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HomeMy WebLinkAboutR-2003-064 KWA Ecological Services, Inc. AgreementRESOLUTION NO. R-2003- 64 A RESOLUTION authorizing the City Manager of the City of Yakima to execute a consulting services agreement with KWA Ecological Sciences, Inc. for the purpose of reviewing the critical areas within the Yakima Urban Area Zonmg Ordinance. WHEREAS, the City of Yakima requires consulting services to assist with a review of the critical areas set forth in the Yakima Urban Area Zoning Ordinance; and WHEREAS, KWA Ecological Sciences, Inc. 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 the attached agreement; and WHEREAS, the City Council deems it to be in the best mterest of the City of Yakima to authorize execution of the attached agreement with KWA Ecological Sciences, Inc. for the purpose of reviewing the critical areas within the Yakima Urban Area Zonmg Ordinance, 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 the attached and incorporated consulting services agreement with KWA Ecological Sciences, Inc. for the purpose of reviewing the critical areas within the Yakima Urban Area Zoning Ordinance. ADOPTED BY THE CITY COUNCIL this 6th day of May, 2003. 2,-2/ ATTEST: Mary Place, Mayor City Clerk (lk)res-ced-kwa-critical areas review -4-29-02.pm CONSULTING SERVICE AGREEMENT 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 the Critical Areas set forth in the Yakima Urban Area Zoning Ordinance. 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 April 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 upon execution hereof 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 19 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. b. Maximum Fee for Services. The maximum fee for the services described in Exhibit A shall not exceed Seven Thousand Nine Hundred and Twenty Dollars ($7,920.00). (lk)ced planning kwa ecol services 4-29-03 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 19, 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) years 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. 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 Agreemen,Consultant shall pay the same before it becomes due. (Ik)ced planning kwa ecol services 4-29-03 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. 12. Insurance provided by Consultant. a. 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, (lk)wd planning kwa ecot services 4-29-03 the policy number, and when the policy and provisions provided are in effect (any statement in the certificate to the effect of "this certificate is issued as a matter of information only and confers no right upon the certificate holder" shall be deleted). 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 (any language in the clause to the effect of "but failure to mail such notice shall impose no obligation or liability of any kind upon the company" shall be crossed out and initialed by the insurance agent). 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 herein shall be performed by Consultant, and no person other ethan regular arvices proviessofoci 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, assigned without such consent to a related entity,fillexcept that it may be subsidiary of either party. In the event that such prior written consent to an aate or ssignment is granted, then the assignee shall assume all duties, obligations, and liabilitiesgof 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 remainin.g 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 inoperative and null and void insofar as it may conflict, and shall be deemed modified to conform to such statutory provision. (Ik)ced planning kwe ecol services 4-29-03 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. 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. 18. 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. 19. 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. 20. Notices. in writing and sent or TO CITY: Unless stated otherwise herein, all notices and demands shall be hand delivered to the parties to their addresses as follows: Doug Maples Code Administration and Planning Manager 129 North Second Street Yakima, WA 98901 TO CONSULTANT: or to such other addresses as and/or demands shall be sent delivered. Such notices shall the addresses specified above. Keith Wolf, President KWA Ecological Sciences, Inc. 11232 320th Avenue Northeast Carnation, WA 98014 the parties may hereafter designate in writing. Notices by registered or certified mail, postage prepaid, or hand be deemed effective when mailed or hand delivered at 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. (lk)ced planning kwa ecol services 4-29-03 CITY OF YAKIMA KWA ECOLOGICAL SCIENCES, INC. By: R. A. Zais,Jr.,j . City Manager DATE: ATTEST: /<a/ua City Clerk City Contract No. 4443- -5/5 45011.4r/4w R-aeo3-41/ (1k)ced planning kwa enol services 429-03 eith Wolf, President DATE: 5 11 8 l KWA ECOLOGICAL SCIENCES, INC. 10 April 2003 Mr. Doug Maples Code Administration and Planning Manager 129 N. Second Avenue Yakima, WA 98901 RE: CRITICAL