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HomeMy WebLinkAboutR-2003-115 KWA Ecological Services, Inc. Agreement ( for reviewing the floodplain and shoreline area regulations )RESOLUTION NO. R-2003115 A RESOLUTION authorizing the City Manager of the City of Yakima to execute an agreement with KWA Ecological Services, Inc for the purpose of reviewing the floodplain and shoreline area regulations. WHEREAS, the City desires to improve the floodplain and shoreline area regulations; and WHEREAS, KWA Ecological Services, Inc will provide technical services to help develop responses to Yakima County' proposed floodplain amendments, which will later be brought before the City Council for review after the Yakima County's floodplain draft document has been completed; and, WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to authorize the execution of a contract with KWA Ecological Services, Inc, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute an agreement with KWA Ecological Services for Floodplain Regulation and Shoreline Management Act Guideline review. The agreement shall be approved as to form by the City Attorney. ADOPTED BY THE CITY COUNCIL this 19th day of August, 2003. ATTEST: City Clerk Mary Place, Mayor C:\ Documents and Settings \dmaples\ Local Settings\Temporary Internet Files \ OLK13 \ Resoultion for KWA Professional Services 081403.doc CONSULTING SERVICE AGREEMENT NOVRECEBIED 1 4 2003 CITY o y..4F(MPLANNiNG . ; THIS CONSULTING SERVICES AGREEMENT (hereinafter "Agreement") is made and entered into by and between the City of Yakima, a Washington municipal corporation (hereinafter the "City"), and KWA Ecological Services, Inc., a Washington corporation (hereinafter the "Consultant"). WHEREAS, the City requires consulting services to assist with a review of floodplain and shoreline regulations and ordinances. WHEREAS, the Consultant represents that it has the expertise necessary and is willing to perform the Consulting services required by the City in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements set forth herein, it is agreed by and between the City and Consultant as follows: 1. Scope of Services. The Consultant shall provide the City with consulting services set forth in Consultant's August 10, 2003 proposal, a copy of which is attached as Exhibit "A" and incorporated herein by this reference. 2. Resolution of Conflicting Language. In the event of any inconsistencies or conflicts between the language of this Agreement and Exhibit A, the language of the Agreement shall prevail over the language of Exhibit A. 3. Time Period for Performance of Services. The term of this Agreement shall commence August 19, 2003, and shall terminate at the time of completion of all services/tasks required hereunder, unless the Agreement is terminated earlier by either party under Section 18 of this Agreement. The Consultant shall provide the services required hereunder in accordance with the timelines set forth in Exhibit A. The Consultant shall proceed with such services in a timely and diligent manner, but shall not be responsible for delays beyond the Consultant's control or which the parties could not have reasonably foreseen at the time this Agreement was executed. 4. Compensation. a. Fees for Services. The Consultant shall be compensated for all satisfactory services in accordance with Exhibit A. Page 1 of 1 (lk)ced planning kwa ecol services 11-4-03 b. Maximum Fee for Services. The maximum fee for the services described in Exhibit A shall not exceed Five Thousand One Hundred and Thirty Dollars ($5,130.00). c. Payment of Compensation. Consultant shall submit monthly invoices to the City. Said invoices shall itemize all services rendered during the preceding monthly period. Payment shall be due and payable upon receipt of Consultant's invoice by City. All payments are expressly conditioned upon the Consultant providing services hereunder which are satisfactory to the City. In the event City disputes any invoice item, City shall give Consultant written notice of such disputed item within thirty (20) calendar days after receipt of such invoice and shall pay to Consultant the undisputed portion of the invoice according to the provisions hereof. d. Payment in the Event of Termination. In the event that either party terminates this Agreement under Section 18, Consultant shall be compensated in accordance with the above terms for all satisfactory services provided to the City up to the effective termination date. e. Maintenance of Financial Records/Documents. The Consultant shall make the cost records, accounts and related financial documents pertaining to this Agreement available for inspection by representatives of the City during the term of this Agreement and for a period of three (3) nears following the final payment to the Consultant by the City. In the event that any audit or inspection identifies any discrepancy in such financial records, the Consultant shall provide the City with appropriate clarification and/ or financial adjustments within thirty (30) calendar days of notification of the discrepancy. 5. Standard of Performance. The Consultant shall perform all work and services required under this Agreement in accordance with generally accepted standards for the type of services required hereunder, and shall be responsible for the technical soundness and accuracy of all work and services furnished pursuant to this Agreement. 