City Council

CITY OF MOUNT VERNON CITY COUNCIL MEETING AGENDA August 11, 2021, 7:00 p.m. Police Court Campus (Masks are required regardless of vaccination status) To virtually attend the meeting, the public may: 1. Call the conference line: 1-888-924-9240; Access Code: 3366211 (please ‘mute’ your phone, if possible, to minimize distractions) 2. Watch the meeting live on TV10: Comcast/Xfinity Channel 10 3. Watch the meeting live, online: https://www.youtube.com/channel/UCUob_hcQUmd4S93YkletdrA I. OPENING CEREMONIES A. Call to Order B. Pledge of Allegiance C. Roll Call of Councilmembers II. CONSENT AGENDA A. Approval of July 28, 2021 Regular Council Meeting Minutes B. Approval of August 5, 2021 payroll checks numbered 110865 - 110892, direct deposit checks numbers 83417 - 83656, and wire transfers numbered 1000 - 1004 in the amount of $993,702.64 C. Approval of August 11, 2021 Claims numbered 14710, 14715 and 14726 - 14850 and 14575 - 14708 in the amount of $685,115.85 D. Approval of Agreement 4101 III. REPORTS A. Committees 1. Public Works and Library Committee B. Community Comments 1. Review of Emails from the Public (Public comments may be sent via email to council@mountvernonwa.gov. The comments will be read aloud into the record during the public comment portion of the agenda. Please limit your comments to be read in three minutes or less. Email comments must be received by 4 p.m. on August 11, 2021.) 2. Public Comments (This is an opportunity for Mount Vernon residents to address their City Council. Please limit comments to three minutes or less. Under normal circumstances, the Mayor and Council will not respond immediately to Community Comments. If you would like someone to follow-up with you regarding the topic of your comments, please leave your name and contact information on the form at the entrance of the Council Chambers.) C. Councilmember Comments D. Mayor’s Report E. Committee Agenda Requests Mount Vernon City Council Agenda August 11, 2021, Page 2 of 2 IV. UNFINISHED BUSINESS None V. NEW BUSINESS A. Contract Amendment – PBS Engineering and Environmental, Inc. (Staff is requesting approval of an amendment to agreement 3903 for additional design services required to finalize the Freeway Drive Improvements Project) (required action – motion) (staff contact – Bill Bullock) B. Approval of Agreement with Paul Schissler & Associates (Staff is requesting approval of an agreement with Paul Schissler & Associates to assist with CDBG HUD compliance, coordinate with Skagit County Consortium Consolidation Plan, and to assist in planning and implementation of issues related to past and present CDBG, CDBG-CV, and CDBG-CV-3 funding efforts.) (required action – motion) (staff contact – Peter Donovan) C. Approval of Abandonment Resolution (Staff is requesting approval of a Resolution to formally confirm that the City abandons any interest in Tract P-2 of Skagit Highlands) (required action – resolution) (staff contact – Kevin Rogerson) COMMITTEE MEETINGS Public Works and Library 6:00 p.m. Next Ordinance 3834 Next Resolution 1000  AGENDA ITEM: A DATE: August 11, 2021 TO: Mayor Boudreau and City Council FROM: William Bullock, PE – City Engineer SUBJECT: FREEWAY DRIVE IMPROVEMENTS PROJECT: AMENDMENT NO. 2 WITH PBS ENGINEERING AND ENVIRONMENTAL INC. RECOMMENDED ACTION: Staff recommends amending the Professional Services Agreement with PBS Engineering and Environmental (PBS) to cover a few minor scope changes required to finalize the Freeway Drive Improvements Project and prepare for bid. INTRODUCTION/BACKGROUND: There were a number of minor scope changes to the project design, not atypical in a project of this scope, that were able to be incorporated in the original design budget. This amendment represents a true up of design costs of a few items that required additional design effort but exceeded the limit of the original professional services contract summarized below.  Additional design changes o Plan /Specification adjustments required by WSDOT for final authorization based on federal requirements updated in March 2021. o Extend paving limits to include Cameron Way and College Way intersections.  Development and subsequent removal of Skagit PUD mid-property intersection design.  Kulshan Creek Outfall design support: This design work is not part of the Freeway Drive Project. The Kulshan Creek Outfall is slated to be completed by City forces. Earlier this summer they (city crew) found multiple constructability obstacles to the final installation to the headwall. The City made the decision to task PBS with providing design support to develop a new solution to accomplish final installation. Adding this additional work as a task order to the PBS contract with their existing site knowledge from the Freeway Drive design made the most sense. This work will be paid out of the City Storm Water Fund. FINDINGS/CONCLUSIONS: These additional design services represent a true up to fully compensate PBS for additional scope items both requested by the City and required for final WSDOT construction authorization. The Kulshan Creek Outfall design support will be paid for out of the Storm Water Fund and is not part of the federal design contract for the Freeway Drive ($14,090). RECOMMENDATION: Motion to authorize the Mayor to execute a contract amendment with PBS Engineering and Environmental, Inc., to provide the additional design services required to finalize the Freeway Drive Improvements Project and prepare for bid in an amount not to exceed $484,834; including an additional amount of $14,090 from the Storm Water Fund for design support on the Kulshan Creek Outfall. The total amount for design services is not to exceed $498,834.00. ATTACHED: 1. Amendment #2 2. Vicinity Map  Supplemental Agreement Organization and Address Number 002 PBS Engineering & Environmental Inc. 1180 NW Maple St., Suite 160 Original Agreement Number Issaquah, WA 98027 LA-9773 Phone: 425-654-8775 Project Number Execution Date Completion Date STPUS-7333(001) 6/10/2021 12/31/2023 Project Title New Maximum Amount Payable Freeway Drive, Cameron Way to College Way $484,744 Description of Work Provide additional design services required for final construction authorization and bid readiness; see Exhibit A-2. The Local Agency of City of Mount Vernon desires to supplement the agreement entered in to with PBS Engineering & Environmental Inc. and executed on 8/13/2021 and identified as Agreement No. LA-9773 All provisions in the basic agreement remain in effect except as expressly modified by this supplement. The changes to the agreement are described as follows: I Section 1, SCOPE OF WORK, is hereby changed to read: See attached Exhibit A-2 II Section IV, TIME FOR BEGINNING AND COMPLETION, is amended to change the number of calendar days for completion of the work to read: Completion shall remain until 12/31/2024 III Section