HomeMy WebLinkAboutresolution.council.018-10RESOLUTION # C~
(Series of 2010)
A RESOLUTION APPROVING AN AMENDED CONTRACT BETWEEN THE
CITY OF ASPEN, COLORADO, AND MILLER ECOLOGICAL
CONSULTANTS SETTING FORTH THE TERMS AND CONDITIONS
REGARDING ADDITIONAL AQUATIC BIOLOGY STUDIES ON CASTLE
CREEK AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID
CONTRACT
WHEREAS, there has been submitted to the City Council a contract
between the City of Aspen, Colorado, and Miller Ecological Consultants, a copy of
which contract is annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that amended
contract between the City of Aspen, Colorado, and Miller Ecological Consultants
regarding approval of contract amendments for Aquatic Biology studies on Castle
Creek through Miller Ecological Consultants, copies of which are annexed hereto
and incorporated herein, and does hereby authorize the City Manager of the City of
Aspen to execute said contract on behalf of the City of Aspen.
Dated:
• ZOI~
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council
of the City of Aspen, Colorado, at a meeting held March 8, 2010.
Kath . Ko ,City Clerk
MILLER 21 t 1 s. college Ave., Unit D
ECOLOGICAL Fort Collins, CO 80525
CONSULTANTS, [NC. (970) 224-4505
MEMORANDUM
Date: February 15, 2010
To: Phil Overeynder, City of Aspen
From: William J. Miller, Ph.D.
CC: Karl Kumli, Cynthia Covell
Subject: Proposal for additional studies on Castle and Maroon Creek to support the license
application for the Castle Creek hydro plant.
The city of Aspen is in the process of completing the application for a conduit exemption for the
Castle Creek hydro electric plant. A public meeting was held on November 12, 2009 to solicit
comments from the resource agencies and public. Two set of comments, one from the Colorado
Division of Wildlife, and one from the Aspen Wilderness Workshop, requested additional studies
to evaluate potential impacts to aquatic resources.
The CDOW has requested several additional studies to evaluate the impacts. These are: 1)
additional R2Cross data at two locations on Castle Creek, 2) fish population and winter habitat
data on Castle and Maroon creeks, and 3) surveys for Boreal toads.
The CDOW based the request on the fact that that the original 122Cross data was collected over
thirty years ago and is located upstream of the points of diversion on Maroon and Castle Creeks
and may not accurately reflect existing stream conditions. The existing fish data is several years
old (data was collected in 1977 and 1979 for Castle Creek and 1993 for Mazoon Creek).
Additional and more current fish and habitat data would allow the CDOW to more accurately
evaluate future project operations on existing fish populations and winter habitat conditions.
Populations of boreal toads have existed on Castle Creek (adults observed most recently in
1998), Conundrum Creek, a tributary to Castle Creek (adults last observed in 2002) and currently
a robust breeding population of boreal toads exists on East Maroon Creek. The boreal toad is
presently listed as a State Designated Endangered Species in Colorado.
Miller Ecological Consultants, Inc. Page 1
The Wilderness Workshop asserted that the R2Cross data from Maroon Creek collected in 2000
would be applicable to Castle Creek. The hydrology data for each stream suggests that the
Maroon Creek data would not be directly applicable to Castle Creek and we recommend that
new R2Cross data should be collected on Castle Creek. The Wilderness Workshop also
suggested that additional studies be conducted to determine an ecologically sustainable flow
regime for both Maroon and Castle creeks. A full year flow regime can be determined using the
hydrology data and the additional data collection recommended by CDOW. The scope of work
contained herin was developed to respond to those comments.
We propose the following studies to acquire the data requested by CDOW.
Task 1 -Collection of additional R2Cross Data at two additional points on Castle Creek:
a. At a point downstream of the city of Aspen Castle Creek diversion and upstream
of the point of discharge from the proposed Castle Creek hydro plant, and
b. At a point downstream of their point of discharge and upstream of the confluence
with the Roaring Fork River.
We propose to collect this data prior to spring runoff if possible and would be collected using
standazd methods described in the publication "Development of Instream Flow
Recommendations in Colorado using R2Cross". CDOW also requested Aspen incorporate the
additional R2Cross data the CDOW has recently collected on Maroon Creek into the
environmental report. This data was collected downstream of the Maroon Creek diversion point
and upstream of the confluence with the Roaring Fork River. We propose to obtain the new
CDOW R2Cross information and incorporate this new R2Cross data collected on Mazoon and
Castle Creeks into the environmental report.
