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HomeMy WebLinkAbout2021-03-01 - Anchor QEA LLC - General Agreements / General Service AgreementsProfessional Services Agreement for SMP Update Anchor QEA, LLC Page 1 of 16 Professional Services Agreement with Anchor QEA, LLC for Review and Update of the Shoreline Master Program (“Agreement”) 1. Governing Law. The laws of the state of Washington govern how to interpret, construe, and enforce the Agreement. 2. Parties. The parties to this Agreement are the City of East Wenatchee (“City”) and Anchor QEA, LLC (“Contractor”), a limited liability company. The City and Contractor (together “Parties”) are located at the below addresses and are valid for any notice required under this Agreement: Contractor Anchor QEA, LLC John Small 23 S. Wenatchee Ave., Suite 220 Wenatchee, WA 98801 (206)903-3308 jsmall@anchorqea.com City of East Wenatchee Lori Barnett 271 9th St. NE East Wenatchee, WA 98802 (509) 884-5396 lbarnett@eastwentcheewa.gov 3. Term. The term of this Agreement begins on February 17, 2021 and continues until Contractor completes the Services described in Exhibit A, but no later than July 30, 2021. The parties may extend the term of this Agreement by mutual, written agreement. 4. Termination. 4.1. 30-day Notice. The City may terminate this Agreement, without or without cause, upon providing Contractor with a 30-day, written notice. 4.2. Immediate. The City may terminate this Agreement immediately if Contractor fails to maintain the required insurance policies, breaches confidentiality, or materially violates Section 12 of this Agreement. If the City immediately terminates this Agreement, Contractor will be ineligible for further agreements with the City. 4.3. Non-appropriation of funds. The current fiscal period is January 1, 2021 to December 31, 2021. If the East Wenatchee City Council does not appropriate sufficient funds for any future fiscal period: the City will not be obligated to pay for services or amounts incurred after the end of the current fiscal period; this Agreement will terminate after Contractor completes all remaining Exhibit A services for which funds are allocated, and the City will not incur any penalty or expense if this provision applies. Professional Services Agreement for SMP Update Anchor QEA, LLC Page 2 of 16 5. Contractor’s Services. Exhibit A is attached and incorporated into this Agreement. Contractor must perform Services specifically described in Exhibit A, under the direction of the Mayor or her designee, in a manner consistent with the accepted professional practices for other similar services within the North Central Washington region, to the City’s satisfaction, and within the time period prescribed in this Agreement. Acceptance of the Services are subject, at all times, to the City’s inspection and approval. Contractor must cooperate with and freely participate in any monitoring or evaluation activities conducted by the City that are pertinent to the intent of this Agreement. If the City fails to inspect or approve, however, Contractor must continue to perform services, notwithstanding the City’s knowledge of defective or non-complying performance, its substantiality, or the ease of its discovery. 6. Warranties. Contractor warrants that: 6.1. It has the requisite training, skills, and experience necessary to complete the Services. 6.2. It is accredited and licensed by all applicable agencies and government entities, including a City of East Wenatchee business license. 7. Compensation. 7.1. Amount. In return for Contractor performing the Services set forth in Section 5, the City will pay Contractor an amount not to exceed $14,000. 7.2. Rates. Exhibit B is attached and incorporated into this Agreement. The City will pay Contactor according to the rates set forth in Exhibit B. Contractor agrees that any rates set forth in Exhibit B will remain locked and are the negotiated rates for the Term of this Agreement. 7.3. Method. Contractor will submit a monthly invoice to the City in a form specified by the City. The monthly invoice must detail the services performed during the month, detail the number of hours spent performing such services, and detail any reimbursable costs and expenses incurred with performing such services. Contractor must also submit a final invoice upon completing all services. The City will pay only after Contractor has performed the services and within 30 days after the appropriate City representative has approved the invoice. 7.4. Disputed services. If the City believes in good faith that Contractor has not satisfactorily performed a service, the City may request that Contractor correct the service before the City pays for such service. In such event, the City must reasonably explain to Contractor its concerns over the service and the Professional Services Agreement for SMP Update Anchor QEA, LLC Page 3 of 16 remedy that the City expects from Contractor. The City may withhold from any payment otherwise due an amount that the City believes is under dispute. If Contractor does not provide a sufficient remedy, the City may retain the amount equal to the cost to the City for otherwise correcting or remedying the service not satisfactorily completed. 7.5. Taxes. Contractor is solely responsible to pay any tax imposed by any lawful jurisdiction on any compensation received under this Agreement. 7.6. Advance Payment Prohibited. The City does not accept requests for early payment, down payment, or partial payment. 8. Indemnification. 8.1. Contractor Indemnification. Contractor agrees to release, indemnify, defend, and hold the City, its elected officials, officers, employees, harmless from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties expenses, reasonable attorney’s fees, costs, and/or litigation expenses to the extent caused by the negligent acts, errors or omissions of Contractor in performance of this Agreement, except for that portion of the claims caused by the City's sole negligence. 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 damages to property caused by or resulting from the concurrent negligence of Contractor and the City, Contractor's liability, including the duty and cost to defend, hereunder is only to the extent of Contractor's negligence. Contractor must require that each sub-contractor agrees to indemnify the City, its elected officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers to the extent and on the same terms and conditions as Contractor pursuant to this paragraph. The City's inspection or acceptance of any of Contractor’s work when completed is grounds to avoid any of these covenants of indemnification. 