HomeMy Public PortalAboutBox 515 - Wastewater Treatment Facility Complaint from City VS JUB" ' .
W i l l i a m A . M c C u r d y
B R A S S E Y , W E T H E R E L L , C R A W F O R D & M c C U R D Y
W a s h i n g t o n F e d e r a l P l a z a
1 0 0 1 W e s t I d a h o , T h i r d F l o o r
P . O . B o x 1 0 0 9
B o i s e , I d a h o 8 3 7 0 1 - 1 0 0 9
T e l e p h o n e : ( 2 0 8 ) 3 4 4 - 7 3 0 0
F a c s i m i l e : ( 2 0 8 ) 3 4 4 - 7 0 7 7
A t t o r n e y s f o r C o m p l a i n a n t
B E F O R E T H E I D A H O B O A R D O F R E G I S T R A T I O N O F P R O F E S S I O N A L E N G I N E E R S
A N D P R O F E S S I O N A L L A N D S U R V E Y O R S
C I T Y O F M c C A L L , a M u n i c i p a l C o r p o r a t i o n
o f t h e S t a t e o f I d a h o ,
C o m p l a i n a n t , C a s e N o .
v s .
V E R I F I E D C O M P L A I N T
J - U - B E N G I N E E R S , I N C . , a n I d a h o C o r p o r a -
t i o n ; K I R B Y D . V I C K E R S , a P r o f e s s i o n a l
E n g i n e e r ; a n d G E O R G E L . W A G N E R , a
P r o f e s s i o n a l E n g i n e e r ,
R e s p o n d e n t s .
C O M E S N O W t h e C o m p l a i n a n t , C i t y o f M c C a l l , b y a n d t h r o u g h i t s c o u n s e l o f r e c o r d ,
B r a s s e y , W e t h e r e l l , C r a w f o r d & M c C u r d y , L L P , h e r e i n d e s i g n a t e d a s t h e C i t y ' s r e p r e s e n t a t i v e f o r
p u r p o s e s o f s e r v i c e i n t h i s m a t t e r , a n d c o m p l a i n s a n d a l l e g e s a s f o l l o w s , p u r s u a n t t o t h e p r o v i s i o n s
o f I d a h o C o d e � � 5 4 - 1 2 2 0 a n d 6 7 - 5 2 0 1 , e t s e q . ( t h e I d a h o A d m i n i s t r a t i v e P r o c e d u r e s A c t ) , a n d t h e
r u l e s p r o m u l g a t e d t h e r e u n d e r :
V E R I F I E D C O M P L A I N T - 1
I.
PARTIES
1. The Complainant, City of McCall, is a municipal corporation, having its address at
216 East Park Street, P.O. Box 986, McCall, Idaho 83638.
2. J-U-B Engineers, Inc., ("J-U-B"), is an Idaho Corporation duly certified to practice
professional engineering and land surveying in the State of Idaho, having its address at 250 S.
Beechwood Avenue, Suite 201, Boise, Idaho 83709-0944.
3. Kirby D. Vickers is an individual and professional engineer registered in the State of
Idaho. He is also Executive Vice President of J-U-B Engineers, Inc. His address is 250 S.
Beechwood Avenue, Suite 201, Boise, Idaho 83709-0944
4. George L. Wagner is an individual and professional engineer registered in the State
of Idaho. He is also Vice President of J-U-B Engineers, Inc. His address is 250 S. Beechwood
Avenue, Suite 201, Boise, Idaho 83709-0944
II.
JURISDICTION
5. The Idaho Board of Registration of Professional Engineers and Professional Land
Surveyors administers Chapter 12, Title 54, Idaho Code, to safeguard the life, health and property
of the public by adoption of rules reasonably necessary to carry out this charge and the conduct of
proceedings before the Board. Idaho Code §§ 54-1201, 54-1208. The Rules of Professional
Responsibility, IDAPA 10.01.02000, et seq., undertake to establish and maintain high standards of
integrity, skills and practice in the profession of engineering, and to safeguard the life, property and
welfare of the public. This Complaint charges activities conducted by the Respondents violated the
statutes of the State of Idaho and the rules of the Board.
VERIFIED COMPLAINT - 2
III.
GENERAL ALLEGATIONS
6. The City of McCall and J-U-B entered into a contact on November 14,1990, for the
"preparation of an update to the Facilities Plan for the City of McCall Wastewater Collection and
Treatment Facilities." Pursuant to the contract, J-U-B was to prepare a description of existing
conditions (i.e. surface and groundwater hydrology, topography, land uses and development),
prepare existing land use map, identify environmentally sensitive features and protection areas, and
analyze existing wastewater collection pipelines and pumping facilities of the wastewater treatment
facilities. In addition, and based upon the information accumulated on existing conditions, J-U-B
was to prognosticate on future conditions and prepare an "ultimate land use map." J-U-B was also
to perform an environmental assessment of the Facilities Plan, summarizing environmental
considerations associated with the project.
7. On August 13, 1993, the Draft Facilities Plan was completed and the City agreed to
increase the scope ofJ-U-B's services to include a septage study, a pilot plant study for a high -rate
land treatment system, and a study of alternatives to dumping effluent in the Payette River. These
studies had all been recommended in J-U-B's precedent Facilities Plan.
8. On December 22, 1994, J-U-B and the City of McCall agreed that the septage study
and the pilot plant study would be deleted from the scope of work. In addition, they agreed to limit
the out -of -basin wastewater disposal study to an evaluation by map study and field reconnaissance
of potential routes for a pipeline to transport effluent into the Little Salmon River Basin; and an
evaluation of potential sites and regulatory requirements for high -rate and slow -rate land treatment
in the Little Salmon River Basin, within a reasonable distance from McCall.
VERIFIED COMPLAINT - 3
9. On July 11, 1996, the City and J-U-B entered into a contract to construct Phase I of the
J-Ditch alternative.
10. On October 24, 1997, the City and J-U-B entered into an agreement in which J-U-B
would perform the surveying, geotech work and other preparation, including purchase of a site being
considered for Phase II of the J-Ditch Alternative, known commonly as the Seubert site -- a gravel
pit located south of town and owned by J.P. Seubert.
11. Construction of Phase II of the J-Ditch Alternative was necessitated by the
Environmental Protection Agency's issuance of an NPDES permit requiring that the City eliminate
100 percent of all discharges from its wastewater treatment plant into the Payette River by January 1,
1999. Failure to comply with the terms and conditions of the permit could expose the City to civil
penalties of $25,000 per day, criminal penalties of $50,000 per day, and administrative penalties up
to $125,000.
12. To effect the requirements of the NPDES permit, a Consent Order was entered into
between the City of McCall and the Idaho Department of Health and Welfare Division of
Environmental Quality ("DEQ") on or about June 25, 1998. The Consent Order requires the
construction of a 358-million gallon winter storage lagoon for storage of the effluent currently
disposed of in the Payette River. Its design and construction is funded in large part by grants from
the Bureau of Reclamation ("BOR") and DEQ.
13. For much, if not all, of the time that J-U-B was under contract with the City of
McCall, it was performing engineering work for the Payette Lakes Water and Sewer District
(PLW&SD). J-U-B continues to perform engineering work for PLW&SD.
14. Payette Lakes Water and Sewer District currently operates and maintains District
wastewater collection systems, and previously operated the City of McCall wastewater collection
VERIFIED COMPLAINT - 4
"
a n d t r e a t m e n t f a c i l i t i e s . P u r s u a n t t o i t s c o n t r a c t w i t h t h e C i t y f o r s a i d s e r v i c e s , P L W & S D w a s p a i d
a p p r o x i m a t e l y $ 3 2 0 , 0 0 0 p e r y e a r .