V, PAYMENT, shall be amended as follows: Supplement 002 shall increase the contract amount by $21,905 for a new total of $484,744. See attached Exhibit B-2 as set forth in the attached Exhibit A, and by this reference made a part of this supplement. If you concur with this supplement and agree to the changes as stated above, please sign in the Appropriate spaces below and return to this office for final action. By: By: Jill Boudreau - Mayor Consultant Signature Approving Authority Signature Date DOT Form 140-063 Revised 09/2005  Exhibit A-2 August 3, 2021 William Bullock, PE City of Mount Vernon 1024 Cleveland Avenue Mount Vernon, Washington 98273 Via email: billb@mountvernonwa.gov Regarding: Amendment 2 to Freeway Drive, Cameron Way to College Way Project Mount Vernon, Washington Project No. TS-2020-006 Federal Aid #STPUS-7333(001) PBS Project 45033.000 Dear Bill: PBS Engineering and Environmental Inc. (PBS, Consultant) is pleased to submit this proposal to the City of Mount Vernon (City) to provide additional services for the Freeway Drive, Cameron Way to College Way project in Mount Vernon, Washington. Amendment 2 is necessary for additional design work outlined under Task 1100 (out of scope design services), Skagit PUD related changes outlined in Task 1300, and new tasks related to the 24-inch force main sewer design and inspection services, as described below under Task 1600. SCOPE OF WORK PBS proposes the following scope for additional work for the Freeway Drive, Cameron Way to College Way project. TASK 100. PROJECT MANAGEMENT Additional project management time related new tasks and additional invoicing for extended schedule. Subtask 110. Contract Administration, Invoicing, and Progress Reports Consultant will continue provide general oversight of the construction management services, including monitoring budget, schedule, and scope of work for these services. Consultant will provide monthly invoicing with progress reports. Consultant will coordinate with the contractor’s project manager and City of Mount Vernon throughout the construction duration of the project. Subtask 110 Deliverables  Monthly invoices, progress reports  Project documentation TASK 1100. CONSTRUCTION PS&E (Out of Scope Design Work) Task 1100 includes work performed by the Consultant that was not part of the original scope of work for design services. These subtasks are outlined below for specific design elements that were not part of the original contract scope of work that are substantial in nature. 1180 NW MAPLE STREET, SUITE 160, ISSAQUAH, WA 98027  425.654.8775 MAIN  866.727.0140 FAX  PBSUSA.COM City of Mount Vernon Amendment 2 – Freeway Drive, Cameron Way to College Way Project August 2, 2021 Page 2 of 4 Subtask 1110. Traffic Control Plans and Lighting Removal The Consultant prepared site-specific traffic control plans included in the 100% plan set and bid set. New plan sheets included a long-term staging plan and southbound and northbound one-lane, two-way traffic control with flaggers setups. The utility and illumination plans were also updated to remove contract work for illumination per WSDOT comments. Changes were implemented post 100% submittal. Subtask 1110 Deliverables  12 plan sheets included in bid set for Traffic Control Plans as noted above.  Modifications to Utility and Illumination Sheets as result of Lighting being pulled out of contract. Subtask 1120. WSDOT Coordination and Modifications to Specifications Package Consultant made modifications to the 100% PS&E submittal package including completion of the WSDOT Local Programs PS&E checklist as required for WSDOT review. Included coordination with City and WSDOT to obtain final authorization of the PS&E for construction. Consultant prepared a sole source Public Interest Finding (PIF) document for the Perkfilter Storm Manhole Treatment system including justification for use and assessing alternate means. Subtask 1120 Deliverables  Updated Division 1 Specifications and Bid Items for WSDOT Comments.  PIF for sole sourcing related to Perkfilter. Subtask 1130. Schedule C Paving Elements at Cameron Way and College Way Consultant updated the plans for Schedule C paving intersection overlay including adding additional paving element to the plans at S. Cameron Way and S. College Way. Also included updates to the pavement marking and Utility Sheets for induction loop replacement. Included updates to the bid items and Division 1 Contract Provision for separating out Schedule C bid items. Subtask 1130 Deliverables  Updated design drawings for Schedule C Paving Overlay.  Updated specs and bid items for Schedule C paving work. TASK 1300. Construction Management and Engineering Subtask 1360. Skagit PUD Future Driveway Entrance The Consultant prepared up to two designs for the Skagit PUD Future Entrance not originally anticipated with project scope/design. This included coordination of all Civil paving, site prep, utility, and pavement marking and signing features. This also included modifications to drainage and bioretention facilities as result of unplanned entrance. Subtask 1360 Deliverables  Modifications to Site Prep, Paving, Utility, Drainage, and other plans up to two times. Subtask 1370. Geotechnical Test Pit Field Testing and Bioretention Design Modifications Consultant prepared project field testing for ground water at the proposed bioretention sites. A report will formalize the findings of the testing that will determine soil type for infiltration and groundwater water depth 45033.000 City of Mount Vernon Amendment 2 – Freeway Drive, Cameron Way to College Way Project August 2, 2021 Page 3 of 4 observed. The bioretention facilities are to be updated for shallower depth based on results including layout design and modifications of grading. Subtask 1370 Deliverables  Field Observation Report Memo for Test Pit.  Updated Paving/Grading sheets for the new bioretention design and updated bioretention detail sheets. Subtask 1380. Skagit PUD Future Driveway Entrance Removal Consultant will remove the Skagit PUD Future Driveway Entrance from the construction bid package due to the change in the future Skagit PUD’s property improvement project, post lowest bidder selection. This will include the removal of two curb ramps and placement of additional sidewalk, and curb and gutter. No changes will be made to the two bioretention facilities and drainage. Quantity bid tabs will be updated including change order documentation to accompany the change to the contractor. Subtask 1380 Deliverables  Updated plan sheets (listed below) to reflect removal of the Skagit PUD Future Driveway Entrance o 1 Typical Section sheet o 1 Site Preparation sheet o 1 Paving/Grading sheet o 1 Drainage Detail sheet o 1 Pavement Marking/Signing sheet o 1 Signing Detail sheet o 1 Utility sheet o 1 Landscaping sheet  Updated quantities TASK 1600. STORM FORCE MAIN DESIGN Consultant