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Clean Water Action Council of N.E. Wisconsin
East Port Center
1270 Main Street, Suite 120
Green Bay, WI 54302
Fax: 920-437-7326
E-mail:
Fox River Superfund Technical Advisor Contract
This contract is entered into this ____ day of July, 1999, by and between the Clean Water Action Council of N.E. Wisconsin, Inc. and _____________________________ (hereafter referred to as 'contractor.')
I. SCOPE OF CONTRACT
The contractor agrees to perform the following services:
A. Purpose:
The Clean Water Action Council is entering into this contract with ____________________, who will provide the services of Technical Advisor(s) under this Technical Assistance Grant for the proposed Lower Fox River Superfund site. The Advisor(s) will review the draft and final Remedial Investigation Feasibility studies, and the Remedial Design, and assist local citizens in evaluating the information. The Advisor(s) will answer citizen questions, assist local citizens in summarizing the evaluation in understandable laymen's terms, and give at least 3 public presentations of his or her evaluation.
B. Contractual Period and General Statement of Duties:
This contract will be effective immediately, and will extend through the expenditure of 384 hours, or approximately the equivalent of 9.6 weeks of full-time work spread over several months of document review time.
C. Specific Contractor Tasks:
1. Start-up --- Review and sign this contract, and create a record keeping and reporting system for the duration of this contract, in consultation with the Grant Administrator.
2. Record-keeping --- Purchase supplies as needed, within a budget negotiated with the Grant Administrator and Board of Directors of Clean Water Action Council. Keep a detailed log of all phone calls. Submit reimbursement requests or invoices for these expenses to the Grant Administrator, while staying within the budget maximums.
3. Remedial Investigation (Estimate: 100 hours) --- The advisor's first task will be to review the RI work plan, sampling plan, and quality assurance and quality control (QA/QC) plan. Special attention will be given to how EPA has investigated the site, and evaluation of technical comments made by other parties. The advisor will be expected to help the Coalition evaluate the results, and answer questions from the Coalition. Another key document to be reviewed by the advisor will be the risk assessment. This review will be conducted in a timely fashion to allow the coalition time for meaningful participation in the EPA public review process of this stage, at least 3 weeks prior to RI public comment deadlines and RI public hearings.
4. Feasibility Study (Estimate: 140 hours) The advisor will complete a detailed analysis of the proposed remedies in the draft and final feasibility study and then brief the coalition on its contents. Additionally, the advisor will prepare a written report to aid the Coalition's preparation of public comments, specifically addressing the proposed cleanup measures.
The advisor will be expected to analyze the health assessment to ensure that public health is being adequately considered. The advisor will prepare a summary report on the potential health risks posed by the site and how EPA proposes to address these risks. Particular attention will be given to the feasibility of sediment detoxification technologies, dredging technologies, and control of PCB volatility into the air during remediation. The advisor also will examine the Record of Decision (ROD) and prepare a memorandum on the chosen method of cleanup. Additionally, this report will describe how major comments submitted by the Coalition and the general community were addressed by EPA in the responsiveness summary. These reviews will be conducted in a timely fashion to allow the coalition time for meaningful participation in the EPA public review process of each stage, at least 3 weeks prior to public comment deadlines and public hearings.
5. Remedial Design (Estimate: 80 hours) --- The technical advisor will be expected to review functions during this stage. The advisor will review the final design to ensure that the design is consistent with the ROD. The advisor will be expected to report his/her findings in memoranda submitted to the Coalition. Excerpts about the progress at the site will be published in the Coalition newsletter. These reviews will be conducted in a timely fashion to allow the coalition time for meaningful participation in the EPA public review process of each stage, at least 3 weeks prior to public comment deadlines and public hearings.
6. Public Outreach (Estimate: 64 hours) --- The advisor will make at least one trip to Northeast Wisconsin for 4 days and 3 nights to meet with Coalition members and make a presentation on his/her findings at three special community forums held in the evening by the Coalition in 3 central communities prior to key EPA public meetings. The $500 travel budget assumes the advisor will require an airline ticket from elsewhere and local mileage reimbursements for ground-level transportation to various meetings during the 4 days. In addition, Advisor would receive $100 for each of the 4 days for food and at least 3 nights' lodging.
