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HomeMy WebLinkAbout9 - Dredged Material ProgramCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 9 September 22, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Chris Miller, Harbor Resources Manager, (949) 644 -3043 cmiller(a)newportbeachca.gov SUBJECT: Approval of Amendment No. 1 to Professional Services Agreement with NewFields to Finalize the Dredged Material Program for Newport Harbor; Budget Amendment ISSUE: Harbor Resources is submitting an update on the Lower Bay dredging project and a request for additional testing funds based on a New Fields proposal to finalize the dredged material disposal feasibility program currently underway in Newport Harbor. The scope of work has changed as a result of the agency review process. Should the City approve Amendment No. 1 to Professional Services Agreement with NewFields? RECOMMENDATION- 1 . Approve Amendment No. 1 to Professional Services Agreement (PSA) with NewFields to finalize the dredged material program that is currently being conducted in Lower Newport Harbor. 2. Adopt Budget Amendment #BA- taking $75,000 in unappropriated Tidelands Fund balance and assigning these funds to Capital Improvement Project #7231 - C4402001 (Newport Harbor Dredging Project). DISCUSSION: In September 2008, Council approved a PSA with NewFields to complete sediment testing in preparation for a Lower Newport Bay dredging project. The City decided to press forward with this testing program in coordination with the Corps of Engineers' commitment to fulfill their responsibility to dredge the harbor assuming the local partner (City) could assist with a solution for the contaminated material. At this point, staff estimates there is approximately 1.4 million cubic yards to dredge to original authorized depths, but the volume of contaminated material is still unknown. It should be noted that the term "contaminated" is used in this discussion to refer to material that is not suitable for disposal at an offshore site which only accepts dredged material meeting very strict criteria established by concerned regulatory agencies. NewFields Budget Amendment No. i September 22, 2009 Page 2 One of the more complex issues with Newport's dredging project is to determine the amount of material that is suitable for ocean disposal at LA -3 versus the amount of material that must be disposed of at an alternate location. Using the federally approved LA -3 disposal site (4.5 miles from the Entrance Channel) is certainly the most desirable option because of its designation as an environmentally safe dredged material disposal area and its proximity to our harbor, translating into significant cost savings. However, sediment destined for LA -3 must undergo rigorous testing to ensure it will not degrade the ocean sediments or biological communities along our coastline. NewFields is currently working through this process with the various regulatory agencies to ensure the City is maximizing the quantities for LA -3; or conversely, minimizing the quantities that must be disposed of at an alternate site for contaminated material. Since the original PSA was approved in 2008, the testing program that NewFields proposed has changed in scope in several important ways. While some change in scope was anticipated, the level of effort associated with the required changes has exceeded the capacity of the current budget ($298,274.00). The following discussion will describe the approach originally proposed, where NewFields is in that program, and the changes in the program. A key component of the original program was to utilize previous data sets collected by the City in support of the RGP -54 and "Federal Channels" programs to reduce the scope of the current effort. To support this effort, NewFields and the City met with EPA at the outset to discuss the above stated approach. At that time, EPA indicated they would agree to the use of previous data, provided there had not been substantial changes in the harbor's bathymetry (sediment topography underwater). EPA also indicated that they would agree to use an amphipod test species more suited to Newport's fine sediments, provided there be a study to support the City's recommended species. Finally, EPA agreed to a reference area approach, using historic reference data rather than collecting and testing reference sediment from the LA -3 open ocean reference site. The original program scope included ten tasks that fall into four general categories which are: • Develop a work plan that summarizes existing data by area and identifies separate pathways forward for each area (Task 2); • Address the study elements EPA requested as described above, conducting a bathymetry comparison, amphipod study, and a compilation of reference area data (Tasks 1, 3, and 8); • Conduct the necessary sediment collection and testing necessary to fill the gaps in the existing data (Tasks 4 and 5); and, • Complete work started to address mercury and possible