1 5 . T h e P L W & S D w i l l c o n t r i b u t e a p p r o x i m a t e l y 2 0 t o 3 0 p e r c e n t o f t h e w a s t e w a t e r t o
b e s t o r e d b y t h e C i t y o f M c C a l l i n t h e s t o r a g e l a g o o n s k n o w n a s P h a s e I I o f t h e J - D i t c h A l t e r n a t i v e .
1 6 . O n F e b r u a r y 9 , 1 9 9 8 , t h e C i t y o f M c C a l l r e q u e s t e d t h a t J - U - B c e a s e i t s w o r k o n
P h a s e I I o f t h e J - D i t c h A l t e r n a t i v e . A t a F e b r u a r y 1 9 9 8 C i t y C o u n c i l M e e t i n g , R e s p o n d e n t G e o r g e
W a g n e r o f J - U - B s t a t e d t h a t J - U - B ' s r e m o v a l f r o m t h e p r o j e c t o n F e b r u a r y 9 , 1 9 9 8 , w o u l d j e o p a r d i z e
t h e g r a n t f u n d i n g o f t h e p r o j e c t a n d f o r c e t h e C i t y ' s n o n c o m p l i a n c e w i t h t h e C o n s e n t O r d e r .
1 7 . A t t h e u r g i n g o f D E Q , t h e C i t y o f M c C a l l i n i t i a t e d a V a l u e E n g i n e e r i n g S t u d y
r e g a r d i n g P h a s e I I o f t h e J - D i t c h A l t e r n a t i v e . T h e V a l u e E n g i n e e r i n g W o r k s h o p w a s h e l d o n
M a r c h 2 7 , 1 9 9 8 .
1 8 . A t t h e V a l u e E n g i n e e r i n g W o r k s h o p , K i r b y V i c k e r s o f J - U - B s t a t e d t h a t J - U - B ' s c o s t
e s t i m a t e f o r t h e c o n s t r u c t i o n o f t h e e f f l u e n t s e w a g e l a g o o n s o n t h e S e u b e r t s i t e w o u l d b e $ 1 6 , 0 0 0
p e r t h o u s a n d g a l l o n s a s o p p o s e d $ 1 0 , 0 0 0 p e r t h o u s a n d g a l l o n s , w h i c h , i n h i s e x p e r i e n c e , w a s t h e
a v e r a g e c o s t p e r t h o u s a n d g a l l o n s . T h e d i f f e r e n c e i n p r i c e , M r . V i c k e r s s t a t e d t o t h e V a l u e
E n g i n e e r i n g T e a m , w a s b e c a u s e t h e S e u b e r t s i t e w a s " a l o u s y s i t e . "
1 9 . I n t h e i n t e r i m , a n d b e c a u s e o f c o n c e r n s r a i s e d a n d v a l i d a t e d a t t h e V a l u e E n g i n e e r i n g
W o r k s h o p , t h e C i t y o f M c C a l l b e g a n s e r i o u s l y t o c o n s i d e r a l t e r n a t i v e s i t e l o c a t i o n s f o r P h a s e I I o f
t h e J - D i t c h A l t e r n a t i v e . T h e C i t y o f M c C a l l ' s r e a s o n s f o r s e e k i n g p o s s i b l e a l t e r n a t i v e s t o t h e S e u b e r t
s i t e r a n g e d f r o m c o n c e r n s r e g a r d i n g c o s t , t o s i t e c o n t a m i n a t i o n , t o d a m s a f e t y .
2 0 . B y A u g u s t o f 1 9 9 8 , t h e C i t y o f M c C a l l d e t e r m i n e d t h a t i t w o u l d n o t b u i l d t h e e f f l u e n t
s t o r a g e l a g o o n s a t t h e S e u b e r t s i t e . T h e C i t y d e t e r m i n e d t h a t t h e l a g o o n s s h o u l d b e b u i l t o n l a n d ,
a l s o s o u t h o f t o w n , o w n e d b y G e o r g e B e z a t e s .
V E R I F I E D C O M P L A I N T - 5
21. J-U-B, on its own behalf and on behalf of PLW&SD, has voiced its opposition to the
acquisition of , and construction of storage lagoons on, the Bezates site.
22. On February 16, 1999, J-U-B stated in correspondence to Rick Harbert of RH2
Engineering that it had been retained by PLW&SD to review and update facility plans for the
McCall wastewater treatment plant. J-U-B reiterated its relationship with PLW&SD on February 24,
1999, to Mr. Harbert. True and correct copies of said letters are attached hereto as Exhibit A. To
date, however, J-U-B has never provided the City of McCall with written notice that it was retained
by PLW&SD to work on Phase II of the J-Ditch Alternative, nor has it received written notice from
the City of McCall that the City was agreeable to J-U-B's representation of PLW&SD pertaining to
the wastewater treatment facility.
23. In a March 1, 1999, Public Hearing regarding the BOR and DEQ documents for
Phase II of the J-Ditch Improvements, Respondent Kirby Vickers spoke on behalf ofPLW&SD and
addressed a series of concerns regarding Phase II of the J-Ditch Alternative.
24. In a March 10, 1999, letter from Respondent Kirby Vickers to Rick Harbert of RH2
Engineering, the firm currently retained by the City of McCall to work on the J-Ditch Alternative,
Mr. Vickers reiterated that J-U-B is working on behalf of PLW&SD. In addition, he states that
J-U-B is involved with J.P. Seubert, and that Mr. Seubert and J-U-B have submitted a privitization
proposal to the City of McCall to build the effluent storage lagoons (Phase II of the J-Ditch
Alternative) on the Seubert site. A true and correct copy of the March 10, 1999, letter from J-U-B
is attached hereto as Exhibit A.
25. J-U-B has never provided the City of McCall with written notice that it was retained
to perform engineering services for J.P. Seubert regarding privitization proposals for Phase II of the
J-Ditch Alternative.
VERIFIED COMPLAINT - 6
26. On March 31, 1999, and again on April 6, 1999, letters on behalf of the City of
McCall were sent to C. Tom Arkoosh, attorney for J-U-B, requesting that J-U-B immediately
disclose, in writing, all parties from whom it is receiving or has received payment for work
performed on the J-Ditch Alternative. This disclosure was to include: a description of the work
done by J-U-B for any entity other than the City of McCall on the J-Ditch Alternative; a listing of
all information obtained by J-U-B while working for the City and disseminated to other J-U-B
clients; and a chronology of steps being taken by J-U-B to retrieve documents and information
obtained by it in the course of its work for the City and disseminated by it to other clients. True and
correct copies of said letters are attached hereto as Exhibit B.
27. Attempts by the City of McCall to obtain information from J-U-B regarding J-U-B's
representation of other parties regarding the J-Ditch Alternative have been essentially ignored by
J-U- B. To date, J-U-B has failed to respond to the City of McCall's request. On its behalf, J-U-B's
attorney, Mr. C. Tom Arkoosh, provided nonresponsive correspondence to the City of McCall's
request that J-U-B immediately disclose, in writing, all parties from whom it is receiving or has
received payment for work performed on the J-Ditch Alternative. A true and correct copy of
Mr. Arkoosh's correspondence is attached hereto as Exhibit C.
IV.