will perform a topographic survey of the Kulshan Creek outfall structure and the area between the outfall structure and the 24-inch force main as-built point of connection. The base mapping will include an updated surface, invert elevations of the 24-inch force main previously built and existing 12-inch force main, possible rockery wall and manhole, and other utilities. Consultant will develop a new pipe alignment (horizontal and vertical) for the new 24-inch force main from the as- built connection point in the Freeway Drive embankment to the Kulshan Creek outfall structure. This includes modifications to tie in at the existing outfall and any underground obstructions encountered in the field. Consultant will also design any necessary fittings and connections as needed. Consultant will coordinate with City field staff and design staff to facilitate the design as necessary, including site visits to the pipe construction site to assess onset problem. The Consultant will evaluate coring through the existing outfall wall a larger diameter pipe and maintaining the integrity of the outfall structure. The design will minimize impacts to the existing structure as much as feasible including any repair procedures and evaluation of existing as-builts. Task 1600 Deliverables  AutoCAD Civil 3D survey file 45033.000 City of Mount Vernon Amendment 2 – Freeway Drive, Cameron Way to College Way Project August 2, 2021 Page 4 of 4  One 22” x 34” plan over profile sheet  One detail sheet AMENDMENT 2 COMPENSATION ESTIMATE PBS proposes to provide the scope of work on a time-and-materials basis. The following outlines the estimated costs associated with the scope services. Task 100. Project Management $810 Task 1100. Construction PS&E (Additional Design Services) $7,410 Task 1300. Construction Management and Engineering $13,685 Task 1600: Force Main Design $14,090 Total Estimated Costs $35,995 This cost estimate includes all labor, materials, transportation, equipment, and other expenses required to complete the work described. The new total contract amount (including Amendment 1 - Construction Management) is not to exceed $498,834. Original Design Contract : $259,549 Amendment #1: $203,290 Amendment #2: $ 35,995 See attached cost estimates as back up for each line item. SCHEDULE PBS will perform the work in City’s desired schedule. Please feel free to contact me at 425.654.8769 or joe.hudson@pbsusa.com with any questions or comments. Sincerely, Joe Hudson, PE Senior Engineer/Operations Manager JPH:DAS:lc 45033.000 Amendment 2 Freeway Drive, Cameron Way to College Way City of Mount Vernon, Washington PBS PBS Engineering and Environmental (Engineering/Management) PBS SUBCONSULTANTS SUB Construction Management ENG‐ Task and Description PRINCIPAL ENG VIII ENG VII ENG III ENG II PRJ ADMIN III PRJ ADMIN II ADMIN Expense TOTAL DOWL Geotest TOTAL BUDGET AMOUNT Task 100: Project Management 810.00 0.00 810.00 Subtask 110: Contract Administration, Invoicing, and Progress Reports 2.00 4.00 810.00 0.00 $810.00 Task 1100: Construction PS&E (Additional Design Services) 7,410.00 0.00 7,410.00 Subtask 1110: Traffic Control Plans and Lighting Removal 6.00 20.00 3,780.00 0.00 $3,780.00 Subtask 1140: WSDOT Coordination and Modifications to PS&E 2.00 4.00 6.00 1,920.00 0.00 $1,920.00 Subtask 1150: Schedule C Paving 2.00 10.00 1,710.00 0.00 $1,710.00 Task 1300: Construction PS&E (Additional Design Services) 13,685.00 0.00 13,685.00 Subtask 1360: Skagit PUD Future Driveway Entrance 4.00 16.00 2,880.00 0.00 $2,880.00 Subtask 1370: Geotechnical Test Pit / Bioretention Modifications 4.00 2.00 8.00 13.00 3,845.00 0.00 0.00 $3,845.00 Subtask 1380: Skagit PUD Future Driveway Entrance Removal 8.00 40.00 6,960.00 $6,960.00 Task 1600: Storm Force Main Design 10,140.00 3,950.00 14,090.00 Survey 4.00 540.00 3,950.00 3,950.00 $4,490.00 Preliminary Design, Coordination, and Site Visit 4.00 16.00 2,940.00 $2,940.00 Final Drawings and Details (Assumes 1 Plan over Profile and 1 Detail) 10.00 24.00 5,190.00 $5,190.00 Structural Review and Recommendations 2.00 6.00 1,470.00 $1,470.00 Reimbursable Expenses 0.00 0.00 $0.00 Copies 0.00 0.00 $0.00 Expenses 0.00 0.00 $0.00 Travel 0.00 0.00 $0.00 0.00 0.00 0.00 0.00 $0.00 0.00 $0.00 TOTAL HOURS 0.00 32.00 24.00 144.00 13.00 4.00 0.00 0.00 HOURLY RATES 230.00 195.00 180.00 135.00 125.00 105.00 95.00 75.00 TOTAL DOLLARS 0.00 6,240.00 4,320.00 19,440.00 1,625.00 420.00 0.00 0.00 18,360.00 3,950.00 0.00 0.00 3,950.00 35,995.00 Exhibit B-2 PBS Project 45033.000  Vicinity Map College Way § ¦ ¨ 5 Project Limits Kulshan Trail Riverwalk Trail 0 500 1,000 2,000 Feet ± Freeway Drive Kulshan Trail Lions Park Cameron Way Riverwalk Trail 536 ¥ Downtown  AGENDA ITEM: B DATE: August 11, 2021 TO: Mayor Boudreau and City Council FROM: Peter Donovan, Project Development Manager SUBJECT: CDBG CONSULTANT AGREEMENT RECOMMENDED ACTION: Motion INTRODUCTION/BACKGROUND: For the past several years, the City has contracted with a CDBG consultant for the purpose of HUD process compliance, coordination with the Skagit County Consortium’s Consolidated Plan, and to assist in the planning and implementation of issues related to past and present CDBG, CDBG-CV, and CDBG- CV3 funding efforts. This contract is funded with federal (HUD) dollars—17% of the City’s annual 2021-22 CDBG allocation is directed toward administrative costs ($63,700). FINDINGS/CONCLUSIONS: PSAI is familiar with the City’s CDBG Consolidated Plan and its accompanying processes. Additionally, PSAI is familiar with the goals and funding sources of a number of service providers in the area, and can provide coordinated guidance to accomplish more funding objectives. RECOMMENDATION: A motion to authorize the Mayor to enter into a one-year professional services agreement with Paul Schissler & Associates for CDBG program consultation. ATTACHED: Paul Schissler Associates, Incorporated Professional Services Agreement Page 1 Proposed Agreement with PSAI PROFESSIONAL SERVICES AGREEMENT NO: 005-2021 Paul Schissler Associates, Incorporated, hereinafter called Contractor, and the City of Mount Vernon, hereinafter called City, agree as set forth in this Agreement, including, General Conditions Exhibit A (Scope of Work and Compensation) Exhibit B (Proof of Insurance) Exhibit C (HUD conditions) copies of which are attached hereto and incorporated herein by this reference as fully as if set forth herein. The term of this Agreement shall commence on the first day of July, 2021, and continue until th the 30 day of June, 2022. Any party may terminate this Contract by giving 30 days notice in writing either personally delivered or mailed postage-prepaid by certified mail, return receipt requested, to the party's last known address for the purposes of giving notice under this paragraph. Contractor acknowledges and by signing this contract agrees that the Indemnification provisions set forth in Paragraphs 4 (Independent Contractor), 6 (Taxes), 12 (Defense and Indemnity Agreement), 18 (Patent/Copyright Infringement) and 21 (Confidentiality), are totally and fully part of this contract and have been mutually negotiated by the parties. IN WITNESS WHEREOF, the parties have executed this Agreement this ___ day of ____________, _________. APPROVED: CONTRACTOR CITY OF MOUNT VERNON Paul Schissler Associates, Incorporated SKAGIT COUNTY, WASHINGTON ___________________________ ______________________________ Paul Schissler, President Jill Boudreau, Mayor Paul Schissler Associates, Incorporated Professional Services Agreement Page 2  GENERAL CONDITIONS 1. Scope of Contractor's Services: The Contractor agrees to provide to the City services and any materials set forth in the project narrative identified in Exhibit A during the agreement period. No material, labor, or facilities will be furnished by the City, unless otherwise provided for in the Agreement. 