pyrethroid issues in the Lower Bay (Tasks 6 and 7). NewFields Budget Amendment No. 1 September 22, 2009 Page 3 The tasks requested by EPA were completed and culminated in the preparation of a work plan for addressing the data gaps. However, at this point, EPA indicated that the use of existing data would not be appropriate because the intent of the RGP -54 program is not consistent with the current program (location and total depth of previous samples were not indicative of the quality of all of the sediments proposed for dredging) and changes in sediment grain size. The regulatory agencies indicated that full testing would be required for each of the study areas. Additionally, the agencies required dividing up the harbor into more sampling areas, thereby increasing the number of analytical samples that would require all testing. The reason for increasing the number of sampling areas was to reduce the total volume of material that each test sample represented. This is a relatively new protocol established by the regulatory agencies that resulted from concerned citizen group challenges of the previous representative sampling protocol. After careful review, we determined that this change was actually beneficial to our program because it allows us to further segregate into smaller volumes those materials that are not suitable for LA -3 disposal. There were also additional increases in scope resulting from the newly formed Dredged Material Management Team (DMMT) which consists of all the regulatory agencies who meet monthly to make decisions on regional dredging projects. In the past, EPA and the Corps of Engineers made most of the testing requirement decisions without the assistance of the Regional Water Quality Control Board and the Coastal Commission, and this lack of agency coordination resulted in problems during the permit issuance process. The DMMT decided that Newport should use ERL (Effects Range Low) exceedances as a basis to require mercury analysis on individual testing stations, and tissue residue analysis on several compounds for all treatments (completion of tissue burden analysis and data review of a particular representative organism in a given dredged material test area). These are not requests that have been encountered on previous testing programs in California. While structured differently, the original proposal included the full evaluation of the equivalent of 6 to 8 treatments. The required number of samples that are now included in the current program, per the DMMT, is 13 test treatments and the reference treatment, totaling 14 treatments. This is an increase of 6 to 8 treatments. To adapt to the required changes in scope, the City and NewFields have adopted a revised project strategy to attempt to minimize costs. The intent is to use critical decision points to eliminate certain treatments from further analysis; in other words, knowing when to stop expending funds on an area that has no hope of passing for ocean disposal. NewFields has moved through several of these decision points, including sediment chemistry, amphipod testing, and other acute toxicity tests. While there have been some potential sediment chemistry issues observed in different parts of the harbor, NewFields did not find contaminant concentrations that would be considered, under historical testing review, a cause to reject areas as unsuitable for ocean disposal (with the exception of mercury by some previous comparison methods). In other words, no toxicity tests failed the ocean disposal criteria. The last remaining piece of information is the bioaccumulation testing tissue analysis which looks at the NewFietds Budget Amendment No. 1 September 22, 2009 Page 4 biological accumulation of contaminants in the tissues of the critters that are exposed to the sediment. These tests have been run, but the tissues have yet to be analyzed. At this point, there are no compelling reasons to eliminate any of the test composites from this bioaccumulation study in order to save costs, meaning that all the sites have passed the tests up to this point. Even areas that may not pass evaluation based on chemical concentration values alone may pass overall acceptance for disposal at LA -3 if no bioaccumulation of mercury is found in the tissues of indicator test organisms. The City sent.the regulatory agencies a proposed list of chemicals for tissue analysis based on the sediment chemistry and the likelihood for those chemicals to bioaccumulate (appear in the critter's tissues). The agencies responded with a revised list that included a much more costly set of analysis to be applied to all of the composite samples. NewFietds and the City are challenging this requirement for a full set of analysis by suggesting that we test just one composite with the full suite of analysis in order to prove that further testing of the other composites is unnecessary. However, we cannot plan that this logic will prevail at this point. The positive outcome of these efforts so far