COMPLAINT
28. Violation of Rule 8.01 of the Rules of Professional Responsibility.
Rule 8.01 requires:
Each Registrant or Certificate Holder shall conscientiously
avoid conflict of interest with an employer or client, and when
unavoidable, shall forthwith disclose the circumstances to the
employer or client. In addition, the Registrant or Certificate Holder
shall promptly inform the employer or client of any business
VERIFIED COMPLAINT - 7
association, interests, or circumstances which could influence a
Registrant's or Certificate Holder's judgement or quality of service,
or jeopardize the client's interests.
Work performed by Respondents J-U-B, Kirby Vickers, and George Wagner on behalf of J.P.
Seubert and PLW&SD is a conflict of interest insofar as Respondents sought to perform services for
all three entities regarding the J-Ditch Alternative and failed to inform the City of McCall of these
associations.
29. Violation of Rule 8.02 of the Rules of Professional Responsibility.
Rule 8.02 requires:
A Registrant or Certificate Holder may accept compensation,
financial or otherwise, from more than one party for services on the
same project, or for services pertaining to the same project, provided
the circumstances are disclosed, in writing, in advance, and agreed
to by all interested parties.
(Emphasis added.) Neither J-U-B, Kirby Vickers, nor George Wagner ever disclosed in writing to
the City of McCall that they were receiving compensation from anyone other than the City of
McCall for services pertaining to Phase II of the J-Ditch Alternative. The City has never agreed that
Respondents could perform engineering services pertaining to the J-Ditch Alternative for any other
entity.
30. Violation of Rule 10.02 of the Rules of Professional Responsibility.
Rule 10.02 requires:
Registrants or Certificate Holders shall not reveal confidential facts,
data or information obtained in a professional capacity without prior
consent of the client or employer except as authorized or required by
law.
Respondents have revealed confidential facts, data and information not only to PLW&SD, but also
to J.P. Seubert, during the course of their contractual relationship with the City of McCall.
VERIFIED COMPLAINT - 8
V.
PRAYER FOR RELIEF
Wherefore, the Complainant City of McCall prays as follows:
1. For a finding that Respondents' conduct constitutes a violation of Rules 8.01, 8.02
and 10.02 of the Rules of Professional Responsibility.
2. For such administrative penalty as the Board deems just and equitable under the
circumstances.
3. For an award of Complainant's attorney fees and costs pursuant to Idaho Code
§§ 12-117 and 12-121.
DATED this day of April , 1999.
BRASSEY, WETHERELL, CRAWFORD & McCURDY
By
William A. McCurdy, Of the Firm
Attorneys for Complainant
VERIFIED COMPLAINT - 9
VERIFICATION
STATE OF IDAHO
) ss
County of Valley
KIRK EIMERS, Mayor of the City of McCall, Idaho, being first duly sworn upon oath,
deposes and states as follows:
That the City of McCall, Idaho, a municipal corporation, is the Complainant in the above -
entitled matter; that in his capacity as Mayor of said municipal corporation, he has read the foregoing
instrument and knows the contents thereof; and that the facts contained therein are true and correct,
to the best of his personal knowledge and belief.
By:
Kirk Eimers
Mayor
City of McCall
SUBSCRIBED AND SWORN TO before me this day of April, 1999.
Q)o
NOTARY ' :LIC FO (_+l
Residing at 1 r C
My Commission Expires: Q 5/63 /Q 0
VERIFIED COMPLAINT - 10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this day of April , 1999, I served a true and correct copy
of the foregoing VERIFIED COMPLAINT by causing the same to be delivered to the following
individual by the method and at the address indicated below:
C. Tom Arkoosh
ARKOOSH LAW OFFICES
301 Main Street
P.O. Box 32
Gooding, Idaho 83330
Telephone: (208) 934-8872
Facsimile: (208) 934-8873
❑ U.S. Mail, postage prepaid
❑ Hand -Delivered
❑ Overnight Mail
O Facsimile
William A. McCurdy
VERIFIED COMPLAINT - 11
FILE COPY
February 16, 1999
Mr. Richard H. Harbert, P.E.
RH2 Engineering
P.O. Box 2553
Redmond, WA 98073
Dear Mr. Harbert:
J-U-B ENGINEERS, Inc.
ENGINEERS • SURVEYORS • PLANNERS
250 S. Beechwood Avenue, Suite 201
Boise, ID 83709-0944
208/376-7330
FAX: 208/323-9336
RE: Review of Facilities Plan Update
J-U-B has been retained by the Payette Lakes Water and Sewer District to review the update
to the facilities plan T ar the McCall wastewater treatment plant. This review may extend to
the work of your subcontractor, Kleinfelder. Our professional obligations require that we
contact you and your staff during the'course of our review and that we communicate the
results of our review to you.
The Sewer District has several areas of concern. These concerns include the estimated cost of
the project. The potential increased costs associated with operation or failure of the facility,
the impact that the change in sites may have on the overall treatment concept envisioned in
the original Facility Plan, and the technical aspects of the project which may impact the
long-term efficacy of the project: Our review will focus on these issues. The deadline for '
completion of this review is March 1, 1999, so that it will be available for the public hearing.
We will make our review available to you -before the hearing to obtain the benefit of your
comments., We recos : ize that the time frame for our review is short, but we will make every
attempt to provide you with our comments in adequate time for you to respond to'any
questions that we may have. If you have any questions, please contact me or George Wagner
at (208) 376-7330.
Sincerely,
J-U-B ENGINEERS, Inc.
D. Vickers, P.E.
Executive Vice President
KDV:Ihc
cc: Kleinfelder, Inc.
Stephen E. West, DEQ
Sonny Hornbaker, P.G., IDWR
f:\projects\11368\admin\hai bert2.doc
EXHIBIT..
rJ-U-B1
February 24, 1999
Mr. Richard Harbert, P.E., President
RH2 Engineering, Inc.
8383 158`h Avenue N.E., Suite 200
P.O. Box 2553
Redmond, WA 98073
Dear Mr. Harbert:
FILEC 0 P Y J-U-B ENGINEERS, Inc.
ENGINEERS • SURVEYORS • PLANNERS
250 South Beechwood Avenue, Suite 201
Boise, Idaho 83709-0944
208-378-7330
FAX: 208-323-9338
As you were previously informed, J-U-B ENGINEERS, Inc. has been retained by the Payette
Lakes Water and Sewer District to review the Update to Facility Plan for Implementation of
Proposed J-Ditch Phase II Improvements, DEQ Grant 1894-04. The review process is still in
progress and we are realizing that we will not be able to get our review comments to you
in a reasonable time for you to answer questions and to clarify misunderstandings that we
may have prior to the public hearing to be held March 1, 1999. It is our understanding that
the record will only be held open for written comment until March 5, 1999, and, possibly,
to the following Monday, March 8, 1999. It is important to our client that this testimony is
presented. However, we feel it is imperative to exercise due diligence on understanding
the thought process behind what you are proposing and that we properly communicate our
concerns so that you can respond appropriately.
We areinviting you to sit down and hear our questions and comments prior to the public
hearing. It is our understanding that you will be in the area on Thursday and Friday of this
week. If you could find the time to meet with us for discussion, we would appreciate it.
We would be available to meet on the weekend if it is more convenient.
In spite of our well -established differences, we do not feel that the public is well served
by engineers sniping at each other. Please accept this letter as our earnest attempt to
find a means to communicate our concerns to RH2 and eliminate any misunderstandings on
our part. If you have any recommendations on how this may be best achieved, please let
us know immediately.
