HomeMy WebLinkAbout09/15/2015 05C Comprehensive Plan Update Assistance Agreement with BERK Consulting'1111111 1,
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. S.C.
For Meeting of: September 15, 2015
ITEM TITLE: Resolution authorizing an agreement with BERK Consulting to assist
in the state mandated update of the City's Comprehensive Plan and
compliance with the Growth Management Act not to exceed $105,000
SUBMITTED BY: Joan Davenport, AICP, Community Development Director
Valerie Smith, AICP, Project Manager, Senior Planner, 575-6042
SUMMARY EXPLANATION:
Resolution authorizing a Professional Services Agreement with BERK Consulting, and team, to facilitate and
assist in the state mandated update of the City's Comprehensive Plan, and compliance with the Growth
Management Act, with amounts not to exceed $105,000
Resolution: X Ordinance:
Other (Specify):
Contract: X Contract Term:
Start Date: October 2016 End Date: June 2017
Item Budgeted: Yes Amount: 105,000
Funding Source/Fiscal Impact: Community Development
Strategic Priority: Improve the Built Environment
Insurance Required? Yes
Mail to:
Phone:
APPROVED FOR
SUBMITTAL:
RECOMMENDATION:
City Manager
Recommend the City Council authorize and direct the City Manager to execute the Professional Agreement
with BERK Consulting, and team, attached hereto, and incorporated herein by this reference, in amounts not
to exceed One Hundred Five Thousand Dollars ($105,000) for updating the City of Yakima's Comprehensive
Plan, as described in the Agreement.
ATTACHMENTS:
Description Upload Date
▪ Reso uior 9/4/2015
• Ifiork a 9/10/2015
▪ Ifiork b 9/10/2015
• Ifiork cmirlracq 9/10/2015
Type
IResollutlion
C';ovar Memo
C';ovar Memo
C';ovar Memo
RESOLUTION NO. R -2015-
A RESOLUTION authorizing the City Manager to execute a Professional Services
Agreement with BERK Consulting, and team, to facilitate and assist
in the state mandated update of the City's Comprehensive Plan, and
compliance with the Growth Management Act, with amounts not to
exceed One Hundred Five Thousand Dollars ($105,000).
WHEREAS, the City of Yakima is undergoing its State Mandated Update of its
Comprehensive Plan (RCW 36.70A.130), which was last updated in 2006 with the
planning horizon of 2025. This update project will plan for a 2040 Horizon, and includes
public participation requirements, compliance criteria, and environmental review.
WHEREAS, the City of Yakima is seeking professional assistance to be in
compliance with the GMA and update its plan by the June 30, 2017 deadline.
WHEREAS, the City of Yakima has followed the procedure established by the
State of Washington to select and recommend a professional firm, utilizing the Municipal
Research and Service Center Professional Services Roster process to conduct the
selection of a firm to facilitate this project.
WHEREAS, the team of BERK Consulting, MAKERS Architecture and Shannon &
Wilson, submitted a Statement of Qualifications (SOQs) verifying that they are qualified to
perform the work, and after an interview process were determined to be the most qualified
of those that submitted SOQs; and
WHEREAS, the Scope of Work and Budget included in this Professional Services
Agreement meet the needs and requirements of the City of Yakima for this project which
consists of Comprehensive Plan Audit, Public Outreach & Engagement, Element Updates
& Revision, GMA Compliance Review, Development Regulations Review, SEPA
Environmental Review, and Plan Adoption Support; and
WHEREAS, the City Council has determined that it is in the best interest of the
City to engage BERK Consulting, and their team, to facilitate and assist the City of Yakima
in the Comprehensive Plan Update project; therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager is hereby authorized and directed to execute the Professional
Agreement with BERK Consulting, and team, attached hereto, and incorporated herein by
this reference, in amounts not to exceed One Hundred Five Thousand Dollars ($105,000)
for the updating of the City of Yakima's Comprehensive Plan, as described in the
Agreement.
1
ADOPTED BY THE CITY COUNCIL this 15th day of September, 2015.
ATTEST: Micah Cawley, Mayor
City Clerk
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EXHIBIT A
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The consultant team includes BERK Consulting; MAKERS Architecture, and Shannon & Wilson, Inc. BERK
will manage the project and be responsible for overall deliverable substance and quality. MAKERS will
provide support with urban design, outreach, and implementation strategies. Shannon & Wilson will
provide technical analysis and support environmental policy development.
This scope of services describes the collective services of the BERK Consulting team (the Consultant).
I a S ;iCkr) f' and Ilia oleci' Coordination
The Consultant will hold a kick-off meeting with City staff to confirm project scope, schedule, and roles
and responsibilities. Communication protocols between the City and the consultant team will also be set
at this meeting. A master project schedule and plan for ongoing coordination will be established to ensure
that the plan update process complies with the State deadline and local procedural requirements. The
kick-off session will also include a tour with City staff to familiarize the Consultant with high-priority
planning areas.
Prior to the kick-off session, the Consultant will complete an initial review of the City's adopted
comprehensive plan to identify key issues and high-priority plan elements for discussion at the kick-off
meeting. The Consultant will also establish a list of all relevant background information necessary for
completion of the Comprehensive Plan Update, including adopted plans, GIS data and maps, and other
relevant documents. The Consultant will provide the data needs list to City Staff and will provide a method
for electronic delivery.
The kickoff meeting will also be used to affirm project objectives and the overall vision guiding the
comprehensive plan update.
DELIVERABLES:
• Confirmed project roles, communication protocols, and master schedule.
• Statement of Comprehensive Plan Update objectives.
The Consultant will perform an audit of the City's current comprehensive plan to answer several
questions, including:
• Are any portions of the plan inconsistent with the requirements of the Growth Management Act or
the Yakima County Countywide Planning Policies, as well as other applicable state, regional, and
local laws?
Do any portions of the plan include outdated information that should be updated to reflect current
conditions?
What portions of the plan could benefit from streamlining and/or improved graphics (maps, charts,
graphs, etc.)?
Which goals and policies are too general, too specific, or warrant clarification?
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CITY OF YAKIMA 2017 GMA COMPREHENSIVE PLAN UPDATE
ATTACHMENT A: SCOPE OF SERVICES
What goals, policies, implementation measures, or narrative text should be revised to more directly
address key plan update objectives?
The results of the plan audit will be presented in a summary report that will identify recommended plan
revisions, consultant and staff responsibilities, and timeline for completion.
DELIVERABLES:
Draft and final Plan Audit Summary report, including recommended plan amendments.
Plan amendment responsibility matrix, assigning work items to City and Consultant staff.
if a 5', "s 3 I° LJbdlf Outreach a" 111 d Ear ' r't
The Consultant will assist City staff with implementation of the Public Participation Guide for the
Comprehensive Plan Update. In cooperation with City staff, the Consultant will review the Public
Participation Guide and establish a timeline of community engagement activities for each phase of the
project. The Consultant will also prepare a memorandum containing overall recommendations for public
engagement strategies, with a focus on inclusion of typically under -represented groups; event design; and
production of outreach materials.