2. Accounting and Payment for Contractor Services: Payment to the Contractor for services rendered under this Agreement shall be as set forth in Exhibit A. Where Exhibit A requires payments by the City, payment shall be based upon billings, supported unless otherwise provided in Exhibit A, by documentation of units of work actually performed and amounts earned, including where appropriate, the actual number of days worked each month, total number of hours for the month, and the total dollar payment requested. Unless specifically stated in Exhibit A or approved in writing in advance by the City, the City will not reimburse the Contractor for any costs or expenses incurred by the Contractor in performance of this Contract. Where required, the City shall, upon receipt of appropriate documentation, compensate the Contractor, no more often than monthly, through the City voucher system, for the Contractor's service pursuant to the fee schedule set forth in Exhibit A. 3. Assignment and Subcontracting: No portion of this contract may be assigned or subcontracted to any other individual, firm or entity without the express and prior written approval of the City. July 2020: City approves PSAI’s request to have the option to subcontract the duties of data collection, data entry and general CDBG-related tasks, for the City of Mount Vernon’s CDBG general planning and administration, to Rita Ordonez. 4. Independent Contractor: The Contractor's services shall be furnished by the Contractor as an independent contractor and nothing herein contained shall be construed to create a relationship of employer-employee or master-servant, but all payments made hereunder and all services performed shall be made and performed pursuant to this Agreement by the Contractor as an independent contractor. The Contractor acknowledges that the entire compensation for this Agreement is specified in Exhibit A and the Contractor is not entitled to any City benefits including, but not limited to: vacation pay, holiday pay, sick leave pay, medical, dental, or other insurance benefits, or any other rights or privileges afforded to City employees. Contractor will defend, indemnify and hold harmless the City, its officers, agents or employees from any loss or expense, including but not limited to settlements, judgments, setoffs, attorneys' fees or costs incurred by reason of claims or demands because of breach of the provisions of this paragraph. Paul Schissler Associates, Incorporated Professional Services Agreement Page 3 5. No Guarantee of Employment: The performance of all or part of this contract by the Contractor shall not operate to vest any employment rights whatsoever and shall not be deemed to guarantee any employment of the Contractor or any employee of the Contractor or any subcontractor or any employee of any subcontractor by the City at the present time or in the future. 6. Taxes: The Contractor understands and acknowledges that the City will not withhold Federal or State income taxes. Where required by State or Federal law, the Contractor authorizes the City to make withholding for any taxes other than income taxes (i.e. Medicare). All compensation received by the Contractor will be reported to the Internal Revenue Service at the end of the calendar year in accordance with the applicable IRS regulations. It is the responsibility of the Contractor to make the necessary estimated tax payments throughout the year, if any, and the Contractor is solely liable for any tax obligation arising from the Contractor's performance of this Agreement. The Contractor hereby agrees to indemnify the City against any demand to pay taxes arising from the Contractor's failure to pay taxes on compensation earned pursuant to this Agreement. The City will pay sales and use taxes imposed on goods or services acquired hereunder as required by law. The Contractor must pay all other taxes including, but not limited to: Business and Occupation Tax, taxes based on the Contractor's gross or net income, or personal property to which the City does not hold title. The City is exempt from Federal Excise Tax. 7. Regulations and Requirement: This Agreement shall be subject to all laws, rules and regulations of the United States of America, and State of Washington, and political subdivisions of the State of Washington, and to any other provisions set forth herein or in the attached exhibits. 8. Right to Review: This contract is subject to review by any Federal or State auditor. The City or its designee shall have the right to review and monitor the financial and service components of this program by whatever means are deemed expedient by the City. Such review may occur with or without notice, and may include, but is not limited to, on-site inspection by City agents or employees, inspection of all records or other materials which the City deems pertinent to the Agreement and its performance, and any and all communications with or evaluation by service recipients under this Agreement. The Contractor shall preserve and maintain all financial records and records relating to the performance of work under this Agreement for 3 years after contract termination, and shall make them available for such review, within Skagit County, State of Washington, upon request. 9. Modifications: Either party may request changes in the Agreement. Any and all agreed modifications shall be in writing, signed by each of the parties. 