is that none of the areas have been absolutely eliminated from the possibility of ocean disposal. As stated above, this has been our primary goal from the beginning because of the cost savings involved with LA- 3 disposal versus an alternate site for contaminated sediments. Proposal for Remaining Work NewFietds has divided up the remaining tasks into four distinct tasks which are briefly summarized below. The full proposal is included as an appendix. TASK 1 — Finalize the Chemistry Analysis The following chemical analysis will be required through lab work. Arsenic: No further analysis Cadmium: Four treatments for worms, no further analysis for clams Copper: Five treatments for worms, no further analysis for clams Mercury: Two treatments for worms, six treatments for clams PCBs: No further analyses DDT: Thirteen treatments for both worms and clams. The total analytical costs to complete the tissues analysis as indicated will be $22,000. Tissue analysis would require 3 weeks from the notice to proceed. An additional one to two weeks would be required in order to review all data to ensure data quality and rectify any issues with the analytical laboratory. NewFields Budget Amendment No. 1 September22, 2009 Page 5 TASK 2 — Program Reoort Due to the change in scope, the final report for this program will resemble a comprehensive Ocean Testing Manual report. Portions of this task have been completed in the negotiations with the DMMT regarding the scope of the program and the tissue residue analysis. $15,000 will be required for the completion and submission to the DMMT. NewFields has begun to prepare the final report and would require an additional two weeks from receipt of the tissue chemistry data to finalize the program report. However, recommendations to the City regarding areas likely to pass for ocean disposal will be provided as soon as the qualified tissue chemistry data is available. TASK 3 — Finalizinq the Mercury Evaluation of West Lido Channel As part of the DMMP program, the mercury in West Lido Channel was going to be further characterized for both the lateral and horizontal extent. Samples that characterize the horizontal extent of mercury contamination have been analyzed and reported to the City. Samples that characterize the vertical extent of mercury contamination are archived and still require analysis. The costs associated with completing the remaining analysis and compiling a formal report of all mercury data would require $8,000. TASK 4 — Ongoing Negotiations with DMMT Finalizing the DMMT program will require several meetings with the DMMT. This includes a general presentation of all the test results and determination of which test treatments will pass for ocean disposal. Based on previous negotiations with the agencies, there will likely be two issues requiring some negotiation: DDT in tissues and mercury in sediments. With DDT, NewFields will need to work with the DMMT to determine the exact threshold value that has been applied to past programs would be sufficient for this current program. The level of mercury has exceeded Effects Range Low (ERL) standard, however, the values in Newport above the ERL standard have not exhibited toxicity or bioaccumulation issues. In the City's current testing efforts with Marina Park, a value of 1.0 mg /kg was used because of the small volume of sediment requiring upland disposal. However, EPA did indicate that they might allow for more of an options /risk analysis if there were larger volumes of sediment with mercury concentrations >1.0 mgfkg. The estimated volume of material that would exceed this threshold is approximately 250,000 cubic yards, so it is worth our while to try and negotiate this point further. The issue of acceptable mercury concentrations is the area of most uncertainty and affects not only the current harbor dredging program, but also the City's RGP -54 program which allows dredging under individual property owner's docks. If we can resolve the mercury issue in the federal channel areas, then it is likely that we will be able to resolve the mercury issue in those areas under property owner's docks where dredging is currently not allowed under the RGP. NewFietds Budget Amendment No. 1 September 22, 2009 Page 6 NewFietds best estimate for negotiating with the agencies regarding the current program and the mercury related issues would be a not -to- exceed amount of $15,000 to $30,000. This includes staff time and travel costs over the next few months. Negotiations regarding mercury in other regions have required extensive negotiation and this is not an issue that has been resolved at a national level. Another Local Dredotnq Proiect as a Comparison While one may question the costs of this overall testing strategy, it might be useful to compare our current efforts with a much smaller project at the Newport Dunes where a dredging project occurred in the spring of 2009. This project dredged approximately 125,000 cubic yards of material and the County spent $182,000 