Throughout the public engagement process, the Consultant will support City staff with design and
production of public outreach materials, design and coordination of public outreach/visioning activities,
and attendance at key outreach events. This scope assumes the Consultant will attend up to three (3)
public outreach events and will provide up to three (3) staff per event. Alternatively, the Consultant could
attend fewer events while providing more staff at each.
DELIVERABLES:
• Public Engagement Strategy Memorandum, including outreach activity schedule.
• Public outreach materials (posters, flyers, informational packets, etc.), as required.
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The update of the City's Comprehensive Plan is an opportunity to advance both the plan's substance and
its organization and format to produce a more usable and accessible document. Based on the results of
the plan audit conducted under Task 2, the Consultant will work with City staff to update and revise the
various elements of the Comprehensive Plan. Revisions will consist of updated narrative/background
information, goals and policies, document layout, and maps and graphics.
s k iia i. Do C nnE,��ir�i
The Consultant will design a template for the updated Comprehensive Plan document to be used for all
revised plan elements. The template will incorporate an updated, graphically -oriented layout to improve
readability and accessibility. The Consultant will provide several sample layouts for City staff consideration
and then produce a final document template based on staff comments.
DELIVERABLES:
• Up to three (3) draft plan layout templates for staff consideration.
• Final plan document template in either Word or InDesign format.
Task k 4.?„. Cpa:Vates ,and Revulsu'ons
The Consultant will work collaboratively with City staff on text and policy edits to the Comprehensive Plan,
consistent with the action items identified in the plan audit. The Consultant will establish a master style
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C''TY OF YAKIMA 2017 GMA CCMPR1E HENSIIVE PLAN UPDATE
ATTACHMENT A. SCOPE OF SERV'iCES
guide for use by both Consultant staff and City authors to ensure consistent terminology and writing
conventions. This scope assumes that all City and Consultant authors will adhere to the established style
guide, and the City will provide a single, consolidate set of comments on each draft element prepared by
the Consultant.
For each Element, the Consultant will prepare a brief Existing Conditions and Trends analysis. The
compiled Existing Conditions and Trends Report will serve as the element inventories and analysis and will
be contained in an Appendix to the plan or be incorporated by reference.
Final task responsibility assignments for element revisions will be made as part of the plan audit process,
but anticipated element lead roles and work items are as follows:
• Land Use — BERK/MAKERS
o BERK will update land use conditions and future land use capacity analysis for population,
housing, and employment. The Consultant will also review the City's Comprehensive Plan Land
Use Map and will conduct a zoning suitability analysis to guide potential consolidation or
realignment of land use designation categories to better implement the goals and policies of the
Comprehensive Plan.
o MAKERS will identify important land use and urban design concepts and policies to integrate
into the element and will collaborate with the City on how to reflect the plan vision on the land
use plan map.
• Transportation — Transpo/City staff
o The updated Transportation Element will be based on the City's new Transportation Plan and
will incorporate this plan, as well as the Bike Master Plan and Airport Master Plan, as subarea
plans.
o City staff and the transportation consultant (The Transpo Group) will be primarily responsible
for content of the element. BERK will assemble the document and apply the plan template.
• Capital Facilities — BERK/City staff
o BERK will lead revisions to this element as appropriate. BERK will meet with representatives of
City departments to gather information and will coordinate with these departments to develop
appropriate inventory and policy language for the updated plan element.
o To be consistent with GMA requirements for Capital Facilities Plan elements, the Consultant will
complete the tollowing activities:
Plan Review: The Consultant will review the current capital facility and service delivery
system, planned system, and growth assumptions of the applicable City and special district
plans, relative to the City's growth assumptions. Each service provider will be interviewed by
phone or in person to answer any technical or policy questions that arise from plan review,
level of service demand analysis, or any direction on new policies or planned capital
facilities.
Capital Facility Inventory: The Consultant will review the City's existing functional plans,
special district capital plans (e.g. school district), City budget, and other sources to prepare
an inventory template to be completed by City staff, showing the locations and capacities of
existing capital facilities owned by the City and other entities providing services to the City.
The Consultant will also prepare a template for documenting future planned facilities in the
six and twenty-year timeframes, also to be completed by City staff, which will document
proposed locations and capacities of expanded or new capital facilities as proposed in
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Y OF XAIICEIMA 2017 C:riMA COIEE E E::;.illEJI% SAVE PLAIN UPDATE
��.�...T.ACHEVEE:NT A: SCOPE Off::: SE::IRVEG.,IE:S
adopted plans. The Consultant will meet with representatives from City departments to
familiarize City staff with the templates and establish procedures for providing the
necessary information. The Consultant will review the information provided by City staff and
will use it to update the Capital Facilities Element.
Level of Service (LOS): The City of Yakima currently only has an established LOS standard for
transportation. The Consultant will review, evaluate and update the City's adopted LOS.
Future service and facility needs will be projected at the 6 -year and 20 -year horizons based
on current levels of service, and projected deficiencies will be identified. Where probable
deficiencies are identified, the Consultant will work with the City to identify polices,
programs, or improvements to ameliorate deficiencies, both current and future. The
Consultant will also provide recommendations to City staff regarding the potential adoption
of LOS standards for public services other than transportation.
Efficiency: The Consultant will include provisions to promote more efficient use of existing
services, such as waste management, energy, and water supply.
Financial: The Consultant will review City budgets and assess current funding sources for
other City service areas based on the City budget and special district provider plans,
providing recommendations where needed. The Consultant will update the City's six-year
plan to finance planned capital facilities within projected funding capacities, and identify
sources of public money for such purposes, including recommendations regarding the
potential for new funding mechanisms, such as impact fees. Revenue for the 20 -year period
will also be projected in comparison to likely capital costs. Where revenues and costs are
not in alignment, the Consultant will recommend project prioritization and LOS strategies
and will assist City staff with developing the policy to reassess the Land Use Element if
probable funding falls short of meeting existing needs and to ensure that the growth,
planned facilities, and financing plan within the Capital Facilities Element are coordinated
and consistent.
Utilities — BERK/City staff
o BERK will review and update the status of major utilities in the City's comprehensive plan,
including information on existing conditions and future needs. This process will be informed by
meetings with representatives of City departments, which will be used to gather information
provide the opportunity for input on development of the updated inventory and policy language
Housing — BERK
o BERK will prepare the Housing Element update, including a needs and characteristics inventory
that will meet GMA and Countywide Planning Policy requirements. As part of the inventory,
BERK will review the capacity for different types of housing in Yakima and how they relate to the
City's need. BERK will incorporate the 2015 — 2019 Consolidated Plan, which coordinates
strategies on housing and community development, as well as the Existing Conditions Report.
