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HomeMy WebLinkAboutR-2022-046 Resolution authorizing an interagency agreement with the Washington State Department of Ecology to access and secure estate insurance monies for the Frank Wear Cleaner's SiteRESOLUTION NO. R-2022-046 A RESOLUTION authorizing an interagency agreement with the Washington State Department of Ecology to access and secure estate insurance monies for the Frank Wear Cleaner's. WHEREAS, the City of Yakima has an interest in cleaning up the Frank Wear Cleaner's Site, which is currently listed as a hazardous site by the Department of Ecology; and WHEREAS, the Department of Ecology also has an interest in cleaning up the Site and has done preliminary research on the possibility that there are estate insurance monies available for the investigation and clean-up of the site; and WHEREAS, the Department of Ecology wishes to contract with the City, and provide all of the funding to the City, to research, access and secure estate insurance monies for the investigation and clean-up of the site; and WHEREAS, the City will expend none of the City's funds for this project, is not an owner of the property, and will not become a potentially liable party as a result of this work; and WHEREAS, the City will contract with a contractor/attorney to conduct the work outlined in the Scope of Work associated with the interagency agreement as it does not have the capacity to conduct such work at this time; and WHEREAS, the City Council finds that it is in the best interest of the City of Yakima and its residents to enter into the interagency agreement with the Washington State Department of Ecology to access and secure estate insurance monies, as well as contract the scope of work associated with the interagency agreement to a third party, and authorize the City Manager to enter into contracts to fulfill the scope of work in the interagency agreement; now, therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Council of the City of Yakima hereby approves the Interagency Agreement (IAA) between the State of Washington, Department of Ecology and City of Yakima to access and secure estate monies as outlined in the Scope of Work attached thereto, and authorizes the City Manager to sign the same as well as any other contracts necessary to fulfill the scope of work and/or interagency agreement. The IAA is attached hereto and fully incorporated herein. ADOPTED BY THE CITY COUNCIL this 5th day of April, 2022. Janice Deccio, Mayor ATTEST: O Sonya. Iaar Tee, City Clerkv DocuSign Envelope ID 650FBB64-2590-4ED7-B08F-3D6B3A968B53 lia.1r DEPARTMENT OF ECOLOGY State of Washington IAA No. C2200179 INTERAGENCY AGREEMENT (IAA) BETWEEN THE STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY AND CITY OF YAKIMA THIS INTERAGENCY AGREEMENT ("Agreement" or "IAA") is made and entered into by and between the state of Washington, Department of Ecology, hereinafter referred to as "ECOLOGY," and the City of Yakima hereinafter referred to as the "CITY" and "CONTRACTOR," pursuant to the authority granted by Chapter 39.34 RCW. THE PURPOSE OF THIS AGREEMENT is for CITY to partner with ECOLOGY to conduct additional Site cleanup/remediation work at the Frank Wear Cleaner's site (Site) in Yakima, Washington contingent on the access to Estate Insurance monies. WHEREAS, ECOLOGY has legal authority through RCW 70.105D and the CITY has legal authority through RCW 35.21.730 that allows each party to undertake the actions in this agreement. THEREFORE, IT IS MUTUALLY AGREED THAT: 1. SCOPE OF WORK CITY shall furnish the necessary personnel, equipment, material and/or service(s) and otherwise do all things necessary for or incidental to the performance of the work set forth in Appendix A, Statement of Work, Deliverables and Budget, attached hereto and incorporated herein. 2. PERIOD OF PERFORMANCE The period of performance of this IAA will commence on the date of final signature, and be completed by June 30, 2023, unless the Agreement is terminated sooner as provided herein. Amendments extending the period of performance, if any, shall be at the sole discretion of ECOLOGY. 1 Version 1/25/2022 DocuSign Envelope ID 650FBB64-2590-4ED7-B08F-3D6B3A968B53 State of Washington, Department of Ecology IAA No. C2200179 Entity Name: City of Yakima 3. COMPENSATION Compensation for the work provided in accordance with this IAA has been established under the terms of RCW 39.34.130 and RCW 39.26.180(3). This is a performance -based agreement, under which payment is based on the successful completion of expected deliverables. The source of funds for this IAA is state funding. Both parties agree to comply with all applicable rules and regulations associated with these funds. The parties have determined that the cost of accomplishing the work identified herein will not exceed $200,000.00 dollars, including any indirect charges. Payment for satisfactory performance of the work shall not exceed this amount unless the parties mutually agree via an amendment to a higher amount. Compensation for services shall be based on the terms and tasks set forth in Appendix A, Statement of Work, Deliverables and Budget. ECOLOGY will not make payment until it has reviewed and accepted the work. ECOLOGY may, at its sole discretion, terminate or suspend this Contract, or withhold payments claimed by the CONTRACTOR for services rendered, if the CONTRACTOR fails to satisfactorily comply with any term or condition of this Agreement. 