for their testing program. The City's current project is approximately 1.4 million cubic yards of material to dredge in a significantly larger area (entire Lower Newport Bay), and our testing program will cost approximately $375,000. Environmental Review: The approval of Amendment No. 1 to the Professional Services Agreement is not a project subject to CEQA and does not require environmental review. The dredging project, when implemented, may be determined to be Categorically Exempt 15304 — Class 4: Minor Alterations to Land: Section g exempts maintenance dredging where disposal is in an area authorized by state and federal regulatory agencies. If contaminated sediments are found requiring the analysis of different disposal options, then additional environmental documentation may be required. Public Notice: This agenda item may be noticed according to the Brown Act (72 hours in advance of the public meetings at which the City Council considers the item). Fiscal Impact: The extent of the technical problems with potential sediment contamination with respect to the regulatory agencies and the newly formed DMMT were not anticipated at the time the Council approved the original contract in September 2008. An additional $75,000 is requested from the unappropriated Tidelands Fund balance to account #7231- C4402001. Submitted by: by: Chris Miller, Harbor Resources Manager Attachments: Exhibit 1: Amendment No. 1 for PSA Exhibit 2: Budget Amendment NewFields Budget Amendment No. 1 September 22, 2009 Page 7 Amendment No. 1 for PSA AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH NEWFIELDS COMPANIES, LLC FOR DEVELOPMENT OF A DREDGED MATERIAL MANAGEMENT PLAN FOR LOWER NEWPORT BAY THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, is entered into as of this day of , 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "CITY "), and NEWFIELDS COMPANIES, LLC a Georgia Limited Liability Company whose address is 1349 West Peachtree Street, STE 2000, Atlanta, Georgia 30309 ( "CONSULTANT'), and is made with reference to the following: RECITALS: A. On September 9, 2008 CITY and CONSULTANT entered into a Professional Services Agreement, hereinafter referred to as "AGREEMENT," to perform sediment testing in Lower Newport Bay as a precursor to a comprehensive dredging project, hereinafter referred to as "PROJECT ". B. CITY desires to enter into this AMENDMENT NO. 1 to reflect additional tests and chemical analysis required which were not anticipated in the original AGREEMENT and to extend the term of the AGREEMENT to March 1, 2010. C. CITY agrees to compensate CONSULTANT for additional professional services needed for PROJECT. D. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter referred to as "AMENDMENT NO. 1," as provided here below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of the AGREEMENT shall be extended to March 1, 2010. 2. ADDITIONAL SERVICES TO BE PERFORMED In addition to the services to be provided pursuant to the AGREEMENT, CONSULTANT shall diligently perform all the services described in AMENDMENT NO. 1 including, but not limited to, all work set forth in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. ADDITIONAL COMPENSATION City shall pay Consultant for the services on a flat rate basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached to the AGREEMENT. Consultant's compensation for all work performed in accordance with this AMENDMENT NO. 1, including all reimbursable items and subconsultant fees, shall not exceed Seventy Five Thousand Dollars and no /100 ($75,000.00) without prior written authorization from City. 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1 on the date first above written. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By' -- David R. Hunt City Attorney /_i0i :&l M Leilani Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation Edward Selich, Mayor for the City of Newport Beach CONSULTANT: By: (Corporate Officer) Title: Print Name: By: (Financial Officer) Title: Print N Attachments: Exhibit A — Scope of Services and Billing Rates NILDS Chris Miller Harbor Resources City of Newport Beach Newport Beach, California 92663 Re: Proposal for Additional Funds Dear Chris September 11, 2009 NewFields is submitting a proposal to finalize the dredged material program that is currently being conducted in Lower Newport Harbor. As noted in our memo on August 23, 2009 changes as a result of the agency review process have increased the scope of this program. The following outlines the tasks remaining, the estimated costs associated with those tasks, and a timeline for completion. At this point we have completed nearly all tasks related to this program. Based on the data currently available and past decisions by the EPA and USACE, 9 of the 13 test treatments appear that they will pass for ocean disposal. All or portions of the remaining composites may also be available for disposal in the ocean but that will depend upon tissue analyses and negotiations with EPA, the USACE, and