8.2. Industrial Insurance Act Waiver. Contractor specifically and expressly waives any immunity that may be granted to it under the Washington State industrial insurance act, Title 51 RCW, solely for the purposes of this indemnification. Contractor's indemnification is not be limited in any way by any limitation on the amount of damages, compensation or benefits payable to or by any third party under workers' compensation acts, disability benefit acts or any other benefits acts or programs. The Parties acknowledge that they have mutually negotiated this waiver. Professional Services Agreement for SMP Update Anchor QEA, LLC Page 4 of 16 8.3. Intellectual Property. Contractor releases and will defend, indemnify and hold harmless the City from and against all claims, cost, liabilities, damages, expenses (including but not limited to reasonable attorney fees) and royalties based upon any actual or alleged infringement or misappropriate of any patent, copyright, trade secret, trademark, or other intellectual property right by any work. Further, if any work infringes or misappropriates any patent, copyright, trade secret, trademark or other intellectual property right, Contractor must either (a) procure for the City the right to use such work; or (b) modify work so that it no longer infringes or misappropriates any such right. 8.4. Copyrights and use of Materials. Contractor hereby assigns to the City all right, title, and interest, including, but not limited to, copyright and all copyright rights, in all Materials created by Contractor in its performance under this Agreement and/or delivered to the City hereunder and must execute any documents necessary to effectuate such assignment. If Contractor uses any individual who is not a full-time employee of Contractor or entity to perform any work required of it pursuant to this Agreement, Contractor must require said individual or entity to sign an agreement containing identical wording as the foregoing with the exception that word “Contractor” is to be replaced with the individual’s or entity’s name. Materials constitute all written and other tangible expressions, including, but not limited to, drawings, documents, reports, surveys, renderings, exhibits, models, prints, photographs, etc. All Materials furnished by the Contractor hereunder are the property of the City. If either party terminates this Agreement for any reason, the City has the right to receive, and Contractor must promptly provide to the City, all drawings, documents, reports, surveys, renderings, exhibits, models, prints, photographs, and other materials prepared by the City for the Services. In the event of termination, and notwithstanding any dispute regarding the amount to be paid under this Agreement, the City retains the right to receive and use any such documents or materials. Materials are not intended or represented to be suitable for reuse or modification by City or others for purposes other than those stated in Contractor’s scope of work. Any reuse or modification without written verification or adaptation by Contractor for the specific purpose intended will be at City’s sole risk and without liability or legal exposure to Contractor. 8.5. City Indemnification. The City agrees to release, indemnify, and hold Contractor harmless from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, losses, fines, fees, penalties expenses, attorney’s fees, costs, and/or litigation expenses to or by any and all persons or entities, including without limitation, their respective agents, licensees, or representatives, arising from, resulting from or connected with this Agreement to the extent solely caused by the negligent acts, errors, or omissions of the City. Professional Services Agreement for SMP Update Anchor QEA, LLC Page 5 of 16 8.6. Survival. Each provision of Section 8 survives the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 9. Insurance. Contractor must carry insurance for liability which may arise from or in connection with the performance of the Services or work by Contractor, employees for the duration of the Agreement and thereafter with respect to any event occurring prior to such expiration or termination as follows: 9.1. Minimum Limits. Contractor agrees to carry as a minimum, the following insurance, in such forms and with such carriers who have a rating that is satisfactory to the City: 9.1.1. Commercial general liability insurance covering liability arising from premises, operations, independent contractors, products-completed operations, stop gap liability, personal injury, bodily injury, death, property damage, products liability, advertising injury, and liability assumed under an insured contract with limits no less than $1,000,000 for each occurrence and $1,000,000 general aggregate. 9.1.2. Workers' compensation and employer's liability insurance in amounts sufficient pursuant to the laws of the State of Washington. 9.1.3. Automobile liability insurance covering all owned, non-owned, hired and leased vehicles with a minimum-combined-single limits in the minimum amounts required to drive under Washington State law per accident for bodily injury, including personal injury or death, and property damage. 9.1.4. Professional liability insurance with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate for damages sustained by reason of or in the course of operation under this Agreement occurring by reason of negligent acts, errors or omissions of Contractor. 