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HomeMy WebLinkAbout5.978 Original ContractTHIS AGREEMENT is made and entered into by and between the DEPARTMENT OF ECOLOGY, hereinafter referred to as "ECOLOGY" and the CITY OF PORT ANGELES hereinafter referred to as the "CITY." IT IS THE PURPOSE OF THIS AGREEMENT for the CITY to pursue actions associated with preparing and planning for completion of its Combined Sewer Overflow (CSO) project, which will need to be integrated into the cleanup, reuse and redevelopment of the Port Angeles Rayonier Mill Site. The City will also pursue actions associated with preparing and planning for the cleanup, reuse and redevelopment of the larger Port Angeles harbor located in Port Angeles, Washington. The funds provided by Ecology under this Agreement shall be used for the activities described below and in Attachment A in order to carry out the purposes of the Model Toxics Control Act, Chapter 70.105D RCW (MTCA), including but not limited to ensuring a healthful environment, protecting water resources, and integrating land use, and reuse of industrial properties, with cleanup in and around Port Angeles Harbor. STATEMENT OF WORK The CITY shall furnish the necessary personnel, equipment, material and /or service(s) and otherwise do all things necessary for or incidental to the performance of the work set forth in Attachment "A" attached hereto and incorporated herein. PERIOD OF PERFORMANCE Subject to its other provisions, the period of performance of this Agreement shall commence on August 1, 2009, and be completed on January 1, 2011, unless terminated sooner as provided herein PAYMENT RECEIVED sAP Z82009 DEPT OF ECOLOGY Toxice Cleanup Program INTERAGENCY AGREEMENT BETWEEN THE STATE OF WASHINGTON AND THE CITY OF PORT ANGELES THEREFORE, IT IS MUTUALLY AGREED THAT IAA No. C1000131 Compensation for the work provided in accordance with this Agreement has been established under the terms of RCW 39.34.130. The parties have determined that the cost of accomplishing the work herein will not exceed $230,000. Payment for satisfactory performance of the work shall not exceed this amount unless the parties mutually agree to a higher amount. BILLING PROCEDURE The CITY shall submit properly completed invoices and Progress Reports monthly to Katherine Scott , Contracts and Grants Officer for the Toxics Cleanup Program and copies of the invoices and reports to Rebecca Lawson, Project Manager The Progress Reports will summarize work to date for each of the 8 tasks outlined in Appendix A. Payment to the CITY for approved and completed work will be made by warrant or account transfer by ECOLOGY within 30 days of receipt of the 1 invoice. Upon expiration of the Agreement, any claim for payment not already made shall be submitted within 30 days after the expiration date or the end of the fiscal year, whichever is earlier. RECORDS MAINTENANCE The parties to this Agreement shall each maintain books, records, documents and other evidence that sufficiently and properly reflect all direct and indirect costs expended by either party in the performance of the service(s) described herein. These records shall be subject to inspection, review or audit by personnel of both parties, other personnel duly authorized by either party, the Office of the State Auditor, and federal officials so authorized by law. All books, records, documents, and other material relevant to this Agreement will be retained for six years after expiration and the Office of the State Auditor, federal auditors, and any persons duly authorized by the parties shall have full access and the right to examine any of these materials during this period. Records and other documents, in any medium, furnished by one party to this agreement to the other party, will remain the property of the furnishing party, unless otherwise agreed. The receiving party will not disclose or make available this material to any third parties without first giving notice to the furnishing party and giving it a reasonable opportunity to respond. Each party will utilize reasonable security procedures and protections to assure that records and documents provided by the other party are not erroneously disclosed to third parties. RIGHTS IN DATA Unless otherwise provided, data which originates from this Agreement shall be "works for hire" as defined by the U.S. Copyright Act of 1976 and shall be owned by ECOLOGY. Data shall include, but not be limited to, reports, documents, pamphlets, advertisements, books magazines, surveys, studies, computer programs, films, tapes, and /or sound reproductions. Ownership includes the right to copyright, patent, register, and the ability to transfer these rights. INDEPENDENT CAPACITY The employees or agents of each party who are engaged