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HomeMy WebLinkAboutCAG1987-024 - Original - Kennedy, Jenks, Chilton, Inc. - Kent-Highlands and Midway Landfills Closure Consulting - 11/30/1987 CONTRACT FOR CONSULTING SERVICES BETWEEN THE CITY OF KENT AND KENNEDY/JENKS/CHILTON, INC. ARTICLE 1 - RELATIONSHIP OF THE PARTIES AND GENERAL PROVISIONS 1 .1 The City of Kent, Washington, a municipal corporation, (hereinafter referred to as the "City"), seeks consulting and other services relating to the closure of the Kent-Highlands and Midway landfills located in the City of Kent from Kennedy/Jenks/Chilton, Inc. of 33301 Ninth Avenue South, Suite 100, Federal Way, Washington 98003 (hereinafter referred to as "K/J/C"), which shall perform the Scope of Work described herein. All work shall be done following consultation with the City Attorney and Directors of the Departments of Public Works and Planning. K/J/C is a California State corporation organized and operated under the laws of the State of California registered to do business in the State of Washington. K/J/C is defined, for purposes of this Agreement, to include its partners, officers, employees, agents and subcontractors. 1 .2 The parties to this Agreement recognize that K/J/C's services constitute consulting services only and are advisory to the City. The City and K/J/C, including its subcontractors, have played no part in the creation of any hazardous waste, pollution sources, nuisance, or chemical or industrial disposal problem which may otherwise exist and that K/J/C has been retained for the sole purpose of assisting the City in assessing the problems which may exist regarding cleanup plans for cleanup at Midway and Kent-Highlands landfills. It is recognized and agreed that K/J/C has assumed responsibility only for making investigations, reports and recommendations to the City as provided for in the scope of work. The responsibility for making any disclosures or reports to any third parties or agencies as regards to corrective, remedial , or mitigative action, shall be solely that of the City. 1 .3 The parties to this Agreement each bind themselves, their successors, executors, administrators, and assigns to this Consulting Agreement. 1 .4 All materials, workups, notes, data files, computer tapes, mylar original maps, film negatives, reports, calculations, analyses and any and all other data and information generated by K/J/C, including agents and subcontractors, under this Agreement shall be the property of the City. K/J/C may retain copies at their own cost for their own use throughout the period of this Agreement. Any computer data and files created by K/J/C under this Agreement also constitutes property of the City and shall be stored at K/J/C' s office in Federal Way, Washington and made available upon reasonable request by the City for the purpose of editing, modifying, and updating as necessary until such time as the City is capable of storing such information at the City. At the City's request, it shall be afforded any duplicate copies of the above-described information at reasonable cost to the City. The parties agree that the use of such materials by the City are intended to be site specific and relate solely to the Midway and Kent-Highlands landfills. In the event that the City shall use such materials for other sites, it shall defend, indemnify, and hold K/J/C harmless from such use. 1 .5 The City and K/J/C agree that in all matters relating to this Agreement, the City and K/J/C shall have no right, power or authority to create any obligation, expressed or implied, on behalf of each other, and shall have no authority to represent each other as agents. However, the City reserves the right to direct K/J/C to represent the interests of the City at meetings and interagency briefings in performing duties under the Scope of Work provisions below. K/J/C shall be consultant and advisor to the City and shall not be an employee of the City. ARTICLE 2 - CONTRACT PERIOD 2.1 It is the intent of the parties that the consultation services provided in this Agreement shall continue for the duration of the site closure and cleanup for the Midway and Kent-Highlands landfills in the City of Kent. Continued contractor services shall be reviewed by the City on an annual basis pursuant to the provisions of Section 3.3 below. This Agreement for consulting services between the City and K/J/C shall begin upon execution of this Agreement and expire on December 31, 2017 unless terminated or mutually extended by written agreement of the parties. - 2 - 2.2 The right is reserved by either party to terminate this Agreement at any time upon not less than sixty (60) days written notice. 