As part of this study, we plan to meet with the city and CDOW after the additional R2Cross Data
has been collected and analyzed. This meeting will allow both parties to discuss how project
operations and future diversions from Mazoon and Castle Creeks can be optimized to minimize
impacts to the natural environment of Maroon and Castle Creeks.
Miller Ecological Consultants, [nc. Page 2
Task 2 -Fish Population Data. We propose to collect additional fish population data and
provide additional information regarding existing winter stream habitat conditions for Maroon
and Castle Creeks. The preferred time to pollect this data is in the fall (September through
October). However, to complete these studies as soon as possible to continue progress on this
project, we propose to collect the data in the spring prior to runoff. The electrofishing data prior
to spring runoff will result in lower densities and biomass totals due to cold water effects on fish
response to electricity. Any comparison of future sampling efforts would specifically note the
season of sampling. Fishery sampling is proposed to be conducted on a representative 500 foot
reach of stream using standard fishery sampling techniques according to stipulations cited in the
Scientific Collection license. Data for the analysis of winter habitat would be obtained by
collecting additional cross section data in several stream habitat adjacent to the R2Cross
locations. The collection of additional cross section data, and specifically, water surface
elevations at two or more discharges, will allow the simulation of habitat at winter flow levels.
These data would be collected concurrently during R2Cross studies, fish population surveys and
boreal toad surveys.
Task 3 -Boreal Toad Surveys. We propose to collect additional information relating to
possible boreal toad populations and habitat on Maroon and Castle Creeks. We propose to
conduct at least 2 or 3 daytime surveys and one night time survey be conducted at each site
during the breeding season (mid-May through June). In addition, Maroon and Castle Creeks
would be surveyed in August, preferably during a warm sunny day, below the existing diversions
to determine if juvenile boreal toads are present (see attached map). The surveys would be
conducted using standard procedures described in The Boreal Toad Conservation Plan and
Agreement (Loeffler, 2001) and the attached amphibian survey form instructions. We will use
the updated disinfection protocols that now require Sparquat prior to any surveys. Sites to be
surveyed include upstream and downstream in the vicinity of the city diversion structures and
around Thomas Reservoir.
Task 4 -Data analysis. The above data will be analyzed using standard protocols for R2Cross
and fish populations. In addition, the measurements taken at several stream flows will allow the
analysis of habitat during low flow conditions and during runoff These additional
Miller Ecological Consultants, Inc. Page 3
measurements can be used to simulate winter habitat conditions. The surveys in May and June
would allow analysis of conditions needed for the stream riparian area. This new data combined
with the stream hydrology allows that evaluation of ecologically sustainable flows as
recommended by the Wilderness Workshop. The analysis will include the evaluation of impacts
from the proposed Castle Creek hydro plant.
Task 5 -Technical Memorandum. A Technical Memorandum will be prepared the documents
the methods, data analysis, results and conclusions from the above studies. The Technical
Memorandum would be completed one month after the final data collection effort.
Task 6 -Meetings. We estimate the at least three meetings will be required for the above tasks.
These meeting will be a combination of face to face meetings and conference calls.
Schedule
The following schedule is estimated for the above work.
• R2Cross measurements -late March -early Apri12010
• Boreal toad surveys -May/June, August 2010
• Fish Population surveys -early April 2010 or September/October 2010
• Winter habitat cross sections -Concurrent with 122Cross, Boreal Toad surveys, Fish
populations
• Data Analysis -Start after first R2Cross measurment, complete 3 weeks after final data
collection (estimated September/October 2010)
• Technical Memorandum -September/October 2010
This schedule assumes that a scientific collecting permit would be issued by CDOW by March
31 s` , 2010. Further, the stream conditions in late March or early April would allow collection of
R2Cross measurements and Fish populations. The schedule will be adjusted if field conditions
do not allow for collection of data in the spring.
Miller Ecological Consultants, Inc. Page 4
Cost
The estimated cost for the above work is $48,400.00 (Table 1). This estimate is based on our
usual costs for studies similar to this effort. The following assumptions were used for the cost
estimate:
• The city of Aspen would assist in acquiring access for the requested studies on Castle and
Maroon creeks.
• Each field effort (R2Cross, Fish population data, Boreal toad surveys) would require a
separate trip.
