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HomeMy WebLinkAbout24-126 Approving a Professional Service Agreement with the Town and Westwater Research, LLC 12-18-2024I ti ! ! !, Th Ii U ! 1 ! : i i! i i i ia*SI1 i 'I]l 1U WHEREAS, the Town of Firestone ("Town") needs to update its Water Action Plan which requires professional services for duties which include, the determination of the Town's water demand projections, water supply options and supply risks, future facility needs and costs, financing and implementation of such activities, regular monitoring of available water, and strategic planning with staff, consultants and other entities regarding the Water Action Plan; and WHEREAS, WestWater Research, LLC ("WWR"), has served as the Town's water rights acquisition consultant since 2020 and has the skills, experience and personnel to update the Water Action Plan and the additional advantage of a strong working relationship with the Town's staff, water counsel, water consultant and civil engineering firm; and WHEREAS, it is thus in the Town's best interest to have WWR update the Town's Water Action Plan. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: The Professional Services Agreement between the Town of Firestone and WestWater Research, LLC, is approved in substantially the same form as the copy attached hereto and made a part of this resolution and the Mayor is authorized to sign the Agreement. INTRODUCED, READ AND ADOPTED this 18th day of December, 2024. Z7 AT EST: issy Carranco, Deputy Town VAff�7 {T 4 Docusign Envelope ID: 55DE9977-9F85-4A29-AC4B-D5515F56F842 AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT FOR PROFESSIONAL SERVICES (the "Agreement") is made and entered into this 11/27/2024 (the "Effective Date"), by and between the TOWN OF FIRESTONE, a Colorado municipal corporation with an address of 9950 Park Avenue, Firestone, Colorado 80504 (the "Town"), and WESTWATER RESEARCH, LLC, an independent Contractor with a principal place of business at 205 S Meldrum Street, Fort Collins, Colorado 80521 ("Contractor ") (each a "Party" and collectively the "Parties"). WHEREAS, the Town requires professional services and WHEREAS, Contractor has held itself out to the Town as having the requisite expertise and experience to perform the required professional services. NOW, THEREFORE, for the consideration hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: I. SCOPE OF SERVICES A. Contractor shall furnish all labor and materials required for the complete and prompt execution and performance of all duties, obligations, and responsibilities which are described or reasonably implied from the Scope of Services set forth in Exhibit A, attached hereto and incorporated herein by this reference and known as Water Action Plan Update and Strategic Support B. A change in the Scope of Services shall not be effective unless authorized as a modification to this Agreement. If the Contractor proceeds without such written authorization, Contractor shall be deemed to have waived any claim for additional compensation, including a claim based on the theory of unjust enrichment, quantum merit or implied contract. Except as expressly provided herein, no agent, employee, or representative of the Town is authorized to modify any term of this Agreement, either directly or implied by a course of action. II. TERM AND TERMINATION A. This Agreement shall commence on the Effective Date and shall continue until Contractor completes the Scope of Services to the satisfaction of the Town or until terminated as provided herein. B. Either Party may terminate this Agreement upon 30 days advance written notice. The Town shall pay the Contractor for all work previously authorized and completed prior to the date of termination. If, however, Contractor has substantially or materially breached this Agreement, the Town shall have any remedy or right of set-off available at law and equity. III. COMPENSATION In consideration for the completion of the Scope of Services by Contractor, the Town shall pay Contractor an amount not to exceed $163,810.00. This amount shall include all fees, costs and expenses incurred by Contractor, and no additional amounts shall be paid by the Town for such Page 1 of 11 FIRESTONE Docusign Envelope ID: 55DE9917-9FS5-4A29-AC4B-D5515F56F842 fees, costs, and expenses. Contractor may submit periodic invoices, which shall be paid by the Town within 30 days of receipt. IV. PROFESSIONAL RESPONSIBILITY A. Contractor hereby warrants that it is qualified to assume the responsibilities and render the services described herein and has all requisite corporate authority and professional licenses in good standing, required by law. The work performed by Contractor shall be in accordance with generally accepted professional practices and the level of competency presently maintained by other practicing professional firms in the same or similar type of work in the applicable community. The work and services to be performed by