Sincerely,
J-U-B ENGINEERS, Inc.
Kirby D. Vickers, P.E.
Executive Vice President
1:DV:lhc
f:\projects\11368\admin\harbert3.doc
EXHIBIT
RH2 ENGINEERING INC.
• . ,IOB NO:
FEB 2 6 1999
ROUTE TO _ 1-4
FILE:
MAR. -24'99(WED) 09:47 MOORE & MCFADDEN GTD
TEL:208 331 1202 P.'003 '
FROM : RH2 ENGINEERING
03/10,211 11r41
PHONE NO. : 4258697769
'L1 U8 ago rlaau .J-u+a e.'u- DUlJL'
Mar. le 1999 03:31PM P2
,f_ 1./. 411JVULJUU,
• J-U-B ENGINEERS, Inc.
ENGINEERS-.SLIBVPORS • PLANNERS
250 South Beed,wood Avenue. Sdte 201
Poise, Idaho a37012`O04.4
20647e07a'go
March 10, 1999 FAX: 20A-a23•t+ e
Mr. Richard N. Harbert, P.E. -
RH2 gngineering
1383 1S9th Avenue N.E., Suite 200
P.B. Box 2553
Redmond, WA 92073
Dear Mr. Harbert;
As you were previously informed, we have been retained by the Payette Lakes Water and
Sewer District to review the City of McCall Update to Facility Plan for Implementation of
proposed -I -Ditch Phase II Improvements. We are providing you with a copy of our questions
and comments. The questions and comments are listed in the order they were presented In
the document. We have attempted to contact you to discuss these comments and you have
not responded.
Page 1, Paragraph 1 — it is J-U-B ENGINEERS, Inc. not Engineering.
Page 2, Phase 2 -- Does the City of McCall currently have an NPDES permit??
•
Page 2, General, Paragraph 1 -- The design criteria as provided in the Update to the Faculty
Plan is attributed to the Facility Plan as prepared by J-U-8 and approved by DEQ. The Facility
Plan was approved July 2, 1996, aver two eta half years ago. The City of McCall and RH2, by
preparing the Facility Plan Update, are solely responsible for acceptance or rejection of the
Planning and Design Criteria. We have not been retained to review the most recent data
available. if RH2 has or has not performed due diligence in determining the acceptability of
the criteria, they should'mo state.in the doctmient.
Page 2, General -- It is our opinion that the reference to "Value Engineering' is mitieading.
Tne exercise that was conducted dots not meet the Value Engineering guidelines in the Grant
Regulations, nor was the checklist for conducting Value Engineering complied with. The
continued use of ttie term Value Engineering' in this document Is (Weeding and tends to give
credibility to the invalid process that was conducted. J•U•B ENGINEERS, Inc. has not been
provided with copies as required by the grant regulations, nor has our input been sought. Any
representation in the Update to the Facility Plan that states or infers that J-U-B has, In any
way, concurred with the Update to the Facility Plan is incorrect. We have not and do not
concur with the so-called "Value Engineering' document --
Page 4, Paragraph 1, Sentence 2 -• We dispute the contention that the relocation of the
storage lagoons represents a'miner modification'. This is a major modlflcation that has
resutbed in major revisions In the schedule, costs and impacts on homeowners and has placed
the city of McCall at extensive financial risk.
Page 4, Paragraph 1, Sentence 3 -- It t5'stated•that the modifications to the Facility Ptan, i.e.,
relocating the storage lagoon to another site, was made in response to 1) further
developments of regulatory permit requirements; 2) funding and regulatory compliance
schedules; and 3) specific site conditions encountered since the Facility Plan was approved.
r:
EXHIBIT
MAR,-24'99(WEDI 09:47 MOORE & MCFADDEN CTD
TEL:208 331 1202 P,004
FROM : RH2 ENGINEERING
os/1040 11: d>!
PHONE N0. : 4258697769 Mar. 10 1999 03:32PM P3
TT208 323 133E J.c-B ENC. BOISE Iaboot/oor
•Engineers Surveyors Planners
•
Mr. Richard H. Harbert, P.E.
march 10, 1999
Page 2
Please provide us with the spedflc details that support -those three statements. We
specificbUy take-iswe with those statements as follows:
1. We know of no regulatory permit requirements that would have precluded the Phase n
Improvements from being,constructed 'on the proposed site. in fact, It appears that
the new site has had surprise regulatory requirements, as evidenced by the necessity
to more than double the geottchnicat cost due to 'unexpected regulatory
requirements'. if RH2 has specific information that the site proposed in the Fadlity
Ptpnwas or is unacceptable to the regulatory agencies, be advised that inforrnadon
has -never been provided to M.D. We request any.opecific information that RHZ has to
the effect that a regulatory agency had en opinion that the Seubert site was
unacceptable.
2. At the Completion of the so-called 'value Engineering' exercise, RN2 reprmented that
a new site could be acquired and a design prepared in time to start construction in
i998 es then required bythe BOR. This has now been changed to starting construction
in 1999 with completion in 2000. It b not correct to represent that the schedule was
the reason that the City selected an attornative site. in February 1998. land
acquisition was virtually complete, the majority of the site geotech was complete and
the design was•30%T complete, One year later, It does not appear that the City is any
further along at the new site. How can it be represented that an alterative site was
selected to -complete the project in a timelier manner?
3. J•U•B ENGINEERS, Inc. and Strata are on record as starting their opinion that the,
storage lagoon could have beef safely constructed on the Seubert site. on time and
within budget. We' have never been advised otherwise by a regulatory agency or a
Certificate holder. What ere -the specific conditions at the Seubert site that mandated
selection of an alterative site?
As you are aware, J.P. Seubert and-J-U-B ENGINEERS, Inc. have submitted a privatization
proposal to the City to build the•storage facility on the Seubert site. RI -II has never advised
J-U-B that they or their sub -consultants had dlicovered errors In J-II-B's work, yet kW/ states •
that the specific site conditions were one of the reasons the City elected to go to an
alternative site. This needs to be explained.
Page 4, Effluent Storage Impoundment, Paragraph 1 •• The geotechnkal .work performed was
considerably mere than• "preliminary', The work was not performed in conjunction with the
Phase 1 improvements. The work was performed specifically for the Phase II improvenu.
Page a, Effluent Storage Impoundment. Paragraph 2 -- Please advise us specifically of what
information RH2 has to concluder it has become apparent that the potential impacts to
project cost, schedule complisnc$ and long-term risk associated with permitting and
construction of the storage facility on the site, as proposed were unacceptable. J-U-B
ENGINEERS, Inc. -knows of nothing to the publlc•record that would confirm this statement. RH2
must advise J-U-B ENGINEERS, Inc. of the errors in their analysis that led RH2 to make these
statements,
4,
MAR.-24'99(WED) 09:48 MOORE & MCFADDEN CTD
.• ,
TEL:208 331 1202 P.005
FROM : RH2 ENGINEERING PHONE NO. : 4259697769 Mar. 10 1999 03:33PM P4
03,10/00 11:40 'QZ08 323 8330 J-tf-11 ENG. BOI SE !'a 005 007
.1.1j.„41
Engineers -Surveyors Pleuinere
Mr. Richard H. Herbert, P.E.