10. Termination for Default: If the Contractor defaults by failing to perform any of the obligations of the contract or becomes insolvent or is declared bankrupt or commits any act of bankruptcy or insolvency or Paul Schissler Associates, Incorporated Professional Services Agreement Page 4 makes an assignment for the benefit of creditors, the City may, by depositing written notice to the Contractor in the U.S. mail, postage prepaid, terminate the contract, and at the City's option, obtain performance of the work elsewhere. If the contract is terminated for default, the Contractor shall not be entitled to receive any further payments under the contract until all work called for has been fully performed. Any extra cost or damage to the City resulting from such default(s) shall be deducted from any money due or coming due to the Contractor. The Contractor shall bear any extra expenses incurred by the City in completing the work, and all damage sustained, or which may be sustained by the City by reason of such default. If a notice of termination for default has been issued and it is later determined for any reason that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to the Termination for Public Convenience paragraph hereof. 11. Termination for Public Convenience: The City may terminate the contract in whole or in part whenever the City determines, in its sole discretion that such termination is in the best interests of the City. Whenever the contract is terminated in accordance with this paragraph, the Contractor shall be entitled to payment for actual work performed at unit contract prices for completed items of work. An equitable adjustment in the contract price for partially completed items of work will be made, but such adjustment shall not include provision for loss of anticipated profit on deleted or uncompleted work. Termination of this contract by the City at any time during the term, whether for default or convenience, shall not constitute a breach of contract by the City. 12. Defense & Indemnity Agreement: The Contractor agrees to defend, indemnify and save harmless the City, its appointed and elective officers and employees, from and against all loss or expense, including but not limited to judgments, settlements, attorney's fees and costs by reason of any and all claims and demands upon the City, its elected or appointed officials or employees for damages because of personal or bodily injury, including death at any time resulting therefrom, sustained by any person or persons and on account of damage to property including loss of use thereof, whether such injury to persons or damage to property is due to the negligence of the Contractor, its subcontractors, its elected officers, employees or their agents, except only such injury or damage as shall have been occasioned by the sole negligence of the City, its appointed or elected officials or employees. It is further provided that no liability shall attach to the City by reason of entering into this contract, except as expressly provided herein. 13. Industrial Insurance Waiver: With respect to the performance of this Agreement and as to claims against the City, its officers, agents and employees, the Contractor expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, for injuries to its employees and agrees that the obligations to indemnify, defend and hold harmless provided in this agreement extend to any claim brought by or on behalf of any employee of the Contractor. This waiver is mutually negotiated by the parties to this Agreement. Paul Schissler Associates, Incorporated Professional Services Agreement Page 5 14. Venue and Choice of Law: In the event that any litigation should arise concerning the construction or interpretation of any of the terms of this Agreement, the venue of such action of litigation shall be in the Superior Court of the State of Washington in and for the County of Skagit. This Agreement shall be governed by the law of the State of Washington. 15. Withholding Payment: In the event the Contractor has failed to perform any obligation to be performed by the Contractor under this Agreement within the time set forth in this Agreement, then the City may, upon written notice, withhold all monies due and payable to Contractor, without penalty, until such failure to perform is cured or otherwise adjudicated. 16. Future Non-Allocation of Funds: If sufficient funds are not appropriated or allocated for payment under this contract for any future fiscal period, the City will not be obligated to make payments for services or amounts incurred after the end of the current fiscal period. NO penalty or expense shall accrue to the City in the event this provision applies. 17. Contractor Commitments, Warranties and Representations: Any written commitment received from the Contractor concerning this Agreement shall be binding upon the Contractor, unless otherwise specifically provided herein with reference to this paragraph. Failure of the Contractor to fulfill such a commitment shall render the Contractor liable for damages to the City. A commitment includes, but is not limited to any representation made prior to execution of this Agreement, whether or not incorporated elsewhere herein by reference, as to performance of services or equipment, prices or options for future acquisition to remain in effect for a fixed period, or warranties. 18. Patent/Copyright Infringement: Contractor will defend and indemnify the City from any claimed action, cause or demand brought against the City, to the extent such action is based on the claim that information supplied by the Contractor infringes any patent or copyright. The Contractor will pay those costs and damages attributable to any such claims that are finally awarded against the City in any action. Such defense and payments are conditioned upon the following: a. Contractor shall be notified promptly in writing by City of any notice of such claim. b. Contractor shall have the right, hereunder, at its option and expense, to obtain for the City the right to continue using the information, in the event such claim of infringement is made, provided no reduction in performance or loss results to the City. Paul Schissler Associates, Incorporated Professional Services Agreement Page 6 19. Disputes: a. General Differences between the Contractor and the City, arising under and by virtue of the Contract Documents shall be brought to the attention of the City at the earliest possible time in order that such matters may be settled or other appropriate action promptly taken. Except for such objections as are made of record in the manner hereinafter specified and within the time limits stated, the records, orders, instructions, and decisions of the Contractor shall be final and conclusive. b. Notice of Potential Claims The Contractor shall not be entitled to additional compensation which otherwise may be payable, or to extension of time for (1) any act or failure to act by the City, or (2) the happening of any event or occurrence, unless the Contractor has given the City a written Notice of Potential Claim within 10 days of the commencement of the act, failure, or event giving rise to the claim, and before final payment by the City. The written Notice of Potential Claim shall set forth the reasons for which the Contractor believes additional compensation