Contractor hereunder shall be done in compliance with applicable laws, ordinances, rules and regulations, including the preference for Colorado Labor set forth in C.R.S. Article 17 Title 8. B. The Town's review, approval or acceptance of, or payment for any services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement. C. Because the Town has hired Contractor for its professional expertise, Contractor agrees not to employ Sub -Contractor s to perform any work except as expressly set forth in the Scope of Services. V. OWNERSHIP A. Any materials, items, and work specified in the Scope of Services, and any and all related documentation and materials provided or developed by Contractor shall be exclusively owned by the Town. Contractor expressly acknowledges and agrees that all work performed under the Scope of Services constitutes a "work made for hire. To the extent, if at all, that it does not constitute a "work made for hire," Contractor hereby transfers, sells, and assigns to the Town all of its right, title, and interest in such work. The Town may, with respect to all or any portion of such work, use, publish, display, reproduce, distribute, destroy, alter, retouch, modify, adapt, translate, or change such work without providing notice to or receiving consent from Contractor. B. If the Town reuses or makes any modification to Contractor 's designs, documents or work product without the prior written authorization of Contractor , the Town agrees, to the fullest extent permitted by law, to release the Contractor , its officers, directors, employees and sub - Contractor s from all claims and causes of action arising from such uses, and shall to the extent permitted by law indemnify and hold them harmless from all costs and expenses, including the cost of defense, related to claims and causes of action to the extent such costs and expenses arise from the Town's modification or reuse of the documents. C. The Town expressly acknowledges and agrees that the documents and data to be provided by Contractor under the Agreement may contain certain design details, features and concepts from the Contractor's own practice detail library, which collectively may form portions of the design for the Project, but which separately, are, and shall remain, the sole and exclusive property of Contractor . Nothing herein shall be construed as a limitation on the Contractor's right to re -use such component design details, features and concepts on other projects, in other contexts or for other clients. VI. INDEPENDENTCONTRACTOR Page 2 of 11 Docusign Envelope ID: 55DE99Il-9F85-4A29-AC4B-D5515F56F842 Contractor is an independent Contractor. Notwithstanding any other provision of this Agreement, all personnel assigned by Contractor to perform work under the terms of this Agreement shall be, and remain at all times, employees or agents of Contractor for all purposes. Contractor shall make no representation that it is a Town employee for any purposes. VII. INSURANCE A. Contractor agrees to procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by Contractor pursuant to this Agreement. At a minimum, the Contractor shall procure and maintain, and shall cause any Sub -Contractor to procure and maintain, the insurance coverages listed below, with forms and insurers acceptable to the Town. 1. Worker's Compensation insurance as required by law. 2. Commercial General Liability insurance with minimum combined single limits of $1,000,000 each occurrence and $2,000,000 general aggregate. The policy shall be applicable to all premises and operations and shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, and employees, Contractor as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. 3. Professional liability insurance with minimum limits of $1,000,000 each claim and $2,000,000 general aggregate. B. Such insurance shall be in addition to any other insurance requirements imposed by law. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice to the Town. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, and its employees Contractor shall be excess and not contributory insurance to that provided by Contractor. Contractor shall be solely responsible for any deductible losses under any policy. C. Contractor shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. VIII. INDEMNIFICATION A. Contractor agrees to indemnify and hold harmless the Town and its officers, insurers, volunteers, representative, agents, employees, heirs and assigns from and against all claims, liability, damages, losses, expenses and demands, including attorney fees, on account of injury, loss, or damage, including without limitation 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 Agreement if such injury, loss, or damage is caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, recklessness or other fault of Contractor , any Sub -Contractor of Contractor , or any officer, employee, representative, or agent of Contractor , or which arise out of a worker's compensation