HomeMy WebLinkAbout5.914 Original Contract
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P A WTP Transfer A2reement
This Transfer Agreement is between the National Park Service, U.S. Department of the
Interior (NPS) and the City of Port Angeles (City) and concerns the transfer of ownership
of the Port Angeles Water Treatment Plant (P A WTP).
For and in consideration of the benefits each party derives from this agreement and the
mutual benefits created by this agreement, the parties hereby recite, covenant, and agree
as follows:
Article I.
Recitals and Statements of Consideration
A. The Elwha River Ecosystem and Fisheries Restoration Act (The Act, or
EREFRA), P.L. 102-495, 106 Stat. 3173 (October 24, 1992) authorizes the removal of
the Elwha and Glines Canyon dams to restore the ecosystem and native anadromous
fisheries of the Elwha River.
B. The Department of the Interior has a responsibility under EREFRA,
subject to the appropriation of funds, to protect the City's water supply from the adverse
impacts of dam removal. Section 4(a) of EREFRA provides the actions are those the
Secretary determines "reasonably necessary." See, Section 4(a) ofEREFRA.
C. There is a disagreement between the parties as to the length of the period
of adverse impacts of dam removal. The City of Port Angeles asserts the adverse impact
period is indefinite, or that the adverse impact period will meet or exceed the useful life
of P A WTP. NPS currently estimates the adverse impact period to be of a shorter
duration, in the range of 3 to 5 years i.e., less than the useful life of P A WTP. The length
of this adverse impact period is directly relevant to determining the length and extent of
NPS's obligation to protect the City's water supply. The parties agree there is
uncertainty, and that the precise length of time of the impact period will be known only
after the fact. The parties also agree that it is not feasible or desirable to wait for the end
of the impact period to resolve the issues addressed in this agreement.
D. In full recognition that important variables, such as the length of the
impact period, cannot be known for many years in the future, and that each party must
accept the risk of that unknown, the parties enter into this Transfer Agreement. The
parties acknowledge that this Transfer Agreement represents a compromise and
settlement. The parties declare that each has made a conscious and considered decision
to accept the compromise and settlement represented by this Transfer Agreement because
it is preferable to consequences that would result were they unable to achieve a
compromise and settlement.
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E. The Secretary of the Interior's authority has been delegated to the National
Park Service pursuant to Secretarial Order No. 3212 (February 29,2000). The Secretarial
Order authorizes NPS "to take such actions as are necessary to fully restore the Elwha
River ecosystem through removal of the two dams." The Glines Canyon Dam and most
of the 45-mile long Elwha River are within Olympic National Park. The NPS Organic
Act, as amended, further authorizes the actions of NPS officials in restoring the Elwha
River ecosystem and fisheries and in entering into this transfer agreement. 16 USC S 1, et
seq.
F. The City and NPS have worked together in good faith and have agreed to
construction of P A WTP as a means of satisfying their respective obligations under the
law. A Memorandum of Understanding dated August 6, 2004, among NPS, the City and
the Lower Elwha Klallam Tribe reflects the commitment of NPS to construct P A WTP
and to transfer P A WTP to the City of Port Angeles, subject to conditions acceptable to
NPS and to the City, and the provisions of the MOD.
G. The City of Port Angeles provides drinking water to its citizens by the
operation of a water withdrawal facility located below the Elwha Dam. Removal of the
Elwha dams is expected to create short-term and may create long-term adverse impacts to
the City's municipal water supply.
H. The State of Washington Department of Health (DOH) in 2000
determined the primary source of water for the existing City water withdrawal system is
groundwater under the direct influence of surface water. As a consequence of that
determination, the City became subject to more stringent drinking water requirements,
which the City does not currently meet, but which the City desires to meet as
expeditiously as possible.
Between December 2000 and November 2004, the City entered into
voluntary Bilateral Compliance Agreements (BCAs) with the DOH for installation of
filtration facilities and installation of corrosion control treatment, addressing a
groundwater-under-the-direct-influence-of-surface-water (GWI) designation, and
elevated levels of copper in some customers' residential plumbing, respectively. On
December 12, 2003, the DOH approved a project report completed by the National Park
Service (NPS) and submitted by the City describing a proposed new treatment plant (the
P A WTP). At that time, NPS represented it was currently funding and designing
treatment facilities as mitigation for the removal of the two dams on the Elwha River as
part of EREFRA. The DOH found that such facilities would also fully address filtration
and corrosion control treatment issues identified in earlier BCAs entered into by the City
and the DOH.