4. BILLING AND PAYMENT PROCEDURE Payment requests shall be submitted on state form, Invoice Voucher A19-1A. Invoice voucher shall reference the Agreement (IAA) number and clearly identify those items that relate to performance under this Agreement. Invoices shall describe and document to ECOLOGY's satisfaction a description of the work performed, the progress of the work, and related costs. Attach supporting documentation to the invoice. Send invoices to: State of Washington Department of Ecology Toxics Cleanup Program Attn: Angela Harkins PO Box 47600 Olympia, WA 98504-7600 Payment requests may be submitted on a monthly basis. Upon expiration of this Agreement, any claim for payment not already made shall be submitted to ECOLOGY within 30 days after the expiration date or the end of the fiscal year, whichever is earlier. Payment will be made within thirty (30) days of submission of a properly completed invoice (form A19- 1A) with supportive documentation. All expenses invoiced shall be supported with copies of invoices paid. Payment will be issued through Washington State's Office of Financial Management's Statewide Payee Desk. To receive payment, CONTRACTOR must register as a statewide vendor by submitting a statewide vendor registration form and an IRS W-9 form at website, https://ofm.wa.gov/it- systems/statewide-vendorpayee-services. For questions about the vendor registration process, contact Statewide Payee Help Desk at (360) 407-8180 or email PayeeRegistration(aofm.wa.gov. 2 Version 1/25/2022 DocuSign Envelope ID: 650FBB64-2590-4ED7-B08F-3D6B3A968B53 State of Washington, Department of Ecology IAA No. C2200179 Entity Name: City of Yakima 5. ALTERATIONS AND AMENDMENTS This Agreement may be amended by mutual agreement of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties. 6. ASSIGNMENT The work to be provided under this Agreement, and any claim arising thereunder, is not assignable or delegable by either party in whole or in part, without the express prior written consent of the other party, which consent shall not be unreasonably withheld. 7. ASSURANCES Parties to this Agreement agree that all activity pursuant to this agreement will be in accordance with all the applicable current federal, state, and local laws, rules, and regulations. 8. CONFORMANCE If any provision of this Agreement violates any statute or rule of law of the state of Washington, it is considered modified to conform to that statute or rule of law. 9. DISPUTES Parties to this Agreement shall employ every effort to resolve a dispute themselves without resorting to litigation. In the event that a dispute arises under this Agreement that cannot be resolved among the parties, it shall be determined by a Dispute Board in the following manner. Each party to this Agreement shall appoint one member to the Dispute Board. The members so appointed shall jointly appoint an additional member to the Dispute Board. The Dispute Board shall review the facts, agreement terms, and applicable statutes and rules, and then make a determination of the dispute. The determination of the Dispute Board shall be final and binding on the parties hereto, unless restricted by law. The cost of resolution will be borne by each party paying its own cost. As an alternative to this process, if state agencies, either of the parties may request intervention by the Governor, as provided by RCW 43.17.330, in which event the Governor's process will control. The parties may mutually agree to a different dispute resolution process. 10. FUNDING AVAILABILITY ECOLOGY' s ability to make payments is contingent on availability of funding. In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date and prior to completion or expiration date of this Agreement, ECOLOGY, at its sole discretion, may elect to terminate the Agreement, in whole or part, for convenience or to renegotiate the Agreement subject to new funding limitations and conditions. ECOLOGY may also elect to suspend performance of the Agreement until ECOLOGY determines the funding insufficiency is resolved. ECOLOGY may exercise any of these options with no notification restrictions, although ECOLOGY will make a reasonable attempt to provide notice. In the event of termination or suspension, ECOLOGY will reimburse eligible costs incurred by the CONTRACTOR through the effective date of termination or suspension. Reimbursed costs must be agreed to by ECOLOGY and the CONTRACTOR. In no event shall ECOLOGY' s reimbursement exceed ECOLOGY's total responsibility under the agreement and any amendments. 