claim of Page 3 of 11 Docusign Envelope ID: 55DE9971-9F85-4A29-AC4B-D5515F56F842 any employee of Contractor or of any employee of any Sub -Contractor of Contractor . Contractor 's liability under this indemnification provision shall be to the fullest extent of, but shall not exceed, that amount represented by the degree or percentage of negligence or fault attributable to Contractor, any Sub -Contractor of Contractor , or any officer, employee, representative, or agent of Contractor or of any Sub -Contractor of Contractor . B. If Contractor is providing architectural, engineering, surveying or other design services under this Agreement, the extent of Contractor's obligation to indemnify and hold harmless the Town may be determined only after Contractor's liability or fault has been determined by adjudication, alternative dispute resolution or otherwise resolved by mutual Agreement between the Parties, as provided by C.R.S. § 13-50.5-102(8)(c). IX. CHANGE ORDERS A. Change Order is a written instrument issued after execution of the Agreement signed by Town and Contractor, stating their Agreement, as applicable, upon all of the following: 1. The scope of the change in the Work; 2. The amount of the adjustment to the Contract Price and 3. The extent of the adjustment to the Contract Times(s). B. All changes in the Work authorized by the applicable Change Order shall be performed under the applicable conditions of the Contract Documents. Town and Contractor shall negotiate in good faith and as expeditiously as possible the appropriate adjustment of such changes. X. MISCELLANEOUS A. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Weld County, Colorado. B. No Waiver. Delays in enforcement or the waiver of any one or more defaults or breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or obligations of this Agreement. C. Integration. This Agreement constitutes the entire Agreement between the Parties, superseding all prior oral or written communications. D. Third Parties. There are no intended third -party beneficiaries to this Agreement. E. Notice. Any notice under this Agreement shall be in writing and shall be deemed sufficient when personally presented or sent pre -paid, firstclass United States Mail to the Party at the address set forth on the first page of this Agreement. F. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. G. Modification. This Agreement may only be modified upon written Agreement of the Parties. H. Assignment. Neither this Agreement nor any of the rights or obligations of the Parties shall be assigned by either Party without the written consent of the other. I. Governmental Immunity. The Town and its officers, and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any Page 4 of 11 Docuslgn Envelope ID: 55[7E_991t-9F85-4729-AC4B Ub515F561-842 other rights, immunities or protections provided by the Colorado Governmental Immunity Act, CRS. § 24-10-101, et seq., as amended, or otherwise available to the Town and its officers, attorneys or employees. J. Rights and Remedies. The rights and remedies of the Town under this Agreement are in addition to any other rights and remedies provided by law. The expiration of this Agreement shall in no way limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for work negligently or defectively performed. K. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year is subject to annual appropriation, shall extend only to monies currently appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. L, Representative Autt ority. Each person signing this Agreement represents and warrants that he or she is duly authorized and has the legal capacity to execute the Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. WEST WATR RESEARCH, LLC Docu$,jned by By. S>at Page 5 of 11 FmsToNE Docusign Envelope ID: 55DE997i-9FS5-4A29-AC48-D5515F56F842 EXHIBIT A SCOPE OF SERVICES Contractor's Duties During the term of this Agreement, Contractor shall perform the following duties, as directed by the Town: Contractor will provide strategic planning and Water Action Plan ("WAP" or "Plan") implementation support, including an update to the WAP, monthly accounting of pending raw water dedication and credit sales, and strategic support on internal and regional water supply initiatives as directed by the Town. Specific tasks are provided below. Task 1: Update Water Action Plan Having made progress in developing a native supply source since the WAP's adoption, Town staff has requested an update to the Plan. The update will incorporate revisions to the Town's growth and demand projections, water supply sources, dedication policies, water acquisition priorities, infrastructure needs, financing, and treatment goals. The update will be conducted in close collaboration with Town staff, the Town's water counsel (Lawrence Custer Grasmick Jones & Donovan LLP), and the Town's water consultant (LRE Water) and civil consultant (Colorado Civil Group). Task 1.1: Water Demand Projections