March 10, 1999
Page 3
Page.6, Setback Requirements, General, Sentence 2 .- During the so-called "Value Engineering"
exercise, the need for setbacks was discussed with Larry Peterson of DEQ, He indicated that a
setback or buffer of 30d to 1,000 feet would be required. Mr. Olson, City Manager for McCall,
Indicated that the City would provide a 1,000.foot buffer. The total area necessary tp provide
that 1,000.foot buffer would be 160 acres. If it has been determined that only a 280-foot
buffer Is required, why does the City still requital 60 acres?, It has been suggested that the
extra lend is necessary to provide acceptable material for the storage lagoon embankment. It
is very likely that In the determination of the value of the 160 acres, the court will take into
consideration the fair market value of the material used. Therefor, it appears that it may be
more cost-effective to acquire the material elsewhere and reduce the total land being taken
for the storage cell. Why is the City taking 160 acres of land and yet is not providing the
1,000.foot buffer that justified.the taking of 160 acres?
Page 6, Setback Requirements, General This paragraph states that the storage facility is not
part of the treatment facility and, therefore, there Is no need for a setback requirement. This
Is a major departure from the facility Plan. The original Facility Plan contemplated the
storage lagoons as maturation ponds and was intended to provide additional stabilisation and
pathogen destruction. The storage lagoons are an integral part of the treatment system. The
.potential for odors, vectors and aerosols exist, The buffer zones required should reflect the
concern for the residents adjacent to the storage lagoons.
The representation that the storage facility's not generally considered part of the treatment
process is incorrect. Pollutants of interest such as BOG, suspended solids, nitrogen,
phosphorous and pathogens will be treated by the storage lagoons and were intended to do so.
There are no specific set back requirements in the Ten State Standards for treatment facilities
or storage lagoons. Odors,•aerosols and vectors should be evaluated and the buffer zones
established to protect adjacent residents and property owners. While DEQmay be limited in
their ability- to establish those buffer zones for projects in which they are not assisting in the
funding, they should certainly be able to require that the City abide by their 'Value
Engineering' figure of a 1,000-foot buffer, since the State is providing fuildfnq for desfgn, land
acquisition and construction of the facility.. . - -
Page 7, Water Quality Issues. first sentence •- We take Issue with this statement. Each and
every one of these problems, odors, aerosol drift and vector attractions have the potential to
exist and -needs to be addressed:
Page 7. Water Quality issues, third sentenc&thrcwgh sixth sentence -- While the Ten States
Standards indicate that"BOD loading may very from 15 to 35 pounds per acre per day-, ttmust
be pointed out that the Standards se on to say'Dasign variables such as pond depth, multiple
units, detention time -and additional treatment units must be considered with applicable
standards for 1306, Tern! Suspended Solids (15S), Fecal Coltform, dissolved oxygen and pH.`
The Standards further state, It should be noted that the major factor in the design is the
duration of the cold weather period (water temperature less than 5°C)
Several acenarios can be provided that can -result in relatively short periods of odor incidences.
The most probable is that the storage tells wIll remain ke covered for en extended period of
time. During this time, the treated effluent will become ammtic and the only biological
activity will be anaerobic. In the late spring; the ice cap will melt and the thermally stratified
" M A R . - 2 4 ' 9 9 ( W E D ) 0 9 : 4 8 M O O R E & M C F A D D E N C I D
T E L : 2 0 8 3 3 1 1 2 0 2 P . 0 0 6
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P a g e 4 "
L a w s o n w i l l d e s t r a t i f y , b r i n g i n g t h e a n a e r o b i c l a y e r t o t h e s u r f a c e a l o n g w i t h t h e o d o r o u s
b y p r o d u c t s o f a n a e r o b i c d e g r a d a t i o n . P e r i o d s o f o b j e c t i o n a b l e o d o r s m a y p e r s i s t i n t h e a r e a
o f t h e l a g o o n s f o r s e v e r a l w e e k s . T h i s i s o n e o f t h e r e a s o n s t h a t t h e T e n S t a t e s S t a n d a r d s
s t a t e s , " T h e m a x i m u m . w a t e r d e p t h s h a l l b e s i x f e e t I n p r i m a r y c e l l s . G r a t e r d e p t h s i n
s u b s e q u e n t c e l l s a r e p e r m i s s i b l e a l t h o u g h s u p p l e m e n t a l a e r a t i o n o r m i x i n g m a y b e n e c e s s a r y . "
P a g e 7 , w a t e r Q u a l i t y I s s u e s , S e n t e n c e s 7 a n d 6 T h i s s t a t e s t h a t t h e c e l l b o t t o m s w i l l b e f l a t
i n o r d e r t o h o l d t h e b o t t o m l i n e r i n p l a c e a n d t o . h e l p e l i m i n a t e t h e p r o d u c t i o n o f o d o r . F i r s t ,
i t m u s t t o n o t e d t h a t a f t a t " b o t t o m e d l a g o o n o f t h i s s i z e h a s v e r y " h i g h l i k e l i h o o d o f
a c c u m u l a t i n g g a s u n d e r t h e l i n e r , s u b s e q u e n t l y f l o a t i n g t h e l i n e r a n d s u b j e c t i n g . t h e l i n e r t o
d e s t r u c t i v e s t r e s s e s , T h e g a s s e s m a y o r i g i n a t e f r o m r a n g a n d f a t t i n g g r o u n d w a t e r , b y p r o d u c t s
o f o r g a n i c d e c o m p o s i t i o n o r c h e m i c a l r e a c t i o n s . T h e g g 1 M u s t b e v e n t e d t o a v o i d f l o a t i n g t h e
l i n e r . T h e s t a n d a r d o f p r a c t i c e I s t o p r o v i d e a s l o p e e n ' t h e . b o t t o m o f t h e l a g o o n t o t r a n s p o r t
g a s s e s f r o m u n d e r t h e l i n e r t o v e n t s l o c a t e d o n t h e t o p o f t h e d i k e .
H o w m u c h w a t e r i s b e i n g c o n t e m p l a t e d t o c o v e r t h e L i n e r ? T h e T e n S t a t e S t a n d a r d s s t a t e t h a t
I n n o c a s e s h o u l d - p o n d d e p t h s b e l e y t h a n t w o f e e t . " T w o f e e t o f w a t e r r e p r e s e n t s
a p p r o x i m a t e l y 1 8 m i l l i o n g a l l o n s . - W i l t t h e t o t a l v o l u m e b e a d j u s t e d t o a c c o m m o d a t e t h e
1 8 r m l l i o n g a l l o n s c a r r i e d o v e r i n S t o r a g e ?
P a g e 8 , l a s t ' p a r a g r a p h T h e i s s u e o f t h e " q u a l i t y o f e f f l u e n t g o i n g l n t n t h e s t o r a g e c e l l s
r e v o l v e s a r o u n d t h e v u e t i t y o f t h e e f f l u e n t e l f i n a t e l y a p p l i e d t o t h e L a n d a p p l i c a t i o n s i t e .
