Request to Terminate for Public Convenience the agreement for EIS preparation for GPT and BNSF Custer Spur Modification Project / Facebook Post, Sj Robson

general conditions gpt eis contract

13 hrs  August 6, 2016  Sandy Robson

Hope this letter I sent tonight might motivate others to also write County Executive Louws and Sam Ryan, Director of County PDS, requesting the County terminate the EIS for the Gateway Pacific Terminal–

From: Sandra Robson
Date: August 6, 2016 at 10:05:29 PM PDT
To: Jack Louws <JLouws@co.whatcom.wa.us>, Tyler Schroeder <tschroed@co.whatcom.wa.us>, Sam Ryan <JRyan@co.whatcom.wa.us>

Subject: Termination for Public Convenience of the Contract for Services Agreement between Whatcom County and CH2M Hill Engineers, Inc. for EIS preparation for the GPT and BNSF Custer Spur Modification Project

Dear County Executive Louws, Deputy Executive Schroeder, and PDS Director Ryan:

I am writing to you to request that the County immediately terminate, for Public Convenience, its Agreement with CH2M for the EIS preparation for the GPT and BNSF Custer Spur Modification Project.

Recently, I read Gateway Pacific Terminal (GPT) applicant Pacific International Terminal’s May 10, 2016 letter to Whatcom County Planning and Development Services Director Sam Ryan, and David Sturtevant of CH2M (the consultant for the EIS on the GPT project), asking the County to “execute an addendum that extends the EIS suspension to 180 days with another automatic 180-day suspension if the issues have not been resolved by that time.”

That May 10th letter, and one other letter (an April 1, 2016 letter to the County from PIT invoking its 45-day EIS suspension clause in its Agreement with Whatcom County and BNSF), were the only 2016 documents or correspondence posted on the County’s GPT webpage until yesterday, August 5, 2016, when the County posted some, not all, 2016 GPT documents and correspondence after being requested to do so by Whatcom citizens.

Posted yesterday, was a July 20, 2016 letter from CH2M VP David Sturtevant, to Tyler Schroeder, Whatcom County Deputy Executive. Mr. Sturtevant requested a six-month contract extension (to January 25, 2017) between CH2M and the County while the GPT Applicant continues to consider their options for going forward because CH2M Hill’s current contract period of performance was apparently ending on July 25, 2016.

The public has not been made aware of the status of the May 10th request from PIT for extension of the EIS suspension, or the status of the July 20th request from CH2M for extension of the EIS suspension in terms of any replies from Whatcom County.

Not only is there no real justification for the County to extend the EIS suspension, more importantly, there is ample reason why any extension of the EIS suspension is contrary to public interest. It has come to my attention that Whatcom County is provided a legal path to terminate the EIS preparation for the GPT and BNSF Custer Spur Modification Project.

Several days ago, I decided to re-visit the Contract for Services Agreement between Whatcom County and CH2M Hill Engineers, Inc. for the EIS preparation for the GPT and BNSF Custer Spur Modification Project, signed on June 12, 2012. Link to the June 12, 2012 Agreement: http://www.co.whatcom.wa.us/DocumentCenter/View/2774

On page 6 of the Agreement, under the header, “General Conditions,” clause number 11.3 “Termination for Public Convenience,” it reads:

“The County may terminate the Agreement in whole or in part when ever the County determines, in its sole discretion, that such termination is in the interests of the county. Whenever the Agreement is terminated in accordance with this paragraph, the Consultant shall be entitled to payment for actual work performed up to the termination date 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 Agreement by the County at any time during the term, whether for default or convenience, shall not constitute breach of contract by the County.”

According to the Contract for Services Agreement between Whatcom County and CH2M Hill Engineers, Inc., our County can terminate the Agreement in whole or in part whenever the County determines, in its sole discretion, that such termination is in the interests of the county.

And, according to the Agreement, “Termination of this Agreement by the County at any time during the term, whether for default or convenience, shall not constitute breach of contract by the County.”

The list below details examples of some, not all, of the ways that the proposed GPT project and the EIS process for that, has been negatively impacting Whatcom citizens over the last several years:

• Citizens’ access to their County Council representatives is limited in that they cannot communicate with them about any matter potentially related to the GPT project (since 2012, after the legal advisement issued by our County Attorney’s office)

• There is a formidable restriction of the government-to-government relationship between Lummi Nation and our County government in matters involving Cherry Point (since 2012, after the legal advisement issued by our County Attorney’s office)

• The County Council representatives’ limited ability to fully legislate on behalf of their constituents on any matter potentially related to the GPT project (since 2012, after the legal advisement issued by our County Attorney’s office)

• The obstruction of citizens’ due process rights during County Council meetings related to the prohibition on speaking during public comment about any matter potentially related to the GPT project (since 2012, after the legal advisement issued by our County Attorney’s office)

• County Council elections, in that Council candidates were/are constrained in providing voters with answers to questions on subjects potentially related to the GPT project (since 2012, after the legal advisement issued by our County Attorney’s office)

• The obstruction of citizens’ due process rights to fully participate, or even participate at an acceptable level in the 2016 Comp Plan Update process (due to the 2012 legal advisement issued by our County Attorney’s office)

• The County Council representatives’ limited ability to fully legislate on Comp Plan matters during the 2016 Comp Plan Update, causing Council to take the extraordinary action, on July 12, 2016, to remove proposed amendments made to the Cherry Point UGA section and send those back to the Planning Commission with no real, citable explanation as to why this was done (due to the 2012 legal advisement issued by our County Attorney’s office)

• The likely obstruction of citizens’ due process rights during our ongoing Critical Areas Ordinance Update (due to the 2012 legal advisement issued by our County Attorney’s office)

The U.S. Army Corps of Engineers announced on May 9, 2016, that it cannot issue a permit for the GPT project as its agency determined that the effects to the Lummi’s treaty reserved rights are greater than de minimis and the Lummi Nation objects to these effects, and that determination resulted in the Corps’ official denial of the federal permit needed for GPT.

The Washington State Department of Natural Resources officially denied the lease needed for the GPT project on June 6, 2016.

Looking at what I have outlined above, it is clear that it is in the interests of our County and the public, that our County terminate, for Public Convenience, its Agreement with CH2M Hill for the EIS preparation for the GPT and BNSF Custer Spur Modification Project.

As I pointed out earlier in this letter, the Contract for Services Agreement between Whatcom County and CH2M Hill Engineers, Inc. for the EIS preparation for the GPT and BNSF Custer Spur Modification Project, allows, in clause number 11.3 “Termination for Public Convenience,” for our County, in its sole discretion, at any time during the term, to terminate, for Public Convenience, its Agreement with CH2M for the EIS for the GPT and BNSF Custer Spur Modification Project. And, in that Agreement with CH2M Hill, it states that termination, whether for default or convenience, shall not constitute breach of contract by the County.

Therefore, I respectfully request the County immediately terminate, for Public Convenience, its Agreement with CH2M for the EIS preparation for the GPT and BNSF Custer Spur Modification Project.

I look forward to your swift response to my request. Thank you.

Regards,

Sandy Robson

Read Sandy’s post on her Facebook page here.

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