Economic Development — BERK/MAKERS
o BERK and MAKERS will update the Economic Development Element and its goals and policies
that focus on diversifying the economy and embracing both manufacturing and agricultural
industries as well as downtown retail and commercial growth. The element update will
emphasize incorporation of the 2013 Downtown Master Plan and its identification of targeted
areas such as the high priority City Center, anchored by Yakima Plaza, and the proximal District
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Centers. Preparation of the updated element will be coordinated with preparation of the City's
updated Economic Development Plan by City staff.
Parks and Recreation — BERK
o The Consultant will coordinate with City staff to integrate the City's Parks and Recreation
Comprehensive Plan into the 2040 Comprehensive Plan where appropriate so that the goals and
policies of both plans are consistent and compatible.
Shoreline Management — City staff/Shannon & Wilson
o The Shoreline Management Element will be based on the City's recently updated Shoreline
Master Program, which included an adopted Shoreline Element component for inclusion in the
City's Comprehensive Plan.
Natural Environment — Shannon & Wilson
o Consultant will prepare updated text/policy amendments.
Energy — MAKERS
o Currently not addressed independently, energy will become the focus of its own element in the
2040 Comprehensive Plan Update. The Consultant will look at existing conditions of energy
facilities and future capacity. Goals and policies related to energy facilities in Yakima will be
developed under the vision of the City Council and the community, and in compliance with other
applicable federal, state and regional policies. These policies will guide the siting, energy type
and capacity of existing and proposed utilities.
Historic Preservation — City staff
o The Historic Preservation Element will be prepared by an independent consultant team under
separate contract. The Consultant will coordinate with the historic preservation contractor to
ensure that the new element is prepared consistent with the established template and style
guide.
• Human Services — BERK (Optional)
o Consultant will prepare updated text/policy amendments.
DELIVERABLES:
• Comprehensive Plan Element style guide.
• Draft and final redline revisions to plan element text/narrative and policy language..
• Draft and final revised elements with master template applied.
Task 4.3. Mapping and Graphics
The Consultant will work collaboratively with City staff to identify existing maps, charts, and graphics to
be updated with new information or visually redesigned. The Consultant and City staff will also identify
needs for new maps or graphics to support the plan element narratives and policies. The Consultant will
work with City staff to establish a map template; updated plan maps will be prepared by City staff using
the template, with peer review by the Consultant. These maps will be incorporated into the revised plan
elements during graphic layout and application of the master template.
Use of graphics in the template will focus primarily on the incorporation of photographs and other images,
but the Consultant will provide limited support for the development of new graphics to help illustrate
important information.
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CITY OF YAKIMA 2017 GMA COMPREHENSIVE PLAN UPDATE
ATTACHMENT A: SCOPE OF SERVICES
DELIVERABLES:
• Draft and final map templates.
kr a 5GM ieorn 1ti to c p I°Re
Prior to local adoption of the updated comprehensive plan, the Consultant will review the draft plan for
compliance with GMA requirements, including a review of compliance action items established as part of
the initial plan audit to ensure that all outstanding GMA compliance issues have been addressed. The
Consultant will assist City staff with preparation of the state -mandated compliance checklist and
submission of plan documents to the Department of Commerce for review.
DELIVERABLES:
• Final compliance summary report and Plan Update Checklist.
III as k 6, 111 ) '°vo1op nn orfit IIS "`i; 0,Iti tll"YIs e
As updated Comprehensive Plan policies are defined, the Consultant (led by MAKERS) will conduct an
audit of the City's development code and architectural design standards to identify necessary revisions to
properly reflect the policy direction of the updated Comprehensive Plan. The Consultant will prepare a
summary report documenting recommended development code and architectural standard revisions.
In addition to reviewing land use and development standards, the Consultant (led by Shannon & Wilson)
will conduct a Best Available Science and Critical Areas Ordinance review to ensure compliance with the
requirements of the Growth Management Act. The Consultant will obtain and review relevant
information, including existing maps, inventories, and reports on environmentally critical areas in the City
of Yakima. The Consultant will develop a list of citations to current, locally appropriate Best Available
Science (BAS) based on scientific literature and existing reports, and review the City's Critical Areas
regulations for BAS consistency. The Consultant will produce a technical memorandum summarizing their
findings and recommendations for development regulation amendments to comply with GMA
requirements, and to eliminate redundancies with the recently adopted Shoreline Master Program (which
now applies exclusively to the critical areas within shoreline jurisdiction).
This scope assumes that the Consultant will make extensive use of information collected as part of the
City's recent Shoreline Master Program update and that any development code amendments identified
as necessary for GMA compliance will be implemented by City staff.
DELIVERABLES:
Draft and final Development Code Review summary report.
Draft and final CAO/BAS Review technical memorandum.
Las s k °S„ „SE P A, IG Inv r n nt a 1 view
The Consultant will support the City's SEPA environmental process by assisting with overall SEPA strategy,
as well as SEPA scoping and preparation of environmental documentation. Depending on the extent of
plan amendments, the Consultant may recommend different strategies for compliance with SEPA
requirements. This scope assumes that the comprehensive plan update and the transportation plan
update will be analyzed in a consolidated environmental process.
sk, Li,. SEIPA Sty, teg ,ri
The Consultant will advise the City on the advantages and disadvantages of different SEPA tools such as
an integrated SEPA/GMA EIS, expanded checklist/DNSs, Addenda, and other tools that would be
6
CITY OF YAKIMA 2017 GMV1A COMPREHENSIVE PLAN UPDATE
ATTACHMENT A: SCOPE OF SERVICES
appropriate to the plan amendments proposed and the environmental review already conducted as part
of previous planning efforts.
Task 7„2. E:rt,aiiva:anmeaat aII Re via.,NV a111d DOC.LEia "n
The Consultant will prepare SEPA environmental documentation appropriate to the extent of plan
amendments proposed. While the precise level of SEPA review will be determined as part of Task 7.1 —
SEPA Strategies, this scope assumes a level of effort consistent with one of the following:
• Notice of Adoption and Environmental Impact Statement (EIS) Addendum: The Consultant will
prepare a Notice of Adoption for the Comprehensive Plan Update, as well as an addendum to the
City's adopted Comprehensive Plan EIS that describes the probable adverse impacts associated with
adoption of the updated plan.
• Determination of Non -Significance and Expanded SEPA Checklist: The Consultant will prepare a
Determination of Non -Significance, accompanied by an expanded SEPA Checklist to document why
the plan update is not anticipated to result any significant adverse impacts.
• Amended Plan Appendix A (EIS): The Consultant will prepare an amended version of Appendix A to
the current plan. The updated appendix will contain environmental analysis of potential impacts up
to the level of a Draft EIS. The Consultant will also assist the City with preparation and distribution of
a SEPA Scoping Notice prior to preparation of the Draft EIS. This scope assumes that City staff will
complete the Final EIS, with peer review by the Consultant.