• Winter habitat information would be collected concurrently with other efforts.
Any changes to the scope of work as described or the cost assumptions would require a review
and possible revision to the cost estimate.
Table I. Estimated cost b task for additional studies on Castle and Maroon creeks.
Task Labor Direct Total
R2Cross field /winter habitat $7,250.00 $920.00 $8,170.00
Fish Po ulation data $9,000.00 $1,640.00 $10,640.00
Boreal toad surve $8,800.00 $820.00 $9,620.00
Data anal sis $8,000.00 $- $8,000.00
Technical Memorandum $8,000.00 $- $8,000.00
Meetin s $3,600.00 $370.00 $3,970.00
Total Estimated Cost $44,650.00 $3,750.00 $48,400.00
Miller Ecological Consultants, Inc. Page 5
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AGREEMENT FOR PROFESSIONAL SERVICES ~ ~~/
This Agreement trade and entered on the date hereinafter stated, between the CITY OF
ASPEN, Colorado, ("City") and MILLER ECOLOGICAL CONSULTANTS, INC., ("Profession-
al").
For and in consideration of the mutual covenants contained herein, the parties agree as
follows:
1. Scope of Work. Professional shall perform in a competent and professional manner
the Scope of Work as set forth at Exhibit "A" attached hereto and by this reference incorporated
herein.
2. Completion. Professional shall commence work immediately upon receipt of a
written Notice to Proceed from the• Ciry acrd complete all phases of the Scope of Work as
expeditiously as is consistent with professional skill and care and the orderly progress of the Work in
a timely manner. The parties anticipate that all work pursuant to this agreement shall be completed
no later than August 31, 2009. Upon request of the City, Professional shall submit, for the City's
approval, a schedule for the performance of Professional's services which shall be adjusted as
required as the project proceeds, and which shall include allowances for periods of time required by
the City's project engineer for review and approval of submissions and for approvals of authorities
having jurisdiction over the project. This schedule, when approved by the City, shall not, except for
reasonable cause, be exceeded by the Professional,
3. Payment. In consideration of the work performed, City shall pay Professional on a
time and expense basis for all work performed, The hourly rates for work performed by Professional
shall not exceed those hourly rates set forth at Exhibit "B" appended hereto. Except as otherwise
mutually agreed to by the parties the payments made to Professional shall not initially exceed
$75,777.00. Professional shall submit, in timely fashion, invoices for work performed. The City shall
review such invoices and, if they are considered incorect or untimely, the City shall review the
matter with Professional within ten days from receipt of the Professional's bill.
4. Non-Assi ang bifity. Both parties recognize that this contract is one for personal
services and cannot be transfered, assigned, or sublet by either party without prior written consent
of the other. Sub-Contracting, if authorized, shall not rmlieve the Professional of any of the
responsibilities or obligations under this agreement. Professional shall be and remain solely
responsible to the Ciry for the acts, errors, omissions or neglect of any subcontractors officers, agents
and employees, each of whom shall, For this purpose be deemed to be an agent or employee of the
Professional to the extent of the subcontract. The Ciry shall not be obligated to pay or be liable for
payment of any sums due which maybe due to any sub-contractor.
5. Termination. The Professional or the City may terminate this Agreement, without
specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying
the effective date of the temrina6on. No fees shall be earned after the effective date of the
termination. Upon any termination, all finished or unfinished documents, data, studies, surveys,
PS1-971.dac Page t
drawings, maps, models, photographs, reports or other material prepared by the Professional
pursuant to this Agreement shall become the property of the City. Nohvithstanding the above,
Professional shall not be relieved of any liability to the City for damages sustained by the City by
virtue of any breach of this Agreement by the Professional, end the City may withhold any payments
to the Professional for the purposes of set-off until such thne as the exact amount of damages due the
City from the Professional may be determined.
6. Covenant Against Contingent Fees. The Professional warrants that s/he has not
employed or retained any company or person, other than a bona fide employee working for the
Professional, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or
person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or
any other consideration contingent upon or resulting from the award or making of this contract.