in the performance of this Agreement shall continue to be employees or agents of that party and shall not be considered for any purpose to be employees or agents of the other party. AGREEMENT ALTERATIONS AND AMENDMENTS This Agreement may be amended by mutual agreement of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties. TERMINATION Either party may terminate this Agreement upon 30 days' prior written notification to the other party. Additionally, this Agreement shall automatically terminate if the City acquires a property interest in the Port Angeles Rayonier Mill Site. This agreement shall likewise automatically terminate if Ecology or a court determines that the City is a potentially liable person (Ecology's determination), or a liable person (court's determination) for any MTCA cleanup site located within which the City is conducting work pursuant to this agreement, including but not limited to the Port Angeles Rayonier Mill Site. If this Agreement is so terminated, the parties shall be liable only for performance rendered or costs incurred in accordance with the terms of this Agreement prior to the effective date of termination. TERMINATION FOR CAUSE If for any cause, either party does not fulfill in a timely and proper manner its obligations under this Agreement, or if either party violates any of these terms and conditions, the aggrieved party will give the other party written notice of such failure or violation The responsible party will be given the 2 opportunity to correct the violation or failure within 15 working days. If failure or violation is not corrected, this Agreement may be terminated immediately by written notice of the aggrieved party to the other. DISPUTES In the event that a dispute arises under this Agreement, it shall be determined by a Dispute Board in the following manner: Each party to this Agreement shall appoint one member to the Dispute Board. The members so appointed shall jointly appoint an additional member to the Dispute Board. The Dispute Board shall review the facts, agreement terms and applicable statutes and rules and make a determination of the dispute The determination of the Dispute Board shall be final and binding on the parties hereto. As an alternative to this process, either of the parties may request intervention by the Governor, as provided by RCW 43.17.330, in which event the Governor's process will control. GOVERNANCE This Agreement is entered into pursuant to and under the authority granted by the laws of the state of Washington and any applicable federal laws. The provisions of this Agreement shall be construed to conform to those laws. In the event of an inconsistency in the terms of this Agreement, or between its terms and any applicable statute or rule, the inconsistency shall be resolved by giving precedence in the following order: a. Applicable state and federal statutes and rules; b. Statement of work; and c. Any other provisions of the agreement, including materials incorporated by reference. ASSIGNMENT The work to be provided under this Agreement, and any claim arising thereunder, is not assignable or delegable by either party in whole or in part, without the express prior written consent of the other party, which consent shall not be unreasonably withheld. WAIVER A failure by either party to exercise its rights under this Agreement shall not preclude that party from subsequent exercise of such rights and shall not constitute a waiver of any other rights under this Agreement unless stated to be such in a writing signed by an authorized representative of the party and attached to the original Agreement. SEVERABILITY If any provision of this Agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Agreement which can be given effect without the invalid provision, if such remainder conforms to the requirements of applicable law and the fundamental purpose of this agreement, and to this end the provisions of this Agreement are declared to be severable. ALL WRITINGS CONTAINED HEREIN This Agreement contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto. AGREEMENT MANAGEMENT The project manager for each of the parties shall be responsible for and shall be the contact person for all communications and billings regarding the performance of this Agreement. The Project Manager for ECOLOGY is: Rebecca S. Lawson, PE, LHG Toxics Cleanup Program Southwest Regional Office Department of Ecology PO Box 47600 Olympia, WA 98504 -7600 Telephone: (360) 407 -6241 E -Mail: rlaw461@ecy.wa.gov The Project Manager for the CITY is: IN WITNESS WHEREOF, the parties have executed this Agreement. State of Washington City of Port Angeles Department of Ecology 7 v1iky 2AAm. Polly Zehm () (J Deputy Direc or Department of Ecology APPROVED AS TO FORM: ATTORNEY GENERAL'S OFFICE Nathan West City of Port Angeles 321 East Fifth Street P.O. Box 1150 Port Angeles, WA 98362 -0217 Telephone. (360) 417 -4500 E -Mail: citymanager @cityofpa.us O /t' 0 5 ���a�'') 9.4...r.