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Home My WebLink About5.668 Original Contract rilED fOR REC(~::;D :, 1 ~HE HF OUEST n tl C;+t ':~r __~_ ___"."_. "...:- '---:~- I ~ !: COR 0 2;:\ I r~ h r '0- l , ~ I ,: :., ... '" .~. ~ C ,J 2005 AUG 23 Pr1 2: 22 Filed at the Request of: City of Port Angeles City Clerk's Office P. O. Box 1150 Port Angeles, W A 98362 (i) 2005 1163438 Clallam County Interlocal Agreement City Clerk File No.: S (,(, g Agreement between the City of Port Angeles and L6W/ Sc.uL,kVJoe Purpose: s:e"\J~e.. <; Po ~\("b< ~(" ~ ~ ~~~l-h~ bO{~(J GS$(SS~ ~fCJll:C1C C- Feet. L..~$( ~::c ~i5> VY\wS.f k ~ct-(oe-ltc:Mt- -pY6~a' Dated: "'b6/~ :t/~/ by I , I Ii . . 5. u;~~ WTERGOVERNMENTALAGREEMENT between The City of Port Angeles and The Lower Elwha Klallam Tribe THIS WTERGOVERNMENT AL AGREEMENT is made between the City of Port Angeles ("the City") and the Lower Elwha Klallam Tnbe ("the Tribe"). 1. Purpose. The purpose ofthis Agreement is to provide for the performance of servIces by the Tribe for the City in the form of prepanng a biological assessment III support of a Federal Energy Regulatory Commission (FERC) license amendment for the City's Morse Creek hydroelectric project. 2. Scope of Services. The Tnbe agrees to provide the City with services III the form of the preparation of a biological assessment III support of the FERC license amendment for the City's Morse Creek hydroelectric project. Services will include research, agency consultatIOn, GIS mapping, biological assessment report writing, and printinglbindmg the biological assessment report. The services WIll be primarily conducted by Matt Beirne, Environmental Coordinator, Mike McHenry, Fisheries BiologIst, and Randall McCoy, GIS Field Technician. 3. Standard of ServIces. The Tribe shall provide the services under this Agreement in a professional and workmanlike manner. The Tnbe WIll prepare the biological assessment in compliance with the ESA Guidance for Preparing Biological Assessments, USFW /NMFS, March 1999, Volume 1. The Tribe will obtain the City's approval prior to finalizing and publishmg the bIOlogical assessment report. The biological assessment report will be consistent with the minimum in stream flow levels for operation of the Morse Creek hydroelectric project, as agreed upon by the City of Port Angeles, the Lower Elwha Klallam Tribe, the Washington State Department ofFish and WIldlife, and the Washington State Department of Ecology and as set forth in the December 18, 2003 letter from Glenn A. Cutler attached hereto as Exhibit A. 4. Time of Performance. The Tribe shall complete the services provided for in this Agreement in a timely manner. A draft biological assessment report shall be provIded to the City -1- . . for Its review within 30 days of the execution ofthis Agreement, and the final biological assessment report shall be provided to the CIty within ten days of the Tnbe receiving the City's approval of the draft biological assessment. 5. Compensation. The City will pay the Tribe for the services provided herein according to the cost schedule set forth in the Tribe's proposal, which is attached hereto as Exhibit B. Payment for services shall be within thirty (30) days of submission by the Tribe of an invoice to the CIty after project completion. Compensation for said services shall not exceed $6,701.94 unless otherwIse agreed by the parties in writmg. 6. Termination. This Agreement may be terminated by the City upon written notice to the Tribe, provided that in the event of such termination the City shall pay the Tribe for services performed up to the time of the termmation. 7. Independent Contractor Status. The relationship created by this Agreement is that of independent contracting entities. 8. Assignment. This Agreement may not be assigned by either party without the wntten consent of the other party. 