DELIVERABLES (AS REQUIRED):
• Notice of Adoption and EIS Addendum
Determination of Non -Significance and Expanded SEPA Checklist
SEPA Scoping Notice
• Draft EIS for inclusion as Appendix A to the updated plan
The Consultant will support City staff throughout the local comprehensive plan adoption process. Support
activities may include preparation of staff reports or technical memoranda for Planning Commission and
City Council study sessions, attendance and presentation at Planning Commission and City Council public
hearings, and preparation of presentation materials for such meetings (display boards, handouts,
cdrr mis ion/cbaiuhcll poOkitS, etc.. This scope as uft sth `fThe C nsult ht wwiII atte'nd' aip tti t bµ 2 m ruOtiO
meetings and will provide up to two (2) staff per meeting,
DELIVERABLES:
• Public meeting presentation materials, as required.
7
EXHIBIT B
City of Yakima 2017 GMA Comprehensive Plan Update
Design Consulting Services
Classification
Hourly
Billing Rate
Total Hours
Total Labor
Total Costs
Project Director
$171.64
64
$10,985
Project Manager
$106.42
186
19,794
Associate Planner
$82.39
276
22,740
Project Support
$76.45
60
Total BERK
4,587
Labor Cost:
$58,106
Subconsultants
Total Fee
Makers
$27,380
Shannon and Wilson
$16,415
Total Subconsultants:
$43,795
Misc. Expenses Total Fee
Approx. 3% of project budget
$3,057
Total Direct Reimbursables (Expenses):
$3,057
Total Project Costs:
$104,958
EXHIBIT C
City of Yakima 2017 GMA Comprehensive Plan Update
Schedule of Rates
BERK Consulting, Inc.
Job Title or Category
Hourly Rate
Project Director
Project Manager
Associate Planner
Project Support
$171.64
$106.42
$82.39
$76.45
-
For City of Yakima Use Only:
Contract No ._. �_.—._.
Project No
Resolulion No.
RFQP No.
AGREEMENT
BETWEEN
CITY OF YAKIMA, WASHINGTON
AND
BERK Consulting, Inc
FOR PROFESSIONAL SERVICES
THIS AGREEMENT, made and entered into on this day of „ 2015, by and
between the City of Yakima, Washington, a municipal corporation with its principal office at 129 North
Second Street, Yakima, WA 98901, hereinafter referred to as "CITY", and l,KAK ( onsui iqg,, .Inc., with its
principal office_2,025First Mow, Sull : 00, Seank hereinafter referred to as "CONSULTANT";
said corporation is licensed and registered to do business in the State of Washington, and will provide
consulting services under this Agreement for performing the City of Yakima 2017 GMA Comprehensive
Plan Update, on behalf of the City of Yakima, Project No. 2424, herein referred to as the "PROJECT."
WITNESSETH:
RECITALS
WHEREAS, CITY desires to retain the CONSULTANT to provide services described in this
Agreement, incorporated Exhibits and subsequent Amendments thereto; and
WHEREAS, CONSULTANT represents that it has available and offers to provide personnel with
knowledge and experience necessary to satisfactorily accomplish the work within the required time and that
it has no conflicts of interest prohibited by law from entering into this Agreement;
NOW, THEREFORE, CITY and CONSULTANT agree as follows:
SECTION 1 INCORPORATION OF RECITALS
1.1 The above recitals are incorporated into these operative provisions of the Agreement.
SECTION 2 SCOPE OF SERVICES
2.1 CONSULTANT agrees to perform those services described hereafter. Unless modified in writing
by both parties, duties of CONSULTANT shall not be construed to exceed those services
specifically set forth herein.
2.2 CONSULTANT shall use its best efforts to maintain continuity in personnel and shall assign, Lisa
(crueler, AIC as Consultant -in -Charge throughout the term of this Agreement unless other
personnel are approved by the CITY.
2.3 Basic Services: CONSULTANT agrees to perform those tasks described in Exhibit A, entitled "City
of Yakima 2017 GMA Comprehensive Plan Update" (WORK) which is attached hereto and made
a part of this Agreement as if fully set forth herein.
2,4 Additional Services: CITY and CONSULTANT agree that not all WORK to be performed by
CONSULTANT can be defined in detail at the time this Agreement is executed, and that additional
WORK related to the Project and not covered in Exhibit A may be needed during performance of
this Agreement. CITY may, at any time, by written order, direct the CONSULTANT to revise
portions of the WORK previously completed in a satisfactory manner, delete portions of the WORK,
Page 1
or request that the CONSULTANT perform additional WORK beyond the scope of the WORK.
Such changes hereinafter shall be referred to as "Additional Services."
2.4.1 If such Additional Services cause an increase or decrease in the CONSULTANT'S cost of,
or time required for, performance of any services under this Agreement, a contract price
and/or completion time adjustment pursuant to this Agreement shall be made and this
Agreement shall be modified in writing accordingly.
2.4.2 Compensation for each such request for Additional Services shall be negotiated by the
CITY and the CONSULTANT according to the provisions set forth in Exhibit C, attached
hereto and incorporated herein by this reference, and if so authorized, shall be considered
part of the WORK. The CONSULTANT shall not perform any Additional Services until
so authorized by CITY and agreed to by the CONSULTANT in writing.
2.5 The CONSULTANT must assert any claim for adjustment in writing within thirty (30) days from
the date of the CONSULTANT's receipt of the written notification of change.
SECTION 3 CITY'S RESPONSIBILITIES
3.1 CITY -FURNISHED DATA: The CITY will provide to the CONSULTANT all technical data in
the CITY'S possession relating to the CONSULTANT'S services on the WORK.
3.2 ACCESS TO FACILITIES AND PROPERTY: The CITY will make its facilities reasonably
accessible to CONSULTANT as required for CONSULTANTS performance of its services and
will provide labor and equipment as reasonably required by CONSULTANT for such access.
3.3 TIMELY REVIEW: The CITY will examine the CONSULTANT'S studies, reports, proposals, and
other documents; obtain advice of an attorney, insurance counselor, accountant, auditor, bond and
financial advisors, and other consultants as CITY deems appropriate; and render in writing decisions
required of CITY in a timely manner. Such examinations and decisions, however, shall not relieve
the CONSULTANT of any contractual obligations nor of its duty to render professional services
meeting the standards of care for its profession.
3.4 CITY shall appoint a CITY'S Representative with respect to WORK to be performed under this
Agreement. CITY'S Representative shall have complete authority to transmit instructions and
receive information. CONSULTANT shall be entitled to reasonably rely on such instructions made
by the CITY'S Representative unless otherwise directed in writing by the CITY, but
CONSULTANT shall be responsible for bringing to the attention of the CITY'S Representative any
instructions which the CONSULTANT believes are inadequate, incomplete, or inaccurate based
upon the CONSULTANT'S knowledge.