In November 2004, the City and the DOH entered into a new agreement,
BCA No. 2004-BCA-0074, allowing additional time for completion of construction
documents. The City understood that NPS's construction documents for the treatment
facilities were to be complete by February 28, 2005. They were not complete by
February 28, 2005. When the City failed to submit construction documents by that
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deadline, the DOH required the City to enter into Agreed Order 2005-SAG-0002 in
September 2005, wherein construction documents were required to be submitted by
November 30, 2005. The documents were not complete by that date, either. Thus, the
City was not able to meet the November 30, 2005 deadline. Therefore, the City entered
into a new Agreed Order with the DOH, 2007-SAG-0001, in February 2007.
1. The DOH and the City of Port Angeles have entered into a new Agreed
Order (Docket No. 2007-SAG-0001), dated February 2007 concerning the City's need to
comply with State and Federal drinking water requirements. Paragraph 2.1 of the Order.
Failure to comply with this Order may result in civil fines of up to $5000 a day, or up to
$10000 a day for a violation determined to be a public health emergency, and the
initiation of an Environmental Protection Agency enforcement action against the City.
Paragraph VI of the Order. The Agreed Order describes the actions the City will take to
meet State and Federal drinking water standards, and sets December 31, 2009 as the final
date for compliance. The Agreed Order is predicated on the City's understanding that
NPS must protect the City's water supply, and to do so, NPS has concluded it will
construct a water treatment plant. The City and the DOH have concluded the water
treatment plant that NPS is constructing will also satisfy the water quality requirements
identified in the latest Agreed Order.
J. NPS has determined it is "reasonably necessary" to construct P A WTP,
and the Elwha Water Facilities (EWF).
K. The P A WTP is a water treatment plant to be constructed by NPS (Contract
No. 1443C8000-07-0911) The PA WTP will include, in part, a new water treatment
facility including, but not limited to: structural; piping; electrical; mechanical; utilities
and site work for coagulation, flocculation, and sedimentation basins and equipment;
clearwells; recycle basin; dual media filtration equipment; chlorine contact tankage;
recycled water storage; sludge drying beds; a variety of appurtenant equipment including
water pumps, sludge pumps, chemical metering tanks and pumps; Supervisory Control
and Data Acquisition (SCADA) equipment; and a 19,000 square foot building with
administration, laboratory, and shop spaces;. It will also include modifications to
existing Ranney Well and well control buildings at a remote well site, and well pump
removal and installation. The Ranney Well is an existing water collection facility located
adjacent to the Elwha River approximately 1.6 miles from the P A WTP site. Also
included is site preparation, as shown in Contract No. 1443C8000-07-0911. The P A WTP
is intended to make a complete and fully useable drinking water facility which can be
licensed under authority of Washington State. The contractor will perform plant start-up
and be responsible for demonstrating operations in compliance with DOH requirements.
L. The EWF project is composed of the Elwha Water Treatment Plant
(EWTP), the Elwha Surface Water Intake (ESWI), Crown '2' Water Road Improvements
(C2R), and the Area Flood protection (AFP). The EWF project works are not being
transferred under this agreement.
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M. Construction and transfer of P A WTP will help meet the requirements of
the February, 2007 DOH order, the responsibility of NPS under the Act, and the City's
need to provide its citizens with drinking water meeting or exceeding current Federal and
State standards.
N. The City originally expected NPS to operate, or to contract for the
operation of, a water treatment facility through the entire length of the dam removal
adverse impact period.
O. City has provided, and continues to provide, land, rights of way, access
and other assistance to NPS in the siting, design and construction of P A WTP and other
Elwha River Restoration works.
P. The City and the DOH reviewed and provided comment on the plans and
specifications used by NPS in its P A WTP construction contract. The DOH, with the
concurrence of the City, subsequently approved the plans and specifications. The plans
and specifications allow the opportunity for training on-site during the completion,
testing and start up phase of the contract, and provide a warranty of construction.
Q. Dam removal, and the resulting inception of the adverse impact period,
has been delayed. The City and NPS originally expected NPS to remove the dams and to
begin water treatment in 2007. It is now scheduled to occur in 2012, although that
schedule may be moved up, or back, depending on a variety of circumstances such as
sufficiency of Federal appropriations, completion of the Tribal levee, Tribal fish
hatchery, agreements with Nippon Paper Industries to address specific project impacts,
and the Elwha Water Facilities (EWF). This Transfer Agreement is a mutually agreed
upon response to the delay.