9. Records. All records relating to the services performed and reimbursable expenses incurred shall be mamtamed by the Tribe and made aVailable to the City upon request. 10. NondIscrimination. The parties shall comply WIth all legally applicable nondIscnmination requirements. 11. Dispute Resolution. Any disputes related to this Agreement that are not resolved by agreement ofthe City Manager and the Tnbe' s Executive Director shall be referred for determinatIOn by the City Council and the Tribal Council. Any stIll unresolved disputes shall be referred to non- binding mediation by a mutually acceptable mediator. Venue of any lawsuit related to this Agreement shall be in Clallam County, Washington. 12. Authority. The parties warrant that the underSIgned signatories have full and complete legal authority to sign for each respective party and to commit such party to the performance of the covenants and agreements set forth herein. 13. Exhibits and Signatures. This Agreement, including its exhibits, constitutes the entire agreement of the parties and may only be changed by a written amendment executed by both parties. The following exhibits are hereby made a part of thIS Agreement: - 2 - . . a. December 18, 2003 letter from Glenn Cutler to Sue Patnude, Mike McHenry, and Brad Caldwell. b. Cost itemizatIOn. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the Z day ofTebrua.r1 ' 2004. LOWER EL WHA KLALLAM TRIBE CITY OF PORT ANGELES ~ tR y:{~~ Dennis R. Sullivan, Chairman G \Legal_BackupIAGREEMENTS&CONTRACTS\LowerElwha agr wpd January 27,2004 - 3 - ~ORTANGELES WAS H I N G TON, U. S. A. PUBLIC WORKS & UTILITIES DEPARTMENT December 18, 2003 Sue Patnude, Regional Director Department ofFish and Wildlife ~8 Devonshire Road Montesano, W A 98563-9618 Mike McHenry, Habitat Biologist Elwha Klallam Tribe 2851 Lower Elwha Road Port Angeles, W A 98363 Brad Caldwell, Instream Flow Biologist Department of Ecology Water Resources P. O. Box 47600 Olympia, W A 98504 Dear Sue, Mike, Brad, I would like to thank you for coming together and negotiating the minimum flow issues for the Morse Creek Hydroelectric project. It was not an easy or quick process, but a necessary step in operating the project. This letter is to document our most recent meetings on November 4,2003, and November 20,2003 between the City of Port Angeles, Washington Department ofFish and Wildlife (WDFW), the Department of Ecology (DOE), and the Lower Elwha Klallam Tribe (LEKT). It should also be noted that Hal Beecher and Steve Boessow ofWDFW, and Scott McLain of the City of Port Angeles attended a field trip on November 13,2003 to the area of Morse Creek above the powerhouse to observe the habitat conditions. Per our discussions, it is desirable to formally gain your agency's concurrence on the agreement reached through the meetings for minimum flow levels required for salmonid protection in Morse Creek, with emphasis on the two species protected under the Endangered Species Act, chinook salmon and bull trout. On November 17, 2003, I received a letter from WDFW outlining four mitigation measures that were important to the agencies in reaching an agreement on new minimum flow requirements. I feel that your interests are adequately addressed in the resolutions summarized below: 321 EAST FIFTH STREET · POBOX 1 150 · PORT ANGELES, WA 98362-0217 PHONE 360-417-4805. FAX 360-417-4542 · TTY 360-417-4645 E-MA.IL.' PUBWORKS@CI PORT-ANGELES WA,US Agency Agreement Letter December 12, 2003 Page 2 Flows: The new agreed upon minimum flow levels, as measured at the diversion dam, are as follows: Month January February 1-14 February 15-29 March April May June July 1-15 Watershed Planning: Table I Min. Flow (CFS) Month 48 48 50 50 55 61 61 61 July 16-31 August 1-15 August 16-31 September October 1-15 October 16-31 November