2.3 In the event of the death or disability of any project team member, K/J/C shall complete the work as required under this Agreement. In the event this Consultation Agreement is terminated prior to completion during any permit year, original copies of K/J/C's reports, drawings, prints, plans, field notes, specifications and any and all other documents and recordings prepared by K/J/C pursuant to this Agreement shall be delivered to the City of Kent upon its written request. 2.4 In the event this Agreement is terminated prior to completion of work, a final payment shall be made to K/J/C. In the event of termination of the Agreement for any reason provided for under this Article, the City agrees to pay K/J/C upon receipt and approval by the City of all invoices for its services rendered and expenses incurred to the effective date of such termination within 30 days of receipt by the City of the invoices. This final payment, when added to all payments previously made, shall compensate K/J/C for all services rendered and incurred to the effective date of such termination. ARTICLE 3 - PAYMENT FOR SERVICES 3.1 For services furnished, the City shall pay K/J/C on receipt and approval of monthly invoices an amount equal to the actual hours of service furnished multiplied by the product of the consultant's established hourly billing rates which shall include all allowances for personal benefits, overhead, and professional fees adjusted annually as provided in Exhibit "A" which is incorporated herein by this reference. 3.2 The City shall reimburse K/J/C on a monthly basis for out-of-pocket expenses directly chargeable to the Scope of Work at a cost plus ten percent for services of special consultants and subcontractors approved by the City of Kent. Any additional expenses of K/J/C for computer and reproduction services shall be charged at then existing rates. Reimbursable expenses include actual expenses made by K/J/C specifically and directly result of the project and include transportation and living - 3 - expenses in connection with travel outside of the Puget Sound region authorized in advance by the City; postage and handling of drawings and specifications requested by the City; and any applicable state or local taxes imposed on services. 3.3 On the basis of the Scope of Work outlined and prioritized in Article 4 below, the maximum amount to be paid by the client under this Agreement for 1987 shall not exceed Fifty Thousand Dollars ($50,000) for the first twelve months without the prior written authorization of the City. K/J/C shall not be required to furnish services or incur expenses for which the total charges to the City exceed this maximum amount. The City reserves the right to direct K/J/C's compensated services under the priorities set forth in the Scope of Work provisions below before reaching the maximum amount identified above. 3.4 In the event that Scope of Work is modified or changed so that more or less work or time is required by K/J/C, and such modification is agreed to by the City and K/J/C, the payment for services and maximum contract amount shall be adjusted accordingly upon agreement of the parties. 3.5 If payments by the City are not made within thirty (30) days after the date of receipt of the invoice by the City of Kent, a service charge of 1 -1/2 percent (1 .5%) per month or the maximum rate permitted by law, whichever is less, shall be paid on any unpaid balance. 3.6 In the event of a dispute concerning the amount of payment required to be paid to K/J/C and upon notification by the City wherein the City has not approved any claimed reimbursable expenses, claimed basic services, or claimed additional services, a service charge of 1-1/2 percent (1.5%) per month as provided for in Article 3.5 above shall not be charged on any unpaid balance which is the subject of the dispute. 3.7 In the event of delays or failures of performance of K/J/C caused by circum- stances beyond its control as agreed to by the City, K/J/C's fee or maximum fee established under this Agreement and time allowed for performance shall be equitably adjusted, and such delays or failures shall not constitute a default or give rise to any claim against K/J/C. - 4 - 3.8 Records of reimbursable expenses and expenses pertaining to additional services and services provided pursuant to the Scope of Work provisions contained in Article 4 shall be kept on the basis of generally accepted accounting principles and shall be available in a timely manner to the City or the City's authorized representative at a mutually convenient time. ARTICLE 4 - PRIORITIZED SCOPE OF SERVICES 4. 1 Subject to paragraph 3.3 above, the City and K/J/C agree that K/J/C shall provide consulting and planning services to the City to assess adequacy of closure and cleanup activities at the Midway and Kent-Highlands landfills in the priority as follows: 4.1 .1 K/J/C shall review and assess the adequacy of City of Seattle closure plans for both landfills, including but not limited to surface water management plans, leachate and groundwater treatment systems, landfill gas systems, grade and fill operations, and cap construction and maintenance plans. 