9.2. No Limit of Liability. Contractor’s maintenance of insurance as required by the agreement does not limit the liability of Contractor to the coverage provided by such insurance, or otherwise limit the City’s recourse to any remedy available at law or in equity. Contractor’s insurance coverage is the primary insurance as respect the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City is in excess of Contractor’s insurance and does not contribute with it. 9.3. Additional Insured, Verification. The City must be named as additional insured on all commercial general liability insurance policies. Concurrent with the execution of this Agreement, Contractor must provide Professional Services Agreement for SMP Update Anchor QEA, LLC Page 6 of 16 certificates of insurance for all commercial general liability policies attached hereto as Exhibit C and incorporated by this reference. At the City's request, Contractor must furnish the City with copies of all insurance policies and with evidence of payment of premiums or fees of such policies. If Contractor's insurance policies are "claims made," Contractor is required to maintain tail coverage for a minimum period of three years from the date this Agreement is actually terminated or upon project completion and acceptance by the City. 9.4. Survival. Each provision of Section 9 survives the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 10. Independent Contractor. Contractor is an independent contractor. No employee relationship with the City and Contractor, its agents, employees, subcontractors is implied or created through this Agreement or performance of the Services. Contractor is responsible for the performance of any work performed by its subcontractors and agents as if it had performed the work itself. 10.1. Control. Contractor has the ability to control and direct the performance and details of its work. 10.2. Benefits. The City is neither liable, nor obligated to pay Contractor, Contractor’s employees, or Contractor’s agents sick leave, vacation pay, or holiday pay. The City is neither liable, nor obligated to pay Contractor, Contractor’s employees, or Contractor’s agents any social security or other tax or any other benefit of employment which may arise as an incident of employment. 10.3. Safety. Contractor must take all necessary precautions and is responsible for the safety of its employees, agents, and subcontractors in the performance of the contract work and must utilize all protection necessary for that purpose. All work is done at Contractor’s own risk, and Contractor is responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. 10.4. Taxes. Contractor must pay all income and other taxes due except as specifically set forth in this Agreement. 10.5. Insurance. Industrial or any other insurance that is purchased for the benefit of the City, regardless of whether such may provide a secondary or incidental benefit to Contractor, does not convert this Agreement into an employment contract. 10.6. Notice. If Contractor is a sole proprietorship or if this Agreement is with an individual, Contractor agrees to notify the City and complete any required Professional Services Agreement for SMP Update Anchor QEA, LLC Page 7 of 16 form if Contractor is retired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through Contractor’s failure to do so. 11. Property and Confidential Information. Unless required by law, without the prior, written consent of the City, Contractor may not disclose to third parties information that is not otherwise subject to public disclosure unless: (1) The information is lawfully known to Contractor prior to the effective date of this Agreement; (2) The information is in the public domain prior to the time of disclosure by Contractor other than through a breach of this Agreement or through other acts or omissions of Contractor; or (3) The information is received by Contractor from a third party who does not have an obligation to keep the same confidential. 12. Work Product. All work product, including records, files, documents, plans, computer disks, magnetic media or material which may be produced or modified by Contractor while performing services pursuant to this Agreement belongs to the City. At the termination of this Agreement, Contractor must deliver copies of files containing the written record of Contractor's work. Until at least 12 months following final payment, Contractor must provide the City prompt access to (and the City has the right to examine, audit and copy) all of Contractor's books, documents, papers and records related to the work. Notwithstanding anything in this Agreement to the contrary, any numerical model codes, software, methodology, logic, details, design elements and/or processes, developed by or owned by Contractor prior to, independent of, or in connection with the work performed under this Agreement, shall remain in Contractor’s sole ownership. 13. Conflict of Interest. The Parties recognize that Contractor may perform professional services during the Term for other entities. Contractor agrees, however, that it may not perform other professional services during the Term that directly conflict with or interfere with Contractor’s ability to perform Services. Contractor agrees to resolve any conflict of interest that may arise in the City’s favor. Contractor confirms that it does not have and will not enter into a business interest or a family relationship with any elected official or employee of the City or has already disclosed such business interest or family relationship to City. Should such a business interest or family relationship become evident after the Agreement is formed, contractor must disclose that business interest or family relationship to City in a timely manner. 14. Books and Records. Contractor agrees to maintain books, records, and documents which sufficiently and properly reflect all direct and indirect costs related to the performance of the Services and maintain such accounting procedures and practices as may be deemed necessary by the City to assure proper accounting of all funds paid pursuant to this Agreement. Contractor records shall include but not be limited to accounting records (hard copy, as well as computer readable data if it can be Professional Services Agreement for SMP Update Anchor QEA, LLC Page 8 of 16 made available); contracts; payroll records; subconsultant agreements; vendor agreements; purchase orders; leases; original estimates; estimating work sheets; correspondence; receipts; memoranda; and any other supporting evidence deemed reasonably necessary to substantiate charges under this agreement. These records are subject, at all reasonable times, to inspection, review or audit by the City, its authorized representative, the State Auditor, or other governmental officials authorized by law to monitor this Agreement. 