6. Status of Consultant. Consultant and the City understand and expressly agree that Consultant is an independent contractor in the performance of each and every part of this Agreement. The Consultant shall have the sole judgment of the means, mode or manner of the actual performance of work/services required under this Agreement. The Consultant, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the work/ services required under this Agreement. Additionally, and as an independent contractor, the Consultant and its employees shall make no claim of City employment nor shall claim against the City any related employment benefits, social security, and/or retirement benefits. Page 2 of 2 (Ik)ced planning kwa vent services 114-03 7. Taxes and Assessments. Consultant shall be solely responsible for compensating its employees and for paying all related taxes, deductions, and assessments, including but not limited to, federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement, Consultant shall pay the same before it becomes due. 8. Nondiscrimination Provision. During the performance of this Agreement, Consultant shall not discriminate on the basis of race, age, color, sex, religion, national origin, creed, marital status, political affiliation, or the presence of any sensory, mental or physical handicap. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. 9. Compliance With Law. Consultant agrees to perform all work/services under and pursuant to this Agreement in full compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise. If a change in any law or regulation increases the cost of Consultant's work or services, then Consultant will be entitled to an equitable adjustment to the Agreement. 10. No Insurance. It is understood the City does not maintain liability insurance for Consultant or its employees and subcontractors. 11. Indemnification and Hold Harmless. a. Consultant agrees to protect, defend, indemnify, and hold harmless the City, its elected officials, officers, employees and agents from any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs and expenses (including reasonable attorneys' fees and disbursements) resulting from any negligent act and/or omission of the Consultant, its officers, employees, agents, and/ or subcontractors, arising out of the performance of this Agreement. b. In the event that both Consultant and the City are negligent, the Consultant's liability for indemnification of the City shall be limited to the contributory negligence for any resulting suits, actions, claims, liability, damages, judgments, costs and expenses (including reasonable attorney's fees) that can be apportioned to the Consultant, its officers, employees, agents, and/or subcontractors. c. Nothing contained in this Section or this Agreement shall be construed to create a liability or a right of indemnification in any third party. Page 3 of 3 (Ik)ced planning kwa erol services 114.03 12. Commercial Liability Insurance. On or before the date this Agreement is fully executed by the parties, the Consultant shall provide the City with a certificate of insurance as proof of commercial liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) combined single limit bodily injury and property damage. The certificate shall clearly state who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the City, its elected officials, officers, agents, and employees as additional insured, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or a company rated A -VII or higher in Best's Guide and admitted in the State of Washington. 13. Delegation of Professional Services. The services provided for herein shall be performed by Consultant, and no person other than regular associates or employees of Consultant shall be engaged upon such work or services except upon written approval of the City. 14. Assignment. This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by Consultant to any other person or entity without the prior written consent of the City, except that it may be assigned without such consent to a related entity, an affiliate or wholly-owned subsidiary of either party. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of Consultant stated herein. 15. No Conflict of Interest. Consultant represents that it or its employees do not have any interest and shall not hereafter acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of this Agreement. Consultant further covenants that it will not hire anyone or any entity having such a conflict of interest during the performance of this Agreement. 16. Severability. a. If a court of competent jurisdiction holds any part, term or provision of this Agreement to be illegal, or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Agreement did not contain the particular provision held to be invalid. b. If any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed Page 4 of 4 (Ik)ced plaiming kwa ecol services 11-4-03 inoperative and null and void insofar as it may conflict, and shall be deemed modified to conform to such statutory provision. c. Should the City determine that the severed portions substantially alter this Agreement so that the original intent and purpose of the Agreement no longer exists, the City may, in its sole discretion, terminate this Agreement. 