At least 4 conference calls will be organized to link the advisor with local Coalition members, especially after the completion of major reports and evaluation. The advisor will also be available to answer calls, e-mails, and questions from Coalition members and the TAG Administrator. (Therefore, we have allocated $1,000 for the Advisor's phone budget ---- conference calls can be costly.) Coalition members will be able to submit their proposed newsletters, factsheets and written formal comments to the advisor for technical review and feedback.
7. Internet Webpage --- Work with the TAG Administrator to adapt the Technical Advisor's reports and comments to the new internet Homepage created for Clean Water Action Council (cwac.net).
D. Progress Reports:
The contractor shall submit the following reports:
1. Progress Reports: The contractor shall submit monthly progress reports to the Grant Administrator and Coalition. These reports shall be submitted within fifteen (15) days of the end of each calendar month. These reports shall, at a minimum, contain the following information summarizing the activities undertaken to date by the contractor:
a. Hours worked on tasks outlined above;
b. Dollars spent by task and total dollars spent for the reporting period; and
c. A description of activities.
2. Final Report: Within 60 days of the end of the contract, the contractor shall prepare and submit to the Grant Administrator and Fox River TAG Coalition, for its review and approval, a summary report that shall detail all activities undertaken under the contract and evaluate their effectiveness in meeting the purpose of the contract. The Coalition shall review this final report and may require revisions. Upon receipt of the Fox River TAG Coalition revisions, the contractor shall incorporate any revisions necessary and resubmit the final report within 15 days.
E. Technical Direction and Acceptance:
The Clean Water Action Council and Coalition appoint Rebecca Katers, CWAC Executive Director, as the overall manager for this contract. She is the only person authorized by the Coalition to amend this contract, negotiate changes, receive reports, and accept any other deliverables. The contractor must not incur costs at the direction of anyone else; otherwise the Clean Water Action Council or Fox River TAG Coalition shall not be liable for these costs.
II. PAYMENT
A. Clean Water Action Council shall compensate the contractor for the services outlined in this contract at a rate of seventy-five dollars per labor hour ($75.00 per labor hour), which shall include overhead, general and administrative costs, and any allowed fee or profit.
B. Reimbursement for Other Specified Direct Costs shall be at the following rates:
1. Travel for public programs
Mileage ($.26 per mile) or airline ticket Not to exceed $500
Lodging and Meals ($100 per diem) Not to exceed $400
2. Telephone expense Not to exceed $1,000
3. Postage expense Not to exceed $200
4. Copying expense Not to exceed $140
C. Overall maximum payment for the contract, including any reimbursement authorized in (A) and (B) above, shall not exceed:
Thirty-one Thousand and Forty Dollars
(amount in words)
(31,040)
(amount in numbers)
Payment shall be made on a basis in accordance with provision III (A) of this contract.
D. Reimbursement shall also be supplied for other essential supplies such as paper, printer toner, labels, at cost, not to exceed amounts agreed to in advance after consultation with the Grant Administrator and Board of Directors for Clean Water Action Council.
E. In no event shall the contractor be reimbursed for holidays, sick days, or time other than that actually spent providing the services.
III. METHOD OF PAYMENT
A. Standard Invoice System:
Bi-weekly, or monthly, on a schedule to be provided by the Grant Administrator, the contractor shall submit time sheets and corresponding invoices to: Rebecca Katers, Executive Director, Clean Water Action Council, for services performed during the previous 2 weeks or month. Time sheets must indicate the hours charged on a daily basis (even if zero) and indicate travel expenses corresponding to the days the charges were incurred. Invoices must clearly show the total hours charged for the time period, rate and total cost, and specify the total charge for that month for each of the 'Other Direct Cost' categories specified in provision II (B) of this contract. If the invoices are approved, Clean Water Action Council agrees to make responsible efforts to process payments promptly in accordance with the provisions of 40 CFR Part 33.
Clean Water Action Council is limited under the Technical Assistance Grant (TAG) Program to reimbursement on a quarterly basis for total costs under $500 and on a monthly basis if costs exceed $500. Thus, contractor payment is also subject to this payment schedule.
B. Final Invoice:
Clean Water Action Council retains the right to withhold up to 10% of the total contract value pending closeout of this contract. Final payment shall be made in accordance with Article V.9.