AREAS REVIEW 11232 320'' Avenue Northeast Carnation, Washington 98014 425 788 3402 -- Main Office 425 829 2454 — Mobile 425 788 9907 — Fax Ref: 003-015 Dear Mr. Maples: KWA Ecological Sciences, Inc. (KWA) is pleased to submit for your consideration the following proposal to review the Yakima Urban Area Zoning Ordinances' Critical Areas (CAO). KWA will conduct this review specifically within the context of associations between the City of Yakima's (City) CAO's and the fish and wildlife resources within the urban area and two of the proposed urban growth areas. OVERALL SCOPE OF WORK KWA will provide the City with professional consulting services based upon the following task categories: 1. Review the Yakima Urban Area Zoning Ordinances' Critical Area designations within the context of and association between the City's CAO's and the fish and wildlife resources within the GMA Urban Growth Boundary and other areas as designated. 2. In addition, two GMA Urban Growth Areas will be included in the review: the SR -24 and Meadowbrook areas. 3. KWA will provide written and verbal comments in addition to one (1) draft and one (1) final report to the City identifying areas where CAO's may have direct or indirect association with fish and wildlife resources in the Yakima River. 4. The geographic scope of this project will indude the mainstem Yakima and Naches Rivers, major tributaries within the aforementioned boundary limits and selected "downstream" areas where growth boundaries adjoin critical habitat areas for fish and wildlife. KWA ECOLOGICAL SCIENCES, INC - 1 - TASK DESCRIPTIONS Task 100: Project Administration. This task will allow KWA to track project activities, costs, schedule and invoice for services. Task 200: Critical Area Ordinance Review. This is the main review and reporting task for this project. KWA will conduct this review specifically within the context of association between the City of Yakima's (City) CAO's and the fish and wildlife resources within the City's urban area and two of the proposed urban growth areas. Budgets, deliverables and schedules for these tasks are described below. TASK DELIVERABLES Task 100: 1. Each month KWA will provide a task summary of expenditures and project budget status across all tasks. Each monthly invoice will be accompanied by a Time on Task summary, a budget status spreadsheet and copies of any and all receipts for indirect and direct costs. Task 200: 1. KWA will prepare a single memorandum sufficient to report on the substance, implications and recommendations derived from a review of the Critical 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 in their own Comprehensive Plan review. 2. Two meetings are budgeted for this effort and include: 1) meeting in early June 2003 to review a first draft of the report memo, and 2) a final follow up meeting with all relevant parties to discuss the outcome of the CAO review, This meeting will occur no later than June 30, 2003. TASK -BASED BUDGET AND TIMELINES Task 100: 6 hours of KWA labor at 85.00/hour. Task total = NTE $510.00 Task 200: 65 hours of KWA labor at $100.00/hour based upon review effort, travel time and two (2) meeting with City staff. Other costs may include direct travel, communications 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 KWA and the City) and will conclude approximately 6 weeks from the date KWA is authorized to begin work. Task total = NTE $ $7,410.00 Project total = NTE $7,920.00 KVVA ECOLOGICAL SCIENCES, INC - 2 - 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). 2. KWA will not proceed with any work without written authorization from the City. 3. KWA will provide monthly invoices with budget and task deliverable summaries. Receipts for all ODC will accompany all KWA invoices and payment from the City will occur within a reasonable period of time (NTE 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, INC - 3 - BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. /1 - For Meeting of May 6, 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 critical areas within the Yakima Urban Area Zoning Ordinance. 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 Critical Area Ordinance 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 critical area ordinance update will be funded from Washington State Department of Community Trade and Economic Development $50,000 grant awarded to the City last summer. The maximum fee for services shall not exceed $7,920. This review and recommendation would be completed by June 30, 2003. Legislation would be drafted from the recommendation and presented to the City Council for consideration. Resolution X Ordinance Other (Specify) Scope of Work Contracts X Mail to (name and address): Phone: Funding Source 140314.55820410 I ragencv Planning Professional Service Account APPROVED FOR SUBMITTAL: �> > > . City Manager STAFF RECOMMENDATION:The City Council would enter into a contract with Keith Wolf of KWA Ecological Sciences, Inc. to update the Critical Area Ordinance. BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted. Resolution NO. R-2003-64