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HomeMy WebLinkAbout23-213-LEG-001 Interlocal Agreement DocuSign Envelope ID:9F53C3B5-31A3-4FAE-BFBO-EFE07BA004D5 COA#23-213-LEG-001 SKAGIT COUNTY Contract# C20230361 Page 1 of 11 INTERLOCAL COOPERATIVE AGREEMENT BETWEEN CITY OF ANACORTES AND SWINOMISH INDIAN TRIBAL COMMUNITY AND SKAGIT COUNTY FUNDING NORTH SIMILK PUMP DRAINAGE STUDY THIS AGREEMENT ("Agreement') is made and entered into by and between the City of Anacortes, a Washington municipal corporation ("City"), the Swinomish Indian Tribal Community, a Federally recognized Indian Tribe ("Tribe") and Skagit County, a political subdivision of the State of Washington ("County") pursuant to the authority granted by Chapter 39.34 RCW, INTERLOCAL COOPERATION ACT. The City, the Tribe, and the County may be individually referred to herein as a "party'and may be collectively referred to herein as the "parties." In consideration of the following terms and conditions,the parties mutually agree as follows: 1. PURPOSE: The purpose of this Agreement is for the City,the Tribe,and the County to mutually provide funding for a drainage study (to be conducted by a mutually agreed to consultant retained and hired by the Tribe) related to the use, operation, and maintenance of pumping equipment, infrastructure, and appurtenances thereto commonly described as and referred to by the parties as the"North Similk Pump", subject to the terms herein. The North Similk Pump is located on and within real property owned by the State of Washington and managed by the Washington State Department of Transportation. The Scope of Work for the North Similk Pump drainage study project (herein "drainage study" or "project') is attached hereto as Exhibit"A"and incorporated by reference. The total cost for the drainage study is eleven thousand and forty dollars($11,040),the"drainage study cost'. The parties recognize the sufficiency of the mutual consideration provided for and established by the terms of this Agreement. 2. RESPONSIBILITIES: Pursuant to the terms of this Agreement, the responsibilities of the parties shall be as follows: DocuSign Envelope ID:9F53C3B5-31A3-4FAE-BFBO-EFE07BA004D5 A. THE CITY: Upon mutual execution of this Agreement and in the ordinary course of business,the City shall pay the Tribe for a portion of the total amount comprising approximately one quarter(1/4t')of the total drainage study cost in an amount not to exceed two thousand seven hundred and sixty dollars ($2,760), as further provided per Section 5., below. B. THE COUNTY: Upon mutual execution of this Agreement and in the ordinary course of business,the County shall pay the Tribe for a portion of the total amount comprising approximately three eighths(3/8'")of the total drainage study cost in an amount not to exceed four thousand one hundred and forty dollars ($4,140), as further provided per Section 5., below. C. THE TRIBE: Upon mutual execution of this Agreement, the Tribe shall hire, authorize,and oversee the Tribe's consultant,as mutually agreed to by the parties, to commence the drainage study services as more particularly described per the project scope of work at Exbibit"A"(attached and incorporated herein),as provided per the terms of this Agreement. The Tribe shall be responsible for paying the remaining approximately three eighths(3/8t")of the total drainage study costs in an amount not to exceed four thousand one hundred and forty dollars ($4,140). 2.1 The parties shall not be obligated to pay, provide, or expend any funds, and/or provide and/or perform any other services or other duties pursuant to this Agreement, unless otherwise specified herein. 3. TERM OF AGREEMENT: The term of this Agreement shall be from the date of mutual execution through December 31, 2023, unless sooner terminated pursuant to the terms herein. 4. TERMINATION: Any party hereto may terminate this Agreement upon thirty(30) days' notice in writing either personally delivered or mailed postage-prepaid by certified mail, return receipt requested, to each of the other parties last known address for the purposes of giving notice under this paragraph. If this Agreement is so terminated, the parties shall be liable only for performance rendered or costs incurred in accordance with the terms of this Agreement prior to the effective date of termination. 