HomeMy WebLinkAbout53-11 RESOLUTIONRESOLUTION NO. 53-11
A RESOLUTION APPROVING A CONTRACT WITH MITCHELL,
WILLIAMS, SELIG, GATES & WOODYARD, PLLC IN THE MAXIMUM
AMOUNT OF $48,000.00 FOR THE PROVISION OF LEGAL SERVICES
RELATED TO THE WHITE RIVER WATER QUALITY STANDARDS
PETITION TO THE ARKANSAS POLLUTION CONTROL AND ECOLOGY
COMMISSION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves a
contract with Mitchell, Williams, Selig, Gates & Woodyard, PLLC, a copy of which is attached
as Exhibit "A", in the maximum amount of $48,000.00 for the provision of legal services related
to the White River water quality standards petition to the Arkansas Pollution Control and
Ecology Commission.
PASSED and APPROVED this 5th day of April, 2011.
APPROVED:
By:
ATTEST:
ALAGdr.,_. :At By: nA,o/A4L/
rrO LD JO' ,!0:471Viayor
SONDRA E. SMITH, City Clerk/Treasurer
AGREEMENT FOR ENVIRONMENTAL LEGAL SERVICES
This professional contract for legal services is executed this — day of , 2011, between the
City of Fayetteville, Arkansas, and Mitchell, Williams, Selig, Gates & Woodyard, PLLC. In consideration
of the mutual covenants contained herein, the parties agree as follows.
WITNESSETH:
WHEREAS, City has previously determined that it has a need for a PROVIDER FOR
ENVIRONMENTAL LEGAL SERVICES; and
WHEREAS, City, after soliciting statements of qualification for such services pursuant to City of
Fayetteville RFQ 11-04 (herein after referred to as Request for Qualification, or RFQ), City has awarded
this contract to Mitchell, Williams, Selig, Gates & Woodyard, PLLC; and
WHEREAS, Mitchell, Williams, Selig, Gates & Woodyard, PLLC has represented that the law firm
is able to satisfactorily provide these services according to the terms and conditions of the RFQ, which are
incorporated herein by reference, and the terms and conditions are contained herein; and
NOW THEREFORE, in consideration of the above and mutual covenants contained herein, the
parties agree as follows:
1. Services to be Performed: Mitchell, Williams, Selig, Gates & Woodyard, PLLC hereby agrees to
provide the City with legal representation for the services, as requested and more specifically outlined in
the RFQ, this agreement, and all subsequent official documents that form the Contract Documents for this
Agreement. The specific scope of work is to execute actions involved in the preparation and presentation
of a third party petition to be presented to the Arkansas Pollution Control and Ecology Commission
(APCEC) to modify site specific water quality criteria, to provide advice and guidance on what actions the
City and its consultants need to take to successfully accomplish the task of receiving APCEC approval to
the petition, to assist in obtaining relevant approvals from USEPA, and to represent the City's interests in
any appeal relevant to this matter. The technical basis for the request will be established through a Use
Attainability Analysis (UAA) to be executed by a separate consultant. Mitchell, Williams, Selig, Gates &
Woodyard, PLLC may also be asked to advise, coordinate, and conduct actions with the Arkansas
Department of Environmental Quality (ADEQ) to extend an existing National Pollutant Discharge and
Elimination System (NPDES) wastewater treatment permit as required to complete the process of
petitioning the APCEC.
2. Time of Service: Services must be performed in a timely manner.
3. Term of Agreement: This agreement is in place for the time required for the APCEC to render a
decision regarding the petition, plus any time as ma be re uired for related appeals and USEPA questions
and actions, if any may be normally expected.
1 Williams Contract EnvLgl Svcs Marl 1 (2).doc
4. Amendment of Contract: This Contract may be amended only by mutual agreement of the parties.
5. Assignment and Subcontracting: Mitchell, Williams, Selig, Gates & Woodyard, PLLC shall
perform this contract. No assignment or subcontracting shall be allowed without the prior written consent
of the City. In the event of a corporate acquisition and/or merger, Mitchell, Williams, Selig, Gates &
Woodyard, PLLC shall provide written notice to the City within thirty (30) business days of such notice of
action or upon the occurrence of said action, whichever occurs first. The right to terminate this contract,
which shall not be unreasonably exercised by the City, shall include, but not be limited to, instances in
which a corporate acquisition and/or merger represent a conflict of interest or are contrary to any local,
state, or federal laws.
6. Cancellation: Both Mitchell, Williams, Selig, Gates & Woodyard, PLLC and City of Fayetteville
reserve the right to cancel this Contract, without cause, by giving thirty (30) days notice to the other party
of the intent to cancel. The City may cancel this contract immediately if it has just cause.
Failure of Mitchell, Williams, Selig, Gates & Woodyard, PLLC to comply with any of the
provisions of this contract shall be considered a material breach of contract and shall be just cause for
immediate termination of the contract at the discretion of the City of Fayetteville.
In addition to all other legal remedies available to the City of Fayetteville, the City reserves the
right to cancel and obtain from another source any legal services which have not, will not, or cannot be
provided within the period of time required by the needs of the City.