„./0 p Date /Kent Meyers Date City Manag r City of Port eles 4 Statement of Work Attachment A ECOLOGY will provide the City of Port Angeles (City) up to $230,000 to complete certain specified work and planning described specifically below. Tasks 1- 4 are specific to the City's Combined Sewer Overflow project and Tasks 5 - 8 are specific to the City's Port Angeles Harbor planning work The activities described below will carry out the purposes of the Model Toxics Control Act, Chapter 70.105D RCW (MTCA), including but not limited to ensuring a healthful environment, protecting water resources, integrating land use, and reuse of industrial properties, with cleanup in and around Port Angeles Harbor. Reimbursement Following Project Manager review and approval, funds for each task shall be reimbursed to the City upon submittal of properly completed invoices, A19 -1A, and Progress Reports. The City may not reimburse agreement funds to anyone who Ecology has named as potentially liable, nor anyone who a court has found to be a liable person, for any MTCA cleanup sites located within the area within which the City or its agents or contractors will be working. The City shall also have the ability, to the extent conferred by law, to contract with third parties to complete the work under this Agreement, provided that the City's ability to transfer funds and to contract with third parties for work does not constitute an assignment of this Agreement, and the City remains responsible to Ecology for ensuring its overall compliance with this Agreement. The City also remains responsible for ensuring compliance with all applicable laws in carrying out this Agreement, including but not limited to laws governing public contracts and interlocal agreements. In entering into this Agreement, Ecology and the City do not intend to create any third party beneficiaries. The City shall use the funds provided under Tasks 1 -4 towards compliance with Ecology's Agreed Order No. 3853. However, availability of Ecology funding, or lack thereof, shall in no way affect or modify the City's obligations under Agreed Order 3853. TASKS 1. Combined Sewer Overflow Project Intearation: $75,000 The City will continue efforts to integrate its design of the Combined Sewer Overflow (CSO) Project with redevelopment of property in Port Angeles currently owned by Rayonier Properties, LLC., a wholly owned subsidiary of Rayonier, Inc. This property comprises a portion of the Port Angeles Rayonier Mill Site (Site) where Ecology is formally overseeing cleanup pursuant to MTCA. Based on Ecology Agreed Order 3853, the City has until January 31, 2011, to complete construction of CSO Phase 1. The City is still in the design process. Plans will be developed to ensure the CSO project does not negatively impact the alternatives for cleanup and the future 5 redevelopment potential of the Site. It is important to note that the Lower Elwha Klallam Tribe (LEKT) was consulted early in the design process for review of alternative CSO project routes. Additional, consultation with the LEKT will continue to take place assessing impacts of the final design and ensuring protection of cultural resources on site specific the CSO project. Within thirty days of execution of this Agreement, the City shall submit to Ecology a proposed timeline of deliverables associated with Tasks 1-4 for Ecology's review and approval. 2. Prooertv Aareeement: $5.000 The City intends to secure a long term agreement to facilitate its CSO project. The City intends to negotiate with Rayonier in conjunction with Port Angeles Harbor -Works Development Authority for securing transfer of the relevant property and easements for the City's CSO project and other necessary infrastructure on the Rayonier Mill property. A summary of this work will be provided to Ecology. 3. Contamination and Cultural Resource Evaluation for CSO Proiect: $30.000 The City is aware that the Site is currently being investigated with regard to contamination resulting from previous industrial land use. MTCA and its implementing regulations (Chapter 173- 340 WAC) govern the remediation of contaminated sites in Washington State. To better understand the implications of upland Site contamination associated with the City's CSO project, the City will need to evaluate the impact of any contamination on the design of the CSO project. The nature and extent of contamination in the area associated with the CSO design needs to be determined. The development of a comprehensive understanding of environmental contamination issues associated with CSO implementation is a