December Min. Flow (CFS) 50 50 58 no generation 69 60 48 48 The City is committed to move quickly on finalizing the watershed planning process as it relates to the Morse Creek Basin which includes minimum instream flows for the remainder ofthe stream developed by Hal Beecher and Brad Caldwell. The fact that we have been able to reach agreement on the flows for the hydroelectric project will permit the City to move forward on this important issue. Water Use: The' City is committed to honoring its water rights on Morse Creek. The City's current water right certificates consist of 15 CFS under permit #874 and 5 CFS under permit #2345 (attached). These permits list the water use as non-consumptive, hydroelectric generation and municipal use, standby emergency use only. It is not anticipated that there will be any changes to our water rights, but if any changes are proposed in the future, the WDFW, DOE, and the LEKT would be consulted. As per our discussion, it is the City's intent to begin operating the plant as soon as possible under the new minimum flow levels described above with the exception of the months that had previous minimum flow levels issued in the FERC permit. The FERC flow levels would be followed during those months until FERC modifies the permit. The following flows will be used during the interim period: ~ Agency Agreement Letter December 12, 2003 Page 3 Month January February 1-14 February 15-29 March April May June July 1-15 Table IT Minimum Flow (CFS) Month 48 48 50 50 85 61 61 61 July)6-31 August 1-15 August 16-31 September October 1-15 October 16-31 November December Minimum Flow (CFS) 50 90 90 no generation 100 100 65 48 Also per our discussion, it is my understanding that your agencies will review and support the Biological Assessment for the establishment of new minimum flow levels as listed in Table I for the hydroelectric bypass region of Morse Creek. It is also my understanding that the federal agencies (NOAA Fisheries and USFWS) will support the recommendations that this group has negotiated. If you have any questions please contact me at 360-417-4801 gcutler@citvofoa.us or Scott McLain at 360-417-4703 smclain@cityofpa.us. It is requested that a written response confirming the agreement reached as outlined in this letter be provided to the City by December 31, 2003 for inclusion in our FERC submission. Sincerely, Glenn A. Cutler Director of Public Works and Utilities Attachments: Water right certificates cc: Ron Warren, Regional Fish Prog. Mgr. Manuel Farinas, Fish Program Manager Matt Beirne, Environmental Coordinator Lower Elwha Klallam Tribe Morse Creek Hydro Facility Biological Assessment Estimated Costs Task 1 Task 2 Task 3 Task 4 Total Contingencies Total Cost Itemization Research Agency Consultation GIS Mapping B A Report Writing Field Surveyt With Contingencies Personnel (Labor) Hours Cost Hours Cost Hours Cost Hours Cost Hours Cost Hours Cost Hours Cost Matt Beirne, EnVIronmental Coord 40 $ 840 00 5 $ 10500 80 $ 1,68000 125 $ 2,625 00 16 $ 336 00 221 $ 2,961 00 Mike McHenry, Fisheries Bioi 8 $ 203 44 8 $ 203 44 16 $ 406 88 16 $ 406 88 40 $ 81376 Randall McCoy, GIS 18 $ 378 00 18 $ 378 00 36 $ 378 00 Field Technician 0 $ - 8 $ 13264 8 $ 13264 Benefits @ 30% $ 31303 $ 3150 $11340 $ 565 03 $ 1,02296 $ 262 66 $ 1,28562 Subtotal Labor $1,35647 $13650 $ 491 40 $ 2,44847 $ 4,432 84 $ 1,13818 $ 5,571 02 Other Direct Costs Units Units Printing! Binding @ $2 79!copy 20 $ 5580 GPSt Subtotal Other Direct Costs $ - $ $ $ 5580 $ - 1 $ 2500 $ Indirect Costs @ 20 3 % $ 275 36 $ 2771 $ 9975 $ 508 37 $ 899 87 $ 23612 $ 1,13092 Total Costs $1,631 84 $16421 $59115 $ 3,012 64 $ 5,33271 $ 1,39930 $ 6,701 94 Peronnel Costs Rate Mike McHenry $ 2543 Matt Beirne $ 2100 Randall McCoy $ 2100 Technician $ 1658 t Only If a formal consultation With USFWS IS required 0210212004