15. Public Records Act. 15.1. Contractor understands and agrees that the records it obtains or produces under this Agreement are public records under chapter the Public Records Act (42.56 RCW). 15.2. Contractor agrees to keep and maintain the records it obtains or produces under this Agreement for 6 years after the termination of this Agreement. 15.3. Contractor must cooperate in a timely manner with the City in responding to a public records request for records obtained or produced under this Agreement or the services provided under this Agreement. Such cooperation includes searching all records regarding the Services described in Section 5 and Exhibit A of this Agreement and producing all records that are potentially responsive to a public records request to the City. 15.4. Contractor may not charge the City for the time spent gathering and producing records pursuant to a public records request. 15.5. Contractor agrees to pay the City for any damages, attorney’s fees, or costs that the City has to pay to a public-records requestor because Contractor failed to produce a timely, responsive record to a public records request. 15.6. Survival. Each provision of Section 15 survives the expiration or termination of this Agreement. 16. Equal Opportunity Employer. In all services, programs, activities, hiring, and employment made possible by or resulting from this Agreement or any subcontract, there must be no discrimination by Contractor or its subcontractors of any level, or any of those entities’ employees, agents, subcontractors, or representatives against any person because of sex, sexual orientation, age (except minimum age and retirement provisions), race, color, religion, creed, color, national origin, marital status, honorably discharged veteran or military status, or the presence of any disability, including sensory, mental or physical handicaps, unless based upon a bona fide occupational qualification in relationship to hiring and employment. This requirement applies, but not be limited to the following: employment, advertising, Professional Services Agreement for SMP Update Anchor QEA, LLC Page 9 of 16 layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Contractor must comply with and must not violate any of the terms of Chapter 49.60 RCW, Title VI of the Civil Rights Act of 1964, the Americans With Disabilities Act, Section 504 of the Rehabilitation Act of 1973, 49 CFR Part 21, 21.5 and 26, or any other applicable federal, state, or local law or regulation regarding non-discrimination. 17. Social Equity Requirements. During the performance of this Agreement, Contractor, for itself, its assigns and successors in interest agree as follows: 17.1. Compliance with Regulations. Contractor must comply with the Regulations relative to nondiscrimination in federally assisted programs of the United States Department of Transportation (“USDOT”), Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time. 17.2. Nondiscrimination. With regard to the work performed by Contractor, Contractor must not discriminate on the grounds of race, color, age, sex, marital status, sexual orientation, gender identity, creed, religion, ancestry, national origin, honorably discharge veteran or military status, or the presence of or any sensory, mental, or physical handicap, unless based upon a bone fide occupational qualification, in the selection and retention of subcontractors, including procurement of materials and leases of equipment. Contractor must not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of Title 49 of the Federal Regulations. 17.3. Courtesy. Contractor will require its respective employees, agents, and subcontractors to conduct themselves in a courteous and expeditious manner. The use of abusive, indecent, offensive, coarse, or insulting language, or any form of harassment is prohibited and will not be tolerated. Contractor’s employees, agents, and subcontractors will be competent and hold appropriate licenses and endorsements. The City may require the removal of any employee or subcontractor of Contractor for misconduct or incompetent or negligent performance. Such persons will not be allowed to perform services under this Contract without the written consent of the City. 17.4. Information and Reports. Contractor must provide all information reports required by the Regulations or directives issued pursuant thereto, and must permit access to his books, records, counts, or other sources of information and its facilities as may be determined by the contracting agency or the appropriate Federal agency to be pertinent to ascertain compliance with such Regulations, orders and instructions. . 17.5. Sanctions for noncompliance. In the event of the Contractor's noncompliance with the nondiscrimination provisions of this contract, the Professional Services Agreement for SMP Update Anchor QEA, LLC Page 10 of 16 contracting agencies will impose such contract sanctions as it or the USDOT may determine to be appropriate, including, but not limited to: 17.5.1. Withholding of payments to Contractor under the Agreement until Contractor complies, and/or; 17.5.2. Cancellation, termination, or suspension of contract, in whole or in part. 18. Venue. The venue for any legal dispute regarding this Agreement is Douglas County Superior Court. 19. Dispute Resolution. The parties mutually intend to establish procedures to facilitate the informal and inexpensive resolution of all disputes arising under this Agreement, by mutual cooperation and without resort to litigation. Accordingly, all disputes involving this transaction, or between the parties hereto with respect to the subject matter hereof, must be resolved in a final and binding manner in accordance with the following procedures. Whether or not mediation/arbitration is under way, any party may have full access to the courts to compel compliance with the provisions of this Article and to enforce or confirm an arbitration award. 