17. Drafting of Agreement. Both the Consultant and the City have participated in the drafting of this Agreement. As such, it is agreed by the parties that the general contract rule of law that ambiguities in the contract language shall be construed against the drafter of a contract shall have no application to any legal proceeding, arbitration and/or action in which this Agreement and its terms and conditions are being interpreted and/or enforced. 18. Termination. The City or Consultant may terminate this Agreement, with or without cause, by giving the other party ten (10) calendar days written notice of termination. 19. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows: TO CITY: Doug Maples Code Administration and Planning Manager 129 North Second Street Yakima, WA 98901 TO CONSULTANT: Keith Wolf, President KWA Ecological Sciences, Inc. 11232 320th Avenue Northeast Carnation, WA 98014 or to such other addresses as the parties may hereafter designate in writing. Notices and/or demands shall be sent by registered or certified mail, postage prepaid, or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. 20. Integration. This written document constitutes the entire agreement between the City and Consultant. There are no other oral or written Agreements between the parties as to the subjects covered herein. No changes or additions to this Agreement shall be valid or binding upon either party unless such change or addition be in writing and executed by both parties. Page 5 of 5 (1k)ced plamung lova ecol services 11-1-03 21. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 22. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. CITY OF YAKIMA KWA ECOLOGICAL SCIENCES, INC. By: R. A. Zai< , r., City Manager DATE: t j - �-O - v 3 ATTEST: City Clerk City Contract No. 40 •-9c (Ik)ced plaruung kwa ecul services 11-4-03 B Keith Wolf, Pr:J.ident DATE: (a/a3 Page 6 of 6 S1 • KWA ECOLOGICAL SCIENCES, INC. 10 August 2003 Mr. Doug Maples Code Administration and Planning Manager 129 N. Second Avenue Yakima, WA 98901 11232 320' Avenue Northeast Carnation, Washington 98014 425 788 3402 - Main Office 425 829 2454 - Mobile 425 788 9907 - Fax Ref: 2003-1007 RE: FLOODPLAIN ORDINANCE UPDATE AND SHORELINE MANAGEMENT ACT GUIDELINES REVIEWS Dear Mr. Maples: KWA Ecological Sciences, Inc. (KWA) is pleased to submit for your consideration the following proposal to 1) review the Yakima County proposed amendment to the Floodplain ordinances, 2) review the Department of Ecology's proposed rule for changes to the Shorelines Guidance, and 3) begin preliminary- nary work anticipating and idenit1t; _ng possible changes to the City's SMP under the new guidelines. OVERALL SCOPE OF WORK KWA will work closely with the City of Yakima staffs to help develop responses to Yakima County's proposed floodplain amendments specific to the SR -24 Bndge project and related updates as described to City officials on May 19, 2003 at the Gap to Gap study session. KWA will provide comment and recommendations to the City in the form of a technical review memo Two years ago, Ecology updated the state's shoreline management guidelines for the first tune since 1972. However, a coalition of business groups and local governments challenged the guidelines, and the Shoreline Hearings Board subsequently invalidated them. In an effort to avoid years of legal appeals, Ecology Director Tom Fitzsimmons asked Governor Locke and Attorney General Chnstine Gregoire to sponsor mediation talks aimed at reaching a legal settlement. The outcome of the negotiations is the draft shoreline management guidelines up for public comments this summer KWA will work closely with the City of Yakima staff to conduct a review of the Department of Ecology's proposed rule changes as they relate to the Shoreline Management Act and the DOE Shorelines Guidance Manual. KWA will attend a public heanng m Wenatchee, WA on Wednesday, August 13th m order to hear Ecology's rational for change, cnteria for updates and proposal for the overall SMA process. KWA will utilize the following documents in our review: KWA ECOLO ;;CAL SCIENCES,INC -1- Proposed rule-making order - CR -102 Proposed rule text Draft small business economic impact statement 4 Draft cost -benefit analysis Supplemental Draft Environmental Impact Statement 4 Open house and public hearing information eline Master Plan and/or guidance for accepting or MP Ya a anticipates this phase II City on possible up modifying proposed changes to the S by • ae -. _,._ Budgets, deliverables and schedules for these tasks are described below. TASK DELIVERABLES Task 200b: 1. Each month KWA will provide a task summary of expenditures and project budget status across all tasks. Each monthly envoi;::. will be accompanied oy a Time on Tusk summary, a budget status spreadsheet and copies of any and all receipts for indirect and direct costs. Tasks: 1. For Task 200b: KWA will prepare a single memorandum sufficient to report on the substance, umphcattons and recommendations derived from a review of Yakima County's proposed floodplain rule change Cntical Area Ordinance. Memoranda will include recommendations for possible actions by the City including follow up communications/coordination with relevant parties, such as Yakima County, who are also currently engaged m their own Comprehensive Pian review. One meeting with Yakima County officials m anticipated and budgeted. Deliverable anticipated by September 25th, 2003 2. For task 20d Phase I, KWA will prepare a single