HomeMy WebLinkAbout09-165 - King County - Flood Protection ServicesAGREEMENT FOR FLOOD PROTECTION SERVICES
THIS AGREEMENT FOR FLOOD PROTECTION SERVICES "Agreement is
entered into on the last date signed below by and between the Parties, the CITY OF
TUKWILA, a Washington municipal corporation "City and KING COUNTY, a
political subdivision of the State of Washington "County (collectively referred to
herein sometimes as the "Parties with reference to the following facts:
RECITALS
TUKWILA AGREEMENT FOR FLOOD PROTECTION SERVICES
Page 1 of 8
09 -165
Approved by Council Res. #1689
A. This Agreement is a contract setting the terms and conditions by which
the City will perform certain flood control management work under contract with
the County, and the County will reimburse the City for such work and grant to the
City rights of access and license as required for the City to perform the work.
B. The United States Army Corps of Engineers "Corps has jurisdiction
over the Howard Hanson Dam, which due to its diminished capacity, may release
waters in coming months that may cause flooding in the City. The Corps also has
authority to assist with flood protection measures with regard to the Green River
Levee System and other flood protection facilities along the Green River, which is
the potential source of floodwaters entering the City. The Corps has purchased
materials that it is willing to make available to the County, the City and other local
jurisdictions, provided that the materials are used in accordance with the
recommendations provided by the Corps, as set forth in Exhibit A, attached hereto
and incorporated herein by reference.
C. The King County Executive has issued an emergency proclamation that
provides that the threat of releases of additional waters from the Howard Hanson
Dam constitutes an emergency, waives county procurement requirements for
contracts related to the county's response to the emergency, and postpones County
permitting procedures for public works.
D. The City Council of the City of Tukwila in Resolution 1689 has declared
a local emergency 1689 due to Flood Control Capabilities of the Howard Hanson
Dam, giving the powers, functions, and duties necessary to prepare for, stabilize
and control this emergency to the Emergency Coordinator and Public Works
Director of the City.
E. The County, by the exercise of its flood control authority under
Chapter 86.12 RCW, and the City, as contractor to the County, and by exercise of
its police powers, intend to increase flood prevention efforts in order to better
protect the citizens and property in the City, by implementing additional flood
prevention measures that are consistent with Corps specifications.
F. The Parties understand and agree that the acquisition of equipment
and materials; the filling, placing and maintenance of sand bags and other
materials; and other activities necessary to supplement and protect the Green River
Levee System is within the authority of the County and that it is efficient under the
circumstances for the City to perform the Work, as further defined below. Exhibit
B, attached hereto and incorporated herein by this reference, provides a depiction
and identification of the sites where the levees are located for which the County and
the District, as defined below, hold real property interests for flood protection
purposes, and where the Work, as defined below, is to be performed "Levees
G. The County and the City recognize that coordination of flood protection
efforts is necessary, as the Green River Levee System is an integrated system, with
actions on one reach of the Levee System having potential impacts on other
reaches. Accordingly, the County and the City will make efforts to integrate the
Work provided for herein with the flood protection actions being taken in other
jurisdictions along the Green River, either by the County or by the affected local
jurisdiction.
H. Since the County operates and maintains a major portion of the Green
River Levee System as part of the services it provides to the King County Flood
Control Zone District "District and since the County in its own right is authorized
to operate and maintain flood protection facilities on those areas where it holds real
property interests in its own name or in the name of the District, it is appropriate
that the County reimburse the City for the actual costs of the Work, as hereinafter
defined, so long as such costs do not exceed $1,285,760.00, and are verifiable and
reasonable under the circumstances. Reimbursement will be made based upon the
linear feet on which Work is performed, including Work performed by one
jurisdiction for another, as more fully described in Exhibit B. If the funds provided
for herein are insufficient to pay the City's actual costs to complete the Work, the
City shall complete the Work either with its own funds or funds from some third
party funding source.
TUKWILA AGREEMENT FOR FLOOD PROTECTION SERVICES
Page 2 of 8
I. The King County Flood Control Zone District, a quasi municipal
corporation and taxing district under the constitution of the State of Washington,
due to the diminished capacity of the Howard Hanson Dam and the consequent
potential for flooding, has provided funding to the County to increase flood
prevention measures along the Green River Levee System and has included such
measures in its annual work program and budget. The County as Service Provider
to the District desires to engage the services of the City to implement these
measures.