IV. FUNDING AND FISCAL APPROPRIATIONS
Obligations for expenditures by EPA for TAGs will be approved for entire budget periods. The obligation of Clean Water Action Council to renew this contract may be subject to the availability of EPA appropriations.
V. GENERAL CLAUSES
1. Supersession
The Clean Water Action Council and the contractor agree that this and other appropriate clauses in 40 CFR 33.1030 apply to that work eligible for EPA assistance to be performed under this contract and that these clauses supersede any conflicting provisions of this contract.
2. Privity of Contract
This contract is expected to be funded in part with funds from the U.S. EPA. Neither the United States nor any of its departments, agencies, or employees is, or will be, a party to this contract or any lower tier contract. This contract is subject to regulations contained in 40 CFR Part 33 in effect on the date of the assistance award for this project.
3. 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 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 consultation with the terminating party prior to termination.
b. This contract may be terminated in whole or in part, in writing, by the Clean Water Action Council for its convenience, provided that the contractor 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 consultation with the terminating party prior to termination.
c. If termination for default is effected by the Clean Water Action Council, 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 the contractor at the time of termination may be adjusted to cover any additional costs to Clean Water Action Council because of the contractor's default. If termination for default is effected by the contractor, or if termination for convenience is effected by Clean Water Action Council, the equitable adjustment shall include a reasonable profit for services performed under this contract.
d. Upon receipt of a termination action under paragraphs (a) or (b) above, the contractor shall (1) promptly discontinue all affected work (unless the notice directs otherwise), and (2) deliver or otherwise make available to Clean Water Action Council all equipment and supplies, and data, reports, summaries, or other information and materials as may have been accumulated by the contractor in performing this contract, whether completed or in process.
e. Upon termination under paragraphs (a) or (b) above, Clean Water Action Council may take over the work and may award another party a contract to complete the work under this contract.
f. If, after termination for failure of the contractor to fulfill contractual obligations, it is determined that the contractor had not failed to fulfill contractual obligations, the termination shall be deemed to have been for the convenience of the recipient. In such event, adjustment of the contract price shall be made as provided in paragraph (c) of this clause.
4. Remedies
Unless otherwise provided in this contract, all claims, counter-claims, disputes, and other matters in question between Clean Water Action Council and the contractor arising out of, or relating to, this contract or the breach of it will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction.
5. Audit - Access to Records
a. The contractor shall maintain books, records, documents, and other evidence directly pertinent to performance on EPA funded work under this contract in accordance with generally accepted accounting principles and practices consistently applied and 40 CFR Part 30 in effect on the date of execution of this contract.
The contractor also shall maintain the financial information and data used in the preparation or support of the cost submission required under 40 CFR 33.290 for any negotiated contract or change order and a copy of the cost summary submitted to the recipient. The U.S. Environmental Protection Agency, the Comptroller General of the United States, the U.S. Department of Labor, the Clean Water Action Council, or any of their authorized representatives shall have access to all such records, books, documents, and other evidence for the purpose of inspection, audit, and copying during normal business hours. The contractor will provide proper facilities for such access and inspection.
b. Audits conducted under this provision shall be in accordance with generally accepted auditing standards and with established procedures and guidelines of the reviewing or audit agency(ies).
c. The contractor agrees to disclose all information and reports resulting from access to records under the paragraphs (a) and (b) of this clause to any of the agencies referred to in paragraph (a).
d. Access to records is not limited to the required retention periods. The authorized representatives designated in paragraph (a) of this clause shall have access to records and at a reasonable time for as long as the records are maintained.
e. This right of access clause applies to financial records pertaining to all contracts (except formally advertised, competitively awarded, fixed-price contracts) and all contract change orders regardless of the type of contract, and all contract amendments regardless of the type of contract. In addition, this right of access applies to all records pertaining to all contracts, contract change orders, and contract amendments:
(1) To the extent the records pertain directly to contract performance.
(2) If there is any indication that fraud, gross abuse, or corrupt practices may be involved.
(3) If the contract is terminated for default or for convenience.
6. Covenant Against Contingent Fees
The contractor assures that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage or contingent fee excepting bona fide employees or bona fide established commercial or selling agencies maintained by the contractor for the purpose of securing business. For breach or violation of this assurance, the Clean Water Action Council shall have the right to annul this agreement without liability, or at its discretion, to deduct from the contract price or consideration, or otherwise recover the full amount of such commission, percentage, or brokerage or contingent fee.
