HomeMy WebLinkAboutR-2004-146 Dueane Calvin AgreementRESOLUTION NO. R-2004-146
A RESOLUTION authorizing the City Manager of the City of Yakima to execute a
consulting services agreement with Dueane Calvin for the purpose of
obtaining consulting services regarding water resource management,
and to maintain a continuing presence within a variety of water
resource related organizations.
WHEREAS, the Water/Irrigation Division of the City of Yakima requires
consulting services regarding water resource management with regard to the impact
and implementation of the requirements of various federal and state laws and
regulations, and to maintain a continuing presence within a variety of water resource
related organizations; and
WHEREAS, the Water/Irrigation Division does not have sufficient personnel or
expertise to perform said services; and
WHEREAS, Dueane Calvin has the experience and expertise regarding said
services, and agrees to perform these services for the City in accordance with the terms
and conditions set forth in the attached consulting services agreement; and
WHEREAS, the City Council deems it to be in the best interest of the City of
Yakima to authorize execution of the attached agreement with Dueane Calvin for
consulting services regarding water resource management, 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 Dueane
Calvin for the purpose of obtaining consulting services regarding water resource
management and to maintain a continuing presence within a variety of water resource
related organizations.
ADOPTED BY THE CITY COUNCIL this 21st day of S ptember, 2;14,
g
ATTEST:
„of
City Clerk
Paul P. George, Mayor
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT, hereinafter "Agreement," is
made and entered into by and between the City of Yakima, a Washington State
municipal corporation (hereinafter the "City"), and Dueane Calvin (hereinafter
"Consultant").
WHEREAS, the Water/Irrigation Division of the City requires certain water
resource management and counseling services, and
WHEREAS, the Consultant has experience and expertise regarding said
services and agrees to perform these services for the City under the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, conditions,
promises, and agreements set forth herein, it is agreed by and between the City and the
Consultant as follows:
1. Scope of Services. The Consultant shall provide the following services:
a. Lower Naches River Project: facilitate and coordinate the development
and implementation of this project on behalf of the City of Yakima, Yakima County, and
the Washington State Department of Transportation. The function and focus of the
project shall be to provide protection for existing infrastructure and, where appropriate,
to assist with the restoration of the flood plain. Facilitation will include involving other
stakeholders and entities in project development and implementation.
b. Department of Interior, Fish and Wildlife Service, Private Stewardship
Grant: provide guidance and consulting to assure a successful outcome for the habitat
restoration project funded by this grant.
• Provide guidance in the development of appropriate action plans for riparian
restoration project;
• When necessary provide supervision for other consultants engaged in
execution of the habitat restoration project;
• Administer the grant paper work and provide regular progress reports to City
management and the U.S. Fish and Wildlife Service. Reports shall consist of
one electronic copy and one hard copy for each report being submitted.
c. Continue to represent the City of Yakima's interests in such water
resource -oriented entities as:
• The Washington State Water Resource Association;
• Eastern Washington Water Alliance;
• Yakima Basin Watershed Planning;
• Yakima Subbasin Fish and Wildlife Planning efforts;
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d. Continue to assist the City's coordination efforts with other governmental
agencies in the development and implementation of appropriate water laws and
regulation.
e. Provide guidance and counseling in the City's response(s) in regulatory
issues associated with the Clean Water Act, Safe Drinking Water Act, Endangered
Species Act, etc.
2. Compensation.
a. Consideration. The City shall compensate the Consultant for all services
provided hereunder at the rate of Sixty Dollars ($60.00) per hour. The hourly rate shall
include and cover any and all costs of providing these services, except for certain
expenses as set forth hereinafter.
b. Maximum Compensation for Services. The total compensation provided
to the Consultant under this Agreement shall not exceed Sixty -Four Thousand Dollars
($64,000.00).
c. Travel Expenses. Should travel outside the local area (the local area is
define as the area within 50 highway miles of the City of Yakima) become necessary for
the full performance of the services and duties of the Consultant under the terms of this
Agreement, the City will reimburse the Consultant for all reasonable and customary
expenses incurred. Said expenses may include but not be limited to travel, lodging,
phone service and meals.
d. Other Expenses. The City shall reimburse the Consultant for materials
and supplies necessary for the full performance of the services and duties of the
Consultant under the terms of this Agreement. The Consultant shall bill the City for said
materials and supplies at cost, and the Consultant's billing will include copies of all
invoices for said materials and supplies.
e. Payment of Compensation. The consultant shall submit monthly invoices
to the City. Said invoices shall itemize all services rendered during the preceding
monthly period. The City shall make payment to the Consultant within thirty (30)
calendar days of receipt of the invoice. All payments are expressly conditioned upon
the Consultant's providing services hereunder that are satisfactory to the City.
f. Payment in the Event of Termination. In the event that either party
exercises its right to terminate this Agreement, the Consultant shall be compensated in
accordance with the above terms for all satisfactory services provided to the City up to
the effective Agreement termination date.