R. P A WTP is scheduled to be completed in 2009, but will not be needed for
mitigation until 2012. NPS has concluded EREFRA does provide authority to operate
P A WTP during the period of adverse impacts after dam removal, but neither EREFRA
nor other statutes provide authority for NPS to operate P A WTP 3 years prior thereto.
Unless the City assumes responsibility for the operation of P A WTP prior to the period of
adverse impacts after dam removal, NPS will need to mothball the plant for
approximately three years.
S. Because of the change in circumstances (delay), the possibility of a
violation of the DOH Order and the possibility of a wasteful and non-productive
mothballing of the new P A WTP, the parties have determined this Transfer Agreement to
be in their mutual interest, and protective of public welfare.
T. By entering into this Transfer Agreement, each party obtains unique
benefits that would not otherwise be available. In addition to the benefits incorporated in
the above recitations, the City gets use of those OM&R funds previously transferred to
the City, training, an OMSI Manual, a funded OM&R Fund and all right title and interest
to P A WTP; the City avoids the cost of planning, designing, permitting and constructing a
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municipal water treatment facility to get water treated to current Federal and State
standards; and the City avoids the potential of DOH fines (up to $10000 per day)
beginning January I, 2010. Both the City and NPS avoid the uncertainty associated with
determining the length of the impact period. NPS avoids the burden of mothballing
P A WTP, the burden of operating P A WTP during dam removal impact period; and NPS
meets its obligations under the Act pursuant to its action, and obtains a release from the
City.
U. The State Department of Health has provided technical assistance to the
City of Port Angeles and the National Park Service pursuant to Paragraph V of the
Agreed Order (Docket No. 2007-SAG-000l) in the discussions and negotiation of this
Transfer Agreement.
Article II.
Construction and Completion of P A WTP
A. Construction of P A WTP. The current construction schedule calls for
substantial completion of P A WTP by September, 2009, including start-up, testing, and
approval. The current contract shows completion of all work, including the modifications
to the Ranney Well to be substantially complete by December 18,2009. The NPS agrees
that it will, to the extent practicable, with the active cooperation and support of the City,
maintain this schedule. Construction schedules can and frequently do change for a variety
of circumstances, many of which are not in the direct control ofNPS. The NPS makes no
warranty or guarantee that it will achieve the target schedule. In particular, NPS does not
take responsibility for any regulatory penalties the City may incur as a result of the
completion date being delayed.
B. Preparation of Operations and Maintenance Support Information (OMS!)
Manual. For the benefit of the City, NPS shall contract for the preparation and
completion of an Operations and Maintenance Support Information manual for P A WTP.
The OMSI shall be prepared following scope of work for OMSI manuals provided to
NPS by the City. NPS reserves the right to make reasonable changes to the scope in the
process of negotiating, awarding, and managing contract for preparation of manuals. The
detailed operating and maintenance procedures shall meet DOH standards for OMS I
manuals. NPS will provide the City and the DOH with the opportunity to review and
comment on the operations and maintenance manual's development.
C. Operation and Maintenance Training; Completion Testing and Start-up
Period of the P A WTP Construction Contract; Participation by City Operations Staff.
NPS will work with City, through the specifications relevant to testing and start-up
contained in Contract No. 1443C8000-07-0911, to facilitate the training of City
employees in operation and maintenance of P A WTP. The City will provide its
operations staff at its expense to participate in the completion testing and start-up phase.
In addition, City representatives and the DOH may observe any or all stages of
construction and all training for equipment or systems provided as part of the plans and
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specifications, by making appropriate arrangements with the Contracting Officer's
Representative.
D. Supervisory Control and Data Acquisition (SCADA) System. The
construction of P A WTP includes a new SCADA system to provide automated control
and monitoring of the P A WTP and Ranney Well facilities. NPS will construct the
SCADA system as specified in the construction documents. Those documents include the
requirement to integrate the SCADA system with the City's existing SCADA system.
This will include modifications to the existing system and will require Contractor access
to the system in order to perform the modifications. The City will provide all available
information that the Contractor requires in order to integrate the systems as specified.