19.1. Negotiation. The parties agree to first attempt to negotiate a mutually satisfactory resolution to the dispute as follows: 19.1.1. The complaining party must notify (in the manner required in this Agreement) the other parties of the alleged dispute, controversy, claim or breach of contract (hereinafter “Dispute’) by explaining in writing the nature of the Dispute, and referring to the relevant paragraphs of this Agreement upon which it bases its position regarding the Dispute. The complaining party must also set forth in such notice a proposed solution to the Dispute; 19.1.2. The parties receiving such notice must respond by notice individually to the complaining party within twenty days of the effective date of the complaining party’s notice, with an explanation of its defensive position, if any, including references to the relevant paragraphs of the Agreement and a response to the proposed solution; and 19.1.3. Within twenty days following notice of this defensive response, the parties must meet and discuss options for resolving the Dispute; the complaining party must initiate the scheduling of this resolution meeting. In the event a party fails to cooperate in scheduling the resolution meeting, then the complaining party may elect to skip the negotiation and mediation procedures and immediately proceed with arbitration. 19.1.4. Mediation. If the parties are unable to satisfactorily resolve the Dispute through such negotiation, mediation must be held within thirty days of an Professional Services Agreement for SMP Update Anchor QEA, LLC Page 11 of 16 unsuccessful resolution meeting. The mediation will be governed by and under the then-applicable rules of JAMS/Endispute (“JAMS”) in Chelan County. The complaining party must contact JAMS to schedule the mediation. The parties may agree on a mediator from the JAMS panel. If they are unable to agree, the parties will request JAMS to designate a mediator for the Parties. 20. General Provisions. 20.1. Interpretation and Modification. This Agreement, together with any attached Exhibits, contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement. No prior statements or agreements, whether oral or written, are effective for any purpose. Should any language in any Exhibits to this Agreement conflict with any language in this Agreement, the terms of this Agreement prevail. The respective captions contained in this Agreement are inserted for convenience of reference only and do not modify or otherwise affect any of the provisions of this Agreement. If a provision of this Agreement is declared invalid, inoperative, null and void, or illegal, all other provisions of this Agreement remain in full force and effect. Any act done by either Party prior to the effective date of the Agreement that is known by the other party and is consistent with the authority of the Agreement and compliant with the terms of the Agreement, is hereby ratified as having been performed under the Agreement. Neither party may amend, waive, or modify a provision of this Agreement, except by written agreement signed by duly authorized representatives of the Parties. 20.2. Assignment and Beneficiaries. Neither Contractor nor the City has the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent of the other Party. If the non- assigning party gives its consent to any assignment, the terms of this Agreement continue in full force and effect and no further assignment may be made without additional written consent. Subject to the foregoing, the rights and obligations of the Parties inure to the benefit of and be binding upon their respective successors in interest, heirs and assigns. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto. No other person or entity has any right of action or interest in this Agreement based on any provision set forth herein. 20.3. Compliance with Laws. Contractor must comply with and perform the Services in accordance with applicable federal, state, local, and city laws including, without limitation, applicable City codes, ordinances, resolutions, regulations, rules, standards and policies, as now existing. Professional Services Agreement for SMP Update Anchor QEA, LLC Page 12 of 16 20.4. Enforcement. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in Exhibit A is essential to Contractor's performance of this Agreement. Any notices required to be given by the Parties must be delivered at the addresses set forth at the beginning of this Agreement. Any notices must be deposited in the United States mail, postage prepaid, to the address set forth above and must be emailed to the address set forth above. Any notice so posted in the United States mail is deemed received three days after the date of mailing. Any remedies provided for under the terms of this Agreement are not intended to be exclusive but are cumulative with all other remedies available to the City at law, in equity or by statute. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances is not a waiver or relinquishment of those covenants, agreements or options, and the same remain in full force and effect. Failure or delay of the City to declare any breach or default immediately upon occurrence does not waive such breach or default. Failure of the City to declare one breach or default does not act as a waiver of the City's right to declare another breach or default. 20.5. No Gifts and Gratuities. Contractor may not offer, nor may a City employee or official accept gifts, gratuities, loans, trips, favors, special discounts, work, or anything of economic value in conjunction with the City business practices. Contractor and City employees and City officials must strictly adhere to the statutes and ordinances for ethics in contracting and purchasing, including the City Ethics Code, RCW 42.23 (Code of Ethics for Municipal Officers) and RCW 42.52 (Ethics in Public Service). This is applicable to any business practice, whether a contract condition, bid practice, or at any activity related to the City business. 20.6. Personal Liability. The parties agree that no official, officer, employee, or agent of the City is in any way liable or responsible for any covenant or Contract herein contained whether express or implied, nor for any statement of representation made herein or in any connection with this Contract. 20.7. Attorney’s Fees. If either Party brings any claim or lawsuit arising from this Agreement, each Party must pay all its legal costs and attorney's fees and expenses incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph limits the Parties’ rights to indemnification under Section 8 of this Agreement. 