7. Gratuities
a. If the Clean Water Action Council finds after a notice and hearing that the contractor or any of the contractor's agents or representatives offered or gave gratuities (in the form of entertainment, gifts or otherwise) to any official, employee, or agent of the Clean Water Action Council, the state, or EPA in an attempt to secure a contract or favorable treatment in awarding, amending, or making any determinations related to the performance of this contract, the Clean Water Action Council may, by written notice to the contractor, terminate this contract. The Clean Water Action Council also may pursue other rights and remedies that the law or this contract provides. However, the existence of the facts on which the Clean Water Action Council bases such findings shall be an issue and may be reviewed in proceedings under the Remedies clause of this contract.
b. In the event this contract is terminated as provided in paragraph (a), the Clean Water Action Council may pursue the same remedies against the contractor as it could pursue in the event of a breach of the contract by the contractor, and as a penalty, in addition to any other damages to which it may be entitled by law, be entitled to exemplary damages in an amount ( as determined by the Clean Water Action Council) which shall be not less than three nor more than ten times the costs the contractor incurs in providing any such gratuities to any such office or employee.
8. Responsibility of the Contractor
a. The contractor is responsible for the professional quality, technical accuracy, timely completion, and coordination of all reports or other services furnished by the contractor under his/her contract. The contractor shall, without additional compensation, correct or revise any errors, omission, or other deficiencies in the reports and other services.
b. The contractor shall perform the professional services necessary to accomplish the work specified in this contract in accordance with this contract and applicable EPA requirements in effect on the date of execution of the assistance agreement for this project.
c. The Clean Water Action Council's or EPA's approval of reports and incidental work or materials furnished hereunder shall not in any way relieve the contractor of responsibility for the technical adequacy of his/her work. Neither the Clean Water Action Council's nor EPA's review, approval, acceptance, or payment of any of the services shall be construed as a waiver of any rights under this contract or of any cause for action arising out of the performance of this contract.
d. The contractor shall be, and shall remain, liable in accordance with applicable law for all damages to the Coalition or EPA caused by the contractor's negligent performance of any of the services furnished under this contract, except for errors, omission or other deficiencies to the extent attributable to the Clean Water Action Council, Council-furnished data, or any third party. The contractor shall not be responsible for any time delays in the project caused by circumstances beyond the contractor's control.
e. The contractor's obligations under this clause are in addition to the contractor's other express or implied assurances under this contract or state law and in no way diminish any other rights that the Coalition may have against the contractor for faulty materials, equipment, or work.
9. Final Payment
Upon satisfactory completion of the work performed under this contract, as a condition before final payment under this contract, or as a termination settlement under this contract, the contractor shall execute and deliver to the Clean Water Action Council a release from any future claims against the Clean Water Action Council arising under this contract, except claims that are specifically exempted by the contractor to be set forth in the release. Unless otherwise provided in this contract, by state law or otherwise expressly agreed to by the parties to this contract, final payment under this contract or settlement upon termination of this contract shall not constitute a waiver of the Clean Water Action Council's claims against the contractor under this contract.
10. Organizational Conflict of Interest
An organizational conflict of interest exists when the nature of the proposed work may result in an unfair competitive advantage to the contractor or impair the contractor's objectivity in performing the contract work.
a. The contractor warrants, to the best of his/her knowledge and belief, that either there are no relevant facts or circumstances that could give rise to an organizational conflict of interest, or that the contractor has disclosed all such relevant information.
b. Prior to the commencement of any work, the contractor agrees either to notify the Clean Water Action Council that, to the best of his/her knowledge and belief, no actual, apparent, or potential organizational conflict of interest exists or to identify to the Clean Water Action Council any actual, apparent, or potential organizational conflict of interest.
c. The contractor agrees that if an actual, apparent, or potential organizational conflict of interest is identified during performance, he/she will immediately make a full disclosure in writing to the Clean Water Action Council. This disclosure shall include a description of actions that the contractor has taken or proposes to take after consultation with the Clean Water Action Council to avoid, mitigate, or neutralize the actual, apparent, or potential organizational conflict of interest. The contractor shall continue performance until notified by the Clean Water Action Council of any contrary action to be taken.