WestWater will compile annual and seasonal water usage data over the past five years and incorporate current population, land use planning, and customer class projections to update the Town's water demand projections to be served by the St. Vrain Water Treatment Plant. WestWater will follow the land use -based methodology from the WAP to extend demand projections to 2035 and 2055 planning horizons. In addition to following previous WAP methodology, WestWater will perform a simple and rapid assessment of statistically significant determinants of demand to forecast future water usage at the above planning horizons under various climatic and development conditions. The sensitivity analysis will provide indication of the risk that demands will be significantly higher or lower than prior projections and will include, at a minimum: 1. Evaluation of elasticity of demand to water rates (price), climate, lot and home footprint. Other demand determinants will be evaluated as budget allows and in consultation with Town staff. 2. Two (high and low) scenarios of future development, fee, and climate conditions (and other factors to be determined) that will represent a range of potential futures. 3. Demands for these scenarios, predicted using a simple multi -variant regression model inputting the statistically significant determinants from above on a monthly timestep. The model will be calibrated to historic demand data and results compared to the WAP. The demand forecast will then be evaluated in light of changes to the Town's water conservation goals and customer response. The Town may elect to use the model to forecast future demands under various future scenarios. Page 6 of 11 FIRESTONE Docuslgn Envelope ID: 55DE997/-9F85-4A29-AC4B-D5515F56F842 Task 1.2: Water Supply Projections WestWater will update and project the Town's water supply sources and evaluate risks to those sources. Task 1.2.1: Update Current Supplies WestWater will update the Town's current water portfolio with recent native water and storage purchases and revised Colorado -Big Thompson ("CBT") dedication to the Central Weld County Water District ("CWCWD"). Task 1.2.2: Future Water Supply Options WestWater will update the Town's planned future water portfolio including: 1. Projections of future native supply source acquisition 2. Projections of future developer dedication of CBT and native supply 3. Participation level in the Northern Integrated Supply Project ("NISP") 4. Gravel pit storage 5. Wholly consumable return flows 6. Leased sources 7. Other potential future sources of water to be determined. Working closely with LRE Water, WestWater will model the supplies and demands under both average and firm conditions and compare available supply with the demands calculated above for each planning horizon. It is anticipated that LRE Water will support supply modeling or, at a minimum, provide base modeling prepared for the Town's Water Court cases. WestWater will conduct an inventory of available native water supplies that are reasonably acquirable from Tier 1 ditches. Tier 1 ditches are those identified in the WAP for acquisition and include the Godding, Last Chance, Rural, Lower Boulder, and New Coal Ridge Ditch Companies. An inventory and analysis of additional ditch companies on the lower St. Vrain Creek, middle South Platte River, or lower Boulder Creek will follow. Additionally, WestWater will evaluate the Town's water acquisition needs both with and without NISP. Task 1.2.3: Water Supply Risks In addition to assessing current and projected future water supplies, WestWater, working with Town staff, attorneys, and LRE, will evaluate supply risks such as climate change induced droughts, changes to runoff timing and river administration, and Colorado River curtailments. The risk assessment will provide a qualitative assessment of risks generally and will quantitate risks where significant to the Town's supply portfolio. Task 1.3: Future Facilities WestWater will support Colorado Civil Group ("CCG") to update plans for the Town's current and future raw water facilities and water treatment system. The timeline for upsizing treatment and augmentation facilities will be evaluated including for the potential wholesale treatment for regional municipal buyers. Page 7 of 11 Docuslgn Envelope ID: 55DE9911-9F85-4A29-AC4B-D5515F56F842 This Plan is not envisioned to significantly alter the current planned phasing of the St. Vrain Water Treatment Plant. If the supply and demand analyses above are found to result in a needed change to the current treatment plant design or phasing schedule, WestWater recommends the Town engage CCG to scope a comprehensive infrastructure plan. The Plan will, however, provide focus to new infrastructure not anticipated in the 2020 WAP. Task 1.4 Development Costs WestWater will update costs presented in the 2020 WAP to reflect new water right acquisition and augmentation and treatment infrastructure costs. WestWater will project future acquisition