7. Independent Contractor Status. It is expressly acknowledged end understood by the
parties that nothing contained in this agreement stall result in, or be constmed as establishing an
employment relationship. Professional shall be, and shall perform as, an independent Contractor
who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent,
employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or
servant of the City. City is interested only in the results obtained under this contract. The manner
and means of conducting the work are under the sole wntrol of Professional. None of the benefits
provided by City to its employees including, but not limited to, workers' compensation insurance and
unemployment insurance, are available from City to the employees, agents or servants of
Professional. Professional shall be solely and entirely responsible for its acts and for the acts of
Professional's agents, employees, servants and subconhactors during the performance of this
contract. Professional shall indemnify City against all liability and loss in connection with, and shall
assume full responsibility for payment of all federal, state and local taxes or contributions imposed
or required under unemployment insurance, social security and income tax law, with respect to
Professional and/or Professional's employees engaged in the performance of the services agreed to
herein.
8. Indemnification. Professional agrees to indemnify and hold harmless the City, its
officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and
demands, on account of injury, loss, or damage, including without Invitation claims arising from
bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of
any kind whatsoever, which arise out of or are in any manner connected with this contract, if such
injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part
by, the act, omission, error, professional error, mistake, negligence, or other fault of the Professional,
any subcontractor of the Professional, or any officer, employee, representative, or agent of the
Professional or of any subcontractor of the Professional, or which arises out of any workmen's
compensation claim of any employee of the Professional or of any employee of any subcontractor of
the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense
for and defend against, any such liability, claims or demands at the sole expense of the Professional,
or at the option of the City, agrees to pay the City or rennburse the City for the defense costs
incurred by the Ciry in connection with, any such liability, clanns, or demands. If it is determined by
the fmal judgment of a cotut of competent jurisdiction that such injury, loss, or damage was caused
PS 1-971.doc Page 2
in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the
City shall reimburse the Professional for the portion of the judgment attributable to such act,
omission, or other fault of the City, its officers, or employees.
9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own
expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands,
and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance shall
be in addition to any other insurance requirements imposed by this contract or by law. T}re
Professional shall not be relieved of any liability, claims, demands, or other obligations assumed
pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of
its failure to procure or maintain insurance in sufficient amounts, duration, or types.
(b) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain, the minhnum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the City. All
coverages shall be continuously maintained to cover all liability, claims, demands, and other
obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims-made
policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain
such continuous coverage.
(i) Workers' Compensation insurance to cover obligations imposed by
applicable laws for any employee engaged in the performance of work under this contract, and
Employers'Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease
- policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -each
employee. Evidence of qualified self-insured status may be substituted for the Workers'
Compensation requirements of this paragraph.
(ii) Commercial General Liabiliry~ insurance with minimum combined single
limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION
DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and
operations. The policy shall include coverage for bodily injury, broad form property damage
(including completed operations), personal injury (including coverage for contractual and
employee acts), blanket contractual, independent contractors, products, and completed
operations. The policy shall contain a severability of interests provision.
(iii) Comprehensive Automobile Liability insurance with minimum combined
single limits for bodily injury and property damage of not less than ONE MILLION
DOLLARS ($1,000,000.00) each occurrence and ONE MII,LION DOLLARS ($1,000,00-
0.00) aggregate with respect to each Professional's owned, hired and non-owned vehicles
assigned to or used in performance of the Scope of Work. The policy shall contain a
severability of interests provision. If the Professional has no owned automobiles, the
requirements. of this Section shall be met by each employee of the Professional providing
services to the City under this contract.
PSI-97Ldoc Page 3
(iv) Pr-ofessiotwl Liability insurance with the minimum limits of ONE MILLION
DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000)
aggregate.
(c) The policy or policies required above shall be endorsed to include the City and the City's
officers and employees as additional insureds. Every policy required above shall be primary insur-
ance, and any insurance carried by the City, its officers or employees, or carried by or provided
through any insurance pool of the City, shall be excess and not contributory insurance to that
provided by Professional. No additional insured endorsement to the policy required above shall
contain any exclusion for bodily injury or property damage arising from completed operations. The
Professional shall be solely responsible for any deductible losses under any policy required above.
(d) The certificate of insurance provided by the City shall be completed by the Professional's
insurance agent as evidence that policies providing the required coverages, conditions, and minimum
limits are in full force and effect, and shall be reviewed and approved by the City prior to
commencement of the contract. No other form of certificate shall be used. The certificate shall
identify this contract and shall provide that the coverages afforded under the policies shall not be
canceled, temvnated or materially changed until at least thirty (30) days prior written notice has
been given to the City.