20.8. Execution. Each individual executing this Agreement on behalf of the City and Contractor represents and warrants that such individual is duly authorized to execute and deliver this Agreement. This Agreement may be Professional Services Agreement for SMP Update Anchor QEA, LLC Page 14 of 16 Exhibit A Scope of Work Exhibit A: Scope of Work February 8, 2021 City of East Wenatchee Shoreline Master Program Periodic Review City of East Wenatchee Department of Community Development 1. Project Understanding The City of East Wenatchee (City) will be required to conduct a periodic review of the City’s 2009 Shoreline Master Program (SMP) to ensure consistency with requirements of the Shoreline Management Act (SMA), Revised Code of Washington (RCW) 90.58, and its implementing rules, Washington Administrative Code (WAC) 173-26, including the SMP Guidelines (Guidelines). To ensure that shoreline programs remain in compliance with state shoreline laws and guidelines over time, the SMA, RCW 90.58, requires local governments to review their shoreline programs “periodically,” every 8 years. According to directives in RCW 90.58.080, the City must review and, if the review determines changes are necessary, revise City’s SMP no later than June 30, 2021 (and every 8 years thereafter). The City is required to review and revise their SMP if necessary to: x Comply with legislative changes to the SMA x Assure consistency with changes to rules/guidelines adopted by the Washington State Department of Ecology (Ecology) x Review amendments to the City’s Comprehensive Plan and development regulations for consistency with the SMP x Reflect changed circumstances, new information, and/or improved data It is our understanding that the City would also like to ensure that periodic review consider: x Review of the SMP’s critical areas regulations (SMP Appendix B) for consistency with the City’s recent Critical Areas Ordinance (CAO) The City intends to gain state and local approval of these SMP amendments under the provisions of WAC 173-26-104 that provide for an optional joint review process for the local and state public comment processes required by RCW 90.58.090. Recognizing that the optional joint review process requires close coordination in conducting a joint public review, early and continuous consultation with Ecology is required. February 8, 2021 City of East Wenatchee Shoreline Master Program Periodic Review Page 2 2. Scope of Services and Deliverables Task 1: Review SMP Anchor QEA will conduct a review of the SMP to determine what revisions are needed to maintain compliance with the SMA, local and state code, and the City’s Comprehensive Plan and development regulations. We will conduct analysis necessary to address changed circumstances, new information, or improved data. Subtask 1.1: Periodic Review Checklist Anchor QEA will review amendments to chapter 90.58 RCW and Ecology rules that have occurred since the City’s SMP was adopted in 2009 and determine if local amendments are needed to maintain compliance. Ecology will provide a checklist of legislative and rule amendments to assist local governments with this review. Subtask 1.2: GMA Consistency Review Anchor QEA will review changes to the City’s Comprehensive Plan and development regulations to determine if the SMP policies and regulations remain consistent with them. Anchor QEA will review the City’s recent 2018 CAO Update and identify necessary revisions to the SMP’s critical areas regulations (SMP Appendix B) to maintain consistency the updated CAO and the SMA. Anchor QEA will document the consistency analysis to support proposed changes to the SMP or Findings of Adequacy. Subtask 1.3: Additional Analysis (if necessary) Anchor QEA will conduct additional analysis deemed necessary to address changing local circumstances, new information or improved data, including review of any new areas incorporated within the City’s shoreline jurisdiction areas as a result of UGA annexations and identify necessary revisions, amendments to address these changes or new information. Anchor QEA will review Douglas County’s SMP materials as needed to address annexed shoreline areas. Deliverables The following deliverables will be submitted electronically in draft form for review and comment by City staff. Final versions, incorporating City staff’s edits and resolved comments will be submitted electronically. x Draft and final Periodic Review Checklist (2.1) x Draft and final GMA consistency summary (2.2) February 8, 2021 City of East Wenatchee Shoreline Master Program Periodic Review Page 3 Task 2: Prepare Draft SMP Amendments Anchor QEA will prepare draft revised SMP goals, policies and regulations, or prepare Findings of Adequacy if the review conducted under Task 2 concludes no changes are necessary. Anchor QEA will prepare amended goals and policies or regulations as needed and as identified through the review process and use the Periodic Review Checklist (Task 1.1) to identify where in the SMP changes are made to address applicable statutory or regulatory changes. Deliverables The following deliverables will be submitted electronically in draft form for review and comment by City staff. Final versions, incorporating City staff’s edits and resolved comments will be submitted electronically. x Draft and final redline strikeout of the City’s 2009 SMP x Draft and final Findings of Adequacy (if no amendments are necessary) 3. Assumptions x The City’s Periodic Review will be processed under the provisions of WAC 173-26-104 that provides for an optional joint review process for the local and state public comment processes required by RCW 90.58.090. x The City shall notify the Department of Commerce of its intent to adopt any new or revised shoreline policies or regulations, pursuant to RCW 36.70A.106. x The City shall be responsible for preparing public notices and publishing public notices in the newspaper of record and on the City’s website, where documents will be posted for review. x The City will produce any hardcopy materials for inspection by the public. x Electronic submittals will be made in Microsoft Word and/or Adobe PDF format. x Revisions and comments on draft documents from City staff will be consolidated into a single consistent set for incorporation into final documents. x The Periodic Review will not require a reevaluation of the build out analysis, inventory and analysis, or restoration plans. x The City is not intending to incorporate additional locally initiated amendments as a part of the Periodic Review process. x Travel for public meetings, workshop, and hearings are anticipated to be scheduled in coordination with other meetings in the area for reduced travel costs as much as possible. x If the city elects to include locally initiated amendments as part of the periodic update process that work would not be covered in this scope, schedule or budget. x The city will be responsible for any fees from newspapers or other media outlets used for public outreach or public notices. February 8, 2021 City of East Wenatchee Shoreline Master Program Periodic Review Page 4 x This scope and budget do not include: creation and maintenance of a public website for the project; public participation planning and execution; coordination of state and local adoption; or preparation of a SEPA checklist. 