T h e c l a s s i f i c a t i o n o f - t h e e f f l u e n t I n t h e s t o r a g e l a g o o n o u t s i d e o f t h a t r e l a t e d t o r e q u i r e m e n t s
f o r t h e l a r d a p p l c a t i o n s y s t e m 1 s m o o t . A n u m b e r o f p a t h o g e n s w i l l s u r v i v e t h e d i s i n f e c t i o n
e f f o r t n e c e s s a r y t o a c h i e v e 2 . 2 c o l o n i e s o f f e c a l c o l t f o r m p e r 1 0 0 m i l l i l i t e r s . T h e s t o r a g e
l a g o o n i s a n I n t e g r a l p e r t o f t r e a t m e n t ' n e c e s s a r y t o a c h i e v e p a t h o g e n r e m o v a l . T h e l o c a t i o n
o f . t h e i n f l u e n t l i n e s i n t o t h e s t o r a g e l a g o o n s , i n r e l a t i o n s h i p t o t h e e f f l u e n t " l i n e s , d e n o t
p r o v i d e t h e p r o p e r h y d r a u l i c s a n d d e t e n t i o n t i m e i i e c e s s a r y t o a c h i e v e m a x i m u m p a t h o g e n
r e m o v a l a s p r o v i d e d f o r i n t h e o r i g i n a l F a c i l i t y P l a n . I n o r d e r t o o b t a i n t h e p r o p e r l e v e l - o f
t r e a t m e n t , t h e s t o r a g e L a g o o n s h a v e t o b e I n c o r p o r a t e d i n t o t h e t o t a l t r e a t m e n t s y s t e m a n d
t h e d e s i g n p r o p o s e d i n t h e F a c i l i t y P l a n U p d a t e d o e s n o t d o t h a t .
P a g e 9 . 1 0 , E f f l u e n t I r r i g a t i o n P u m p S t a t i o n - - T h e d r a f t N P D E S P e r m i t r e q u i r e d a 6 0 : 1 d i l u t i o n
r a t i o f o r a n y d i s c h d r g e " t o t h e P a y e t t e R i v e r . O u r a n a l y s i s o f r i v e r f l o w s I n d i c a t e d t h a t a
d i s c h a r g e d u r i n g M a r d i m a y b e n e c e s s a r y . t o c o m p l y w i t h p e r m i t c o n d i t i o n s , s h o u l d a d i s c h a r g e
b e n e c e s s a r y d u r i n g ; a y e a r w h e n t h e s t o r a g e c e l l s c o u l d n o t b e e m p t i e d d u r i n g t h e i r r i g a t i o n
s e a s o n . H a s t h i s h e w n c o n s i d e r e d w h e n d e c f d i n e n o t t o h o u s e t h e i r r i g a t i o n p u m p s ?
H a v e p r o v i s i o n s b e e n m a d e t o t h e c o s t e s t i m a t e s f o r a p p u r t e n a n c e s n e c e s s a r y t o d i s c h a r g e
F r o m t h e s t o r a g e l a g o o n s ?
T h e F a c i l i t y P l a n i n d i c a t e d t h a t m u l t i p l e d r a w - o f f p o i n t s w o u l d b e u s e d i n t h e s t o r a g e l a g o o n s .
T h e m u l t i p l e d r a w - o f f p o i n t s w o u l d p r o v i d e f o r , o p e r a t i o h a t c o n t r o l f o r v e c t o r s s u c h a s
m o s q u i t o s , a l g a e o r d u c k w e e d b l o o m s a n d t o p r e v e n t s t r a t i f i c a t i o n , w h i c h c o u l d l e a d t o o d o r
p r o b l e m s . T h e m o d i f i c a t i o n s t o a s i n g l e d r a w - o f f p o i n t s h o u l d b e e x a m i n e d i n r e l a t i o n s h i p t o
t h e i m p a c t s o f n o t h a v i n g o p e r a t i o n f l e x i b i l i t y .
r �� M
; MAR. -24'99(WED) 09:49 MOORE & MCFADDEN CID TEL:208 331 1202 P.007
FROM : RH2 ENGINEERING PHONE NO. : 4250697769
03/10/911 11:3U =lb 3'L7 103b J-U-1J LNG. I ISE
Engineers Surveyors Planners
Mar. 10 1999 03:34PM P6
I Oes/007
Mr. Richard H. Herbert, P.E.
March W. 1999
Page 5
Page 12, Effluent to Storage Pump Station••• As stated in previous sections, the storage cells
were to provide treatment especially for pathogens. In order to achieve proper treatment,
the original Facility Plan indicated that the Inlet and outlet conditions and hydraulic detention
time were integral to pathogen removal, The inlet and.outtet conditions described in this
document do not achieve this.
Page 15, Project Cost and User Fees — The cost prvrlded in Appendix 0 were the most updated
cost estimates available and were based on a 30%' design. The costs were not developed at a
planning level. We must state emphatically that the cost estimates are certainly not 25% less
than the actual costs. The statement that the cost estimates are considered to be within ±25X
of actual costs is not correct. Planning documents such as Facility. Plans are used to set
financing limits. This means that the cost estimates simply cannot be less than the actual
costs. This is the reason we use centlnaehcy factors to adjust the cost estimates for unknown
er"unanticipated eventualities.
Page 10, Project Costs and User Fees, Paragraph 3 -- Is RIi2 representing that the cost
estimates for the project may be between 10 and 25% less than the actual costs? Shouldn't
contingencies be Incorporated into the estimate?
Review of Project Budget:
We have reviewed the project budget to determine if all major items of work anticipated et
this time have been included. Several item e, es rioted below, should be added to the budget.
Eartttwor s
The geotechnical evaluation report identified fine -gained material, which covers the entire "
site to an approximate depth of four. feet. The report recommends that this material be
replaced with structural fill rmder.embanlnrients and to 10 feat beyond the toe of the •
embankment slope. In addition, the report prohibits use of this stirfieial fine-grained material
as structural fill. The material may be blended with other material at the site Or removed and
replaced with acceptable structural fill. Given an estimated depth of four feet and a footprint
for the storage reservoir of 57 acres, approxirtiately 357,000 cubic yards of material: will
require replacement or special processing to construct the embankments. .The cost of this
work 13 not included in the budget and may be 52.00 to S4.00 per cubic yard depending on the
availability and royalties for borrow material and blending requirements. Ri•r2 should address
this issue.
rirpend Water Controt
The groundwater control design uses ground water elevations measured in October 1998, but
the elevations will be higher In the spri►tg and summer months.. The impacts of higher ground
water elevations on the design, construction and performance of the under -drain system may
be significant. Rlt2 should address this issue and; if necessary, adjust the cost estimate for
the under -drain. system and add an allowance fix the contractor's cast to dewater the site.
The project budget should reflect that contractors perceive this to be a very high -risk area
and will' increase bids accordingly. •
MAR.-24'99(WED) 09:49 MOORE & MCFADDEN CTD
TEL:208 331 1202 P.008
FRa9 : RH2 ENG I hEER 1 NG
PHONE NO. : 4258597769
03/10/92 11:31 T7208 723 W3J J-u-b tnit. aua-ie
Mar. 10 1999 03: 35Pr1 P7
011 uVvr uu,
Mr. Richard H. Harbert, P.E.
March+ 10, 1999
Engineers Surveyors Flannery Page 6
YJoitVnent for Beef Mead
The Facility Plan included provisions for the storage reservoir to provide the storage function
and to service es a maturation Pend for the removal of the helminth cyst. This was
commitment made to the ranchers receiving water from the J-Ditch. AH2 should modify the
preliminary design- to allow operation with at least 90 days of hydraulic detention time. The
inlet and outlet conditions should be provided to allow for this and project budget adjusted to
include the necessary,facilities.
Eald Bottom Slope
The standard of practice for an impoundment with an uncovered liner h to provide a minimum
of a 2% bottom slope to allow drainage of air and gas accumulations from beneath the liner.
Without this feature, floatation of the liner is more likely, together with the•assotiated
dam ge, to a $1,000,000 investment In, the liner. Construction of a 2% slope in the reservoir
bottom wilt effect earthwork quantities and cost, under -drain design and cost, or both. ' RH2
should address this Issue end account for the higher Costs in the project budget.