5. MANNER OF FINANCING: The total cost for the drainage study to be performed by the Tribe (and to be mutually funded by the parties as provided herein) is eleven thousand and forty dollars ($11,040), the "drainage study cost". As described per Section 2.,the Tribe shall invoice the City, and the City shall promptly pay the Tribe for a portion of the total amount comprising approximately one quarter (1141) of the total drainage study cost in an amount not to exceed two thousand seven hundred and sixty dollars ($2,760). As described per Section 2., the Tribe shall invoice the County, and the County shall pay DocuSign Envelope ID:9F53C3B5-31A3-4FAE-BFBO-EFE07BA004D5 the Tribe for a portion of the total amount comprising approximately three eighths (3/801)of the total drainage study cost in an amount not to exceed four thousand one hundred and forty dollars($4,140). As described per Section 2.,the Tribe shall be responsible for paying the remaining approximately three eighths (3/8"') of the total drainage study costs in the amount of four thousand one hundred and forty dollars ($4,140). Upon request by the City and/or the County, the Tribe shall provide adequate supporting documentation for any and all amounts invoiced to the City and/or County pursuant to the terms of this Agreement,and the City and the County shall promptly pay such invoices received from the Tribe in the ordinary course of business. 6. ADMINISTRATION: The following individuals are designated as representatives of the respective parties. The representatives shall be responsible for administration of this Agreement and for coordinating and monitoring performance under this Agreement. In the event such representatives are changed, the party making the change shall notify the other party. 6.1 The City's representative shall be the City Attorney, or her designee. 6.2 The Tribe's representative shall be the Office of the Tribal Attorney,or her/his designee. 6.3 The County's representative shall be the Chief Civil Deputy, or his designee. 7. TREATMENT OF ASSETS AND PROPERTY: No fixed assets or personal or real property will be jointly or cooperatively, acquired, held, or used pursuant to this Agreement. 8. INDEMNIFICATION: Each party agrees to be responsible and assume liability for its own wrongful and/or negligent acts or omissions or those of their officials, officers, agents, or employees to the fullest extent required by law, and further agrees to save, indemnify, defend, and hold the other party/parties harmless from any such liability. It is further provided that no liability shall attach to any party by reason of entering into this Agreement except as expressly provided herein. The terms of this section shall survive any termination and/or expiration of this Agreement. 9. CHANGES, MODIFICATIONS, AMENDMENTS AND WAIVERS: The Agreement may be changed, modified,amended or waived only by subsequent written agreement duly executed by the parties hereto. Waiver or breach of any term or condition of this Agreement shall not be considered a waiver of any prior or subsequent breach. 10. SEVERABILITY: In the event any term or condition of this Agreement or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other terms, conditions or applications of this Agreement which can be given effect without the DocuSign Envelope ID:9F53C3B5-31A3-4FAE-BFBO-EFE07BA004D5 invalid term, condition, or application. To this end the terms and conditions of this Agreement are declared severable. 11. ENTIRE AGREEMENT: This Agreement contains all the terms and conditions agreed upon by the parties. All items incorporated herein by reference are attached. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto. 12. USE OF DOCUMENTS AND MATERIALS PRODUCED. All documents prepared by the Tribe,the City, and/or the County(and/or its/their consultants and/or subcontractors) in connection with performance of this Agreement shall be provided to the other parties pursuant to the terms herein(with the exception of any documents or information which are determined to be attorney/client privileged by any party). The Parties recognize and agree that any documents and materials produced arising from and/or related to this Agreement may be subject to public disclosure pursuant to applicable law(including Chapter 42.56 RCW). 13. NO JOINT VENTURE. No joint venture exists between the City,the Tribe,and/or the County,and no joint venture is created by and between the parties by virtue of this Agreement. No agent, employee, contractor, subcontractor, consultant, volunteer,or other representative of the parties shall be deemed an agent, employee, contractor, subcontractor, consultant, volunteer, or other representative of the other parties. 14. NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to nor does it create any third party beneficiary or other rights in any third person or party, including, but not limited to,the general public,third party property owners or residents in the vicinity of the pump, and/or any agent, contractor, subcontractor, consultant, volunteer, or other representative of any party. 