the other DMMT agencies. The following proposal outlines the remaining tasks that we foresee for the project and an estimated timeline. Task 1: Finalize Tissue Chemistry Analysis Following a DMMT meeting on August 26, 2009, the City was provided with a list of analytes for tissues and a decision process to determine how many treatments would require analysis. Based on a comparison of tissues concentrations in one replicate (a significant savings to the evaluations) of each treatment compared to the reference site, the following chemical analyses will be required: Arsenic: No further analysis Cadmium: Four treatments for worms, no further analysis for clams Copper: Five treatments for worms, no further analysis for clams Mercury: Two treatments for worms, six treatments for clams PCBs: No further analyses DDT: Thirteen treatments for both worms and clams. The total analytical costs to complete the tissues analysis as indicated will be $22,000. Tissue analysis would require 3 weeks from the notice to proceed. An additional one to two weeks would be required in order to review all data to ensure data quality and rectify any issues with the analytical laboratory. Task 2: Program Report Due to the change in scope, the final report for this program will resemble a comprehensive Ocean Testing Manual report. Portions of this task have been completed in the negotiations with the DMMT regarding the scope of the program and the tissue residue analysis. The original proposed cost for reporting was $25,000; the remaining reporting tasks would require $15,000 for completion and submission to the DMMT. NewFields has begun to prepare the final report and would require an additional two weeks from receipt of the tissue chemistry data to finalize the program report. However, recommendations to the City regarding areas likely to pass for ocean disposal will be provided as soon as the qualified tissue chemistry data is available. Task 3: Finalizing the Mercury Evaluation of West Lido Channel As part of the DMMP program, the mercury in West Lido Channel was going to be further characterized for both the lateral and horizontal extent. Samples that characterize the horizontal extent of mercury contamination have been analyzed and reported to the City. Samples (fiat characterize the vertical extent of mercury contamination are archived and still require analysis. The costs associated with completing the remaining analysis and compiling a formal report of all mercury data would require $8,000. Task 4: Ongoing Negotiations with DMMT Finalizing the DMMT program will require several meetings with the DMMT. This includes a general presentation of all the test results and determination of which test treatments will pass for ocean disposal. Based on previous negotiations with the agencies, there will likely be two issues requiring some negotiation: DDT in tissues and mercury in sediments. EPA has used a total projected DDT (sum of all DDT constituents) value of 300 ppb as a threshold for disposal at the LA -3 reference site. This value includes the use of site - specific multipliers to project the total tissue burden that animals would be predicted to have at equilibrium with the sediments. This is a correction factor applied to 28 -day bioaccumuhttion tests. The City and NewFields would need to work with the DMMT to determine whether the 300 ppb threshold that has been applied in past programs would be used for this program. Mercury has been observed in Lower Newport Bay sediments above the ERM level of 0.71 mg/kg. However, this has typically been associated with sediments that have not exhibited toxicity or significant bioaccumulation, which is the case for the current testing program. However, during the previous negotiations with EPA and the USACE on the Marina Park project, a sediment value of 1.0 mg/kg has been used as a threshold for ocean disposal. Such a sediment - chemistry threshold is not necessarily following the Ocean Testing Manual guidance and was applied in part due to the small volume of sediment requiring upland disposal from Marina Park. EPA did provide some indication that they would allow for more of an options /risk analysis if future programs included larger volumes of sediment with mercury concentrations >1.0 mg/kg. The estimated volume of material that would exceed this threshold is approximately 250,000 cubic yards, depending upon whether study areas can be divided into smaller areas based on individual station results. The issue of acceptable mercury concentrations is the area of most uncertainty and affects not only the current harbor dredging program, but also the RGP -54 program. The agencies may decide to qualify sediment containing Hg concentrations in the following three ways: 1. Sediment Hg concentrations in the composites that are :51 mg/kg (ppm) are considered to be acceptable for placement in the ocean are those with composite concentrations that are less than 1.0 mg/kg (ppm). 