or extension of time is due, the nature of the cost involved, and insofar as possible, the amount of the potential claim. Contractor shall keep full and complete daily records of the work performed, labor and material used, and all costs and additional time claimed to be additional. c. Detailed Claim The Contractor shall not be entitled to claim any such additional compensation, or extension of time, unless within 30 days of the completion of the portion of the work from which the claim arose, and before final payment by the City, the Contractor has given the City a detailed written statement of each element of cost or other compensation requested and of all elements of additional time required, and copies of any supporting documents evidencing the amount or extension of time claimed to be due. 20. Ownership of Items Produced All writings, programs, data, public records or other materials prepared by the Contractor and/or its consultants or subcontractors, in connection with performance of this Agreement shall be the sole and absolute property of the City. 21. Confidentiality: The Contractor, its employees, subcontractors, and their employees shall maintain the confidentiality of all information provided by the City or acquired by the Contractor in performance of this Agreement, except upon the prior written consent of the City or an order entered by a court after having acquired jurisdiction over the City. Contractor shall immediately give to the City notice of any judicial proceedings seeking disclosure of such information. Contractor shall indemnify and hold harmless the City, its officials, agents or employees from all Paul Schissler Associates, Incorporated Professional Services Agreement Page 7 loss or expense, including, but not limited to settlements, judgments, setoffs, attorneys' fees and costs resulting from Contractor's breach of this provision. 22. Notice: Except as set forth elsewhere in the Agreement, for all purposes under this Agreement, except service of process, notice shall be given by the Contractor to the Mayor at 910 Cleveland Avenue, Mount Vernon, WA 98273. Notice to the Contractor for all purposes under this Agreement shall be given to the Contractor at 714 Wilson Avenue, Bellingham WA, 98225. Notice may be given by delivery or by depositing in the U.S. Mail, first class, postage prepaid. 23. Severability: If any term or condition of this contract or the application thereof to any person(s) or circumstances is held invalid, such invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition or application. To this end, the terms and conditions of this contract are declared severable. 24. Waiver: Waiver of any breach or condition of this contract shall not be deemed a waiver of any prior or subsequent breach. No terms or conditions of this contract shall be held to be waived, modified or deleted except by an instrument, in writing, signed by the parties hereto. 25. Survival: The provisions of paragraphs 4, 6, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 24, shall survive, notwithstanding the termination or invalidity of this Agreement for any reason. 26. Entire Agreement: This written contract represents the entire Agreement between the parties and supersedes any prior contracts written or otherwise, oral statements, discussions or understandings between the parties. 27. Equal Employment Opportunity Responsibilities: The Contractor agrees that it will comply with all State and local non-discrimination laws and regulations in effect at the time this agreement is executed. The Contractor shall comply with E.O. 11246, “Equal Employment Opportunity,” as amended by E.O. 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and as supplemented by regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” 28. Drug-Free Workplace: The Contractor certifies that it will provide a drug-free workplace and comply with drug-free workplace requirements in accordance with the Drug-Free Workplace Act of 1988 (42 U.S.C. 701) and with HUD's rules at 24 CFR part 24, subpart F. Paul Schissler Associates, Incorporated Professional Services Agreement Page 8  EXHIBIT A Scope of work and compensation Mount Vernon CDBG program planning: Schedule of Tasks and Activities Task 1: Help prepare any required amendments, revisions, and corrections to the 2018-2022 Consolidated Plan and help prepare the 2022-2023 Annual Action Plan Task 2: Assist with preparation of citizen participation material, publications and handouts Task 3: Help prepare Mount Vernon's 2020-2021 Consolidated Annual Performance and Evaluation Report (CAPER) Task 4: Provide guidance on other CDBG compliance activities as required (for example, Fair Housing, environmental review, floodwall completion, etc.) Task 5 Prompt further progress on current and potential CDBG projects and programs Task 6 Help Mount Vernon coordinate with Skagit County Consortium to maintain the regional Consolidated Plan Task 7 Compile Environmental Review Record documents for 2021- 2022 activities Task 8 Assist with planning and implementation issues related to CDBG-CV & CV3 funding awarded in 2020 Compensation for Tasks 1 through 8 Community development Estimated Estimated planner and technical 240 hours 60 hrs/quarter @ $150/hour assistance provider total Billable as Total Project Cost $9,000/qtr $ 36,000.00 Paul Schissler Associates, Incorporated Professional Services Agreement Page 9  EXHIBIT B PROOF OF INSURANCE The Contractor shall provide proof of insurance for Commercial General Liability or Professional Liability in the amount of $1,000,000.00 to cover Contractor’s activities during the term of this Contract. Proof of insurance shall be in a form acceptable and approved by the City. The type of insurance required by this Agreement is described below. Commercial General Liability Insurance Certificate Holder – City of Mount Vernon The Certificate must name the City as additional insured: The City, its elected officials, officers and employees are named as additional insured. Thirty (30) days written notice to the City of cancellation of the insurance policy. NOTE: No contract shall form until and unless a copy of the Certificate of Insurance, properly completed and in the amount required, is attached hereto. Paul Schissler Associates, Incorporated Professional Services Agreement Page 10  EXHIBIT C HUD Conditions Paul Schissler Associates, Incorporated Professional Services Agreement Page 11  AGENDA ITEM: C DATE: August 5, 2021 TO: Mayor Boudreau and City Council FROM: Kevin Rogerson; City Attorney SUBJECT: RESOLUTION OF ABANDONMENT RECOMMENDED ACTION: Approve the Resolution as presented INTRODUCTION/BACKGROUND: Recent assertions by Tri Pointe Homes (Tri Pointe), Quadrant’s apparent successor in interest, that the City “owns” Tract P-2 of Skagit Highlands (which has been maintained by Skagit Highlands Homeowners Association