15. CAPTIONS AND COUNTERPARTS. The captions in this Agreement are for convenience and reference only and do not define, limit,or describe the scope or intent of this Agreement. This Agreement may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. 16. APPLICABLE LAW, DISPUTE RESOLUTION, AND LIMITED WAIVER OF SOVEREIGN IMMUNITY. 16.1 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of Washington State and any applicable Federal law. Venue for the Washington State Superior Court shall be Skagit County, DocuSign Envelope ID:9F53C3B5-31A3-4FAE-BFBO-EFE07BA004D5 Whatcom County, or Snohomish County pursuant to the terms of this Agreement. 16.2 Arbitration. Any controversy, claim or dispute concerning the making, formation, validity, obligations under or breach of this Agreement and issues related to the existence, interpretation and enforceability of the arbitration provisions of this Agreement, shall be subject to mandatory arbitration conducted by a single arbitrator in either Skagit County or King County, whichever is most efficient for the parties and the arbitrator. 16.2.1 Arbitration under this Section 16 shall be governed by the Washington Uniform Arbitration Act, RCW 7.04A; provided, however, that the consolidation provisions in RCW 7.04A.100, and punitive damages provisions in RCW 7.04A.210(1),(5)are not applicable to any arbitration under this section; and provided further that the remaining provisions in RCW 7.04A.210 are subject to Subsection 16.4 of this Agreement. 16.2.2 A competent arbitrator shall be chosen by agreement of the parties. If the parties are unable to agree on an arbitrator within thirty (30)calendar days of a party demanding arbitration,either/any party may request that a judge of the Washington State Superior Court appoint an arbitrator. Each party shall initially pay one-third the arbitrator's fee but the prevailing party/parties shall be awarded its share of such fees, in addition to its reasonable attorneys'fees, costs and expenses. 16.2.3 The parties may jointly agree to stay mandatory arbitration proceedings pending voluntary mediation of the controversy, claim or dispute before a mediator jointly chosen by the parties. 16.3 Compelling, Enforcing, Reviewing, Modifying and Confirming Arbitration. The parties agree that pursuant to Subsection 16.2 of this Agreement and in accordance with RCW 7.04A the Washington State Superior Court shall have the authority to compel or enforce arbitration and to review, modify or confirm an arbitration award. In the event that any such judicial proceedings are initiated, the prevailing party/parties shall be entitled to its/their reasonable attorney's fees and costs incurred in compelling arbitration or confirming an arbitration award. To the extent that the Superior Courts of the State of Washington are determined not to have jurisdiction over this Agreement and its enforcement, the arbitration award herein may, in the alternative, be enforced in the U.S. District Court for the Western District of Washington pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 of seq. DocuSign Envelope ID:9F53C3B5-31A3-4FAE-BFBO-EFE07BA00405 16.4 Limited Waiver of Sovereign Immunity. Except as expressly provided in this Section 16, nothing in this Agreement is intended to be or shall constitute or shall be construed as a waiver, limitation or modification of the sovereign immunity of the Swinomish Indian Tribal Community from unconsented suit. The Tribe hereby waives its sovereign immunity only with regard to arbitration proceedings or proceedings in the Washington State Superior Court or U.S. District Court for the Western District of Washington described in this Section 16 "Dispute Resolution," entering judgment on an arbitrator's award and enforcing in Washington State Superior Court(pursuant to Title 6 RCW), such judgment. This limited waiver relates only to legal actions by the County and/or the City seeking any relief or enforcement of rights authorized by this Agreement and not to legal actions by any other person, corporation, partnership, or entity whatsoever. This limited waiver authorizes relief compelling the Tribe to take action expressly required by this Agreement and/or awarding monetary damages against the Tribe for breach of this Agreement. The Tribe (as authorized by resolution[s]) does not waive, limit, or modify its sovereign immunity from uncontested suit except as expressly provided herein. This limited waiver does not extend to proceedings in any other forum, regarding any other matter, or create any rights in any person who is not a party to the Agreement. This limited waiver does not authorize punitive damages against any party. Prior to or concurrent with