4. Budget and Schedule Estimate The estimated fee for this project is based on time and materials to a maximum; unused budget will not be invoiced. The estimated schedule for this project is anticipated to be completed within 5 months of project kick-off. No. Task Description Estimated Budget Estimated Time 2 Review SMP 2.1: Periodic Review Checklist $9,000 1 month 2.2: GMA Consistency Review 2.3: Additional Analysis (if necessary) 3 Prepare Draft Prepare Draft SMP Amendments and SEPA Checklist or Findings of Adequacy $5,000 1 month Totals 14,000 2 months Professional Services Agreement for SMP Update Anchor QEA, LLC Page 15 of 16 Exhibit B Rate and Cost Breakdown Note: The individual task costs may be adjusted by the Contractor provided the contract amount in Section 7 is not exceeded. Exhibit B: Anchor QEA, LLC 202 BILLING RATES Professional Level Hourly Rates Principal ................................................................................................................................................................................. $2 Senior Manager .................................................................................................................................................................. $2 Manager ................................................................................................................................................................................ $23 Senior Staff ........................................................................................................................................................................... $2 Staff 3 ..................................................................................................................................................................................... $1 Staff 2 ..................................................................................................................................................................................... $16 Staff 1 ..................................................................................................................................................................................... $1 Senior CAD1 Designer ...................................................................................................................................................... $14 CAD Designer ...................................................................................................................................................................... $1 Technician ............................................................................................................................................................................ $1 Senior Technical Editor .................................................................................................................................................... $1 Technical Editor .................................................................................................................................................................. $1 Senior Project Coordinator ............................................................................................................................................ $1 Project Coordinator .......................................................................................................................................................... $1 Special Hourly Rates National expert consultant ............................................................................................................................................ $4 All work by a testifying expert .................................................................................1.5 times professional level rate EXPENSE BILLING RATES Expense Rates Computer Modeling (per hour) ................................................................................................................................ $10.00 Graphic Plots (varies with plot size) .................................................................................................................... $3-$6/sf Mileage (per mile) .................................................................................................................... Current Federal Standard FEE ON LABOR AND EXPENSE CHARGES Subcontracts/subconsultants ......................................................................................................................................... 10% Travel and other direct costs .......................................................................................................................................... 10% Field equipment and supplies ........................................................................................................................................ 10% This is a company confidential document. 1 CAD: Computer Aided Design ([SHUW$GYLVRU.........................................................................................................................................................