and used by the Skagit Highlands Community) and is responsible for maintenance within the tract necessitate that the City adopt a resolution to formally confirm that the City abandons any interest the City may have in Tract P-2. FINDINGS/CONCLUSIONS: See Resolution attached. RECOMMENDATION: Approval of the Resolution as presented ATTACHED: Resolution of Abandonment  RESOLUTION NO. 1000 A RESOLUTION by the City of Mount Vernon, Washington, confirming the City’s abandonment, through the course of agreements and actions by the City and Quadrant Corporation (Quadrant), of Tract P-2 located in the Skagit Highlands subdivision, which property was dedicated to the public for use as a public park, but has been unavailable for such use and remains unavailable for the foreseeable future due to contamination from methane caused by the use of highly organic fill within Tract P-2 during the development of the Skagit Highlands subdivision. Whereas, Tract P-2 in the Skagit Highlands subdivision was dedicated to the City for use as a public park in the final plat approved on December 19, 2006; Whereas, in 2006, when the plat was approved, the generation of methane caused by the decomposition of highly organic fill used in Tract P-2 was not known to the City; Whereas, after the discovery of methane contamination within Tract P-2, which made the property unusable as a public park, the City accepted Quadrant’s public statement that the park had not yet been dedicated to the City and abandoned its interest in Tract P-2; and Whereas recent assertions by Tri Pointe Homes (Tri Pointe), Quadrant’s apparent successor in interest, that the City “owns” Tract P-2 and is responsible for maintenance within the tract necessitate that the City adopt a resolution to formally confirm and clarify that the City abandons any interest the City may have in Tract P-2. THE CITY COUNCIL MAKES THE FOLLOWING FINDINGS: 1. Under Resolution No. 698 dated January 4, 2006, the city granted preliminary plat approval to Quadrant to develop Skagit Highlands Division V (Phase I) allowing Quadrant to begin work on a housing development within the subdivision. 2. The City Council approved the final Plat of Skagit Highlands Division V (Phase I) on December 19, 2006, which was filed with the county auditor under file number 200612210067 on December 21, 2006. 3. The dedication of Tract P-2 to the public on the final plat does not contain clear language that Quadrant intended or by operation of the dedication in fact transferred a fee interest in the tract to the public. Regarding Tract P-2, the dedication provides: . . . we . . . further dedicate to the use of the public all of the easements and tracts shown on this plat for all public purposes as indicated thereon, including but not limited to parks, open space, utilities and drainage. . . Page 1 of 5 4. Note 10 on sheet 2 of the plat provides that “Tracts P-1 and P-2 are park tracts” and that “Tract P-2 is hereby granted and conveyed upon the recording of this plat to the City of Mount Vernon, who shall be responsible for the maintenance of said tract.” 5. Tract P2 was assigned parcel number P125578 by the Skagit County Assessor with the following legal description: (5.9800 ac) TRACT P2, AKA PARK TRACT, SKAGIT HIGHLANDS DIVISION V (PHASE 1), RECORDED UNDER AF#200612210067, BEING A PORTION OF THE SW 1/4 OF SW 1/4 SECTION 14, SE 1/4 AND SW 1/4 OF SE 1/4 SECTION 15, NE 1/4 AND NW 1/4 OF NE 1/4 SECTION 22 AND NW 1/4 OF NW 1/4 SECTION 23, ALL IN TOWNSHIP 34 NORTH, RANGE 4 EAST, W.M. 6. Landscapers working for Quadrant within Tract P-2 observed and reported the presence of gas within the tract to Quadrant, which caused Quadrant to retain PES Environmental, Inc. (PES) to survey the area. 7. On April 1, 2009, PES issued a Methane Characterization and Conceptual Mitigation Design Report. In the Background section of its report, PES attributed the presence of methane to work performed when Tract P-2 was excavated and backfilled over a 5-to 6-month period that ended by November 2006: During site development, Quadrant excavated soil from borrow pits in the areas that later became Park 2 [Tract P-2] and Park 3 to construct stormwater management and retention infrastructure, and to reclaim an abandoned gravel pit within the Skagit Highlands development (Figure 2). The park areas were subsequently backfilled using topsoil obtained from approximately 91 acres of previously graded areas throughout Division 5 and the larger Skagit Highlands development. . . . The former borrow pit in Park 2 is estimated to cover approximately 3.5 acres in the southern two thirds of the park as shown on Figure 3. . . . . . According to Quadrant, the prior owner of the Skagit Highlands property had logged and cleared many of the parcels prior to Quadrant assuming ownership. As part of the land clearing activities, the previous owner shredded stumps, shrubs, and other debris (i.e., shredded woody material) and incorporated the material into the land surface. This surface material, consisting of organic rich topsoil and shredded woody material was pushed into piles, removed from the Division 5 development area (approximately 71 acres), and used as fill to reclaim the Park 2 borrow pit. According to Quadrant, the topsoil from the 71 acres of Division 5 contained the greatest amount of organic material, ... 8. PES concluded that, “The source of the methane in the parks is believed to be from the decomposition of the organic matter in the topsoil used to reclaim the former borrow pits, which became Park 2 and 3.” The use of fill with a high organic content, which is the source of Page 2 of 5 methane production in the tract and the cause of an ongoing public health hazard, was not disclosed to the City before the final plat was approved. 9. PES’ report identifies health and environmental concerns caused by the decomposition of the organic fill, which make the property unsafe for public use, and states, “Based on the methane generation modeling, the mitigation systems may need to be operated or left in place for up to 20 years or longer.” 10. Quadrant notified the City, Skagit County Health, and the Washington State Department of Ecology of the ongoing generation of methane within Tract P-2 by early August 2008 and worked with county Health on a mitigation plan. 11. On August 12, 2008, Quadrant mailed a letter to the Skagit Highlands Community regarding the “Skagit Highlands City Park Opening.” The letter advised of the discovery of methane and provided, in part: The P2 Park was scheduled to be dedicated to the City of Mount Vernon and opened for use sometime this summer . . . Until the situation is fully understood and addressed these two parks will remain closed to public access . . . Quadrant intends to dedicate the two park spaces as planned once this issue is addressed. 