2. Sediment Hg concentrations in individual sediment samples that are >1 mg /kg would not be allowed to be placed in the ocean. Generally, decisions that are based on sediment chemistry at a single station or group of stations are applied to the general area surrounding those stations. This method will likely result in some locations within a composite being acceptable for disposal in the ocean. It is likely that if an entire composite has a concentration <I mg/kg, but includes stations that are > LO mg /kg, that the agencies would exclude those areas/stations exceeding 1.0 mg/kg. 3. Tissue Hg concentrations and toxicity test results are used to determine whether sediment is acceptable or unacceptable for placement of dredged materials in the ocean. At the most recent DMMT meetings, the agencies indicated that they would interpret tissue chemistry using both statistical comparison with the reference and an elevation to an effects based level. That level has not yet been defined. If the decision is only based on statistical significance then this can and should be argued since it is against federal guidelines. USEPA personnel will be available within the next two weeks to explore the interpretation of mercury data. Following these meetings we can meet with the City to develop a schedule of potential outcomes, including the volumes affected. We anticipate about 2 weeks of interaction and development of information required to come to some solution about the decision points for Hg. This two weeks of work will be spread over a time frame of 4 -6 weeks with the final decisions of whether it is work continuing the process near the end of October. We may also determine after initial discussions with EPA to agree with EPA's earlier regulatory decision and find alternative disposal options for sediment exceeding I mg /kg total Hg. Our best estimate for negotiating with the agencies regarding the current dredging program and mercury- related issues would be $15,000 - $30,000. This would include costs associated with staff time and travel costs over the next two to three months to complete negotiations for all issues related to the current dredging program and the mercury- related issues. NewFields will make efforts to expedite this process; however, this will require an invested effort on the part of EPA and the USACE during that time period. These costs would be considered a not -to- exceed amount. Negotiations regarding mercury in other regions have required extensive negotiation and this is not an issue that has been resolved at a national level. Please let me know if you have further questions regarding these estimates. As mentioned above, Task 4 is an estimate based on what has been required during previous programs to negotiate threshold values for disposal. If the agencies provide a clear indication that they are unwilling to alter their previous mercury threshold, it is likely that the actual costs will be substantially lower. Sincerely, William Gardiner NewFields, LLC Summary of Proposed Costs Task Associated Cost Task 1: Finalize Tissue Chemistry Analysis $22,000 Task 2: Program Report $15,000 Task 3: Finalize Mercury Evaluation of West Lido Channel $8,000 Task 4: Negotiations with DMMT $15,000 - 30,000 Total $60,000 to $75,000 NewFields Pdrt Gamble, WA Billing Rates Labor Categary Personnel fiourlk Rate- Principal Investrqabjr Or.. Jack Word 160 Project Managers Senior Scientists Susie,waft ISQ William Gardiner 130 Meg:Pinza: 130 Project Scientists -Scjentjsts Brian Hester 95. Lucinda Word 85 Bridget, Gregg Jack D Word 85 Staff Tracy.Schuh 75 Collin Ray 65 Mary Bacon 65 NwFi.lds P.O. Box 21 6r� -V29 IIEVie Dgi4E 360297.6040 hm— , 360.297.7266� WWW.NEVVPMLMCIDU! City of Newport Beach BUDGET AMENDMENT 2009 -10 EFFECT ON BUDGETARY FUND BALANCE: Description Increase Revenue Estimates X Increase Expenditure Appropriations AND Account Transfer Budget Appropriations SOURCE: Division Number from existing budget appropriations PX from additional estimated revenues from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: NO. BA- 10BA -014 AMOUNT: $75,000.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance To increase expenditure appropriations from Tidelands unappropriated fund balance for the Newport Harbor Dredging Project. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Amount Fund Account Description Debit Credit 7231 3605 Tidelands Fund - Fund Balance $75,000.00 " REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Description Signed: Ficial Approval: Administrative Services Director Date Signed: Adminiskatie Approval: City Manager Date Signed: City Council Approval: City Clerk Date Description Division Number 7231 Tidelands Capital Projects Account Number C4402001 Newport Harbor Dredging Project $75,000.00 Division Number Account Number Division Number Account Number Division Number Account Number Signed: Ficial Approval: Administrative Services Director Date Signed: Adminiskatie Approval: City Manager Date Signed: City Council Approval: City Clerk Date