3.5 Any documents, services, and reports provided by the CITY to the CONSULTANT are available
solely as additional information to the CONSULTANT and will not relieve the CONSULTANT of
its duties and obligations under this Agreement or at law. The CONSULTANT shall be entitled to
reasonably rely upon the accuracy and the completeness of such documents, services and reports,
but shall be responsible for exercising customary professional care in using and reviewing such
documents, services, and reports and drawing conclusions there from.
SECTION 4 AUTHORIZATION, PROGRESS, AND COMPLETION
4.1 In signing this Agreement, CITY grants CONSULTANT specific authorization to proceed with
WORK described in Exhibit A. The time for completion is defined in Exhibit A, or as amended.
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SECTION 5 COMPENSATION
5.1 COMPENSATION ON A TIME SPENT BASIS AT SPECIFIC HOURLY RATES: For the
services described in Exhibit A, compensation shall be according to Exhibit C schedule of Specific
is
Fees and Hourly Rates, attached hereto and incorporated herein by this reference. The estimated
cost to perform this work, on a time spent basis, plus reimbursement for direct non -salary expenses
is as shown in Exhibit B.
5.1.1 DIRECT NON -SALARY EXPENSES: Direct Non -Salary Expenses are those costs
incurred on or directly for the PROJECT including, but not limited to, necessary
transportation costs, including current rates for CONSULTANT'S vehicles; meals and
lodging; laboratory tests and analyses; printing, binding and reproduction charges; all costs
associated with other outside nonprofessional services and facilities; special CITY -
requested and PROJECT -related insurance and performance warranty costs; and other
similar costs. Reimbursement for Direct Non -Salary Expenses will be on the basis of actual
charges plus ten percent (10%) and on the basis of current rates when furnished by
CONSULTANT. Estimated Direct Non -Salary Expenses are shown in Exhibit B.
5.1.1.1 Travel costs, including transportation, lodging, subsistence, and incidental
expenses incurred by employees of the CONSULTANT and each of the
Subconsultants in connection with PROJECT WORK; provided, as follows:
• That a maximum of U.S. INTERNAL REVENUE SERVICE allowed
cents per mile will be paid for the operation, maintenance, and
depreciation costs of company or individually owned vehicles for that
portion of time they are used for WORK. CONSULTANT, whenever
possible, will use the least expensive form of ground transportation.
• That reimbursement for meals inclusive of tips shall not exceed a
maximum of forty dollars ($40) per day per person. This rate may be
adjusted on a yearly basis.
• That accommodation shall be at a reasonably priced hotel/motel.
• That air travel shall be by coach class, and shall be used only when
absolutely necessary.
5.1.2 Telephone charges, computer charges, in-house reproduction charges, first class postage,
and FAX charges are not included in the direct expense costs, but are considered included
in the Schedule of Specific Hourly Billing Rates.
5.2 Unless specifically authorized in writing by the CITY, the total budgetary amount for this PROJECT
shall not exceed One Hundred Five Thousand Dollars ( 105,00Q). The CONSULTANT will make
reasonable efforts to complete the WORK within the budget and will keep CITY informed of
progress toward that end so that the budget or WORK effort can be adjusted if found necessary.
The CONSULTANT is not obligated to incur costs beyond the indicated budget, as may be adjusted,
nor is the CITY obligated to pay the CONSULTANT beyond these limits. When any budget has
been increased, the CONSULTANT'S excess costs expended prior to such increase will be
allowable to the same extent as if such costs had been incurred after the approved increase, and
provided that the City was informed in writing at the time such costs were incurred.
5.3 The CONSULTANT shall submit to the City's Representative an invoice each mo)nth for payment
for PROJECT services completed through the accounting cut-off day of the previous month. Such
invoices shall be for PROJECT services and WORK performed and costs incurred prior to the date
of the invoice and not covered by previously submitted invoices. The CONSULTANT shall submit
with each invoice a summary of time expended on the PROJECT for the current billing period,
copies of subconsultant invoices, and any other supporting materials determined by the City
necessary to substantiate the costs incurred. CITY will use its best efforts to pay such invoices
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within thirty (30) days of receipt and upon approval of the WORK done and amount billed. CITY
will notify the CONSULTANT promptly if any problems are noted with the invoice. CITY may
question any item in an invoice, noting to CONSULTANT the questionable item(s) and withholding
payment for such item(s). The CONSULTANT may resubmit such item(s) in a subsequent invoice
together with additional supporting information required.
5.4 If payment is not made within sixty (60) days following receipt of approved invoices, interest on
the unpaid balance shall accrue beginning with the sixty-first (61) day at the rate of 1.0% per month
or the maximum interest rate permitted by law, whichever is less; provided, however, that no interest
shall accrue pursuant to Chapter 39.76 RCW when before the date of timely payment a notice of
dispute is issued in good faith by the CITY to the CONSULTANT pursuant to the terms of RCW
39.76.020(4).
5.5 Final payment of any balance due the CONSULTANT for PROJECT services will be made within
forty-five (45) days after satisfactory completion of the services required by this Agreement as
evidenced by written acceptance by CITY and after such audit or verification as CITY may deem
necessary and execution and delivery by the CONSULTANT of a release of all known payment
claims against CITY arising under or by virtue of this Agreement, other than such payment claims,
if any, as may be specifically exempted by the CONSULTANT from the operation of the release in
stated amounts to be set forth therein.
5.6 Payment for any PROJECT services and WORK shall not constitute a waiver or release by CITY
of any claims, right, or remedy it may have against the CONSULTANT under this Agreement or by
law, nor shall such payment constitute a waiver, remission, or discharge by CITY of any failure or
fault of the CONSULTANT to satisfactorily perform the PROJECT WORK as required under this
Agreement.
SECTION 6 RESPONSIBILITY OF CONSULTANT
6.1 The CONSULTANT shall be responsible for the professional quality, technical adequacy and
accuracy, timely completion, and the coordination of all plans, design, drawings, specifications,
reports, and other services furnished by the CONSULTANT under this Agreement. The
CONSULTANT shall, without additional compensation, correct or review any errors, omissions, or
other deficiencies in its plans, designs, drawings, specifications, reports, and other services. The
CONSULTANT shall perform its WORK according to generally accepted civil CONSULTANTing
standards of care and consistent with achieving the PROJECT WORK within budget, on time, and
in compliance with applicable laws, regulations, and permits.
6.2 CITY'S review or approval of, or payment for, any plans, drawings, designs, specifications, reports,
and incidental WORK or services furnished hereunder shall not in any way relieve the
CONSULTANT of responsibility for the technical adequacy, completeness, or accuracy of its
WORK and the PROJECT WORK. CITY'S review, approval, or payment for any of the services
shall not be construed to operate as a waiver of any rights under this Agreement or at law or any
cause of action arising out of the performance of this Agreement.
6.3 In performing WORK and services hereunder, the CONSULTANT and its subcontractors,
subconsultants, employees, agents, and representatives shall be acting as independent contractors
and shall not be deemed or construed to be employees or agents of CITY in any manner whatsoever.