3 Version 1/25/2022 DocuSign Envelope ID 650FBB64-2590-4ED7-B08F-3D6B3A968B53 State of Washington, Department of Ecology IAA No. C2200179 Entity Name: City of Yakima 11. GOVERNING LAW AND VENUE This Agreement is entered into pursuant to and under the authority granted by the laws of the state of Washington and any applicable federal laws. The provisions of this Agreement shall be construed to conform to those laws. This Agreement shall be construed and interpreted in accordance with the laws of the state of Washington, and the venue of any action brought hereunder shall be the Superior Court for Thurston County. 12. INDEPENDENT CAPACITY The employees or agents of each party who are engaged in the performance of this Agreement shall continue to be employees or agents of that party and shall not be considered for any purpose to be employees or agents of the other party. 13. ORDER OF PRECEDENCE In the event of an inconsistency in the terms of this Agreement, or between its terms and any applicable statute or rule, the inconsistency shall be resolved by giving precedence in the following order: a. Applicable federal and state of Washington statutes, regulations, and rules. b. Mutually agreed upon written amendments to this Agreement. c. This Agreement, number C2200179. d. Appendix A, Statement of Work, Deliverables and Budget. e. Any other provisions or term of this Agreement, including materials incorporated by reference or otherwise incorporated. 14. RECORDS MAINTENANCE The parties to this Agreement shall each maintain books, records, documents, and other evidence that sufficiently and properly reflect all direct and indirect costs expended by either party in the performance of the service(s) described herein. These materials shall be subject to inspection, review, or audit by personnel of both parties, other personnel duly authorized by either party, the Office of the State Auditor, and federal officials so authorized by law. All books, records, documents, and other materials relevant to this Agreement must be retained for six years after expiration of this Agreement. The Office of the State Auditor, federal auditors, and any persons duly authorized by the parties shall have full access and the right to examine any of these materials during this period. Each party will utilize reasonable security procedures and protections for all materials related to this Agreement. All materials are subject to state public disclosure laws. 15. RESPONSIBILITIES OF THE PARTIES Each party of this Agreement hereby assumes responsibility for claims and/or damages to persons and/or property resulting from any act or omissions on the part of itself, its employees, its officers, and its agents. Neither party will be considered the agent of the other party to this Agreement. 16. RIGHTS IN DATA Unless otherwise provided, data which originates from this Agreement shall be "work made for hire" as defined by the United States Copyright Act, Title 17 U.S.C. section 101 and shall be owned by state of Washington, ECOLOGY. Data shall include, but not be limited to, reports, documents, pamphlets, 4 Version 1/25/2022 DocuSign Envelope ID: 650FBB64-2590-4ED7-B08F-3D6B3A968B53 State of Washington, Department of Ecology IAA No. C2200179 Entity Name: City of Yakima advertisements, books magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. Ownership includes the right to copyright, patent, and register these items, and the ability to transfer these rights. 17. SEVERABILITY If any provision of this Agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Agreement which can be given effect without the invalid provision, if such remainder conforms to the requirements of applicable law and the fundamental purpose of this Agreement, and to this end the provisions of this Agreement are declared to be severable. 18. SUBCONTRACTORS CONTRACTOR agrees to take complete responsibility for all actions of any Subcontractor used under this Agreement for the performance. When federal funding is involved there will be additional contractor and subcontractor requirements and reporting. Prior to performance, all subcontractors who will be performing services under this Agreement must be identified, including their name, the nature of services to be performed, address, telephone, WA State Department of Revenue Registration Tax number (UBI), federal tax identification number (TIN), and anticipated dollar value of each subcontract. Provide such information to ECOLOGY's Agreement manager. 19. SUSPENSION FOR CONVENIENCE ECOLOGY may suspend this Agreement or any portion thereof for a temporary period by providing written notice to the CONTRACTOR a minimum of seven (7) calendar days before the suspension date. CONTRACTOR shall resume performance on the first business day following the suspension period unless another day is specified in writing by ECOLOGY prior to the expiration of the suspension period. 