NOW, THEREFORE, BASED UPON THE FOREGOING, AND THE FACT THAT BOTH OF
THE PARTIES HAVE PROCLAIMED THAT AN EMERGENCY EXISTS, the Parties agree
to the following:
AGREEMENT
1. All recitals are hereby ratified as part of this Agreement.
2. The City will perform the Work, as defined below, with City forces and
by duly awarded and executed contracts for procurement and public work. A
description of the work to be performed and the standards to which it is to be
performed is set forth in Exhibit C, attached hereto and incorporated herein by this
reference "Work Some portion of the Work may occur prior to the execution of
this Agreement; the County agrees that such Work shall otherwise be subject to the
terms of this Agreement and be eligible for cost reimbursement provided such costs
meet the terms of No. 7 below. The Work shall be completed by November 7, 2009.
In the event that the City does not complete the Work by November 7, 2009, the
County may complete the Work and charge back the costs of such portion of the
Work to the City's not -to- exceed reimbursable amount, as set forth in No. 7 below.
3. A portion of the Work will be performed under contracts by contractors
to the City. Copies of the contracts are included in Exhibit D to this Agreement.
Contracts of the City that are entered into after the effective date of this Agreement
may become part of Exhibit D, upon written approval by the County.
4. Any change orders to the contracts included in Exhibit D, shall require
written approval by the County, which approval shall not be unreasonably withheld,
and upon such approval be appended to this Agreement.
5. Upon completion of the Work by City forces and upon Final Acceptance
of contract Work, the City will submit detailed invoices to the County.
TUKWILA AGREEMENT FOR FLOOD PROTECTION SERVICES
Page 3 of 8
6. The City agrees to maintain documentation of all Work performed
sufficient to meet state audit standards for the implementation of a capital project,
recognizing that the County and /or the District may seek recovery of costs
expended from state, federal, and other funding sources. The City agrees to
maintain additional documentation that is requested by the County in order to seek
recovery of costs. City contract and internal documents will be made available to
the County for review and /or independent audit upon request.
7. The County will reimburse the City for the actual costs of such Work
within sixty (60) days of submittal of the invoices, up to an amount not to exceed
$1,285,760.00, unless the Parties agree to extend that time to resolve disputes.
Any costs in excess of $1,285,760.00, incurred by the City and /or its contractors
shall be the responsibility of the City to pay. If the funds provided for herein are
insufficient to pay the City's actual costs to complete the Work, the City shall
complete the Work either with its own funds or funds from some third party funding
source.
8. The County, to the extent that its property interests and those of the
District require and allow, hereby grants the City the right of access to the Levees
and license and permission for special use to perform the Work upon the Levees,
including those Levees that are outside the City Limits and are identified in Exhibit
B. The County waives any applicable bond requirements.
9. The City shall be responsible for complying with all applicable laws,
and obtaining all required permits in connection with the Work.
10. The County and the City agree that the Work as provided for herein
should follow the recommendations of the Corps as provided for in Exhibit A and
should not have a detrimental effect on the flood protection efforts of other
jurisdictions along the Green River.
11. This Agreement and any activities authorized hereunder shall not be
construed as granting any rights or privileges to any third person or entity, or as a
guarantee or warranty of protection from flooding or flood damage to any person,
entity or property, and nothing contained herein shall be construed as waiving any
immunity to liability to the County and /or the District, granted under state statute,
including Chapters 86.12 and 86.15 of the Revised Code of Washington, or as
otherwise granted or provided for by law.
12. The City acknowledges and agrees that it will not allow any lien or
encumbrance to be placed upon the real property interests and any other interests
held by King County and /or the District in connection with the Work. If any lien or
encumbrance is so placed, King County and /or the District shall have the right to
remove such lien and charge back the costs of such removal to the City.
TUKWILA AGREEMENT FOR FLOOD PROTECTION SERVICES
Page 4 of 8
13. In addition to authorizing the implementation and completion of the
Work, the County authorizes, but does not require, the City, its employees,
contractors, agents and volunteers to visually inspect and monitor the condition and
performance of the completed Work during the timeframe typically known as "flood
season," which for the purposes of this Agreement shall be from November 1, 2009
through March 31, 2010, unless otherwise extended in writing by both Parties. The
City agrees that, in addition to the hold harmless and indemnification provided for
in Section 14 below, the City assumes all risk for itself, its employees, contractors,
agents and volunteers for any damages to persons or property, both real and
personal, that may occur during such visual inspection and monitoring activities,
and agrees to hold the County and the District harmless and to indemnify the
County and the District for any claims that may arise out of such visual inspection
and monitoring activities.