This will include SCADA system display information, logic diagrams, programs, and
database information. The information must be provided in a timely manner in order to
maintain schedule and eliminate delays. To address City concerns about including
required modifications to allow more complete integration into the City's existing
SCADA system, the amount of $25,000 has been included in the amounts set forth in
Paragraph V, below, for modifications to the SCADA system beyond the current contract
requirements. Any additional programming the City requires beyond that specified in the
contract documents will be accomplished at City expense, provided however that NPS
agrees to provide additional programming required to comply with State regulations in
effect at the time of completion at no further cost to the City before final completion of
the contract.
E. Modifications. NPS reserves the right to modify the Contract No.
1443C8000-07-0911 requirements as may be required due to changed conditions and
other causes. NPS will provide the opportunity for the City and the DOH to review and
provide input on all proposed modifications to the extent practical. The opportunity to
review will be allowed prior to implementation to the extent practical. NPS agrees that
modifications must be consistent with and maintain treatment plant compliance with
DOH design and construction requirements.
Article III.
Complete Transfer of Ri2;ht Title and Interest
NPS shall transfer to the City all right, title and interest in and to the P A WTP and
all associated facilities, fixtures, rights and appurtenances as shown in the plans and
specifications for Contract No. 1443C8000-07-0911. Without limiting the scope of the
preceding sentence, the transfer to the City shall include: the Port Angeles Water
Treatment Facility (P A WTP), together with all related rights, fixtures, and
appurtenances; all improvements to the Ranney Well collector; and all other associated
property, both tangible and intangible. All of the United State's right, title, and interest,
except for the right of the United States to enforce warranties under the contracts as
described in paragraph VI below, will be transferred as provided in paragraph IV below.
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Article IV.
Effective Date of Transfer
A. Practical considerations require that P A WTP and Ranney Well work be
completed in two separate steps. This process was reviewed and approved by the City
and the DOH during the construction document preparation process. The process calls for
P A WTP to be accepted as substantially complete and placed into operation by the
permanent operating staff prior to completing the work at the Ranney Well.
B. The parties agree that NPS will follow standard Federal contracting
processes for reaching substantial and final completion. Substantial completion requires a
final inspection and preparation of a punch list of all items requiring correction in order
to achieve final completion. The parties agree that the City will participate in the final
inspection and preparation of punch list processes and that the parties will mutually agree
on substantial and final completion. The NPS Contracting Officer in accordance with the
terms of Contract No. l443C8000-07-09l1 will make initial resolution of any points of
disagreement. Issues that remain unresolved will be handled in accordance with the
dispute resolution clause of this agreement.
C. The parties agree that the City operational staff will begin operation of the
P A WTP when all of the following conditions have occurred:
1. It is accepted as substantially complete by NPS and the City has
concurred with this decision. Concurrence shall not be reasonably
withheld or delayed.
2. The City has provided written documentation to the DOH that
certified water operators meeting the requirements of WAC 246-
292-050 are on staff and a certified operator of the required
certification will be in responsible charge of the treatment system
when the City begins operation of the P A WTP. The City agrees it
will have the required operational staff available to participate in
the training described in paragraph II.C above and to proceed with
plant operation at the time of substantial completion, provided NPS
furnishes the City at least 90 days advance notice of the anticipated
time of substantial completion.
3. In accordance with WAC 246-290-630, the NPS has ensured that
treatment is provided for surface water and GWI sources consistent
with the treatment technique requirements specified in Part 6 of
Chapter 246-290 WAC. The NPS shall verify to the DOH that
treatment processes meeting 3-log removal and/or inactivation of
Giardia lamblia cysts, 4-log removal and/or inactivation of viruses,
and 2-log removal and/or inactivation of Cryptosporidium oocysts
are fully constructed, tested, and in operation.
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D. After operation of the P A WTP begins, the NPS contractor will then
proceed with the work remaining at the Ranney Well and Milwaukee Grade water plant
connection that cannot be completed until the P A WTP is placed into operation.
E. Both parties understand that opportunities to have the construction
contractor make repairs or replacements of facility components become much more
limited after the date of substantial completion. The contractor's one year warranty
begins at this time and any repairs or replacement can generally only be accomplished in
accordance with the warranty clause.
F. The Government shall transfer the P A WTP to the City upon the happening
of the last of these conditions: (1) the successful completion of plant start-up; (2)
acceptance and approval of the P A WTP by the DOH; and (3) concurrence by the City
with the NPS determination of substantial completion of the P A WTP. The Government
shall transfer the Rarmey Well improvements to the City upon the happening of the last
of these conditions: (1) the demonstration of successful operation of those improvements;
(2) acceptance and approval of the Ranney Well improvements by the DOH; and (3)
concurrence by the City with the NPS determination of substantial completion of the
Ranney Well improvements.