memorandum sufficient to provide City comments on the substance, implications and recommendations derived from a review of Department of Ecology's Shorehne Guidelines. Memoranda will include recommendations for possible actions by the City mcludmg follow up communications/coordination with relevant parties, such as Yakima County, who are also currently engaged in their own SMP review. One meeting with Yakima County KWA ECOLOGICAL SCIENCES, INC -2- officials m anticipated and budgeted in addition to one meeting with City of Yakima officials. Deliverable anticipated (due to Ecology on September 15th) by September 13th, 2003 For ta3k 200d Phase II, KWA will KWA will prepare -a series f techaacsl me , andum sufficient to provide guidance to the City of Yakima on specific shorelines manageme . n update elements. Memoranda will mclude recommendations for possible actions by , Council study sessions, Council presentations and consultation with DOE an. - taff including follow up communications/coordination with relevant parties, such as Yakima : - s , who are also currently engaged in their own SMP review. Five meetings with Yakima Coun �, �i of Yakima officials and Department of Ecology staff in anticipated and budgete.. eliverables for Phase II are anticipated in December 2003, and in May and Novem . f 2004. Additional consultations are anticipated and partially budgeted (–. uch that -v�,.„t.:. vr uuaJ-a5 oaa.vi. TASK -BASED BUDGET AND TIMELINES All KWA labor calculated at $100.001 hr. through September 30, 2004. Task 200b Floodplain Amendment Review: 20 hours of KWA labor. Task total = N 1'E. $2000.00 + $280.00 *ODC = $2,280.00 Task 200d Shoreline Guideline Rule Change Review (Phase I): 25 hours of h'WA labor. Task effort includes review effort, travel time and two (2) meeting with City staff. Task total = N 1E $2500.00 + $350 *ODC = $2,850.00 *Other Direct Costs: Other costs may include direct travel, communicatzons etc. and are budgeted at the rate of 0.14 of direct labor and 0.36 per mile. Project will commence upon receipt of a Notice -to -Proceed (or other form of approval agreed to by IOWA and the City) and will conclude approximately 6 weeks from the date KWA is authon7ed to begin work. ASSUMPTIONS For the purposes of this Scope of Work, KWA assumes the following: 1. All KWA's work will be directed by Mr. Doug Maples, CBO, Code Administration and Planning Manager—City of Yakima, or his designee(s). KWA ECOLOGICAL SCIENCES, INC. -3- 2. KWA will not proceed with any work without written authorization from the City. 3. IOWA will provide monthly invoices with budget and task dehverable summaries. Receipts for all ODC will accompany all KWA invoices and payment from the City will occur within a reasonable period of time (N 1h 90 days). 4. Provisions of this agreement are considered to be consistent with all reasonable and standard contracting conditions and limitations. in closing, we look forward to continued discussions with you and City staff to produce a final review deliverable and report and helping make your process successful and meaningful for the natural resources and communities in the Yakima Basin. Please call me if you have any questions at (425) 788-3402. Sincerely, KWA ECOLOGICAL SCIENCES, INC. Keith Wolf, President cc: Christine M Wilson, COY Dueane Calvin, COY Gina Wolf, KWA Dieter G. Struzyna, Esq. KWA ECOLOGICAL SCIENCES, !NC -4- BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No.1� For Meeting of August 19, 2003 ITEM TITLE: Consideration of Resolution authorizing the City Manager of the City of Yakima to execute a consulting services agreement with KWA Ecological Services, Inc. for the purpose of reviewing the floodplain and shoreline area regulations. SUBMITTED BY: William R. Cook, Director of Community and Economic Development Department CONTACT PERSON/TELEPHONE: Doug Maples, Code Administration and Planning Manager (509) 575-6121 SUMMARY EXPLANATION: This consultant, Keith Wolf, would review the present floodplain and shoreline regulations to ensure compliance with the Growth Management Act (GMA) in preparation for the Comprehensive Plan update due in December 2006. It is staff's understanding that performing this update would help bring five years of best information, available science and research for staff to use when reviewing for these vital areas. The agreement is need to review Washington State Department of Ecology's suggested revision to the shoreline guideline rules and Yakima County's updating of the floodplain regulations. Continued on the next page Resolution X Ordinance Other (Specify) Contracts Mail to (name and address): Phone: Funding Source APPROVED FOR SUBMITTAL:City Manager STAFF RECOMMENDATION:The City Council would enter into a contract with Keith Wolf of KWA Ecological Sciences, Inc. to review the floodplain and shoreline regulations for the City of Yakima. BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2003-115 The floodplain and shoreline area ordinance review will be funded from salary saving of unfilled positions. The floodplain review services would not exceed $2,280. The shoreline guideline rule review for Phase I would not exceed $2,850 for a maximum fee for services not to exceed $5.130. This review and recommendation would be completed by September 13, 2003. Legislation would be drafted from the recommendation and presented to the City Council for consideration.