The CONSULTANT shall not hold itself out as, nor claim to be, an officer or employee of CITY
by reason hereof and will not make any claim, demand, or application to or for any right or privilege
applicable to an officer or employee of CITY. The CONSULTANT shall be solely responsible for
any claims for wages or compensation by CONSULTANT employees, agents, and representatives,
including subconsultants and subcontractors, and shall save and hold CITY harmless therefrom.
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6.4 INDEMNIFICATION:
(a) CONSULTANT agrees to defend, indemnify, and hold harmless the CITY, its elected
officials, agents, officers, employees, agents and volunteers (hereinafter "parties
protected") from (1) claims, demands, liens, lawsuits, administrative and other
proceedings,(including reasonable costs and attorneys fees) and (2) judgments, awards,
losses, liabilities, damages, penalties, fines, costs and expenses of any kind claimed by third
parties arising out of, or related to any death, injury, damage or destruction to any person
or any property to the extent caused by any negligent act, action, default, error or omission
or willful misconduct arising out of the CONSULTANT's performance under this
Agreement. In the event that any lien is placed upon the City's property or any of the City's
officers, employees or agents as a result of the negligence or willful misconduct of the
CONSULTANT, the CONSULTANT shall at once cause the same to be dissolved and
discharged by giving bond or otherwise.
(b) CITY agrees to indemnify and hold the CONSULTANT harmless from loss, cost, or
expense of any kind claimed by third parties, including without limitation such loss, cost,
or expense resulting from injuries to persons or damages to property, caused solely by the
negligence or willful misconduct of the CITY, its employees, or agents in connection with
the service.
(c) If the negligence or willful misconduct of both the CONSULTANT and the CITY (or a
person identified above for whom each is liable) is a cause of such third party claim, the
loss, cost, or expense shall be shared between the CONSULTANT and the CITY in
proportion to their relative degrees of negligence or willful misconduct and the right of
indemnity will apply for such proportion.
(d) Nothing contained in this Section or this Agreement shall be construed to create a liability
or a right of indemnification in any third party.
6.5 In any and all claims by an employee of the CONSULTANT, any subcontractor, anyone directly or
indirectly employed by any of them, or anyone for whose acts any of them may be liable, the
indemnification obligations under this Agreement shall not be limited in any way by any limitation
on the amount or types of damages, compensation, or benefits payable by or for the CONSULTANT
or a subcontractor under workers' or workmens' compensation acts, disability benefit acts, or other
employee benefit acts.
6.6 It is understood that any resident CONSULTANTing or inspection provided by CONSULTANT is
for the purpose of determining compliance with the technical provisions of PROJECT specifications
and does not constitute any form of guarantee or insurance with respect to the performance of a
contractor. CONSULTANT does not assume responsibility for methods or appliances used by a
contractor, for a contractor's safety programs or methods, or for compliance by contractors with
laws and regulations. CITY shall use its best efforts to ensure that the construction contract requires
that the contractor(s) indemnify and name CITY, the CITY'S and the CONSULTANT'S officers,
principals, employees, agents, representatives, and CONSULTANTs as additional insureds on
contractor's insurance policies covering PROJECT, exclusive of insurance for CONSULTANT
professional liability.
6.7 SUBSURFACE INVESTIGATIONS: In soils, foundation, groundwater, and other subsurface
investigations, the actual characteristics may vary significantly between successive test points and
sample intervals and at locations other than where observation, exploration, and investigations have
been made. Because of the inherent uncertainties in subsurface evaluations, changed or
unanticipated underground conditions may occur that could affect total PROJECT cost and/or
execution. These conditions and cost/execution effects are not the responsibility of the
CONSULTANT, to the extent that CONSULTANT has exercised the applicable and appropriate
standard of professional care and judgment in such investigations.
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SECTION 7 PROJECT SCHEDULE AND BUDGET
7.1 The general PROJECT schedule and the budget for both the entire PROJECT and its component
tasks shall be as set forth in this Agreement and attachments. The project schedule and performance
dates for the individual tasks shall be mutually agreed to by the CITY and the CONSULTANT
within fifteen (15) days after execution of this Agreement. The performance dates and budgets for
tasks may be modified only upon written agreement of the parties hereto. The performance date for
tasks and the completion date for the entire PROJECT shall not be extended, nor the budget
increased because of any unwarranted delays attributable to the CONSULTANT, but may be
extended or increased by the CITY in the event of a delay caused by special services requested by
the CITY or because of unavoidable delay caused by any governmental action or other conditions
beyond the control of the CONSULTANT which could not be reasonably anticipated.
7.2 Not later than the tenth (10) day of each calendar month during the performance of the PROJECT,
the CONSULTANT shall submit to the CITY'S Representative a copy of the current schedule and
a written narrative description of the WORK accomplished by the CONSULTANT and
subconsultants on each task, indicating a good faith estimate of the percentage completion thereof
on the last day of the previous month. Additional oral or written reports shall be prepared at the
request of the CITY for presentation to other governmental agencies and/or to the public.
SECTION 8 REUSE OF DOCUMENTS
8.1 All internal WORK products of the CONSULTANT are instruments or service of this PROJECT.
There shall be no reuse, change, or alteration by the CITY or others acting through or on behalf of
the CITY without written permission of the CONSULTANT, which shall not be unreasonably
withheld and will be at the CITY's sole risk. The CITY agrees to indemnify the CONSULTANT
and its officers, employees, subcontractors, and affiliated corporations from all claims, damages,
losses, and costs including, but not limited to, litigation expenses and attorney's fees arising out of
or related to such unauthorized reuse, change, or alteration; provided, however, that the
CONSULTANT will not be indemnified for such claims, damages, losses, and costs including,
without limitation, litigation expenses and attorney fees were caused by the CONSULTANT's own
negligent acts or omissions.
8.2 The CONSULTANT agrees that ownership of any plans, drawings, designs, specifications,
computer programs, technical reports, operating manuals, calculations, notes, and other WORK
submitted or which are specified to be delivered under this Agreement or which are developed or
produced and paid for under this Agreement, whether or not complete, shall be vested in the CITY.
8.3 All rights to patents, trademarks, copyrights, and trade secrets owned by CONSULTANT (hereinafter
"Intellectual Property") as well as any modifications, updates or enhancements to said Intellectual
Property during the performance of the WORK remain the property of CONSULTANT, and
CONSULTANT does not grant CITY any right or license to such Intellectual Property.
SECTION 9 AUDIT AND ACCESS TO RECORDS
9.1 The CONSULTANT, including its subconsultants, shall maintain books, records, documents and
other evidence directly pertinent to performance of the WORK under this Agreement in accordance
with generally accepted accounting principles and practices consistently applied. The CITY, or the
CITY'S duly authorized representative, shall have access to such books, records, documents, and
other evidence for inspection, audit, and copying for a period of three years after completion of the
WORK. The CITY shall also have access to such books, records, and documents during the
performance of the WORK, if deemed necessary by the CITY, to verify the CONSULTANTS
WORK and invoices.