20. TERMINATION FOR CAUSE If for any cause, either party does not fulfill in a timely and proper manner its obligations under this Agreement, or if either party violates any of these terms and conditions, the aggrieved party will give the other party written notice of such failure or violation. The responsible party will be given the opportunity to correct the violation or failure within fifteen (15) business days. If failure or violation is not corrected, this Agreement may be terminated immediately by written notice of the aggrieved party to the other. 21. TERMINATION FOR CONVENIENCE Either party may terminate this Agreement without cause upon thirty (30) calendar day prior written notification to the other party. If this Agreement is so terminated, the parties shall be liable only for performance rendered or costs incurred in accordance with the terms of this Agreement prior to the effective date of termination. 22. WAIVER A failure by either party to exercise its rights under this Agreement shall not preclude that party from subsequent exercise of such rights and shall not constitute a waiver of any other rights under this Agreement unless stated to be such in a written amendment to this Agreement signed by an authorized representative of the parties. 5 Version 1/25/2022 DocuSign Envelope ID. 650FBB64-2590-4ED7-B08F-3D6B3A968B53 State of Washington, Department of Ecology IAA No. C2200179 Entity Name: City of Yakima 23. AGREEMENT MANAGEMENT The representative for each of the parties shall be responsible for and shall be the contact person for all communications, notifications, and billings questions regarding the performance of this Agreement. The parties agree that if there is a change in representatives, they will promptly notify the other party in writing of such change, such changes do not need an amendment. The ECOLOGY Representative is: Name: Kyle Parker Address: Department of Ecology Toxics Cleanup Program 1250 West Alder Street Union Gap, Washington 98903 Phone: (509) 406-6959 Email: kypa461@ecy.wa.gov 6 Version 1/25/2022 The CITY Representative is: Name: Bill Preston Address: 129 N. 2nd Street Yakima, WA 98901 Phone: 509-576-6754 Email: bill.preston@yakimawa.gov DocuSign Envelope ID 650FBB64-2590-4ED7-B08F-3D6B3A968B53 State of Washington, Department of Ecology IAA No. C2200179 Entity Name: City of Yakima 24. ALL WRITINGS CONTAINED HEREIN This Agreement contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto. The signatories to this Agreement represent that they have the authority to bind their respective organizations to this Agreement. IN WITNESS WHEREOF, the parties below, having read this Agreement in its entirety, including all attachments, do agree in each and every particular as indicated by their signatures below. State of Washington City of Yakima Department of Ecology By. DocuSigned by. C Ba44 Ogot.., 6A0C887CCE B0424 4/6/2022 By: ,-DocuSigned by: rttItxf ikar isela, -12B292"C81VIDE 4/6/2022 Signature Date Signature Date Barry Rogowski Print Name Robert Harri son Toxics Cleanup Program Manager Title ci ty Manager 7 Version 1/25/2022 CITY CONTRACT NO:2� 220 70 RESOLUTION NO:) �` `2a--04. DocuSign Envelope ID 650FBB64-2590-4ED7-B08F-3D6B3A968B53 State of Washington, Department of Ecology IAA No. C2200179 Entity Name: City of Yakima APPENDIX A STATEMENT OF WORK, DELIVERABLES AND BUDGET PURPOSE The City of Yakima (CITY) is partnering with the Department of Ecology (ECOLOGY) to conduct additional Site cleanup/remediation work at the Frank Wear Cleaner's site (Site) in Yakima, Washington contingent on the access to Estate Insurance monies. ECOLOGY will initially fund the CITY to conduct task 1 below by working with the Site Estate/Insurance Company, to provide additional monies in the future for additional Site cleanup/remediation tasks, including: • A Supplemental Site Environmental Investigation to identify and close data gaps. • Drafting/Finalizing a Supplemental Feasibility Study Report. • Developing a Preliminary Draft Cleanup Action Plan (DCAP), and • Assisting the City with purchasing/acquiring the Frank Wear Property. If the CITY is successful at gaining access to the Estate insurance funding to complete this listing of additional work above through the completion of task 1 below, ECOLOGY will add the bulleted list to the scope of work through an amendment to this agreement. If the CITY is not successful at gaining access to the Estate insurance funding, no additional work at the Site shall be necessary and all cleanup/remediation tasks will be suspended until additional funding is provided by ECOLOGY or some third -party source. The CITY is under no obligation to fund any of the investigation, feasibility studies, or cleanup/remediation tasks itself. Prior investigations of the Site have confirmed the