G. The City agrees that NPS and its contractor will be provided reasonable
access to complete punch list work remaining after substantial completion. NPS agrees
to work with its contractor to have punch list work completed within a reasonable time.
Upon transfer of the P A WTP to the City, the City will assume all
obligations and duties for maintenance, operation, and repair of the P A WTP, provided
that NPS shall employ and exercise its best efforts to assure that the City receives the full
benefit of all warranties and correction of design errors and omissions as described in
Article VI below.
Article V.
Compensation for Maintenance, Operation, and Repair Expenses
A. P A WTP Operation, Maintenance, and Repair (OM&R) Fund. The parties
previously agreed to the establishment of a "Treatment Plant Operating and Maintenance
Fund." The purpose of the fund was to provide compensation to the City for the expenses
it would incur for maintenance, operation, and repair of the P A WTP. The National Park
Foundation deposited $5 million to the fund at the request and direction of the National
Park Service.
The Fund was established by City of Port Angeles Municipal Code
(PAMC) 3.42 (dated August 2005). As of October 1, 2008 the Fund has a balance of
$5,603,535.79.
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B. Compensation for Maintenance, Operation, and Repair. NPS agrees to pay
the total sum of$7,805,6l8.00 as total compensation for the maintenance, operation, and
repair. This amount, less the monies and interest already transferred or earned by the City
under V. A., above, will be transferred to the City within 30 days of the execution of the
Agreement, with the final interest earned by the City's "Treatment Plant Operating and
Maintenance Fund" to be calculated as of October 1, 2008. Funds shall be placed in the
"Treatment Plant Operating and Maintenance Fund", with release of funds to the City as
described in V. C., below.
C. Restrictions on use of funds.
1. Prior to substantial completion of the P A WTP and Ranney Well
improvements, the City agrees to use funds in the "Treatment Plant
Operating and Maintenance Fund" only for required costs of
operating and preparing to operate the P A WTP.
2. All restrictions on the immediate, unrestricted use of the OM&R
funds will cease when the P A WTP and Ranney Well
improvements are substantially complete.
Article VI.
Warranty and Release
A. Warranty of Construction Contractor. The P A WTP construction
contractor has provided a "warranty of construction" that "the work performed under this
contract conforms to the contract requirements and is free of any defect in equipment,
material, or design furnished, or workmanship performed by the Contractor or any
subcontractor or supplier at any tier". The contractor is required to remedy any defect or
failure to conform, and the warranty runs for a period of 1 year from the earlier of final
acceptance or Government possession. See Federal Acquisition Regulation 52.246-21.
The parties agree that, after P A WTP is transferred to the City, NPS will work together
with the City to assure warranties are enforced to the benefit of the City.
In addition, it is anticipated there will be express or implied warranties
from manufacturers, subcontractors, or suppliers for work performed and materials
furnished. See Federal Acquisition Regulation 52.246-21. The parties agree that, after
P A WTP is transferred to the City, the NPS will work together with the City to assure
warranties are enforced to the benefit of the City.
NPS and the City agree to work together in a timely fashion to address any
warranty work, warranty needs, and/or latent defects per FAR 52.246-12. For issues
having an immediate effect on the production of water, the City agrees to consider all
available options to produce water until the warranty issue can be fully resolved. In case
of disputes by the contractor, the NPS Contracting Officer, after consultation with the
City's representative, wIll makc a written decision on the validity of the request. The NPS
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contact person for all warranty issues shall be Ed Tafoya, Contracting Officer, Denver
Service Center (303) 969-2116, email cd tafova@nps.gov, or a Denver Service Center
Contracting Officer designated as acting for Mr. Tafoya in his absence. The City contact
person for warranty issues is the Director of Public Works and Utilities, Glenn A. Cutler,
P.E., (360) 417-4800, or email gcutler@cityofpa.us. and the City may designate another
officer to act for the Director of Public Works and Utilities in his absence. The parties
recognize that warranty work mayor may not extend to problems caused by the
negligence of either the NPS or the City.