d. The contractor expressly agrees to immediately notify the Clean Water Action Council by telephone and by letter should he/she enter into any other agreement or contract that would create an actual or potential conflict of interest or violation of the Procurement Integrity Act of 1988. The Clean Water Action Council may terminate this Agreement for convenience, in whole or in part, if it deems such termination necessary to avoid an organizational conflict of interest. If the contractor was aware, or should have been aware, of a potential organizational conflict after award and did not disclose or misrepresented relevant information to the Clean Water Action Council, the Clean Water Action Council may terminate this Agreement for default or pursue such other remedies as may be permitted by law.
e. The contractor further agrees to insert into any such subcontract or consulting agreement hereunder provisions that shall conform substantially to the language of this Agreement.
11. Personal Conflict of Interest
a. In addition to the requirements of Article 10, the following provisions with regard to employee personnel performing under this contract shall apply until the earlier of the termination date of the affected employee or the duration of this contract.
b. The contractor agrees to immediately notify the Clean Water Action Council of any actual, apparent, or potential personal conflict of interest with regard to any employee, subcontractor employee, or consultant working on or having access to information concerning this contract. A personal conflict of interest is defined as a relationship of an employee, subcontractor employee, or consultant with an entity that may impair the objectivity of the employee, subcontractor employee, or consultant in performing the work.
c. The contractor agrees to notify the Clean Water Action Council prior to incurring costs for that employee's work where an employee may have a personal conflict of interest. In the event that the personal conflict of interest does not become known until after performance of this contract has begun, the contract shall immediately notify the Clean Water Action Council of the personal conflict of interest. The contractor shall continue performance of this subcontract until notified by the Clean Water Action Council of the appropriate action to be taken.
d. The contractor agrees to insert into each subcontract or consulting agreement that he/she enters language that shall conform substantially to this agreement.
12. Independent Contractor
The services provided by the contractor are on a professional basis as an independent contractor, determining his/her own manner of performing the work, and shall not be considered an employee of the Clean Water Action Council within the meaning or the application of any federal, state or local laws or regulations governing Unemployment Insurance, Social Security benefits, Workmen's Compensation, Industrial Accident, Labor, or Taxes. It is likewise understood that the contractor shall not be considered an employee within the meaning or application of the Clean Water Action Council employee fringe benefit programs for the purposes of vacations, holidays, health benefits, or Employee Retirement Plan. The contractor expressly acknowledges that he/she shall hold the Clean Water Action Council harmless from any claims by third parties that may be asserted against him/her and deriving in any way from his/her travels, presence or other activities connected with this Agreement.
13. Ineligible Activities Prohibited
The services to be provided by the contractor under this contract shall not include any of the following activities:
Serving as a TAG technical advisor at the same site for which the contractor is doing work for the federal or state government or any other entity.
Assisting an attorney in preparing a legal action or preparing for and serving as an expert witness at any legal proceeding.
Partisan political activity, including lobbying for any issue or cause, or to further the election or defeat of any candidates for public office.
Generation of new primary data such as well drilling and testing, including split sampling.
Reopening final EPA decisions or conducting disputes with EPA.
14. Preparation and Distribution of Informational Materials
The contractor shall not, without prior review and approval by the Clean Water Action Council, disclose or release informational materials to the general public, other governmental agencies, businesses, or other legal entities.
15. Record Retention
All records required under this contract shall be maintained by the contractor during performance on EPA-assisted work under this contract. Such records must clearly detail acquisitions, work progress, reports, expenditures, and commitments indicating their relationship to established costs and schedules. These records shall be retained for at least 10 years from close-out of the contract, unless audit, litigation, cost recovery, and/or any disputes are initiated before the end of the 10-year retention period. Prior written approval shall be obtained from the Clean Water Action Council before any records may be destroyed after the record retention period.
Contractor's Signature ___________________________
Printed Name ___________________________
Contractor's Company ___________________________
Clean Water Action Council Representative Signature ___________________________
Printed Name ___________________________
Title ___________________________
Date ___________________________
Clean Water Action Council of N.E. Wisconsin
East Port Center
1270 Main Street, Suite 120
Green Bay, WI 54302
Fax: 920-437-7326
E-mail:
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