9.2 Audits conducted pursuant to this section shall be in accordance with generally accepted auditing
standards and established procedures and guidelines of the reviewing or auditing agency.
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9.3 The CONSULTANT agrees to the disclosure of all information and reports resulting from access to
records pursuant to this section provided that the CONSULTANT is afforded the opportunity for an
audit exit conference and an opportunity to comment and submit any supporting documentation on
the pertinent portions of the draft audit report and that the final audit report will include written
comments, if any, of the CONSULTANT.
9.4 The CONSULTANT shall ensure that the foregoing paragraphs are included in each subcontract for
WORK.
9.5 Any charges of the CONSULTANT paid by the CITY which are found by an audit to be
inadequately substantiated shall be reimbursed to the CITY.
SECTION 10 INSURANCE
10.1 At all times during performance of the Services, CONSULTANT shall secure and maintain in effect
insurance to protect the City and the CONSULTANT from and against all claims, damages, losses,
and expenses arising out of or resulting from the performance of this Contract. CONSULTANT
shall provide and maintain in force insurance in limits no less than that stated below, as
applicable. The City reserves the rights to require higher limits should it deem it necessary in the
best interest of the public.
10.1.1 Commercial General Liability Insurance. Before this Contract is fully executed by the
parties, CONSULTANT shall provide the City with a certificate of insurance as proof of
commercial liability insurance and commercial umbrella liability insurance with a total
minimum liability limit of Two Million Dollars ($2,000,000.00) per occurrence combined
single limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00)
general aggregate. The certificate shall clearly state who the provider is, the coverage
amount, the policy number, and when the policy and provisions provided are in effect. Said
policy shall be in effect for the duration of this Contract. The policy shall name the City, its
elected officials, officers, agents, employees, and volunteers as additional insureds, and shall
contain a clause that the insured 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 companies rated A -VII or higher in Best's Guide and admitted in the
State of Washington.
10.1.2. Commercial Automobile Liability Insurance.
a. If CONSULTANT owns any vehicles, before this Contract is fully executed by
the parties, CONSULTANT shall provide the City with a certificate of insurance as proof
of commercial automobile liability insurance and commercial umbrella liability insurance
with a total liability limit of the limits required in the policy, subject to minimum limits of
Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury
and property damage. Automobile liability will apply to "Any Auto" and be shown on the
certificate.
b. If CONSULTANT does not own any vehicles, only "Non -owned and Hired
Automobile Liability" will be required and may be added to the commercial liability
coverage at the same limits as required in that section of this Contract, which is Section
10.1.1 entitled "Commercial General Liability Insurance".
c. Under either situation described above in Section 10.1.2.a and Section 10.1.2.b,
the required certificate of insurance shall clearly state who the provider is, the coverage
amount, the policy number, and when the policy and provisions provided are in
effect. Said policy shall be in effect for the duration of this Contract. The policy shall
name the City, its elected officials, officers, agents, employees, and volunteers as
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additional insureds. The insured shall 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 companies rated A -VII or higher in Best's Guide and admitted
in the State of Washington.
10.1.3, Statutory workers' compensation and employer's liability insurance as required by state
law.
10.1.4, Professional Liability Coverage. Before this Contract is fully executed by the parties,
CONSULTANT shall provide the City with a certificate of insurance as proof of
professional liability coverage with a total liability limit of the limits required in the
policy, subject to minimum limits of Two Million Dollars ($2,000,000.00) per claim,
and Two Million Dollars ($2,000,000.00) aggregate. The certificate shall clearly state
who the provider is, the coverage amount, the policy number, and when the policy and
provisions provided are in effect. Said policy shall be in effect for the duration of this
Contract. The insured shall 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 companies rated A -VII or higher in Best's Guide. If the policy is
written on a claims made basis the coverage will continue in force for an additional two
years after the completion of this contract.
Failure of either or all of the additional insureds to report a claim under such insurance
shall not prejudice the rights of the CITY, its officers, employees, agents, and
representatives there under. The CITY and the CITY'S elected officials, officers,
principals, employees, representatives, and agents shall have no obligation for payment
of premiums because of being named as additional insureds under such insurance. None
of the policies issued pursuant to the requirements contained herein shall be canceled,
allowed to expire, or changed in any manner that affects the rights of the City until thirty
(30) days after written notice to the CITY of such intended cancellation, expiration or
change.
SECTION 11 SUBCONTRACTS
11.1 CONSULTANT shall be entitled, to the extent determined appropriate by CONSULTANT, to
subcontract any portion of the WORK to be performed under this Agreement.
11.2 Any subconsultants or subcontractors to the CONSULTANT utilized on this PROJECT, including
any substitutions thereof, will be subject to prior approval by CITY, which approval shall not be
unreasonably withheld. Each subcontract shall be subject to review by the CITY'S Representative,
if requested, prior to the subconsultant or subcontractor proceeding with the WORK. Such review
shall not constitute an approval as to the legal form or content of such subcontract. The
CONSULTANT shall be responsible for the architectural and CONSULTANTing performance,
acts, and omissions of all persons and firms performing subcontract WORK.
11.3 CITY does not anticipate CONSULTANT subcontracting with any additional persons or firms for
the purpose of completing this Agreement.
11.4 The CONSULTANT shall submit, along with its monthly invoices, a description of all WORK
completed by subconsultants and subcontractors during the preceding month and copies of all
invoices thereto.
SECTION 12 ASSIGNMENT
12.1 This Agreement is binding on the heirs, successors and assigns of the parties hereto. This
Agreement may not be assigned by CITY or CONSULTANT without prior written consent of the
other, which consent will not be unreasonably withheld. It is expressly intended and agreed that no
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third party beneficiaries are created by this Agreement, and that the rights and remedies provided
herein shall inure only to the benefit of the parties to this Agreement.
SECTION 13 INTEGRATION
13.1 This Agreement represents the entire understanding of CITY and CONSULTANT as to those
matters contained herein. No prior oral or written understanding shall be of any force or effect with
respect to those matters covered herein. This Agreement may not be modified or altered except in
writing signed by both parties.
SECTION 14 JURISDICTION AND VENUE
14.1 This Agreement shall be administered and interpreted under the laws of the State of Washington.
Jurisdiction of litigation arising from this Agreement shall be in Washington State. If any part of
this Agreement is found to conflict with applicable laws, such part shall be inoperative, null, and
void insofar as it conflicts with said laws, but the remainder of this Agreement shall be in full force
and effect. Venue for all disputes arising under this Agreement shall be in a court of competent
jurisdiction in Yakima County, State of Washington.
SECTION 15 EQUAL EMPLOYMENT and NONDISCRIMINATION
15.1 During the performance of this Agreement, CONSULTANT and CONSULTANT's subconsultants
shall not discriminate in violation of any applicable federal, state and/or local law or regulation on
the basis of age, sex, race, creed, religion, color, national origin, marital status, disability, honorably
discharged veteran or military status, pregnancy, sexual orientation, and any other classification
protected under federal, state, or local law. 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. CONSULTANT agrees to comply with the applicable provisions
of State and Federal Equal Employment Opportunity and Nondiscrimination statutes and
regulations.