In the event that sufficient budgeted funds are not available for a fiscal period, the City shall notify
Mitchell, Williams, Selig, Gates & Woodyard, PLLC of such occurrence and the Contract shall terminate
on the last day of the then current fiscal period without penalty or expense to the City. The City reserves
the right to terminate within the thirty (30) day notice because of budgetary issues.
7. Compensation: As compensation for Mitchell, Williams, Selig, Gates & Woodyard, PLLC
providing services to the City as described herein, the City shall pay Mitchell, Williams, Selig, Gates &
Woodyard, PLLC based on the submission of invoices for work completed and properly authorized.
Compensation for these services will not exceed $48,000, and will be based on the hours worked times the
billing rates shown on the attached Fee Schedule, plus reimbursable expenses.
8. Permits & Licenses: Mitchell, Williams, Selig, Gates & Woodyard, PLLC shall secure and
maintain any and all permits and licenses required to complete this contract.
9. Governing Law & Jurisdiction: Legal jurisdiction to resolve any disputes shall be Washington
County, Arkansas with Arkansas law applying to the case.
10. Severability: The terms and conditions of this agreement shall be deemed to be severable.
Consequently, if any clause, term, or condition hereof shall be held to be illegal or void, such determination
shall not affect the validity of legality of the remaining terms and conditions, and notwithstanding any such
Mitchell Williams Contract EnvLgl Svcs Marl 1 (2).doc
determination, this agreement shall continue in full force and effect unless the particular clause, term, or
condition held to be illegal or void renders the balance of the agreement impossible to perform.
11. Changes in Scope or Price: Changes, modifications, or amendments in scope, price, or fees to
this contract shall not be allowed without a prior formal contract amendment approved by the Mayor and
the City Council in advance of the change in scope, cost or fees.
12. Freedom of Information Act: Documents prepared while performing city contractual work are
subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act request is presented
to the City of Fayetteville, Mitchell, Williams, Selig, Gates & Woodyard, PLLC will do everything
possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom
of Information Act (A.C.A. §25-19-101 et. seq.) Only legally authorized photocopying costs pursuant to
the FOIA may be assessed for this compliance.
13. Documents Comprising Contract: The contract shall include this Agreement for a PROVIDER
FOR ENVIRONMENTAL LEGAL SERVICES, as well as the following documents, which are
incorporated herein by reference.
a. City of Fayetteville's Request for Qualification RFQ 11-04 and all of its addenda and
attachments issued on or about February 13, 2011;
b. Mitchell, Williams, Selig, Gates & Woodyard, PLLC's Letter of Insurance as required;
c. Mitchell, Williams, Selig, Gates & Woodyard, PLLC's Statement of Qualification.
If there is a conflict between the terms of this Agreement and the above referenced documents, the
conflict shall be resolved as follows: the terms of this Agreement shall prevail over the other documents,
and the terms of the remaining documents shall be given preference in their above listed order.
WITNESS OUR HANDS THIS 5- DAY OF , 2011.
MITCHELL, WILLIAMS, SELIG,
GATES & WOODYARD, PLLC
ay, ,
BY Marcella J. Taylor, • e be 1
Attest:
Charlotte Edwards
CITY OF FAYETTEVILLE,
FAYETTEVILLE, ARKANSAS
I J NELD J I (AN, Mayor
Attest:
Sondra Smith, City Clerk
Mitchell, Williams, Selig, Gates & Woodyard, PLLC
425 West Capitol Avenue, Suite 1800
Little Rock, AR 72201
Mitchell Williams Contract EnvLgl Svcs Marl] (2).doc
Fee Schedule
For
City of Fayetteville Contract for RFQ 11-04
Allan Gates $300/hour
Marcella Taylor.....$250/hour
Kay Van Etten $150/hour
ALAS
ATTORNEYSLIABILITY ASSURANCE SOCIETY, INC.,
A RISK RETENTION GROUP
March 16, 2011
City of Fayetteville
113 West Mountain
Fayetteville, AR 72701
Attn: Mr. David Jurgens, PE, Utilities Department Director
CONFIRMATION OF INSURANCE
We hereby confirm that Mitchell, Williams, Selig, Gates & Woodyard,
P.L.L.C. has Professional Liability Coverage under Policy ALA#1837 with an
annual limit of $20,000,000 per claim and $40,000,000 in the aggregate with the
right, under stated conditions, to purchase extended reporting rights upon
termination of such Policy by ALAS.
The self-insured retention under such Policy is $250,000 each claim up to
an aggregate of $500,000 and $100,000 each claim thereafter.
The Policy effective date is from January 1, 2011 to January 1, 2012.
Such Policy is subject to the terms, conditions, limitations and exclusions
stated therein.
ATTORNEYS' LIABILITY ASSURANCE SOCIETY, INC.