Itte Acoutsitioit
The final cost of the site for the storage facility will not be known until completion of the
condemnation action: The risk exists that the final cost of the land will be much higher then
91,200,000 and the project budget should acknowledge thfi potential.
professional Services
•
The geotechnical report recommends continuous monitoring and quality control by Kleinfelder
during excavation and construction of enlbankrikitts. Over a five- or s1x•month construction
period, theseservlees should exceed $100,000 and should be included in the budget.
J-U-B.ENGiNEERS has filed a claim to collect approximately $180,000 from the City foe work
and damages related to the contract with the City to' design this projet on the Seubert site.
The budget does not acknbwItdge this potential =lot Contingencies
• An allowance for contingencdei should be added to the budget to reflect The RH2's level of
comfort witlt the cost analysis they have. presented. From the text in the update, It appears
that thii contingency should be about 15%. It is our experience that It budget fora large risky
project, sudi as this dne, should have an aDpropriatecontingency.
Summary.
There ere significant items of work and other potential costs and risks associated with the
project, which.have•not been Included In the budget es presented. in otr opinion, this
project, in its current form, cannot be completed within the established budget
.Enginasrs Surveyors planners ,
Mr. Rk►mr0 M. Harbert, P.E.
Marsh 40, 1999
Pape 7
The sect1on titled Review ef Project Budget was provided es testimony on behalf of the
Payette Lakes Water and Sewer District at the Public Hearing on March 1, 1949. It is our
intent to provide the contents in this letter as Public Comment prior to the March 19, 1999
deadline for submittal of comments. We have tried to meet with you to discuss our comments
and, to date, you have not responded to our letter, fax or telephone call. Our questions and
comments must be responded to. There are health and safety issues that go beyond opinion.
You cannot continue to reference our work product in the original Facility Plan and then
ignore the Intent of the design and process. We remain available to discuss these comments
with you..
Sincerely,
J•U-B ENGINEEIZ~S, Inc.
KiD. Wolters. P.E. . ,
Executive Vice President
KDV:Lhc
f:\prmJeca+1116dVdminehuee4t.dot ' •
LAW OFFICE
BRASSEY, WETHERELL, CRAWFORD & McCURDY, L.L.P.
WASIIINGTON FEDERAL PLAZA
1001 WEST IDAHO, 3RD FLOOR TELEPHONE
POST OFFICE BOX 1009 (208) 344-7300
BOISE, IDAHO 83701 FACSIMILE
(208) 344-7077
E-MAIL
wmccurdv a micron.net
WILLIAM A. McCURDY
March 31, 1999
VIA FACSIMILE AND U.S. MAIL
C. Tom Arkoosh
Arkoosh Law Offices
301 Main Street
P.O. Box 32
Gooding, Idaho 83330
Re: Phase II, J-Ditch Alternative and J-U-B Engineers, Inc.
Dear Mr. Arkoosh:
Our firm has been retained to represent the City of McCall regarding matters relating to Phase
II of the J-Ditch Alternative. As you are well aware, the City of McCall and J-U-B entered into a
series of contracts from November 14, 1990, through October 24, 1997. Specifically, on October
24, 1997, the City contracted with J-U-B to assist the City in storage site acquisition, geotechnical
investigation, site survey and design of Phase II of the J-Ditch Alternative.
As of February 9, 1998, J-U-B was ordered to stop its work as outlined in the October 24,
1997, Addendum to the Agreement for Engineering Services. Nonetheless, to date, J-U-B has
continued involvement in the J-Ditch Alternative Project. Most recently, on March 10, 1999, Kirby
Vickers of J-U-B sent a letter to Richard H. Harbert of RH2 Engineering. In his letter, Mr. Vickers
outlined a series of comments and criticisms of the work in progress on Phase II of the J-Ditch
Alternative.
According to Mr. Vickers, J-U-B has been retained by Payette Lakes Water and Sewer
District to review the City of McCall Update to Facility Plan for Implementation of Proposed J-Ditch
Phase II Alternatives. In addition, he states that J-U-B is also working with J.P. Seubert and has
submitted a privatization proposal to build effluent storage lagoons on land owned by J.P. Seubert.
EXHIBIT B
C. Tom Arkoosh
March 31, 1999
Page 2
Equally clear from Mr. Vicker's letter is J-U-B's persistent opposition and criticism of the
J-Ditch project as it is currently planned. Given J-U-B's contractual relationship with the City,
J-U-B's actions regarding the J-Ditch Alternative are inappropriate.
Pursuant to IDAPA 10.01.02 — Rules of Professional Responsibility — conflicts of interest
by professional engineers are to be avoided. Specifically:
Each Registrant or Certificate Holder shall conscientiously avoid conflict of
interest with an employer or client, and when unavoidable, shall forthwith disclose
the circumstances to the employer or client. In addition, the Registrant or Certificate
Holder shall promptly inform the employer or client of any business association,
interests, or circumstances which could influence a Registrant's or Certificate
Holder's judgement or quality of service, or jeopardize the client's interests.
In addition, the Rules of Professional Responsibility require that:
A Registrant or Certificate Holder may accept compensation, financial or
otherwise, from more than one party for services on the same project, or for services
pertaining to the same project, provided the circumstances are disclosed, in writing,
in advance and agreed to by all interested parties. (Emphasis Added.)
The City would also like to caution J-U-B that pursuant to § .010 of IDAPA 10.01.02, J-U-B
is prohibited from revealing confidential facts, data or information obtained in a professional
capacity about the J-Ditch Alternative without the City of McCall's authorization. As J-U-B is well
aware, any information obtained by it during the course of the performance of the contract with the
City of McCall is the property of the City of McCall and cannot be disseminated to other J-U-B
clients without the express permission of the City.
It is clear from Mr. Vicker's recent correspondence that J-U-B is currently receiving
compensation from Payette Lakes Water and Sewer District for work it is performing on Phase II of
the J-Ditch Alternative. It would also appear that J-U-B may be receiving compensation from Mr.
J.P. Seubert . However, to date, the City has received neither written notice nor waiver request from
J-U-B regarding its acceptance of compensation from other parties regarding the J-Ditch Project.
For this reason, the City requests that J-U-B immediately disclose, in writing, all parties from
whom it is or has received payment for work it is or has performed on the J-Ditch Alternative. This
disclosure shall include: a description of the work done by J-U-B for any entity other than the City
of McCall on the J-Ditch Alternative; a listing of all information obtained by J-U-B while working
for the City and disseminated to other J-U-B clients; and a chronology of steps being taken by J-U-B
to retrieve documents and information obtained by it in the course of its work for the City and
C. Tom Arkoosh
March 31, 1999
Page 3 .
disseminated by it to other clients. Please note that the City is entitled to this information as it is
required by IDAPA 10.01.02 § 008.
Moreover, until this information is disclosed, the City requests that J-U-B stop all work for
any entity regarding Phase II of the J-Ditch Alternative without the express approval of the City. In
addition, the City requests that J-U-B make no public pronouncements regarding the J-Ditch
Alternative without permission from the City except those required by IDAPA or the Idaho Code.
By making these specific requests, the City of McCall is not limiting itself from seeking all
other appropriate remedies. I look forward to hearing from either you or your client regarding the
required disclosures. Thank you for your attention to these very important matters.
Very truly yours,
/57
William A. McCurdy
WAM:klb
LAW OFFICE
BRASSEY, WETHERELL, CRAWFORD & McCURDY, L.L.P.