B. Design Errors or Omissions. The Parties recognize and acknowledge that
the obligation of the Architect-Engineer for errors and omission in the design,
specifications, and function of the P A WTP continues for the life of the P A WTP. The
Architect-Engineer identified on the drawings as the designer of record for the P A WTP
has primary if not sole responsibility for the professional quality, technical accuracy, and
the coordination of all drawings, specifications, and other services furnished under their
contract with the Federal Government. The Federal Acquisition Regulation 52.236-23
provide that the Architect-Engineer shall, without additional compensation, correct or
revise any errors or deficiencies in its design, drawings, specifications, and other services.
NPS will work together with the City to assure any errors or omissions in the design of
P A WTP are corrected to the benefit of the City.
C. Sole Source. Th~ parties recognize and acknowledge that the P A WTP
will be the sole source of potable water for the citizens of the City of Port Angeles.
Without the P A WTP, the citizens of Port Angeles will have no more than a 3-day supply
of potable water in reservoirs. Therefore, if warranty work, latent defects, or errors or
omissions in the design of P A WTP are discovered, it is of the highest importance that the
issue be resolved as quickly as possible. The parties agree that time is of the essence
should such an event occur. NPS agrees to work together with the City to resolve the
impacts to P A WTP as quickly as possible.
D. No Warranty bv the United States. NPS cannot guarantee an assumed
design error or omission; warranty item; or latent defect will be corrected to the benefit of
the City nor can it guarantee a specific time frame for corrective actions. NPS and the
United States provide no express or implied warranty of the adequacy of design,
fabrication, engineering, installation, inspection, construction management, construction,
or operations and maintenance documentation undertaken pursuant to the Agreement, the
Contract No. 1443C8000-07 -0911, or any modifications thereto, provided, however, it is
understood the City may assume all warranties of contractors or suppliers provided in the
Contract to the extent such assumption is available pursuant to the Contract. For all
warranties that are available to NPS in the Contract, whether directly assumable by the
City or retained by NPS, NPS and the City will work together to secure all warranty
benefits on the City's behalf. If there is a disagreement between NPS and the City, it will
be handled in accordance with the disputes resolution clause in this agreement.
E. Release. For and in consideration of all the commitments and
undertakings of NPS under this Agreement, subject to the obligations in Sections A, B,i
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and C, above, the City hereby releases and forever discharges the United States of
America and its employees from any and all claims, demands, actions, or suits of any
kind or nature whatsoever, particularly on account of all injuries to the City of Port
Angeles, both to person and property, which have or may result from the actions of the
National Park Service or the United States of America in the permitting, and construction
of the P A WTP and associated actions enumerated herein and in meeting its responsibility
under EREFRA as to the City's municipal potable water supply; EXCEPT, HOWEVER,
the City does not release NPS or the United States of America from:
(1) any and all claims, demands, actions, or suits of any kind or nature on account of all
injuries to the City, persons, and property, that may result from or be caused by the
removal of the Elwha dams; BUT, this exception (1) does not include conditions that
NPS, the City, and DOH prior to the date of this agreement have anticipated in the design
and construction of the EREFRA project works, such as increased sediment treatable
with the ACTIFLO system.
(2) the obligations of this transfer agreement; and
(3) any claims against the National Park Service or the United States of America
cognizable under the Federal Tort Claims Act, 28 USC S2671 et seq., for property
damage or personal injury resulting from the negligent or wrongful act or omission,
including design errors or omissions.
The City declares that this release is fully understood and accepted for the purpose of
obtaining the design, construction, and timely transfer of the completed P A WTP,
training, OMSI manual, and OM&R funds described herein. The City declares that,
except as noted above, this release is a full and final compromise of any and all claims
concerning the municipal potable water supply system.
F. Elwha Heights Water Association (EHW A). The City currently provides
a potable water connection (a 2-inch water meter with the right to connect four residential
water services to the meter) to the EHW A. NPS agrees that replacing EHW A connection
to the City's water transmission main with a new potable water connection is reasonably
necessary under EREFRA as part of constructing the P A WTP. NPS agrees that it will
construct a replacement water connection for the benefit of the City, with the final design
and location to be determined by NPS and the City. NPS agrees to provide a replacement
water connection equivalent to that currently authorized for EHW A. The City agrees to
provide necessary access and rights of way across City property and easements for
constructing a new connection from the P A WTP to EHW A at no expense to NPS, if
determined necessary. NPS and the City agree and acknowledge that any obligations
created by this subsection are for the benefit of the City; they do not create any rights for
or obligations to EHW A; and the EHW A is not a third-party beneficiary of this transfer
agreement or any part of it. The City and NPS both expect to receive from EHW A a
mutually acceptable written settlement and release. NPS agreements stated above in this
paragraph as to EHW A are conditioned on the execution of a mutually acceptable written
settlement and release agreement. In the event EHW A is unwilling to grant a mutually
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acceptable written settlement and release, the City and NPS shall work together to
achieve a resolution that assures the City's right to maintain its 24 inch water line in its
current location.