(e) Failure on the part of the Professional to procure or maintain policies providing the
required coverages, conditions, and minimum lhnits shall constitute a rnatelial breach of contract
upon which City may immediately terminate this contract, or at its discretion City may procure or
renew any such policy or any extended reporting period thereto and may pay any and all premiums
in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon
demand, or City may offset the cost of the premimns against monies due to Professional fi~om City,
(f) City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
(g) The parties hereto understand and agree that City is relying on, and does not waive or
intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00
per person and $600,000 per occurrence) or any other rights, irmnunities, and protections provided
by the Colorado Governmental Irmrrunity Act, Section 24-10-101 et seq., C.R.S., as from time to
time amended, or other•vise available to City, its officers, or its employees.
10. City's Insurance. The parties hereto understand that the City is a member of the
Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA
Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen
Finance Department and are available to Professional for inspection during normal business hours.
City makes no representations whatsoever with respect to specific coverages offered by CIRSA.
City shall provide Professional reasonable notice of any changes in its membership or participation
in CLRSA.
P51-971.doc Page 4
i l . Completeness of Agreement. It is expressly agreed that this agreement contains the
entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or
written representations, agreements, warranties or promises pertaining to the project matter thereof
not expressly incorporated in this writing.
12. Nonce. Any written notices as called for herein may be hand delivered to the
respective persons and/or addresses listed below or mailed by certified mail return receipt requested,
to:
City: Professioual:
City Manager William J. Miller
City of Aspen Miller Ecological Consultants, Inc.
130 South Galena Street 2111 S. College Avenue, Unit D
Aspen, Colorado 81611 Fort Collins, CO 80525
13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or
religion shall be made in the employment of persons to perform services under this contract.
Professional agrees to meet all of the requuements of City's municipal code, Section 13-98,
pertaining to non-discrimination in employment.
14. Waiver, The waiver by the City of any term, covenant, or condition ]tereof shall not
operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or
condition of this Agreement can be waived except by the written consent of the City, and
forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any
term, covenant, or condition to be performed by Professional to which the same may apply and, until
complete performance by Professional of said term, covenant or condition, the City shall be entitled
to invoke any remedy available to it under this Agreement or by law despite any such forbearance or
indulgence.
15. Execution of Aareement b~ty_. This agreement shall be binding upon all parties
]tereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding
anything to the contrary contained herein, this agreement shall not be binding upon the City unless
duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence)
following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a
duly authorized official in his absence) to execute the same.
16. IIIeQaI Aliens -CRS 8-17.5-101 & 24-76.5-101.
a. Purpose. During the 2006 Colorado legislative session, the Legislature passed
House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added
new statutes relating to the employment of and contracting with illegal aliens. These new
laws prohibit all state agencies and political subdivisions, including the City of Aspen,
from knowingly hiring an illegal alien to perform work under a contract, or to knowingly
contract with a subcontractor who knowingly hires with an illegal alien to perform work
PS6971.doc Page 5
under the contract. The new laws also require that all contracts for services include
certain specific language as set forth in the statutes. The following terms and conditions
]rave been designed to comply with the requirements of this new law.
b. Defmitions. The following terms are defined in the new law and by this reference
are incorporated herein and in any contract for services entered into with the City of
Aspen.
"Basic Pilot Program" means the basic pilot employment verification program
created in Public Law 208, 104th Congress, as amended, and expanded in Public Law
156, 108th Congress, as amended, that is adrninistered by the United States Departrnent
of Homeland Security.
"Public Contract for Services" means this Agreement.
"Services" means the furnishing of labor, time, or effort by a Contractor or a
subcontractor not involving the delivery of a specific end product other than reports that
ere merely incidental to the required performance.
c. By signing this document, Professional certifies and represents that at this time:
(i) Professional shell confirm the erployment eligibility of all employees who
are newly hired for employment in the United States; and
(ii) Professional has participated or attempted to participate in the Basic Pilot
Program in order to verify that new employees are not employ illegal aliens.
d. Professional hereby confirms that:
(i) Professional shall not knowingly employ or contract new employees
without confirming the employment eligibility of all such employees hired for
employment in the United States under the Public Contract for Services.