WASHINGTON FEDERAL PLAZA
1001 WEST IDAHO, 3RD FLOOR TELEPHONE
POST OFFICE BOX 1009 (208) 344-7300
BOISE, IDAHO 83701 FACSIMILE
(208) 344-7077
E-MAIL
wmccurdv n micron.net
WILLIAM A. McCURDY
April 7, 1999
C. Tom Arkoosh
301 Main Street
P.O. Box 32
Gooding, Idaho 83330
Re: Phase II of the J-Ditch Alternative and J-U-B Engineering
Dear Mr. Arkoosh:
I have received your April 6, 1999, correspondence in which you respond to my March 31,
1999, correspondence by asking two questions. I will again refer you to the rules:
A Registrant or Certificate Holder may accept compensation, financial or otherwise,
from more than one party for services on the same project, or for services pertaining
to the same project, provided the circumstances are disclosed, in writing, in advance
and agreed to by all interested parties.
We ask that J-U-B disclose to the City of McCall all entities or persons for whom it has
received compensation for performing engineering services or whom it has consulted with pertaining
to either Phase I or Phase II of the J-Ditch Alternative project. This is required by the Rule 8.02 of
the Rules of Professional Responsibility. In addition, Rule 8.01 requires:
Each Registrant or Certificate Holder shall conscientiously avoid conflict of interest
with an employer or client, and when unavoidable, shall forthwith disclose the
circumstances to the employer or client. In addition, the Registrant or Certificate
Holder shall promptly inform the employer or client of any business association,
interests, or circumstances which could influence a Registrant's or Certificate
Holder's judgement or quality of service, or jeopardize the client's interests.
I have enclosed for your review a letter written by Kirby Vickers to Rick Harbert of RH2
Engineering, Inc. in which Mr. Vickers asserts to be acting on behalf of both Payette Lakes Water
EXHIBIT 3
C. Tom Arkoosh
April 7, 1999
Page 2
and Sewer District and for J.P. Seubert. From the tenor of his questions, it appears that the interest
'that Payette Lakes Water and Sewer District and J.P. Seubert have regarding Phase II of the J-Ditch
Alternative may be in direct conflict with the City of McCall's interest.
In addition, I have enclosed a transcript of statements made by Kirby Vickers at the March
1, 1999, public hearing in McCall. Again I refer you to the Rules of Professional Responsibility.
Rule 10.02 requires:
Registrants or Certificate Holders shall not reveal confidential facts, data or
information obtained in a professional capacity without prior consent of the client or
employer except as authorized or required by law.
It is the City's position that all data or information obtained by J-U-B while working for the
City of McCall regarding the J-Ditch Alternative, and which is not in the public record, cannot be
disclosed without consent from the City.
Again, the City requests that J-U-B immediately disclose, in writing, all parties from whom
it is receiving or has received payment for work performed on, or issues relating to, the J-Ditch
Alternative. This disclosure shall include: a description of the work done by J-U-B for any entity
other than the City of McCall on the J-Ditch Altemative; a listing of all information obtained by J-U-
B while working for the City and disseminated to other J-U-B clients; and a chronology of steps
being taken by J-U-B to retrieve documents and information obtained by it in the course of its work
for the City and disseminated by it to other clients.
I look forward to hearing from either you or your client regarding the required disclosures.
Thank you for your attention to these very important matters.
Very truly yours,
William A. McCurdy
WAM:klb
Enclosures
C. TOM ARKOOSH, ESQ.
ERIC J. WILDMAN, ESQ.
JOSEPH F. JAMES, ESQ.
OERI L. BRENNAN, PARALEGAL
JULIE L. BLACKWELL, PARALEGAL
Arkoosh Law Offices
Chartered
POST OFFICE BOX 32
301 MAIN STREET
GOODING, IDAHO 83330
April 6, 1999
William McCurdy
Brassey Wetherell Crawford Si. McCurdy
P.O. Box 1009
Boise, Idaho 83701-1009
RECEIVED
APR 0 8 1399
TELEPHONE: (208) 934-8872
FACSIMILE: (208) 934-8873
E-MAIL: alo@micron.net
Via Facsimile No. (208) 344-7077
Original to follow by mail
Re: Phase II J-Ditch Alternative and J-U-B Engineering, Inc.
Dear Mr. McCurdy:
I have received and reviewed your March 31, 1999, letter regarding the above.
My client has instructed me to respond to your inquiry to the extent possible. To do
this, it will be necessary for me to obtain from you the following information:
1. What interests of what clients are in conflict?
2. What "confidential facts, data or information" cannot be disseminated?
As soon as we receive this information from you, we will move forward with
dispatch to resolve your concerns.
CTA/dlh
cc: clients
P:\Clients\J-U-B\McCaifMcCurdy Itr 4-6-99.wpd
Sincerely,
C. Tom Arkoosh
EXHIBIT
C. TOM ARKOOSH, ESQ.
ERIC J. WILDMAN, ESQ.
JOSEPH F. JAMES, ESQ.
GERI L. BRENNAN, PARALEGAL
JULIE L. BLACKWELL, PARALEGAL
Arkoosh Law Offices
Chartered
POST OFFICE BOX 32
301 MAIN STREET
GOODING, IDAHO 83330
April 9, 1999
William McCurdy
Brassey Wetherell Crawford & McCurdy
P.O. 1009
Boise, Idaho 83701-1009
RECEIVED
APR 1 2 117
TELEPHONE: (208) 934-8872
FACSIMILE: (208) 934-8873
E-MAIL: alO({411ICr011.11et
Re: J-U-B Engineers, Inc. /Phase II J-Ditch Alternative
Dear Mr. McCurdy:
I have received your April 7, 1999, letter regarding the above, responding in part
to two questions in my letter of April 6, 1999.' For reference, the questions were:
"1. What interests of what clients are in conflict?
2. What `confidential facts, data or information' cannot be
disseminated?"
Your April 7, 1999, letter partially answers the first inquiry by identifying the
Payette Lakes Water and Sewer District and J.P. Seubert as the entities perceived to be
clients of J-U-B Engineers. The letter does not, however, identify the interests of those
entities, or those of McCall, such that I am capable of identifying those interests.
Instead, the letter states father obliquely on page 2, "It appears that the interests that
Payette Lakes Water and Sewer District and J.P. Seubert have regarding Phase II of the
J-Ditch Alternative may be in direct conflict with the City of McCall's interest."
Therefore, to restate the remaining portion of my first inquiry in terms used in your
April 7, 1999, letter:
What are the relevant interests of the City of McCall regarding Phase II of
the J-Ditch Alternative; and,
EXHIBIT C-
William McCurdy
April9, 1999
Page 2
What does McCall perceive to be the relevant interests of the Payette
Lakes Water and Sewer District and J.P. Seubert regarding Phase II of the
J-Ditch Alternative.
Answering our second inquiry regarding confidential materials, your April 7, 1999,
letter defines McCall's position, "that all data or information obtained by J-U-B while
working for the City of McCall regarding the J-Ditch Alternative, and which is not in the
public record, cannot be disclosed without consent from the City." Using this definition,
is McCall aware of any such information retained from the public record? If so, would
you please complete the response to our second question by identifying this information.
This inquiry is not intended to be onerous, but is intended to elicit an
understanding sufficiently particularized to form a common foundation upon which we
can build a resolution.
Thank you for your attention to this matter.
Sincerely yours,
C. Tom Arkoosh
CTA/dih
cc: client
P:\Client3V-U-B'McCallVdcCnrdv Itr 4.9.99.wpd