Article VII.
NPS and City Reaffirm Their Commitment to the Proiect and Dam Removal
The parties confirm their commitment to the goals of EREFRA, and to cooperate
in restoration of the ecosystem and native fisheries of the Elwha River; including dam
removal, levee construction, impacts to Nippon Paper Industries, Elwha Heights Water
Association work, Lower Elwha Klallam Tribal fish hatchery, and other EREFRA project
works, and in the protection of the City's water supply.
ArticleVIII.
Standard Clauses
A. Incorporation. This writing incorporates all the agreements of the parties
regarding the terms of this agreement. It supersedes all prior agreements and negotiations
relating to the terms of this agreement. There are no agreements relating to the terms of
this agreement that are not included in this writing.
B. Notices. Any and all notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given (a) if delivered personally, when
received; (b) if sent by registered mail, return receipt requested, postage prepaid, on the
third day following the date of deposit in the mail, or (c) by facsimile transmission, with
confirmation of receipt, to the follow addresses or telecopier numbers (or to such other
address or telecopy number as may be specified by like notice):
If to NPS:
Olympic National Park
Elwha Restoration Project Office
826 E. Front Street, Suite A
Port Angeles, W A 98362-3613
ATTENTION: Elwha Project Manager
Telephone No.: 360/565-1320
Facsimile No.: 360/565-1325
If to the City:
City Manager
City of Port Angeles
321 East 5th Street - P.O. Box 1150
Port Angeles, W A 98362-0217
Telephone No.: 360-417-4500
Facsimile No.: 360-417-4509
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,
C. Headings. The headings of this Transfer Agreement are inserted for
convenience only, and shall not affect the meaning of any provision of this Agreement.
D. Dispute Resolution.
1. Each party to this Agreement is committed to cooperate with the
other in accomplishing the goals of the project.
2. In the event either party to this Agreement believes there is an
issue regarding the interpretation of, or compliance with, any
provision of this Agreement, that party shall provide written notice
of that issue to the other party. The parties will then meet within
tcn (10) days of the written notice in an effort to resolve the issue.
If resolution is not achieved, the parties will each choose a single
third party who will act as mediator. The parties shall choose the
third party mediator no later than ten (10) days from such date of
determination that resolution has not been achieved. The parties
will each designate an official with delegated authority to approve
a resolution of the issue, and that official will be present at, and
participate in, the mediation. Mediated settlements will be reduced
to writing, and each party will share equally in the cost of the third
party mediator. If resolution through non-binding mediation is still
not achieved, then the parties may use other legal remedies
available to resolve the dispute.
Article IX.
Anti-Deficiency Aet Clause
Nothing contained in this agreement shall be construed as binding the NPS to
expend in anyone fiscal year any sum in excess of appropriations made by Congress for
the purposes of this Agreement for that fiscal year, or other obligations for the further
expenditure of money in excess of such appropriations. 31 USC S 1341.
Article X.
Signatures and Representations
The City of Port Angeles agrees to the terms of this Transfer Agreement as
evidenced by the authorized signature below.
The National Park Service is authorized to sign this Transfer Agreement pursuant
to Secretarial Order No. 3212 and appropriate delegations of authority.
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u.s. DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
By:
TITL
DATE:
to-I-~
By:
~{~
CONTRACTING OFFICER
TITLE:
DATE:
(o!r; 600'51
CITY OF PORT ANGELES
JL~ ~,~-
TITLE~/\..M.-
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By:
DATE: I (!;)
.
ATTEST:
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BECKY 1. UPTON, CLERK
ApPROVED AS TO FORM:
~~ 2- 8L/_______-
WILLIAM E. BLOOR, CITY ATTORNEY
9/30/2008
G:\Legal_Backup\AGREEMENTS&CONTRACTS\2008 Agmts&Contracts\PA WTP Transfer Agreement.FINAL093008.doc
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