(ii) Professional shall not enter into a contract with a subcontractor that fails
to confirm to the Professional that the subconhactor shall not knowingly hire new
employees without confirming their employment eligibility for employment in the
United States under the Public Contract for Services:
(iii) Professional has verified or has attempted to verify through participation
in the Federal Basic Pilot Program that Professional does not employ any new
employees who are not eligible for employment in the United States; and if
Professional has not been accepted into the Federal Basic Pilot Progmm prior to
entering into the Public Contract for Services, Professional shall forthwith apply
to participate in the Federal Basic Pilot Program and shall in writing verify such
application within five (5) days of the date of the Public Contract. Professional
PS1-971.doc Pege 6
shall continue to apply to participate in the Federal Basic Pilot Program and shall
in writing verify same every three (3) calendar months thereaRer, until
Professional is accepted or the public contract for services has been completed,
whichever is earlier. The requirements of this section shall not be required or
effective if the Federal Basic Pilot Program is discontinued.
(iv) Professional shall not use the Basic Pilot Program procedures to undertake
pre-employment screening of job applicants while Ure Public Contract for
Services is being performed.
(v) if Professional obtains actual knowledge that a subcontractor performing
work under the Public Contract for Services knowingly employs or conhacts with
a new employee who is an illegal alien, Professional shall:
(1) Notify such subconhactor and the City of Aspen within
three days that Professional has actual knowledge that the subcontractor
has newly employed or contracted with an illegal alien; and
(2) Temrinate the subcontract with the subcontractor if within
three days of receiving the notice required pursuant to this section the
subcontractor does not cease employing or contracting with the new
employee who is an illegal alien; except that Professional shall not
temunate the Public Contract for Services with the subcontractor if during
such three days the subcontractor provides information to establish that
the subcontractor has not knowingly employed or contracted with an
illegal alien.
(vi) Professional shall comply with any reasonable request by the Colorado
Department of Labor and Employment made in the course of an investigation that
the Colorado Department of Labor and Employment undertakes or is undertaking
pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S.
(vii) If Professional violates any provision of the Public Contract for Services
pertaining to the duties imposed by Subsection g-17.5-102, C.R.S. the City of
Aspen may terminate the Public Contract for Services. If the Public Contract for
Services is so terminated, Contractor shall be liable for actual and consequential
damages to the Ciry of Aspen arising out of Professional's violation of Subsection
8-17.5-102, C.R.S.
(ix) If Professional operates as a sole proprietor, Professional hereby swears or
affirms under penalty of perjury that the Professional (1) is a citizen of the United
States or otherwise lawfully present in the United States pursuant to federal
law,(2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall
produce one of the forms of identification required by CRS 24-76.5-103 prior to
the effective date of this Agreement.
PSI-971.doc Page 7
17. General Terms.
(a) It is agreed that neither this agreement nor any of its teens, provisions,
conditions, representations or covenants can be modified, changed, terminated or amended, waived,
superseded or extended except by appropriate written instrument fully executed by the parties.
(b) If any of the provisions of this agreement shall be held invalid, illegal or
unenforceable it shall not affect ox impair the validity, legality or enforceability of any other
provision.
(c) The parties acknowledge and understand that there are no conditions or
limitations to this understanding except those as contained herein at the time of the execution hereof
and that after execution no alteration, change or modification shall be made except upon a writing
signed by the parties.
(d) This agreement shall be governed by the laws of the State of Colorado as
from time to time in effect.
Qd WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement in three copies each of which shall be deemed an original on the
date hereinafter written.
[SIGNATURES ON FOLLOWING PAGE]
ATTESTED BY:
r ~~~~ ,
CITY OF ASPEN, COLORADO:
By:
Title:
PSI-971.doc Page 8
Date: ~ ~ ,
WITNESSED BY:
e~lr e ~~~r~
PROFESSIONAL:
By:1~~~/~j.~_
Title: ', r n
Date: ~- ~ - D
PS1-971.doc Page 9
EXHIBIT "A" to Professional Services Agreement
Scope of Work
MILLER . 211 l S. Collego Ava., Unit D
ECOLQGICAL Fort Collins, CO sos23
CONSULTANTS, iNC. (s7o)2zt-nsos
MEMORANDUM
Data: llecambcr 23, 2005
Tos Joha Hinos, C(ty ofAspon
Rrom: Wtlaam 7. Miller, hftll¢r Fcological Consal[nnh, fne.