SECTION 16 SUSPENSION OF WORK
16.1 CITY may suspend, in writing by certified mail, all or a portion of the WORK under this Agreement
if unforeseen circumstances beyond CITY'S control are interfering with normal progress of the
WORK. CONSULTANT may suspend, in writing by certified mail, all or a portion of the WORK
under this Agreement if unforeseen circumstances beyond CONSULTANT's control are interfering
with normal progress of the WORK. CONSULTANT may suspend WORK on PROJECT in the
event CITY does not pay invoices when rine, except where otherwise provided by this Agreement.
The time for completion of the WORK shall be extended by the number of days WORK is
suspended. If the period of suspension exceeds ninety (90) days, the terms of this Agreement are
subject to renegotiation, and both parties are granted the option to terminate WORK on the
suspended portion of Project in accordance with SECTION 17.
SECTION 17 TERMINATION OF WORK
17.1 Either party may terminate this Agreement, in whole or in part, if the other party materially breaches
its obligations under this Agreement and is in default through no fault of the terminating party.
However, no such termination may be effected unless the other party is given: (1) not less than
fifteen (15) calendar days written notice delivered by certified mail, return receipt requested, of
intent to terminate; and (2) an opportunity for consultation and for cure with the terminating party
before termination. Notice shall be considered issued within seventy-two (72) hours of mailing by
certified mail to the place of business of either party as set forth in this Agreement.
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17.2 In addition to termination under subsection 15.1 of this Section, CITY may terminate this
Agreement for its convenience, in whole or in part, provided the CONSULTANT is given: (1) not
less than fifteen (15) calendar days written notice delivered by certified mail, return receipt
requested, of intent to terminate; and (2) an opportunity for consultation with CITY before
termination.
17.3 If CITY terminates for default on the part of the CONSULTANT, an adjustment in the contract
price pursuant to the Agreement shall be made, but (I) no amount shall be allowed for anticipated
profit on unperformed services or other WORK, and (2) any payment due to the CONSULTANT at
the time of termination may be adjusted to the extent of any additional costs or damages CITY has
incurred, or is likely to incur, because of the CONSULTANT'S breach. In such event, CITY shall
consider the amount of WORK originally required which was satisfactorily completed to date of
termination, whether that WORK is in a form or of a type which is usable and suitable to CITY at
the date of termination and the cost to CITY of completing the WORK itself or of employing another
firm to complete it. Under no circumstances shall payments made under this provision exceed the
contract price. In the event of default, the CONSULTANT agrees to pay CITY for any and all
damages, costs, and expenses whether directly, indirectly, or consequentially caused by said default.
This provision shall not preclude CITY from filing claims and/or commencing litigation to secure
compensation for damages incurred beyond that covered by contract retainage or other withheld
payments.
17.4 If the CONSULTANT terminates for default on the part of CITY or if CITY terminates for
convenience, the adjustment pursuant to the Agreement shall include payment for services
satisfactorily performed to the date of termination, in addition to termination settlement costs the
CONSULTANT reasonably incurs relating to commitments which had become firm before the
termination, unless CITY determines to assume said commitments.
17.5 Upon receipt of a termination notice under subsections 15.1 or 15.2 above, the CONSULTANT
shall (1) promptly discontinue all services affected (unless the notice directs otherwise), and (2)
deliver or otherwise make available to CITY all originals of data, drawings, specifications,
calculations, reports, estimates, summaries, and such other information, documents, and materials
as the CONSULTANT or its subconsultants may have accumulated or prepared in performing this
Agreement, whether completed or in progress, with the CONSULTANT retaining copies of the
same.
17.6 Upon termination under any subparagraph above, CITY reserves the right to prosecute the WORK
to completion utilizing other qualified firms or individuals; provided, the CONSULTANT shall
have no responsibility to prosecute further WORK thereon.
17.7 If, after termination for failure of the CONSULTANT to fulfill contractual obligations, it is
determined that the CONSULTANT has not so failed, the termination shall be deemed to have been
effected for the convenience of CITY. In such event, the adjustment pursuant to the Agreement
shall be determined as set forth in subparagraph 15.4 of this Section.
17.8 If, because of death, unavailability or any other occurrence, it becomes impossible for any key
personnel employed by the CONSULTANT in PROJECT WORK or for any corporate officer of
the CONSULTANT to render his services to the PROJECT, the CONSULTANT shall not be
relieved of its obligations to complete performance under this Agreement without the concurrence
and written approval of CITY. If CITY agrees to termination of this Agreement under this
provision, payment shall be made as set forth in subparagraph 15.3 of this Section.
SECTION 18 DISPUTE RESOLUTION
18.1 In the event that any dispute shall arise as to the interpretation of this agreement, or in the event of
a notice of default as to whether such default does constitute a breach of the contract, and if the
parties hereto cannot mutually settle such differences, then the parties shall first pursue mediation
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as a means to resolve the dispute. If the afore mentioned methods are either not successful then any
dispute relating to this Agreement shall be decided in the courts of Yakima County, in accordance
with the laws of Washington. If both parties consent in writing, other available means of dispute
resolution may be implemented.
SECTION 19 NOTICE
19.1 Any notice required to be given under the terms of this Agreement shall be directed to the party at
the address set forth below. Notice shall be considered issued and effective upon receipt thereof by
the addressee -party, or seventy-two (72) hours after mailing by certified mail to the place of business
set forth below, whichever is earlier.
CITY:
City of Yakima
Joan Davenport, Director of Community Development
129 North 2nd Street
Yakima, WA 98901
CONSULTANT: BERK Consulting
2025 1st Avenue, Suite 800
Seattle, WA 98121
Attn: Kevin Gifford
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their
respective authorized officers or representatives as of the day and year first above written.
CITY OF YAKIMA
BERK Co.'
Tony O'Rourke Signature
Printed Name;, Printed Name:
Title: Citv Manaeer Tulle:
Plate Date:.
Attest
City Clerk
Page 11
STATE OF WASHINGTON
) ss.
COUNTY OF YAKIMA
I certify that I know or have satisfactory evidence that is the person who
appeared before me, and said person acknowledged that he signed this instrument, on oath stated
that he was authorized to execute the instrument, and acknowledged it as the CITY MANAGER of
the CITY OF YAKIMA, to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated:
Seal or Stamp
(Signature
Title
Printed Name
My commission expires:
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STATE OF WASHINGTON
ss.
COUNTY OF YAKIMA
I certify that I know or have satisfactory evidence that is the person who
appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that
he/she was authorized to execute the instrument, and acknowledged it as the of
to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated:
Seal or Stamp
(Signature)
Title
Printed Name
My commission expires:
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