4.1 .2 K/J/C shall assist the City in reviewing applicable federal and state regulatory requirements affecting closure of both landfills and impact upon municipal interests including but not limited to the Resource Recovery Conservation Act (RCRA) , Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), including state implementing regulations, and Washington State Department of Ecology closure requirements for both landfills. 4.1 .3 K/J/C shall review and assess short and long-term impacts to municipal services, transportation, utilities, planning, and regulation and other applicable City services. Such review will include an examination of affected municipal and private projects, local improvement district projects, storm water and drainage utility plans, transportation corridor plans, comprehensive land-use plans and zoning requirements, emergency services, street and right-of-way use, environmental monitoring of cleanups, and coordination with - 5 - responsible agencies (e.g., Environmental Protection Agency, Washington State Department of Ecology, Seattle-King County Health Department) . 4.1 .4 K/J/C shall assist the City in evaluating existing conditional use permit requirements relating to the Kent-Highlands landfill, including assessment of possible private development of the Kent-Highlands Landfill area and City park. 4.1 .5 K/J/C shall represent the City of Kent at technical briefings and meetings with federal , state, and local agencies. 4.1.6 K/J/C shall attend public meetings conducted by The City of Seattle and other State and local agencies concerning site closure activities when requested by the City including presentation of the concerns of the City of Kent at such meetings. 4.1 .7 Upon request K/J/C shall meet with City staff and elected officials to ascertain concerns, and if requested, brief the City departments and/or elected officials regarding these projects. 4.1 .8 Upon request K/J/C shall provide consultation services advising the City on procedures, methods, requirements, and specifications for the replacement of the City's Maintenance Shops underground storage tanks located at 5821 S. 240th Street in Kent, Washington. 4.2 In performing this Scope of Work, K/J/C will use the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services. - 6 - ARTICLE 5 - CONTRACT REPRESENTATIVES 5.1 The following authorized representatives are hereby designated as contact persons for administration of this Consulting Agreement: K/J/C: Donald F. Graf, P.E. - Project Manager City: Donald E. Wickstrom, Director of Public Works Department or designate 5.2 Communications and contacts with the City or K/J/C which affect or relate to the contract terms and conditions shall be made only with the representatives named above. No changes, alterations, additions or deletions to this contract will be binding upon the City or K/J/C unless incorporated in a written modification to the contract and signed by both parties. The effort set forth in the Scope of Work shall be performed under the general direction of the City's representatives described above and in a manner consistent with accepted engineering practice. Any communications in the technical direction which shall affect the Scope of Work shall be submitted by K/J/C to the City in writing. When in K/J/C's opinion, any directive from the City constitutes a change to this Agreement, the City shall be notified immediately for authorization of any such change. K/J/C shall perform in accordance with this Agreement as written until such authorization for change is granted by the City's contractual representative. Any such additional services resulting from a change to the Contract Agreement shall be paid for by the City as provided for in this Agreement. ARTICLE 6 - APPLICABLE STATE LAW AND COMPLIANCE 6.1 This Contract shall be governed and construed in accordance with the laws of the State of Washington. Subject to the provisions of Para. 1 .2 above, K/J/C agrees to comply with all applicable provisions of any federal , state or local law or ordinance, including any orders, rules and regulations issued thereunder. - 7 - ARTICLE 7 - EQUAL OPPORTUNITY 7.1 K/J/C will not discriminate against any employee or applicant for employment because of age, race, color, marital status or the presence of any sensory, mental or physical handicap, sex, or national origin. ARTICLE 8 - CONSULTANT DUTIES 8.1 K/J/C shall carry insurance coverage in the amount of five hundred thousand dollars ($500,000.00) on maps, drawings, specifications, computer files and other valuable information against loss by fire, damage, destruction and theft, until all the work contemplated by this Agreement has been completed and given to the City. The cost of such full coverage shall be included in the basic fee as set forth in this Agreement. The City reserves the right to require an adjustment of this coverage amount following its determination that the status coverage is not adequate to protect the City's interests. 