051-18 - Kitsap Conservation District - ContractINTERLOCAL AGREEMENT
2018-2023
Between the City of Port Orchard and the Kitsap Conservation District
Regarding Low Impact Development (LID) and Water Quality Improvement
PREAMBLE
This Interlocal Agreement (hereinafter "Agreement" or "ILA") is by and between the City of Port
Orchard (hereinafter "City") and the Kitsap Conservation District (hereinafter "District").
RECITALS
WHEREAS, the City is committed to preventing stormwater runoff pollution; and
WHEREAS, the City and the District have a common goal to promote Best Management
Practices to protect water quality, provide education to land owners on land use impacts, and
support the use of Low Impact Development practices; and
WHEREAS, the services proposed under this Agreement will promote improved water quality for
local waterways and the mitigation of pollution impacts on fish and wildlife, including shellfish;
and
WHEREAS, the District's contribution of services can assist the City in compliance with its NPDES
(National Pollutant Discharge Elimination System) Municipal Stormwater Permit in the areas
of runoff control, education/outreach, and stewardship, and with the Sinclair Inlet Fecal Coliform
Bacteria TMDL (Total Maximum Daily Load) objectives; and
WHEREAS, the Agreement allows the District to provide services within the City; and
WHEREAS, a partnership between the City and the District supports resource pooling to provide
more benefits at a lower cost; and
WHEREAS, the District has the expertise and experience to aid property owners with land
management activities and impacts to water quality; and
WHEREAS, the City and the District desire to work collaboratively in providing information and
services to property owners that will protect water quality; and
WHEREAS, the City and the District desire to enter into an agreement that allows opportunities
for collaboration on City capital projects, which may include design, materials, and/or installation
services; and
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WHEREAS, the Interlocal Cooperation Act, RCW 39.34, further authorizes the parties hereto to
enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the City and the
District agree as follows:i
AGREEMENT
1. SERVICES BY DISTRICT
A. The type of work to be performed by the District on behalf of the City may include, but is not
limited to, one or more of the following: technical assistance to land owners regarding land
best management practices that protect water quality; services to property owners related
to the feasibility, design and/or construction of low impact development practices; and
provision of design, materials, and/or installation services for low impact development
practices for City capital projects.
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B. Whenever the City desires to obtain work from the District, the City shall provide a detailed
Scope of Work and make a request for said work to the District in writing. The District shall
provide a detailed budget and schedule to the City in writing. The City shall notify the
District, in writing, of its approval of the budget and schedule and indicate that the District
shall proceed with the work.
C. All services funded under this ILA shall be provided exclusively within the boundaries of
incorporated City of Port Orchard. The District shall furnish all services, labor and related
equipment to conduct and complete the work, except as specifically noted otherwise in this
Agreement or in a Scope of Work.
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2. PAYMENT
The City shall reimburse the District only for actual incurred costs upon presentation of a
properly executed invoice in a form approved by the City. Reimbursement requests shall be
submitted once a quarter. The City reserves the right to withhold payments pending timely
delivery of progress reports or documents as may be required under this Agreement.
The City shall reimburse the District within sixty (60) days of receipt of a properly executed
District invoice.
3. GENERAL ADMINISTRATION AND MANAGEMENT
A. No separate legal entity is formed by this Agreement. The City Engineer, or designee,
shall be the City's representative and shall oversee and approve all services to be
performed, coordinate all communications, and review and approve all invoices under
this Agreement.
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B. The Chair of the Board of Supervisors for the Kitsap Conservation District, or his/her
designee, shall represent the District in all matters pertaining to the services and
materials to be rendered under this Agreement; all requirements of the City pertaining
to the services or materials to be rendered under this Agreement shall be coordinated
through the District's representative.
4. REPORTING
A. When applicable, and as defined in any Scope of Work, the District shall produce
quarterly and year-end reports summarizing the work performed and evaluating the
performance and results of the work performed pertaining to this Agreement. The
report frequency and content shall be described in the Scope of Work.
B. In general, reports may be required quarterly, annually, at project end, or at other
specified intervals or milestones and may require, but not be limited to, the following
information:
Status of the work plan.
A description of work performed during the period and progress made to date,
including performance indicators that reflect effectiveness of any program
elements set forth in the Scope of Work.
Description of any adverse conditions that have affected the program objectives
and/or time scheduled, and actions taken to resolve these issues.