14. The City, its officers, employees, agents, contractors, invitees and
volunteers acknowledge that the County and the District are making no
representations as to the current condition of the Levees. The City agrees to hold
harmless and indemnify the County and /or District for any negligent act or omission
of the City, its officers, employees, agents, contractors, invitees and volunteers, to
the extent not within any immunity conferred by law on the County and /or the
District arising out of the Work performed on the Levees pursuant to this
Agreement. Such indemnification shall extend to any claims, including all demands,
suits and judgments, for damages arising out of injury to persons or damage to
property, where such injury or damage is caused by or arises out of the City's
negligence. The City by contract terms has required its contractors to pass through
indemnification to the District and County to the extent of their respective property
interests.
The Parties recognize that the Work is intended to increase protection against
flooding for the City, its citizens, and property within and around the City.
However, such efforts at increasing protection are no guarantee that flooding will
not occur. In the event that flooding does occur, the County and the District shall
continue to enjoy the immunity for flood prevention measures conferred by law,
and it is the intention of the Parties that the City, as contractor to the County, shall
likewise be included within such immunity to the extent allowed by law, and to the
extent not covered by the City's reasonable exercise of its police powers. Nothing
in this No. 14 shall be construed to eliminate, reduce, or otherwise abrogate any
immunity conferred on the County and /or District in connection with acts or
omissions arising out of the Work.
The indemnification provided for in this No. 14 shall survive termination of
this Agreement.
TUKWILA AGREEMENT FOR FLOOD PROTECTION SERVICES
Page 5 of 8
15. This Agreement shall remain in force and effect until the heightened
threat of flood has passed and associated restoration and temporary and
permanent clean -up work is complete. Upon a determination by the Corps that the
design capacity of the Howard Hanson Dam has been restored and the dam is
functioning in accordance with its original design, the City shall cause the materials
that have been placed on the Levees in accordance with the Work, to be removed
and to dispose of them in accordance with any instructions provided by the Corps,
which at all times shall remain the owner of the materials, unless separately
furnished by the City. The City agrees that upon removal of the materials, it shall
restore the Levees to their condition previous to the placement of materials, to the
extent impacted by the placement of the materials, and shall be responsible for all
costs associated with such removal and restoration, unless the County determines,
in its sole discretion, that additional funds are available and makes such funds
available for part of or all of such costs.
16. Solely for the purpose of enforcing the indemnification provision in
Section 14 above, each Party expressly waives, with respect to the other Party
only, any immunity that would otherwise be available against such claims under the
Industrial Insurance provisions of Title 51 of the Revised Code of Washington;
provided that, such waiver shall not preclude any indemnifying Party from raising
such immunity as a defense against any claim brought against the indemnifying
Party by any of its employees.
17. Each Party recognizes that the other is self- insured and accepts such
coverage for liability arising under this Agreement. Should any Party choose not to
self- insure, that Party shall maintain and keep in full force and effect a policy of
general liability insurance in an amount not less than One Million Dollars
($1,000,000) per occurrence with an additional excess liability policy of not less
than Ten Million Dollars ($10,000,000) and will provide the other Party with a
certificate of insurance and additional insured endorsement that will name the other
Party as an additional insured.
18. The Parties will seek to resolve any disputes under the Agreement as
follows:
a. For disputes involving cost reimbursements, submittal of all
relevant information to an independent Certified Public Accountant and /or a
Construction Claims Consultant, if agreed upon by the Parties, for a non binding
opinion as to the responsibility.
TUKWILA AGREEMENT FOR FLOOD PROTECTION SERVICES
Page 6 of 8
b. If the foregoing does not result in resolution and for all other
disputes, the Parties may mutually select any informal means of resolution and
resort will otherwise be had to the Superior Court for King County, Washington.
c. Each Party will be responsible for its own costs and attorney's
fees in connection with the dispute resolution provisions of this Section 15.
19. This Agreement represents a full recitation of the rights and
responsibilities of the parties and may be modified only in writing and upon the
consent of both Parties.
20. The rights and licenses contained in this Agreement shall inure to the
benefit of and are binding upon the Parties and their respective successors in
interest and assigns.
21. All communications regarding this Agreement shall be sent to the
parties at the addresses listed below unless a party gives notice of a change of
address. Any written notice hereunder shall become effective three (3) business
days after the date of mailing by registered or certified mail, and shall be deemed
sufficiently given if sent to the address state below or such other addresses as may
be hereinafter specified in writing.
If to City:
Bob Giberson, Interim Director
City of Tukwila
Public Works Department
6300 Southcenter BIvd.Ste. 100
Tukwila, WA 98188
TUKWILA AGREEMENT FOR FLOOD PROTECTION SERVICES
Page 7 of 8
If to District and /or County:
Theresa Jennings, Director
King County DNRP
201 South Jackson St, Ste. 700
Seattle, WA 98104 -3855
22. The undersigned warrant that they have the authority duly granted by
their respective legislative bodies to make and execute this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement, which
shall become effective on the last date signed below.