critical step in proceeding with infrastructure development on the property. This will necessitate analysis of all available and relevant existing environmental assessments Additional sampling and analysis in the CSO project area may be necessary. All remedial work (such as sampling and analysis) shall be performed in accordance with all applicable laws, including but not limited to MTCA and its implementing regulations. The City recognizes that it is conducting this work independently, without Ecology's oversight, and at its own risk All plans that involve ground disturbance (sampling and analysis plans, soil management plans, etc.) shall be submitted to Ecology for review and comment prior to implementation. The City is also aware that the property contains a state registered archaeological site and the potential risk of encountering cultural resources during implementation of the CSO project needs to be assessed. The City will coordinate with the Department of Archaeology and Historical Preservation (DAHP) In addition to a cultural resource review, the City Archaeologist will monitor all work on site. Additionally, the City will employ monitors from the Lower Elwha Klallam Tribe (Tribe) to be present for all ground disturbing activities on site. The City shall provide Ecology with a plan that fully addresses cultural resources associated with its CSO project, and provide confirmation that DAHP and the Tribe are in agreement with the plan. A summary of this work will be provided to Ecology. 4. Potential Plans for Ennis Creek Restoration: $5.000 In order to coordinate CSO plans with restoration plans, the Tribe will be consulted on the development of potential plans for Ennis Creek Restoration and bridges over Ennis Creek The potential plans will evaluate the options to ensure that a ecologically functioning estuary is restored and the creation of a riparian corridor that protects and enhances Ennis Creek throughout the Rayonier property is maintained in conjunction with infrastructure improvements. The plan will need to be compatible with all reasonable cleanup alternatives at the Site. A summary of this work will be provided to Ecology. 6 5. Harbor Implementation Plan /Shoreline Master Program: $100.000 The Community has been engaged in the process to date and it has been made clear that this phase (phase II) will address the needs and vision of the overall harbor. This is a combined effort that merges a harbor cleanup and redevelopment plan (Harbor Implementation Plan) with the City's Shoreline Master Program Combining these efforts is an approach that the City feels is important in establishing community faith in the process. The simultaneous visioning and community involvement will avoid duplicate efforts and redundant polling of the community. This work will include the following: Define Process /Scone Develop an integrated approach to harbor planning that combines a harbor plan with the Shoreline Master Program Update process Details of the process tasks and timeline will be identified. Review of Issues and Problems /Backaround Data A complete review of problems and issues related to the existing shoreline master program and 1989 Harbor Management Plan will be conducted. This will also be the opportunity to gather relevant background data related to the Port Angeles Harbor and shoreline. It will likely consist of a thorough shoreline inventory and mapping process. • Stakeholder Engage stakeholders to participate in the review of existing documents and participation in the development of draft documents and public visioning. • Public Visionina Conduct public open house and visioning opportunities where the community has the ability to provide input and priorities for future harbor development. • Draft Vision Write a vision statement based on stakeholder and public input. This statement will guide the development of the new harbor plan. A copy of this report will be provided to Ecology. • Draft Plan Draft the new Shoreline Master Program and Harbor Implementation Plan Incorporate changes to the Shoreline Master Program that reflect community vision and rectify identified problem areas. Circulate for review and present to City Planning Commission and Council. • Final to Ecoloav Incorporate any changes and comments and draft the final Shoreline Master Program and Harbor Implementation Plan. Submit documents to Planning Commission for final public hearing and City Council for approval. Distribute to Ecology for final approval according to the appropriate regulations. Provide a copy of the final plan to the Ecology Project Manager. 