Supporting documentation, which may include, but not be limited to, graphics or
other information which enhances the usefulness of the report.
a.
b.
c.
d.
5. INSPECTION AND AUDIT
The District shall maintain all books, records, documents, and other evidence pertaining
to the costs and expenses allowable under this Agreement in accordance with generally
accepted accounting practices. All such books and records required to be maintained by
this Agreement shall be subject to inspection and audit by representatives of the City
and/or the Washington State Auditor at all reasonable times, and the District shall afford
the proper facilities for such inspection and audit. Representatives of the City and/or the
Washington State Auditor may copy such books, accounts, and records where necessary
to conduct or document an audit. The District shall preserve and make available all such
books of account and records for a period of five (5) years after final payment under this
Agreement. If any audit or inspection identifies any discrepancy in such financial records,
the District shall provide the City with appropriate clarification and/or financial
adjustments within thirty (30) calendar days of notification of the discrepancy.
6. INDEPENDENT CONTRACTOR
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The District and the City understand and expressly agree that the District is an
independent contractor in the performance of each part of this Agreement. The
District expressly represents, warrants, and agrees that its status as an independent
contractor in the performance of the work and services required under this Agreement
is consistent with and meets the six-part independent contractor test set forth in RCW
51.08.195. The District, as an independent contractor, assumes the entire
responsibility for carrying out and accomplishing the services required under this
Agreement. The District shall make no claim of City employment nor shall claim any
related employment benefits, social security, and/or retirement benefits.
A.
The District shall be solely responsible for paying all taxes, deductions, and assessments,
including but not limited to federal income tax, FICA, social security tax,
assessments for unemployment and industrial injury, and other deductions from
income which may be required by law or assessed against either party as a result of
this Agreement. In the event the City is assessed a tax or assessment as a result of
this Agreement, the District shall pay the same before it becomes due.
B.
The City may, during the term of this Agreement, engage other independent
contractors to perform the same or similar work that the District performs hereunder.
C.
7. DISCRIMINATION AND COMPLIANCE WITH LAWS
The District agrees not to discriminate against any employee or applicant for
employment or any other person in the performance of this Agreement because of
race, creed, color, national origin, marital status, sex, sexual orientation, age, disability,
or other circumstance prohibited by federal, state, or local law or ordinance, except for
a bona fide occupational qualification.
A.
The District shall comply with all federal, state, and local laws and ordinances applicable
to the work to be done under this Agreement.
B.
Violation of this Section 7 shall be a material breach of this Agreement and grounds
for cancellation, termination, or suspension by the City, in whole or in part, and
may result in ineligibility for further work for the City.
C.
8. TERM AND TERMINATION OF AGREEMENT
A. This Agreement shall become effective upon execution by both parties and shall
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continue in full force until December 31, 2023, unless sooner terminated by either
party as provided below.
B. This Agreement may be terminated by either party without cause upon thirty (30) days
written notice to the other party. In the event of termination, all finished or unfinished
documents, reports, or other material or work of the District pursuant to this
Agreement shall be submitted to the City, and the District shall be entitled to just and
equitable compensation as set forth in Section 2 for any satisfactory work/services
completed prior to the date of termination.
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9. HOLD HARMLESS AND INDEMNIFICATION
I A. The District agrees to protect, defend, indemnify, and hold harmless the City, its elected
officials, officers, employees, and agents from any and all claims, demands, losses, liens,
liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards,
costs and expenses (including reasonable attorneys' fees and disbursements) caused
by or occurring by reason of any negligent act, error and/or omission of the District,
its officers, employees, and/or agents, arising out of or in connection with the
performance or non-performance of the services, duties, and obligations required of
the District under this Agreement.
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B. If the District and the City are both negligent, then the District's liability for
indemnification of the City shall be limited to the contributory negligence for any
resulting suits, actions, claims, liability, damages, judgments, costs, and expenses
(including reasonable attorneys' fees and disbursements) that can be apportioned to
the District, its officers, employees, and agents. Should a court of competent jurisdiction
determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability
for damages arising out of bodily injury to persons or property caused by or resulting
from the concurrent negligence of the District and the City of Port Orchard, its officers,
officials, employees, and volunteers, the District's liability, including the duty and cost to
defend, hereunder shall be only to the extent of the District's negligence. It is further
specifically and expressly understood that the indemnification provided herein
constitutes the District's waiver of immunity under the Industrial Insurance, Title 51 RCW,
solely for the purposes of this indemnification. This waiver has been mutually negotiated
by the parties. The provisions of this section shall survive the expiration or termination
of this Agreement.