the execution of this Agreement by the Tribe, the Tribe will provide to the County and the City with resolution(s)from the Swinomish Indian Senate ratifying this Agreement and this Limited Waiver of Sovereign Immunity (in a form satisfactory to the County and the City). DocuSign Envelope ID:9F53C3B5-31A3-4FAE-BFBO-EFE07BA004D5 CITY: IN WITNESS WHEREOF,the City has executed this Agreement on 7/31/2023 CITY OF ANACORTES,a Washington municipal corporation. By: C F Matt Miller, Mayor TRIBE: IN WITNESS WHEREOF,the Tribe has executed this Agreement this 5th day of July 2023. SWINOMISH INDIAN TRIBAL COMMUNITY,a Federally recognized Indian Tribe. By: 4AS7 Steve Edwards, Chairman DocuSign Envelope ID:9F53C3B5-3lA3-4FAE-BFBO-EFE07BA004D5 COUNTY: DATED this 4 day of 2023. BOARD OF COUNTY COMMISSIONERS SKAGIT I NTY,WASHINGTON Ro Wesen, Chair Lisa Janicki, Com sioner /6/�- Attest: Peter Brown ng, C mmissioner 4wlt&� Clerk of the Board For contracts under$5,000: Authorization per Resolution R20030146 Recommended: County Administrator Departme ead Approved as to form: 8/3/23 Civil Deputy o ecuting Attorney Approved as to indemnification: � 1 Risk Manag r Appr ed as to budget: Y4--A— Budget&Finance Director DocuSign Envelope ID:9F53C3B5-31A3-4FAE-BFBO-EFE07BA004D5 EXHIBIT"A" DRAINAGE STUDY—SCOPE OF WORK. The parties to this Agreement recognize and agree that this Agreement, and its effects, including,but not limited to,the delineation of jurisdiction boundaries described in the attached scope of work(incorporated herein)shall not be used or construed by any of the parties as a basis for a right to claim a larger or modified municipal boundary by the City, for the Tribe to claim a larger or modified Tribal reservation boundary,and/or for the County to claim a larger or modified municipal boundary or a smaller or modified reservation boundary. Please see the attached"Similk Bay Pump Station Cost Sharing Study Scope of Services", prepared by Lervik Engineering, dated March 10, 2023. DocuSign Envelope ID:9F53C3B5-31A3-4FAE-BFBO-EFE07BA004D5 L E R V I K E N G I N E E R I N G SIMILK BAY PUMP STATION \, / COST SHARING STUDY Exhibit SCOPE OF SERVICES BACKGROUND Currently Skagit CountykSperates and maintains a stormwater pump station adjacent to SR20 and the Swinomish Golf Links. The tributary basin for this pump station is approximately 500 acres and includes lands within the jurisdiction of Skagit County, the Swinomish Indian Tribal Community, the City of Anacortes and the Washington State Department of Transportation. 1. SCOPE OF SERVICES The Consultant shall perform the following tasks: i.1. Establish the extents of the basin tributary to the pump station. 1.2. Delineate the jurisdiction boundaries for the agencies listed in the "Background" paragraph above. Note: Regarding WSDOT whose tributary areas overlap other agency boundaries, the basin area shall be considered the extents of the SR20 right-of- way. 1.3. Evaluate the general soil types, ground cover, impervious areas, etc.within the basin as needed to model stormwater runoff within the basin. 1.4. Perform stormwater runoff modeling from each of the jurisdictional subbasins in order to prorate each jurisdiction's stormwater contributions to the pump station. 2. DELIVERABLES 2.1, Executive Summary of the findings, including the estimated allocations of stormwater from each jurisdiction. 2.2. Basin area map color-coded to show jurisdictional areas. 2.3. Brief summary of the engineering assumptions and methods used in determining stormwater allocations. SIMILK BAY PUMP STATION STUDY March 10, 2023 PAGE 1 OF 2 DocuSign Envelope ID:9F53C3B5-31A3-4FAE-BFBO-EFE07BA004D5 L E R V I K E N G I N E E R I N G 2.4. Present findings to the multi-agency committee, if requested. 3. EXCEPTIONS This scope of work does not include the following: 3.1. Analyzing the capacity of ditches, culverts, pumps, etc. 3.2. Identifying defects and deficiencies in the systems' ability to collect and convey stormwater runoff. 4. FEE 4.1. The fee for performance of the tasks listed above is $11,040 to be billed for actual hours worked and expenses incurred. 4.2. Printing, reproduction and other expenses are billed at cost + 10% The parties to this Agreement recognize and agree that this Agreement, and its effects, including, but not limited to, the delineation of jurisdiction boundaries described in this scope of work shall not be used or construed by any of the parties as a basis for a right to claim a larger or modified municipal boundary by the City, for the Tribe to claim a larger or modified Tribal reservation boundary, and/or for the County to claim a larger or modified municipal boundary. SIMILK BAY PUMP STATION STUDY March 10, 2023 PAGE 20F2