CITY OF TUKWILA
By:
.Aft
Its/ Mayor
DATE: /0 `/j —O/
APPROVED AS TO FORM:
Bv:
Asslste t City Attoorn
City of Tukwila
TUKWILA AGREEMENT FOR FLOOD PROTECTION SERVICES
Page 8 of 8
By:
Its: Executive
By:
KING COUNTY
DATE: (7
APPROVED AS TO FORM:
puffy Prosecuting Attorney for
ing County
REPLY 10
ATTENTION 01
Engineering Division
Dear Mr. Bleifuhs,
Recommendations:
EXHIBIT A
DEPARTMENT OF THE ARMY
SEATTLE DISTRICT, CORPS OF ENGINEERS
P.O. BOX 3755
SEATTLE, WASHINGTON 98124-2255
Steve Bleifuhs
River and Floodplain Manager
King Street Center
201 South Jackson Street, suite 600
Seattle, Washington 98104 -3855
I am writing to provide the Corps of Engineers recommendations
for the temporary measure installation along the Green River
levees. Installing temporary measures on these levees will not
affect the levee's eligibility in the Corps PL 84 -99 Levee
Rehabilitation program.
Use flood response structures to raise low areas on the
levees to provide 13,900 cfs capacity with 3 feet of
freeboard.
Temporary structures should be centered on the levee
whenever possible:
Use temporary structures that have been used and tested
by the Corps of Engineers.
Remove brush and trees that have been identified by the
Corps as adversely affecting visual inspection, access,
or structural stability of the levee.
Any questions regarding these recommendations, please contact
Dennis Fischer, Levee Safety Program Manager (206) 764 -3555 or
Douglas T. Weber, P.E., Natural Disaster Program Manager, (206)
764 -3406.
Sincerely,
Mark Ohlstrom, P.E.
Chief, Engineering Division
OCT 1 2009
EXHIBIT „B"
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Date: 10/15/09
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Lower Green River Topographic Map
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King County
River and Floodptain
Management Section
Date: 10/T5/091
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River and Floodplain
Management Section
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King County, Washington
Dote: 10/75/091
Sheet 9 of 9.
EXHIBIT C
Work to be performed will consist of raising existing levees and related flood confinement
structures and measures shown in Exhibit `B" (collectively, "the Levees to an elevation
sufficient to provide up to three (3) feet of freeboard over and above the modeled water surface
elevation for a flow of 13,900 cfs in the Green River, measured at the Auburn Gauge.
Structures and measures employed to raise the Levees to the targeted freeboard elevations shall
consist of various combinations of sandbags, earth fill berm structures, and various proprietary
emergency flood containment structures, including but not limited to Hesco Barriers, SuperSacks
or equivalent emergency flood containment bulk bag container units.
Materials and placement for earth fill berm structures shall conform to specifications set forth in
the United States Army Corps of Engineers' Engineering Manual EM- 1110 -2 -1913.
Each sandbag employed shall be filled and placed in accordance with procedures set forth in
Corps of Engineers guidance brochures and informational videos located at
htta /www. nws. usace. army. mi 1 /Publ icMenu/ Menu. cfm ?sitename =em &pa aename =Floodfi
Proprietary structures for emergency flood containment shall be filled and placed on the Levees
in accordance with the manufacturer's specifications for their use. Subgrade preparations shall
be provided in accordance with the manufacturer's recommendation for placement of the
structures. Materials used to fill the structures shall be of a character, gradation, sort,
classification, and moisture content within the range(s) recommended by the manufacturer for
this use. Placement and compaction of materials within the structures shall be as specified and
recommended by the manufacturer.
In addition, all proprietary structures provided to the Cities and to the County by the Seattle
District Corps of Engineers shall be filled and placed on the Levees consistent with any
recommendations and specifications provided by the Seattle District Engineer and his
designee(s).
Any questions by any of the Parties to this Agreement concerning the proper preparation,
placement, or use of any structure or measure used to raise the Levees shall be promptly brought
to the attention of all other concerned parties, including but not limited to the affected City and
the County, and shall and be resolved subject to the terms of this Agreement. All questions or
concerns regarding the proper use, placement, or operation of any Levee raising measure
involving a proprietary flood containment structure shall be jointly discussed by all concerned
parties.
EXHIBIT D
City Contracts for Flood Protection Measures