3. Inspection and Audit. The Consultant shall maintain all books, records,
documents and other evidence pertaining to the costs and expenses allowable under
this Agreement in accordance with generally accepted accounting practices. All such
books and records required to be maintained by this Agreement shall be subject to
inspection and audit by representatives of the City and/or the Washington State Auditor
at all reasonable times, and the Consultant shall afford the proper facilities for such
inspection and audit. Representatives of the City and/or the Washington State Auditor
may copy such books, accounts and records where necessary to conduct or document
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an audit. The Consultant shall preserve and make available all such books of account
and records for a period of three (3) years after final payment under this Agreement. 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.
4. Term of Agreement. The term of this Agreement shall commence upon
full execution by all parties and shall terminate at midnight on December 31, 2005,
unless sooner terminated by either party in accordance with Section 20 of this
Agreement. The City, at the discretion of the City Manager, may extend this Agreement
for an additional year through midnight on December 31, 2006, subject to negotiation
and mutual agreement of the parties regarding the contractual terms, conditions,
services and compensation.
5. Status of Consultant.
a. The Consultant and the City understand and expressly agree that the
Consultant is an independent contractor in the performance of each and every part of
this Agreement. The Consultant expressly represents, warrants and agrees that his
status as an independent contractor in the performance of the work and services
required under this Agreement is consistent with and meets the six -part independent
contractor test set forth in RCW 51.08.195. The Consultant, as an independent
contractor, assumes the entire responsibility for carrying out and accomplishing the
services required under this Agreement. The Consultant shall make no claim of City
employment nor shall claim any related employment benefits, social security, and/or
retirement benefits.
b. The Consultant was previously employed by the City as a Water/Irrigation
Manager. The Consultant has retired from that position and is receiving benefits and
compensation as a PERS 1 retiree. It is the responsibility of the Consultant to take any
steps or measures that are or may be necessary to preserve his retirement status and
ensure that he continues to receive retirement benefits during the term of this
Agreement. The City does not and cannot guarantee his retirement status and/or that
he will continue to receive benefits and compensation as a PERS 1 retiree.
6. Taxes and Assessments. The Consultant shall be solely responsible for
paying all 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. In the event the City is assessed a
tax or assessment as a result of this Agreement, the Consultant shall pay the same
before it becomes due.
7. Non -Discrimination. With regard to the services to be performed
pursuant to this Agreement, the Consultant shall not discriminate in violation of
applicable federal, state, and/or local law or regulation 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.
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8. The Americans With Disabilities Act. With regard to the services to be
performed pursuant to this Agreement, the Consultant agrees to comply with the
Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA) and its
implementing regulations, and Washington State's anti -discrimination law as contained
in RCW Chapter 49.60 and its implementing regulations. The ADA provides
comprehensive civil rights to individuals with disabilities in the area of employment,
public accommodations, state and local government services, and telecommunications.
9. Compliance with Law. The Consultant agrees to perform all 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.
10. No Conflict of Interest. The Consultant represents that he does 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.
11. No Insurance Provided by City. It is understood the City does not
maintain liability insurance for the Consultant.
12. Indemnification and Hold Harmless.
a. The Consultant agrees to protect, defend, indemnify, and hold harmless
the City, its officers, elected officials, 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 attorney's fees and
disbursements) resulting from any negligent act and/or omission of the Consultant
arising out of the performance of this Agreement.
b. In the event that both the 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.
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.
d. This Section of the Agreement shall survive the term or expiration of this
Agreement and shall be binding on the parties to this Agreement.
13. Insurance Provided by Consultant. Within thirty (30) days of execution
of this Agreement, the Consultant shall provide the City with adequate documentation
demonstrating automobile liability insurance with a minimum liability limit of One Million
Dollars ($1,000,000.00) combined single limit bodily injury and property damage. The
documentation 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 insurance shall be with an
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insurance company or companies rated A -VII or higher in Best's Guide and admitted in
the State of Washington.
14. Delegation of Professional Services. The services provided for herein
shall be performed by the Consultant, and no person other than regular associates or
employees of the Consultant shall be engaged upon such work or services except upon
written approval of the City.
15. Assignment. This Agreement, or any interest herein or claim hereunder,
shall not be assigned or transferred in whole or in part by the Consultant to any other
person or entity without the prior written consent of the City. In the event that such prior
written consent to an assignment is granted, then the assignee shall assume all duties,
obligations, and liabilities of the Consultant as stated herein.
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
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. Integration. This written document constitutes the entire agreement
between the parties. 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.
19. Non -Waiver. A waiver by the Consultant or the City of the breach of any
provision of this Agreement by the other party shall not operate or be construed as a
waiver of any subsequent breach by either party or prevent either party thereafter
enforcing any such provision.
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20. Termination. The Consultant or the City may terminate this Agreement,
with or without cause, by giving the other party ten (10) days' advance written notice of
termination. In the event of such termination, the Consultant shall be compensated for
services rendered up to the termination date in accordance with Section 2 of this
Agreement.
21. Survival. Any provision of this Agreement which imposes an obligation
after termination or expiration of this Agreement shall survive the term or expiration of
this Agreement and shall be binding on the parties to this Agreement.