presence of the following contaminants in soil, groundwater and soil vapor: • Tetrachloroethylene (PCE). • Tricloroethylene (TCE). • cis-dichloroethene (DCE), and • Vinyl chloride (VC). Previous investigation activities indicate that vapor from the above listed volatile contaminants have intruded into the neighboring daycare center. The findings of this supplemental investigation will support the CITY's ability to make an informed decision regarding the potential acquisition of the Site and subsequent Site remediation. The objective of this investigation is to identify and characterize to what extent the soil, groundwater, and indoor air have been impacted at the Site. The CITY is under no obligation to acquire the Site or engage in subsequent Site investigation or remediation. 8 Version 1/25/2022 DocuSign Envelope ID. 650FBB64-2590-4ED7-B08F-3D6B3A968B53 State of Washington, Department of Ecology IAA No. C2200179 Entity Name: City of Yakima SITE BACKGROUND The Frank Wear Cleaners Site was a dry cleaning facility in a commercial area of Yakima. The dry cleaner began using solvents containing PCE in the 1970s. Operations consisted of spreading spent solvent over the area in an attempt to keep dust down. Overflow wash water also potentially released PCE to the ground. Previous studies confirm the presence of the following contaminants in soil, groundwater and soil vapor: • PCE, • TCE, • DCE, and • VC in site soils. SCOPE OF WORK Task 1— Contacting Site Estate and Development of Agreement to Access Estate Insurance Monies CITY, or their agent, will contact Site Estate Company to inquire about historical property policies and insurance coverages/proceeds that may be accessed for the purposes of Site cleanup/remediation. An Estate from a named Potentially Liable Person (PLP) associated with the Site is responsible for cleanup/remediation costs. CITY, or their agent, will coordinate with named PLP(s) Estate Executor to ensure any historical insurance policies are applied to the Site's environmental investigation costs. The Estate Executor will need to coordinate with specific legal and insurance experts to obtain any proceeds. If CITY is successful in gaining access to Estate/Insurance monies, these monies will be directly applied to the cleanup of the Site. It is understood by the Parties to this agreement that the CITY will be reimbursed for administrative costs incurred either by the CITY or its agent, including but not limited to: • Direct labor, • Indirect labor/fringe, • Copying, • Shipping/mailing, • Virtual meeting platform charges, and/or • Other administrative costs that can reasonably be linked directly to the scope of work under Task 1 of this agreement. Task 1 Deliverables: 1. CITY, or their agent, will provide Ecology with quarterly financial statements of how estate funds are managed, which must include: a. An accounting of funds obtained versus funds remaining. b. An accounting of funds spent, including: i. Legal and administrative fees. ii. Fees necessary to procure insurance proceeds. iii. Estimated environmental investigation costs. 2. CITY, or their agent, will provide written progress reports for each invoice submitted that include task 1 charges for ECOLOGY's review. 9 Version 1/25/2022 DocuSign Envelope ID 650FBB64-2590-4ED7-B08F-3D6B3A968B53 State of Washington, Department of Ecology IAA No. C2200179 Entity Name: City of Yakima Budget: Task Description Amount 1 Contacting Site Estate and Development of Agreement to Access Estate Insurance Monies $200,000.00 Total Project Cost S200,000.00 10 Version 1/25/2022 1 ITEM TITLE: SUBMITTED BY: BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEM ENT Item No. 12. For Meeting of: April 5, 2022 Resolution authorizing an interagency agreement with the Washington State Department of Ecology to access and secure estate insurance monies for the Frank Wear Cleaner's Site Joan Davenport, Community Development Director Bill Preston, City Engineer Sara Watkins, City Attorney SUMMARY EXPLANATION: The Department of Ecology approached the City requesting that it coordinate with the Department to access and secure insurance monies from the estate of the former owner of the Frank Wear Cleaner's site —a site determined to be hazardous by the Department. The Department will pay all costs and expenses associated with accessing and securing any insurance money available, up to $200,000.00 to the City. There are no other obligations in this Scope of Work. The City does not have the capacity to conduct this work itself, so it will hire a contractor/attorney to complete the Scope of Work, while retaining the reporting requirements to the Department. ITEM BUDGETED: No STRATEGIC PRIORITY: Neighborhood and Community Building APPROVED FOR SUBMITTAL BY THE CITY MANAGER RECOMMENDATION: Adopt resolution. ATTACHMENTS: Description Upload Date D reso 3/30/2022 D Interagency Agrmt_City & WA St Ecology Dept 3/23/2022 Type Corer Memo Contract