12. In a letter dated May 20, 2009, Quadrant advised the Skagit Highlands Community that it “will seek permit approval from the City of Mount Vernon to establish underground extraction systems” and that “we . . . anticipate the park turnover may occur by the end of August 2009.” 13. Because of the use of inappropriate organic-rich fill, Tract P-2 was not suitable for use as a park as intended at the time the final plat was approved, and it continues to be unusable as a public park. As a result, the City abandoned its interest in Tract P-2, has not mowed or landscaped the property, organized events on the property, contracted for or performed any work on the property, assumed responsibility for security on the property, or interfered with Quadrant or the HOA’s interests and activities in Tract P-2. 14. On March 10, 2016, Quadrant and Skagit Highlands Homeowner’s Association (HOA) entered into an Easement Agreement in which Quadrant granted the HOA “sole responsibility for the operation, management, and scheduling” of Tract P-2. Specifically, the HOA agreed that it would have responsibility to establish rules and regulations for the Property, scheduling use of the Property and any of its facilities, and charging and collecting fees for use of the Property or its facilities. The HOA also agreed to provide, at its sole expense, all maintenance and repair services for the Property and to modify its liability insurance to include the Property. 15. In a letter dated May 25, 2021, Tri Pointe advised, contrary to the Easement Agreement between Quadrant and the HOA that “the City does in fact own park P-2,” that the Skagit Highlands Homeowner’s Association (HOA) will cease maintaining the park, and that Tri Pointe does not intend to take over park maintenance. Should Tri Pointe abandon its responsibilities as owner of Tract P-2 and release the HOA from its responsibilities under the 2016 Easement Page 3 of 5 Agreement, Tract P-2 will likely become a nuisance property in violation of chapter 8.08 MVMC. 16. To clarify that Tri Pointe and the HOA have legal and contractual obligations regarding the maintenance of Tract P-2 and to avoid the scenario of Tract P-2 becoming a nuisance property, the City finds it necessary to formally abandon all interest in Tract P-2. 17. The public’s interest in property acquired through a dedication – whether easement or ownership in fee – may be abandoned when the property is no longer needed or suitable for the public’s use. See RCW 35.22.280(7) which specifically gives cities of the first class the power to vacate parks. 18. RCW 64.04.175 grants the City, as sole owner of the park easement, authority to unilaterally abandon the dedicated easement. That statute provides: Easements established by a dedication are property rights that cannot be extinguished or altered without the approval of the easement owner or owners, unless the plat or other document creating the dedicated easement provides for an alternative method or methods to extinguish or alter the easement. 19. Abandonment of the City’s park easement will not interfere with the HOA’s 2016 Easement Agreement. The 2016 Easement Agreement does not dedicate the property for public uses; is a distinctly separate and mutual agreement between Quadrant and the HOA, which did not involve the City. Further, the HOA’s Easement Agreement; was entered into after the City abandoned its interest in Tract P-2; and will survive the City’s recording of a resolution that formalizes the City’s abandonment of its interest in Tract P-2. 20. Should there be a dispute about whether the City acquired an easement or a fee interest over Tract P-2, the court in Johnston v. Medina Imp. Club, 10 Wn.2d 44, 116 P.2d 272, (1941) allows that municipalities may abandon fee interests. The Johnston court found that King County’s undisputed disclaimer – in an answer to a complaint – of its fee interest in the property involved in the litigation was sufficient for the court to find abandonment by King County and to dismiss the county from the litigation. 21. In accordance with MVMC 2.95.030, which authorizes the City Council to abandon easements and fee interests in real property, the City Council makes the following specific findings: a. Tri Pointe’s assertion that the City “owns” Tract P-2 and the HOA’s apparent withdrawal from its 2016 Easement Agreement with Quadrant sets the stage for Tract P-2 to become a nuisance property with the potential for injury to the public’s health, safety, and well- being; b. Abandonment of the City’s interest in Tract P-2 is in the City’s best interests given the City’s past, present and ongoing inability to use the property for the dedicated use; the City’s intended abandonment of any interest in the property; the potential for public liability due to the ongoing methane contamination; and the City’s present interest in avoiding the consequence of Tract P-2 becoming a nuisance property; Page 4 of 5  c. Abandonment of the property (affirmed and made formal in a Resolution passed by the City Council) means the City’s interest in Tract P-2 reverts to Quadrant or to Tri Pointe depending on any agreements between it and Quadrant, and is not a gift or loan of credit to either entity; d. Tract P-2, which has never been opened as a public park and is not desirable for use as a public park is surplus to the needs of the City; e. Tract P-2 was not acquired for public utility purposes and is not being transferred to another governmental unit; and f. A formal appraisal is not necessary in this instance where ownership of the park easement, which the City has long considered as abandoned, will revert to Quadrant or Tri Pointe. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF MOUNT VERNON: 1. That the City does not own Tract P-2; 2. That the City hereby abandons any and all interest it may have in Tract P-2, which interest was dedicated without disclosure of the presence of existing hazardous materials, was dedicated for public use in the Plat of Skagit Highlands Division V (Phase 1), was filed with the Skagit County Auditor on December 21, 2006, under file number 200612210067 and is described in the legal description provided in the findings above; and 3. That Quadrant, Tri Pointe, and/or the HOA have obligations regarding Tract P-2 as owner of a fee interest in the tract or under the 2016 Easement Agreement between Quadrant and should act to avoid the prospect of Tract P-2 becoming a nuisance property. A copy of this resolution shall be filed with the Skagit County Auditor and distributed to the Skagit County Assessor, Quadrant, Tri Pointe, and the HOA. Adopted at a regular meeting of the City Council of the City of Mount Vernon, Washington, held on August 11, 2021. By JILL BOUDREAU, Mayor Attest: ______________________________ DOUG VOLESKY, Finance Director Approved as to form: Published__________________________ KEVIN ROGERSON, City Attorney Page 5 of 5