CC:
Subjeeh Proposal for Continued Assistance nit aquatio rosourcc issues wtd Exhibit E prcparation
on Iha Castle Creek Hydro-BleUrie Project
Scopo
This proposal Is submitted to assist tiro Nater UtWties and its Consultant team durbtg the
licensing of the Costle Crack Hydro-clccMo project. Tbis is tiro second phase of work which
includes complUion of studies snd nports to support the license effort.
The proposed tbclliTy will use the existing divcraions on Castle and Manion Creeks and deliver it
to n power plant via pipeline and penstock to fhe power plant on Iowa[ Castte Creek, Tho
objective ottha Miller Ecological portion of Phaso 2 work on Exhibit E-Environmental Report
:: 'willbSlb E2s"iiitilie"the ekisdng conditions and mry potemial changes in thefollowing resource
anti wafer uses.
No new shtdies ere proposed for to develop the information needed for dio above nsourws for
the Exhibit E. We plan to rely on exlsthtg information that has been collected 6y the counTy,
stelq and fcdera) agencies to describe the existing onviramtentand dre cnvkonmentnl
consequences. N ndditirnt, a general dcsedption of the Roaring Pork Valley was recently
published 6y the Roaring Fork Conservancy, which will be used as nn additional data source.
The tasks irroludcd kt this portion of the Pnjwt includo:
• Contaodngthe various agencies to acquiro data ibr the project area sad vicinity.
• Summarizing and analyzing the data
• Site visit to iha Project area to verify the existing conditions .
• Deteriming environmental consequences and the 6lologieal assessment for Threatened
and Endangered spates
• Detemtining environmental consequcnces of the proposed action
• Preparation of the appropriato sections oftha Ikhibil B(dreil and final)
• Meetings and Coordittatlon wldl the udOdos staff end consultants during the project
[have assumed that the existing Infomtwlon, Including the minimum htslnam flow data, is
adequwo fm pnpamtion of Exhibit & Then an existing minimum flows on both Castle and
1lilirr grplrgVral Consultants, loo Yoga 1
PSI-971.doc Page l0
EXHIBIT "B" to Professional Services Agreement
Rate Schedule
Maroon creeks, which would remain and would.not be violated by the project. FERC, when
contacted during the conduit exemption exemption process may recommend additional studies.
The ono study that may be recommended Is en updated instreatn flow analysis using more
current methals to quantity change in habitat with flow. I have Included a cost estimate for the
additional instrcam Flow atwlysfs.
Estimated Cost
The cost for ell tasks excluding the nett' htstream llow study Is estimated not to exceed
$75,777.00. This cost is based on our axperiencewilll proja;l9 ofsimilarnature, dta
assumeptial that the data is available to describe the existing environment and environmental
consequences. If a new instrcam Oow study is required, the estimated cost to contpicte That
parttadar study is $62,383.00. 'fhe detailed cost estimato is presented below,
'rack Labor Direct COrb 'fotnl6 Task
Taekl- eu muaNauon -eau sir 52400.00 S• 52400.00
Tadc2-Dnee ulritlon
i'ask3•DataAnal sir 6520.00
11840.00 $30.00
S- S6 70.00
111840.00
Tusk 4-ln room Oowdalaa Isiaan SS 52.00 523.011 $3377.00
Tuk3-GOONtnulon rrilh mxNUrina end faclllllas 14800.OD S• 54800.00
T k4-Draa Exhibit ri Fansl 74 517840.00 S- $17890.00
htik7-FLul ExhibilE -, $7136.00 S- 57136.00
Task B-A c oonadtartonoa Taa _
Task9-MenWxe and modlnnbn wish orokq tern 58920.00
510184.00 $-
S710A0 58920.00
$10894.00
Talal without neiJIRL[SSIaI r'lair- ,00 173 777.00
Teak 10-0 llonell'IrADSihOtud 141988.00 120 95,00 163 83.V0
Total avltA addttlonsl PnAD8ID1 Sll 80.00 Sll ISD.00 SI38IG0.00
Schalule;
The currant schedule is ro eompbta the work required for Exhibit E as soar as practicable
(tentatively summer 2009). If PERC recommends a now instrcam flow study, work on that tusk
would begin in early spring 2D09 and completion in fa112009.
The City is not anticipating a new instream flow study and understand if it is required, Miller
Ecological Consultants will charge an additional $62,383.00 for the study. The fee for the
instrealn flow study must be approved by file Aspen City Council and is not included in this
contract.
PSI-971.doc Pege I I