6. Port Angeles Municipal Code: $7.500 The City has identified the need to change the Port Angeles Municipal Code to allow flexibility in the process of redeveloping existing brownfields sites. Considering the potential for varying levels of contamination on a site and the possibility that constraints may limit development under one specific zone, the City believes that a flexible planned unit development style zone can better accommodate redevelopment. This work will include the following: • Draft Code Chances Draft planned unit development style ordinance. • Third Party Review Provide draft to third party for professional review, scrutiny, and practical testing. • Approval and Adoption 7 A ' lneliaible Costs Present ordinance to Planning Commission and City Council for review and approval. A summary of this work will be provided to Ecology. 7. Comprehensive Plan: $5.000 In accordance with the State Growth Management Act, City decisions must be consistent with the Comprehensive Plan. The City has determined that the Comprehensive Plan must be revised to ensure that it supports the City's intended actions within the Harbor Planning process and the future development needs of the Port Angeles Rayonier Mill Site and other Model Toxics Control Act sites in and around the harbor. This work will include the following • Draft Comprehensive Plan Chanaes The City has determined that the Comprehensive Plan should be reviewed in association with the harbor planning efforts. New goals, policies, and objectives will be written to ensure that future needs of the Port Angeles Rayonier Mill Site redevelopment, Shoreline Master Program, and Harbor Implementation Plan are supported by the Comprehensive Plan. Underlying Comprehensive Plan Designations for land use will also be examined to ensure consistency. Approval and Adoption As part of the annual review of the Port Angeles Comprehensive Plan the City will present the drafted changes to the Planning Commission and City Council for review and approval. A summary of this work will be provided to Ecology. 8. Capital Facilities Plan Update: $2.500 Redevelopment of the Rayonier Site, and the Harbor Implementation Plan will have impacts to City Capital Facility needs. The City will determine if any required infrastructure changes including utilities and transportation need to be reflected in the City's Capital Facilities Plan. This work will include the following: • Draft Capital Facilities Plan Items Establish the need for specific infrastructure, transportation, and park/openspace related improvements. Identify specific items for implementation with descriptions and associated costs. • Approval and Adoption Present revised Capital Facilities Plan to Finance Committee and City Council for Approval. A summary of this work will be provided to Ecology. Legal fees of any kind shall be excluded from reimbursement under this Agreement. Ecology will not reimburse the City for tasks completed by anyone who has been named as potentially liable by Ecology, or as a liable person by a court, for any of the MTCA cleanup sites located in areas within which the City is working, including but not limited to those liable and potentially liable for the Port Angeles Rayonier Mill Site. 0. Ecology shall not fund any work which exceeds the scope of work identified in this Agreement. If the City is unsure whether a purchase, effort, or task element is agreement - eligible, check with Agreement Manager for clarification. Milestones: Within 30 days of the effective date of this Agreement, the City will provide Ecology a schedule for completing each of the 8 tasks outlined above. For each of the 8 tasks, the City will provide a summary report to Ecology in accordance with the schedule which describes the work completed pursuant to that task. October 9, 2009 Mr. Nathan West City of Port Angeles PO Box 1150 Port Angeles, WA 98362 -0217 RE: Interagency Agreement C1000131, Combined Sewer Overflow and Harbor Planning Efforts Dear Mr. West: Please find enclosed fully executed Interagency Agreement C1000131, Combined Sewer Overflow and Harbor Planning Efforts. This agreement provides $230,000 of State Toxics Control Account funds for important work. Ecology Invoice Voucher forms A19 -1A are also included. reimbursement requests. Please send original invoices to: If you have any questions or need additional information regarding your agreement, please call me at (360) 407 -7213. For technical assistance, please contact Rebecca Lawson at (360) 407- 6241. Sincerely, atherine Scott Toxic Cleanup Program KS: Enclosures cc: Rebecca Lawson STATE OF WASHINGTON DEPARTMENT OF ECOLOGY PO Box 47600 • Olympia, WA 98504 -7600 • 360- 407 -6000 TTY 711 or 800 - 833 -6388 (for the speech or hearing impaired) Katherine Scott Toxics Cleanup Program Department of Ecology PO Box 47600 Olympia, WA 98504 -7600 OCT 16 2009 CITY OF PORT ANGELES Dept. of Community Development Please use the A19 -1A form for all 0