22. Notices. Unless stated otherwise herein, all notices and demands shall
be in writing and sent or hand -delivered to the parties at their addresses as follows:
To the City: Dave Brown, Water & Irrigation Manager
City of Yakima
2200 Fruitvale Boulevard
Yakima, WA 98902
To the Consultant: Dueane Calvin
7610 West Nob Hill Boulevard, #157 .
Yakima, WA 98908
or to such 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.
23. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
24. 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
B
ick Zais, City ariager
Date:
9 - a-3 -0ttf
ATTEST:
Karen Roberts, City Clerk
City Contract No. , 1,,/— /J2.
Resolution No. .RODS/_/i' ,
CONSULTANT
By:
Dueane Calvin
Date:
Nxi "v1,4
SEAL
SH1 NG.\
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting of 9/21/2004
ITEM TITLE: Personnel Service Contract with Dueane Calvin
SUBMITTED BY:
Dave Brown, Water/Irrigation Manager
Bruce Benson, Supervising Senior Planner
Glenn Rice, Assistant City Manager
CONTACT PERSON/TELEPHONE: Dave Brown / 575-6204
SUMMARY EXPLANATION: The Water/Irrigation Division requires consulting services from
Dueane Calvin to coordinate a joint effort between the City, Yakima County and the Washington
Department of Transportation (DOT) for development of the Lower Naches River Project. The
Lower Naches River Project will develop a strategy/action plan along with funding sources for
work/projects that have been developed individually and severally by each of the participants for
the final reach of the Naches River. The City, County and DOT have agreed to share costs at
1/3 each. The City's main interest in the project is to develop alternative methods for the water
delivery to the Fruitvale Canal.
The Planning Division requires the consulting services of Dueane Calvin to administer a grant
from the US Fish & Wildlife Service for the Ahtanum Creek Restoration project. The City
received a $71,000 grant under the 2004 Private Stewardship Grant Program.
Staff respectfully requests City Council to approve the attached resolution authorizing the City
Manager to execute the accompanying contract with Dueane Calvin Consulting, of Yakima,
Washington. Financial support for this contract will be from appropriations approved by Council
in the 479 Irrigation Improvement Fund and by a $71,000 grant from the US Fish & Wildlife
Service.
Not to Exceed Cost $64,000
Resolution _X_ Ordinance Other (Specify)
Contract X
Mail to (name and address): Dueane Calvin; 7610 W. Nob Hill Blvd..; Yakima, WA 98908 Phone: 509-301-8611
Funding Source 479 Ir
APPROVED FOR SUBMITTAL:
tion Improvement Fund and US Fish & Wildlife Grant
City Manager
STAFF RECOMMENDATION: Approve resolution authorizing the City Manager to execute the
accompanying contract with Dueane Calvin Consulting of Yakima, Washington.
BOARD/COMMISSION RECOMMENDATION:
COUNCIL ACTION:
Resolution adopted. RESOLUTION R-2004-146
Calvin Consultinj
7610 W Nob Hill Blvd #157
Yakima, WA 98908
(509) 307-8611
dj_calvin@earthlink.net
Dave Brown, Water and Irrigation Manager
City of Yakima
2301 Fruitvale Blvd.
Yakima, WA 98902
July 27, 2005
Re: Termination of Contract 2004-112
Dave, in accordance_with_Section 12 of the above referenced contract with the City of Yakima, I am
hereby notifying you of my desire to terminate this contract effective 5:00 p.m. on August 31, 2005.
Along with my final billing I will provide a new mailing address for the delivery of my payment.
There are several concerns that I want to address relative to the termination of this contract, and
those are first my desire to complete the "Big Document" which is to serve as he primary support for
the on-going activities of the Lower Naches River Coordination Project. As you are aware I have been
somewhat stymied in this effort by both of your partnership representatives, however I will attempt
to get the relevant information from both of them within the next two weeks. I have been told that
the NPCC will be requesting project proposals sometime during the month of August and I will follow up
on that and provided whatever assistance I can for both this effort and a restart of the Yakima
Habitat Project, Second on my list of concerns is our effort to get the Yakima Watershed Plan
adopted. I am asking that you personally consider a role in that effort and will work with you to get you
appointment to the Planning Unit and the Planning Unit Steering Committee. Third, is my concern that
the City might deem it fitting to withdraw from participation in the Eastern Washington Water
Alliance. I feel this organization has gained a significant standing in the eyes of both the Legislature
and with the various Departments of state government as well. I think this observation is borne out by
the membership of the organization and by the caliber of participants that we have had at our annual
events over the last several years. I know it is not your desire to pursue this particular effort, but I
would ask that you assist in finding and involving someone else from the City in it, preferably a Council
person as they have been active with us in the past. Finally, I will work with you and Brandon Rogers to
get everything Tined out for finalization of the U5 Fish & Wildlife Partnership grant that we are
currently working on.
Thank you for allowing me to be of service to you and the City through the mechanism of this contract.
Respectfully,
Dueane Calvin
Dated