$ Professional Services Agreement for SMP Update Anchor QEA, LLC Page 16 of 16 Exhibit C Certificate of Coverage Commercial General Liability Insurance Policy ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 2/26/2021 License # 0C36861 (206) 204-9140 (206) 204-9205 25666 Anchor QEA, LLC 1201 3rd Ave., Suite 2600 Seattle, WA 98101 25658 25674 00000 A 1,000,000 X 680-4R022572 10/10/2020 10/10/2021 1,000,000 All Other States 10,000 1,000,000 2,000,000 2,000,000 1,000,000B BA-0R118959 10/10/2020 10/10/2021 1,000,000C CUP-4R044287 10/10/2020 10/10/2021 1,000,000 10,000 B UB-4R041906 10/10/2020 10/10/2021 1,000,000 N 1,000,000 1,000,000 D Prof/Pollution Liab W11053201101 10/10/2020 Each Claim 1,000,000 D Prof Liab/Ded $250k W11053201101 10/10/2020 10/10/2021 Aggregate 1,000,000 The City of East Wenatchee is named as an additional insured as respects the General Liability per the attached endorsement. City of East Wenatchee Attn: Lori Barnett 271 9th St. NE East Wenatchee, WA 98802 ANCHQEA-01 MKELLY Seattle-Alliant Insurance Services, Inc. 1420 Fifth Ave 15th Floor Seattle, WA 98101 Melanie Kelly Melanie.Kelly@Alliant.com Travelers Indemnity Company of America Travelers Indemnity Company Travelers Property Casualty Company of America Lloyd's Syndicate 2623 (Beazley Furlonge Limited) X 10/10/2021 X X X X X X X X X Page 1 of 2 CG D3 81 0915 © 2015 The Travelers Indemnity Company. All rights reserved. Includes the copyrighted material of Insurance Services Office, Inc., with its permission COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED (ARCHITECTS, ENGINEERS AND SURVEYORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART 1. The following is added to SECTION II - WHO IS AN INSURED: Any person or organization that you agree in a "written contract requiring insurance" to include as an additional insured on this Coverage Part, but: a. Only with respect to liability for "bodily injury", "property damage" or "personal injury": and b. If, and only to the extent that, the injury or damage is caused by acts or omissions of you or your subcontractor in the performance of "your work" to which the "written contract requiring insurance" applies, or in connection with premises owned by or rented to you. The person or organization does not qualify as an additional insured: c. With respect to the independent acts or omissions of such person or organization: or d. For "bodily injury", "property damage" or "personal injury" for which such person or organization has assumed liability in a contract or agreement. The insurance provided to such additional insured is limited as follows: e. This insurance does not apply on any basis to any person or organization for which coverage as an additional insured specifically is added by another endorsement to this Coverage Part. f. This insurance does not apply to the rendering of or failure to render any "professional services". g. In the event that the Limits of Insurance of the Coverage Part shown in the Declarations exceed the limits of liability required by the "written contract requiring insurance", the insurance provided to the additional insured shall be limited to the limits of liability required by that "written contract requiring insurance". This endorsement does not increase the limits of insurance described in Section Ill - Limits Of Insurance. h. This insurance does not apply to "bodily injury" or "property damage" caused by "your work" and included in the "products- completed operations hazard" unless the "written contract requiring insurance" specifically requires you to provide such coverage for that additional insured, and then the insurance provided to the additional insured applies only to such "bodily injury" or "property damage" that occurs before the end of the period of time for which the "written contract requiring insurance" requires you to provide such coverage or the end of the policy period, whichever is earlier. 2. The following is added to Paragraph 4.a. of SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS: The insurance provided to the additional insured is excess over any valid and collectible other insurance, whether primary, excess, contingent or on any other basis, that is available to the additional insured for a loss we cover. However, if you specifically agree in the "written contract requiring insurance" that this insurance provided to the additional insured under this Coverage Part must apply on a primary basis or a primary and non-contributory basis, this insurance is primary to other insurance available to the additional insured which covers that person or organizations as a named insured for such loss, and we will not share with the other insurance, provided that: (1) The "bodily injury" or "property damage" for which coverage is sought occurs: and (2) The "personal injury" for which coverage is sought arises out of an offense committed: after you have signed that "written contract requiring insurance". But this insurance provided to the additional insured still is excess over valid and collectible other insurance, whether primary, excess, contingent or on any other basis, that is available to the additional insured when that person or organization is an additional insured under any other insurance. Page 2 of 2 CG D3 81 0915 © 2015 The Travelers Indemnity Company. All rights reserved. Includes the copyrighted material of Insurance Services Office, Inc., with its permission COMMERCIAL GENERAL LIABILITY 3. The following is added to Paragraph 8., Transfer Of Rights Of Recovery Against Others To Us, of SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS: We waive any right of recovery we may have against any person or organization because of payments we make for "bodily injury", "property damage" or "personal injury" arising out of "your work" performed by you, or on your behalf, done under a "written contract requiring insurance" with that person or organization. We waive this right only where you have agreed to do so as part of the "written contract requiring insurance" with such person or organization signed by you before, and in effect when, the "bodily injury" or "property damage" occurs, or the "personal injury" offense is committed. 4. The following definition is added to the DEFINITIONS Section: "Written contract requiring insurance" means that part of any written contract under which you are required to include a person or organization as an additional insured on this Coverage Part, provided that the "bodily injury" and "property damage" occurs and the "personal injury" is caused by an offense committed: a. After you have signed that written contract; b. While that part of the written contract is in effect; and c. Before the end of the policy period.