C. The foregoing indemnity is specifically and expressly intended to constitute a waiver
of the immunity of the District under Washington's Industrial Insurance Act, RCW
Title 51, as respects the other parties only, and only to the extent necessary to provide
the indemnified party with a full and complete indemnity of claims made by the
employees of the District. The parties acknowledge that these provisions were
specifically negotiated and agreed upon by them.
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D. The City's inspection or acceptance of any of the District's work when completed shall
not be grounds to avoid any of these covenants of indemnification.
E. Nothing contained in this section of this Agreement shall be construed to create a
liability or a right of indemnification in any third party.
F. The provisions of this section shall survive the expiration or termination of this
Agreement with respect to any event occurring prior to such expiration or termination.
10. INSURANCE
The District shall maintain insurance for the duration of this Agreement as set forth in Exhibit
A, attached hereto and incorporated herein by this reference.
11. SUBLETTING OR ASSIGNING CONTRACT
The District shall not assign or subcontract any portion of the services provided within the
terms of this Agreement without obtaining prior written approval from the City. If such
prior written consent to an assignment is granted, then the assignee shall assume all
duties, obligations, and liabilities of the District as stated herein.
12. EXTENT OF AGREEMENT/MODIFICATION
This Agreement, together with Exhibits or addenda, represents the entire and integrated
Agreement between the parties and supersedes all prior negotiations, representations, or
agreements, either written or oral. This Agreement may be amended, modified, or added
to only by written instrument properly signed by both parties.
13. SEVERABILITY
If a court of competent jurisdiction holds any part, term, or provision of this Agreement
to be illegal or invalid, in whole or in part, the validity of the remaining provisions
shall not be affected, and the parties' rights and obligations shall be construed and
enforced as if the Agreement did not contain the provision held to be invalid.
A.
If any provision of this Agreement is in direct conflict with any statutory provision of the
State of Washington, that provision which may conflict shall be deemed inoperative and
null and void insofar as it may conflict and shall be deemed modified to conform
to such statutory provision.
14. FAIR MEANING
B.
The terms of this Agreement shall be given their fair meaning and shall not be construed in
favor of or against either party hereto because of authorship. This Agreement shall be
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deemed to have been drafted by both of the parties.
15. NON-WAIVER
A waiver by either party hereto of a breach by the other party hereto of any covenant
or condition of this Agreement shall not impair the right of the party not in default to avail
itself of any subsequent breach thereof. Leniency, delay, or failure of either party to insist
upon strict performance of any agreement, covenant, or condition of this Agreement, or to
exercise any right herein given in any one or more instances, shall not be construed as a
waiver or relinquishment of any such agreement, covenant, condition or right.
16. NOTICES
All notices required to be given by either party to the other under this Agreement shall be in
writing and shall be given in person or by regular postal mail to the representatives and
addresses set forth below. Notices may also be given by facsimile or email with the original
to follow by regular mail. Notice will be deemed to be given three days following the date of
mailing, or immediately if personally served. For service by facsimile or email, service will be
effective at the beginning of the next working day. Either party may change its representative
and/or address upon providing written notice to the other party.
City of Port Orchard
216 Prospect St.
Port Orchard, WA 98366
Kitsap Conservation District
10332 Central Valley Road
Port Orchard, WA 98370
Attention: Albert Allpress, Chair, Board Attention: Mark R. Dorsey, P.E., Public
of Supervisors Works Director/City Engineer
Phone: (360)204-5529
Fax: (360) 204-5519
Phone: (360)876-4991
Fax: (360) 876-4980
17. SURVIVAL
Any provision of this Agreement which imposes an obligation after termination or expiration
of this Agreement shall survive the term or expiration of this Agreement and shall be binding
on the parties to this Agreement.
18. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the
State of Washington.
19. VENUE
The venue for any action to enforce or interpret this Agreement shall lie in the Superior
Court of Washington for Kitsap County, Washington.
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20. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same Agreement.
21. ADDITIONAL PROVISIONS
A. Ownership and Disposition of Property. Any written materials provided by the District
to the City pursuant to this Agreement shall become and remain the exclusive property
of the City upon delivery.
B. Filing. In accordance with RCW 39.34.040, this Agreement will be filed with the Kitsap
County Auditor's Office or listed by subject on a public agency's website or other
electronically retrievable public source.
C. No Third Party Rights. This Agreement is intended for the sole and exclusive benefit of
the parties hereto and no third-party rights are created by this Agreement.
aEXECUTED THIS DAY OF June, 2018.
KITSAP CONSERVATION DISTRICT CITY OF PORT ORCHARD
£L CjPIp^
Albert Allpress '
Chair, Board of Supervisors KCD
Robert Putaansuu
Mayor, City of Port Orchard
CITY ATTORNEY CITY CLERK
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Branay Rinearson, MMC
City Clerk, Port Orchard
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City Attorney, Port Orchard
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Exhibit A.
Professional Services Agreement Indemnification and Insurance Requirements
INSURANCE
The District shall procure and maintain for the duration of the Agreement, insurance against
claims for injuries to persons or damage to property which may arise from or in connection with
the performance of the work hereunder by the District, its agents, representatives, or employees.
NO LIMITATION
District’s maintenance of insurance as required by the agreement shall not be construed to limit
the liability of the District to the coverage provided by such insurance, or otherwise limit the City
of Port Orchard’s recourse to any remedy available at law or in equity.
MINIMUM SCOPE OF INSURANCE
District shall obtain at no cost to the city and maintain said insurance in force for the duration of
this agreement, insurance of the types described below:
1. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles.
Coverage shall be written on Insurance Services Office (ISO) form CA 00 01, or a substitute
form providing equivalent liability coverage. If necessary, the policy shall be endorsed to
provide contractual liability coverage.
2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00
01, or a substitute form providing equivalent liability coverage and shall cover liability arising
from premises, operations, independent contractors and personal injury and advertising injury.
The City shall be named by endorsement as an additional insured under the District’s
Commercial General Liability insurance policy with respect to the work performed for the
City of Port Orchard.
3. Workers’ Compensation coverage as required by the Industrial Insurance laws of the State
of Washington.
4. Professional Liability insurance appropriate to the Professional’s profession.
MINIMUM AMOUNTS OF INSURANCE
District shall maintain the following insurance limits:
1. Automobile Liability insurance with a minimum combined single limit for
bodily injury and property damage of $1,000,000 per accident.
2. Commercial General Liability insurance shall be written with limits no less
than $1,000,000 each occurrence, $2,000,000 general aggregate.
3. Employer’s Liability each accident $1,000,000, Employer’s Liability Disease-each
employee $1,000,000, and Employer’s Liability Disease - Policy Limit $1,000,000.
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4. Professional Liability insurance shall be written with limits no less than $1,000,000 per
claim.
OTHER INSURANCE PROVISIONS
The insurance policies are to contain, or be endorsed to contain, the following provisions for
Automobile Liability, Professional Liability and Commercial General Liability insurance:
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1. The District’s insurance coverage shall be primary insurance as respect the City of Port
Orchard. Any insurance, self-insurance, or insurance pool coverage maintained by the City
of Port Orchard shall be excess of the District’s insurance and shall not contribute with it.
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i 2. The City of Port Orchard will not waive its right to subrogation against the District. The
District’s insurance shall be endorsed to waive the right of subrogation against the City of
Port Orchard, or any self-insurance, or insurance pool coverage maintained by the City of
Port Orchard.I
3. The District’s insurance shall be endorsed to state that coverage shall not be cancelled by
either party, except after thirty (30) days prior written notice by certified mail, return receipt
requested, has been given to the City of Port Orchard.!
4. If any coverage is written on a “claims made” basis, then a minimum of a three (3) year
extended reporting period shall be included with the claims made policy, and proof of this
extended reporting period provided to the City of Port Orchard.
ACCEPTABILITY OF INSURERS
Insurance is to be placed with insurers with a current A.M. Best rating of not less than A: VII,
licensed to conduct business in the State of Washington.
VERIFICATION OF COVERAGE
District shall furnish the City of Port Orchard with original certificates and a copy of the
amendatory endorsements, including but not necessarily limited to the additional insured
endorsement, evidencing the insurance requirements of the District before commencement of the
work.
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