costs using market data and historic price appreciation. It is assumed that CCG will provide updated infrastructure costs. Task 1.5 Financing Plan WestWater will update the financing plan presented in the 2020 WAP to reflect the Town's current financial condition (reserves, bond schedules, revenue forecasts, debt coverage ratios). For this task, WestWater will review current financial statements and fee models for the water enterprise. Projections of future credit sales will be incorporated to project bonding schedules and fees. If desired by the Town, WestWater will recommend alternative raw water fee structures. As part of this analysis, WestWater will evaluate financing with and without NISP. Task 1.6 Implementation Plan Incorporating the results of the tasks above, WestWater will prepare a simplified plan for implementing the WAP updates. The implementation plan will provide the key outcomes by planning horizon and infrastructure and financing needs. Task 1.7 Meetings and Project Coordination WestWater will facilitate development of the WAP and coordination of consultants. WestWater anticipates holding eight in -person meetings with the Town and consultants: • A kickoff meeting to refine and confirm scope and collect background data • Five reoccurring status meetings • A final meeting with Town staff to present findings • A meeting with the Town's Board of Trustees to present the WAP update. In addition, project calls are anticipated to occur bi-weekly throughout the project. Task 2: Water Credit Accounting and Projections WestWater will maintain for the Town an accounting of available water supplies available to development, planned and pending tap sales, raw water dedications, and projections of near -term water acquisitions. WestWater will review the results with the Town and Water Team no less than monthly. Task 3: Strategic Support for Water Action Plan Implementation WestWater will support implementation of the WAP through the following tasks: Page 8 of 11 FIRESTONE Docusign Envelope ID: 55DE9977-9F85-4A29-AC4B-D5515F56F842 1. Technical and financial analyses of potential water supply sources and strategic partnerships, including NISP. 2. Engagement with senior Town staff, Board of Trustees, developers, and community members on water related initiatives, as directed by the Town. 3. Advisement of and participation (with the Town) in engaging regional partners 4. Provision of regular water market intelligence 5. On -call, as directed technical and economic consulting of water resource matters Contractor's Deliverables In performance of the duties described above, Contractor shall deliver the following items to the Town, during the timeframes established by the Town: Deliverables include the WAP update (Task 1), water credit accounting platform (Task 2), and technical reports and letters as directed (Task 3). Contractor's Budget For the scope of services described above, the Contractor's proposed budget for each task will be billed on time and materials basis using WestWater's 2024 hourly billing rates listed below. • The proposed not -to -exceed budget to complete the Water Action Plan Update in Task 1 is $93,810 as detailed in Table 1 below. This budget will be refined as project tasks are delegated among consultants. • The proposed not -to -exceed budget for maintenance of the Town's water credit accounting and projections in Task 2 is $10,000 per year, billed on a time and material basis. Services under Task 3 (Strategic Support) will be directed by the Town. WestWater will bill Task 3 services on a time and material basis and estimates an annual amount of $60,000. 2024 Professional Rates & Services L.I Ilt1 {_ACLU LI 4G. V11 R.ci r Regional Directors, Principals, Chief Operating Officer $350 - $475 Senior Associates $225 - $325 Associates & Subject Area Directors $175 -$250 Analysts, GIS Analysts, & Data Management $125-$175' Administrative and Support Staff $120 Expert witness rates are billed at $500 per hour for deposition and trial days with a minimum of 8 hours per day billing. Rates increase 5-10% annually, effective on the first day of each calendar year. Page 9 of 11 FIRESTONE Docuslgn Envelope ID: 55DE991/-9F55-4A29-AC4B-D5515F56F842 Airfare Actual expense based on an economy class ticket for the most direct route and economical carrier based on availability with five (5) day minimum advance purchase. Hotels Actual rates based on the standard single room. Rental Car Actual rates based on a standard, midsize car. Mileage Sixty-seven cents ($0.67) per mile. Data Actual cost plus a 15% administrative fee. Reproduction Actual costs. Other Expenses Other standard and customary expenses such as business -related phone calls, postage and delivery charges, or incidentals will be fully reimbursed at cost. Subcontractor Fee Administrative management fee of 15% on subcontractor work managed by WestWater. Page 10 of 11 FIRESTONE Docusign Envelope ID: 55DE99/7-9F85-4A29-AC4B-D5515F56F842 Page 11 of 11 FIRESTONE