A RISK RETENTION GROUP
By: ) /d
Nancy J. Mo troy
Vice President — Director of Underwriting
SACONFIRMS 2011 \Mitchell, Williams City of Fayetteville 031611.doc
Date: 3//41,Zet/
311 South Wacker Drive, Suite 5700
Chicago, 11 60606-6629
tel 312-697.6900 fax 3126976901 Web nte alas.com
David Jurgens
Submitted By
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
05 -Apr -11
City Council Meeting Date
Agenda Items Only
Wastewater Treatment
Division
Action Required:
Utilities
Department
Approval of a contract with Mitchell, Williams, Selig, Gates & Woodyard, PLLC (Mitchell Williams), $48,000, for
legal actions relating to the White River Water Quality Standards Petition to the APCEC. I.
otti .asetetel
48,000
Cost of this request
5400.5700.5314.00
Account Number
11014.1102
Project Number
Budgeted Item
400,000
Category / Project Budget
White Rvr NPDES UAA & APCEC
Program Category / Project Name
265,000 Wastewater Treatment
Funds Used to Date Program / Project Category Name
135,000 Water/Sewer
Remaining Balance Fund Name
Budget Adjustment Attached
11-hptsa
Date
3-17^
Date
3 - ig,20 ti
Finance and Internal Services Director Date
44 -
Chief of St
M or
Date
3/40/
Da
Previous Ordinance or Resolution #
Original Contract Date:
Original Contract Number:
Comments:
Revised January 15, 2009
l'aeat era
CITY COUNCIL AGENDA MEMO
MEETING DATE OF APRIL 5,2011
THE CITY OF FAYETTEVILLE, ARKANSAS
ARKANSAS
www.accessfayetteville.org
To:
Fayetteville City Council
Thru: Mayor Lioneld Jordan
Don Marr, Chief of Staff
From: David Jurgens, Utilities Director
Fayetteville Water and Sewer Co
Date: March 16, 2011
Subject: Environmental Attorney Contract, Mitchell, Williams, Selig, Gates & Woodyard, PLLC, not to exceed
$48,000, for White River Water Quality Standards Petition to Arkansas Pollution Control and Ecology
Commission (APCEC)
RECOMMENDATION
City Administration recommends approving a contract with Mitchell, Williams, Selig, Gates & Woodyard, PLLC
(Mitchell Williams), not to exceed $48,000, for legal actions relating to the White River Water Quality Standards
Petition to the APCEC.
BACKGROUND
ADEQ has informed the City that the Noland WWTF National Pollutant Discharge Elimination System (NPDES)
permit, currently being developed by ADEQ and scheduled for issuance in May, 2011, will contain limits on total
dissolved solids (TDS), and minerals, specifically chloride (cr), and sulfate (SO4=), unless other actions are taken.
The segment of the White River where the Noland plant discharges is on the 303(d) impaired streams list for
turbidity, TDS, cr, and Sal. Concentrations measured in the White River exceeded the current site specific water
quality standards (WQS) of: cr -20 mg/1; SO4= -20 mg/1; and TDS -160mg/l. The least cost and most common
solution, recommended by ADEQ and recently successfully completed by Jonesboro, is to make a third party petition
to the APCEC requesting an amendment to Regulation 2 modifying the site specific water quality standards. It
involves performing a Use Attainability Analysis (UAA), a physical study of the river.
DISCUSSION
The City published Request for Qualifications 11-04 for environmental legal services on February 13, 2011, with a
March 4 deadline. One submission was received from Mitchell, Williams, Selig, Gates & Woodyard, PLLC. The
selection committee, consisting of Alderman Adella Gray, City Attorney Kit Williams, and three staff members,
determined Mitchell Williams was qualified to perform the work and authorized staff to begin negotiations. The
attached contract resulted. Mitchell Williams has successfully petitioned the APCEC for water quality standards
changes several times in recent years, and in 2010 successfully represented Jonesboro in this exact process.
Under this contract, Mitchell Williams will execute actions involved in the preparation and presentation of a third
party petition to the APCEC, provide advice and guidance on what actions the City and its consultants need to take to
successfully receive APCEC approval, assist in obtaining relevant USEPA approvals, and represent the City's
interests in any related appeals. Mitchell Williams may also be asked to advise, coordinate, and conduct actions with
ADEQ to extend the current NPDES wastewater treatment permit as we complete the process of petitioning the
APCEC. The contract is for actual costs incurred, not to exceed $48,000.
BUDGET IMPACT
Funds are available within the project budget.
Noland NPDES Attorney Mitch Wilms CCMemoMarl 1.doc
RESOLUTION NO.
A RESOLUTION APPROVING A CONTRACT WITH MITCHELL,
WILLIAMS, SELIG, GATES & WOODYARD, PLLC IN THE MAXIMUM
AMOUNT OF $48,000.00 FOR THE PROVISION OF LEGAL SERVICES
RELATED TO THE WHITE RIVER WATER QUALITY STANDARDS
PETITION TO THE ARKANSAS POLLUTION CONTROL AND ECOLOGY
COMMISSION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves a
contract with Mitchell, Williams, Selig, Gates & Woodyard, PLLC, a copy of which is attached
as Exhibit "A", in the maximum amount of $48,000.00 for the provision of legal services related
to the White River water quality standards petition to the Arkansas Pollution Control and
Ecology Commission.
PASSED and APPROVED this 5th day of April, 2011.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer