provide for payment to FAL for services rendered and expenses incurred prior to the termination, in addition to termination settlement costs reasonably incurred by FAL relating to commitments which had become firm prior to the termination. (d) Upon receipt of a termination action pursuant to paragraphs (a) or (b) above, FAL shall (1) promptly discontinue all services affected (unless the notice directs otherwise), and (2) deliver or otherwise make available to the Board all data, drawings, specifications, reports, estimates, summaries, and such other information and materials as may have been accumulated by FAL in performing this contract whether completed or in process. (e) Upon termination pursuant to paragraphs (a) or (b) above, the Board may take over the work and prosecute the same to completion by contract with another party or otherwise. (f) If, after termination for failure of FAL to fulfill contractual obligations, it is determined that FAL had not so failed, the termination shall be deemed to have been effected for the convenience of the Board. In such event, adjustment of the price provided for in this contract shall be made as provided in paragraph (c) of this clause. SECTION NINETEEN PATENTS If this contract involves research, developmental, experimental, or demonstration works and any discovery or invention arises or is developed in the course of or under this contract, such invention or discovery shall be M subject to the reporting and rights provisions of Subpart D of 40 CFR Part 30, in effect on the date of execution of this contract including Appendix B of said Part 30. In such case, FAL shall report the discovery or invention to EPA directly or through the Board, and shall otherwise comply with the Board's responsibilities in accordance with Subpart D of 40 CFR Part 30. FAL hereby agrees that the disposition of rights to inventions made under this contract shall be in accordance with the terms and conditions of aforementioned Appendix B. FAL shall include provisions appropriate to effectuate the purposes of this condition in all subcontracts involving research, developmental, experimental, or demonstration work. SECTION TWENTY COPYRIGHTS AND RIGHTS IN DATA FAL agrees that any plans, drawings, specifications, computer programs (which are substantially paid for with EPA grant funds), technical reports, operating manuals, and other work submitted or which are specified to be delivered under this contract or which are developed or produced and paid for under this contract (referred to in this clause as "Subject Data") are subject to the rights in the United States, as set forth in Subpart D of 40 CFR Part 30 and in Appendix C to 40 CFR Part 30, in effect on the date of execution of this contract, including the right to use, duplicate and disclose such Subject Data, in whole or in part, in any manner for any purpose whatsoever, and have others do so. For purposes of this article, "grantee" as used in said Appendix C shall refer to the Contractor, FAL. If the material is copyrightable, FAL may copyright such, as permitted by said Appendix C, and subject to the rights in the Government as set forth in Appendix C, but the Board and the Federal Government reserve a royalty -free, nonexclusive, and irrevocable license to reproduce, publish and use such materials, in whole or in part, and to authorize others to do so, except as limited by SECTION ONE, GENERAL TERMS AND CONDITONS, Part (i). FAL shall include provisions appropriate to effectuate the purpose of this condition in all subcontracts expected to produce copyrightable Subject Data. SECTION TWENTY-ONE ADDITIONAL CONDITIONS (a) Except as otherwise provided herein, any notice, approval, acceptance, request, bill, demand or statement hereunder from either party to the other shall be in writing and shall be deemed to have given upon the mailing of said notice by United States certified, first class mail, postage pre -paid, and addressed to the parties at the respective addresses as shall appear herein or upon a change of address pursuant to this notice provision. W All covenants, conditions and provisions in this contract shall extend to and bind the legal representatives, successors, and assignees of the respective parties hereto. (c) The captions or headnotes on articles or sections of this contract are intended for convenience and reference purposes only and in no way define, limit or describe the scope or intent thereof, or of this contract nor in any way affect this contract. (d) It is the intent and understanding of the parties to this contract that each and every provision of law required to be inserted in this contract shall be and is inserted herein. Further- more, it is hereby stipulated that every such provision is deemed to be inserted herein, and if through mistake or otherwise, any such provision is not inserted in correct form, then this contract shall, upon application of either party, be amended by such insertion so as to comply strictly with the law and without prejudice to the rights of either party. (e) The signatories hereto aver that they are familiar with Sections 18-8-301, et. seq., (Bribery and Corrupt Influences) and 18-8-401, et. seq., (Abuse of Public Office), C. R. S. 1973, as amended, and that no violation of such provisions is present. (f) The signatories aver that to their knowledge, no State and/or County employee has any personal or beneficial interest whatsoever in the service or property described herein. If this contract contains any unlawful provisions, not an essential part of the contract and which appear not to have been a controlling or material inducement to the making thereof, the same shall be deemed of no effect, and shall upon the application of either party be stricken from the contract without affecting the binding force of the contract as it shall remain after omitting such provision. If this contract contains errors, inconsistencies, ambiguities, or discrepancies, including typographical errors, FAL shall request a clarifi- cation of same by writing to the Board whose decision shall be binding upon the parties. Po 0 IN WITNESS WHEREOF, the parties hereto have executed this contract on the day first above written. COUNTY OF EAGLE, STATE OF COLORADO By and through its Board of County Commissioners BY Y 'ga Dale F. Grant, Chairman Address: P. 0. Box 850 Eagle, Colorado 81631 Telephone: (303) 328-7311 FRANKLIN ASSOCIATES, LTD. By (� 1"4�1 — Address: 8340 Mission Road, Suite 101 Prairie Village, Kansas 66206 Telephone: (913) 649-2225 ATTEST: By Clerk of the �/oard of County Commiss oners APPROVED AS TO FORM: County Attorney