8.2 K/J/C agrees to defend, indemnify and hold harmless the City, its elected officials, appointed officials and employees, from and against any and all claims, demands, and causes of actions of any kind or character whatsoever, arising as a result of K/J/C employee or third party claims of alleged personal injuries (including various compensation claims) , death, or damage to their persons or property to the extent caused by negligent acts, errors, or omissions of K/J/C and/or its agents, subcontractors, employees, or representatives; provided that no duty to defend, indemnify and hold harmless shall arise by reason of the sole negligence of the City of Kent as determined by a trier of fact. The City agrees to defend, indemnify and hold harmless K/J/C, its partners, officers, employees and subcontractors from all claims, expenses and liability, following operation of applicable rights of contribution, to the extent caused by negligent acts, errors or omissions of the City and its employees, including any claims made by employees of the City. - 8 - 8.3 K/J/C shall maintain comprehensive general liability insurance covering the work to be performed under this Agreement with limits of at least five million dollars ($5,000,000) and professional liability insurance of one million dollars ($1 ,000,000). A certificate of insurance as evidence of coverage will be provided to the City. The City will be provided notification of any changes to the said certificate within fifteen (15) days of change. The City reserves the right to require additional coverage following its determination that the existing coverage is not adequate to protect the City's interests. The cost of such coverage shall be included in the basic fee. 8.4 K/J/C represents that the services furnished under this Agreement will be in accordance with generally accepted professional practices in effect at the time such services are performed. Estimates of cost of equipment, construction, ownership or operation furnished by K/J/C shall be K/J/C's opinion based upon its professional judgment and experience. K/J/C makes no other representation or warranty, express or implied. The K/J/C warrants that it has examined its professional service agreements and relationship with any person or entity potentially affected by or related to the Scope of Work provided to the City of Kent or circumstances which pose a real or possible conflict of interest. In the event of any real conflict, K/J/C warrants and represents that it shall resolve any such conflict in favor of the City by removing such conflict with the other person or entity to the satisfaction of the City of Kent. 8.5 Certified copies of insurance certificates providing for required coverage shall be submitted to the City Clerk simultaneous with execution of this Agreement. ARTICLE 9 - CONTRACT INTERPRETATION AND DISPUTES 9.1 In the event any dispute arises under this Agreement, the parties agree to submit to the jurisdiction of King County Superior Court. Attorney's fees an6 costs may be awarded by the court upon a finding that a party has substantially prevailed on the majority of disputed issues on matters before the court. - 9 - 9.2 Upon acceptance of this Agreement, the City and K/J/C agree that the provisions of this Contract including any and all documents incorporated by reference herein, including any written amendments, shall constitute the entire Agreement between the parties hereto, and shall supersede any and all prior oral and written agreements relating to the subject matter hereof. This Contract may not be modified or terminated verbally, and no modification or claimed waiver of any of the provisions hereof shall be binding unless made in writing and signed by the party against whom such modification or waiver is sought to be enforced. ARTICLE 10 - PUBLIC INFORMATION 10.1 K/J/C shall not issue any statements or other releases of information for public dissemination without the prior approval of the City of Kent. IN CONSIDERATION OF THE FOREGOING TERMS AND CONDITIONS, THE PARTIES HAVE ENTERED INTO THIS AGREEMENT EFFECTIVE THIS :o DAY OF NOVEMBER, 1987. CITY OF KENT KENNEDY, JENKS, CHILTON 220 Fourth Ave. S. 33701 9th Ave S. Kent, Washington 98032 Federal Way, Washington B By: y DAN LLEHER, MA OR Designate a ager ATTEST: CITY CLERK, MARIE JENSEN Approved as to form: SANDRA DRISCOLL, CITY ATTORNEY 3023L-12L - 10 -