HomeMy WebLinkAboutUtilities 2010-08-24 COMPLETE AGENDA PACKET1. PRESENTATION(S)
2. BUSINESS AGENDA
a. Solid Waste Interlocal Agreements
b. HHD Flood Response Emergency Levee Work
Project Completion and Acceptance
c. Tukwila 205 Levee Repair Lily Pointe
Easement Interest Payment
3. ANNOUNCEMENTS
4. MISCELLANEOUS
City of Tukwila
Utilities Committee
Kathy Hougardy, Chair
Joe Duffie
Allan Ekberg
AGENDA
TUESDAY, AUGUST 24, 2010
Time: 5:00 PM
Item
Distribution: B Giberson
K. Hougardy F lriarte
J Duffie R. Tischmak
A. Ekberg P Brodin
D Robertson G Labanara
Mayor Haggerton R. Larson
S Lancaster M. Cusick
K. Matej P Lau
D Speck M. Mathia
C O'Flaherty S Anderson
M. Hart J Howat
S Norris B Still
N. Olives R. Still
Place: Conference Room #1
Recommended Action
a. Information Only
b. Forward to 9/07/10 Regular
Consent Agenda
c. Forward to 9/13/10 C.O.W. Pg. 23
and 9/20/10 Regular
Future Agendas:
Next Scheduled Meeting: Tuesday, September 14, 2010
Committee Goals:
Study the feasibility and implementation of televised City Council meetings
Continue to foster relationships within local, regional, and state entities that encourage opportunities for
joint partnership and outreach
4 6. The City of Tukwila strives to accommodate individuals with disabilities.
Please contact the Public Works Department at 206- 433 -0179 for assistance.
S Hunstock
S Kerslake
M. Miotke
J Pace
J Trantina
C Parrish
B. Arthur
File Copy
Single side to Ana
2 Extra Copies
e -mail to Saxton, Hart,
O'Flaherty, Narog,
Norris Kirby
Page
Pg. 1
Pg. 21
City of Tukwila
Jim Haggerton, Mayo,
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Utilities Committee
FROM: Public Works Director
DATE: August 16, 2010
SUBJECT: Solid Waste Interlocal Agreements
ISSUE
BACKGROUND
DISCUSSION
Apprise City management and Council of the intent and rationale to renegotiate member cities'
Solid Waste Interlocal Agreements (ILA's) with the King County Solid Waste Division (KCSWD).
See attached letter from Jessica Greenway, Metropolitan Solid Waste Management Advisory
Committee (MSWMAC) Chairperson.
Since the late 1980's, 37 cities participating in the King County Solid Waste Management
System have been operating under ILA's. In principle, the agreements grant KCSWD ownership
and responsibility for the transfer and disposal system which includes the operation of eight
transfer stations, two rural drop boxes, and the Cedar Hills Landfill. In turn, cities provide local
solid waste services and direct their municipal solid waste generated and /or collected within
their boundaries to the County transfer and disposal system. A copy of the current 40 -year ILA
between the City of Tukwila and King County is attached.
For the most part, the IL'As have served the County and the 37 member cities well. Through
the ILA's, cities share the costs and benefits of King County's transfer and disposal system. If a
city were to terminate its ILA, it would then assume all the solid waste management functions
currently performed by the County, as well as the liability involved with performing those
operations. The ILA's have allowed all parties to achieve economies of scale that ultimately
translate into lower fees for system ratepayers. Economies of scale will continue once the
Cedar Hills landfill reaches capacity and closes, and the region transitions to a new method of
solid waste disposal.
Despite the benefits, both KCSWD and member cities recognize the need to negotiate a new
ILA. During the June 11, 2010 MSWMAC meeting, member cities expressed interest in moving
forward and collaborating with the KCSWD to negotiate a new ILA that would ensure the long
INFORMATIONAL MEMO
Page 2
term stability of rates, services, and infrastructure. Member cities have identified four
significant issues that need to be addressed:
1. Solid Waste Interlocal Forum (SWIF). A SWIF was created to provide a venue for ILA
members to participate in the region's solid waste planning. The responsibilities of the
SWIF were later transferred to the King County Council Regional Policy Committee (RPC).
This transition gave RPC additional responsibility to function as the SWIF on solid waste
management issues. Over time, RPC responsibilities expanded and covered a wide range of
critical regional issues and had limited time to focus on solid waste planning and policy
matters.
The establishment of MSWMAC has created a dedicated forum for all the cities with ILAs to
collaborate with the County on issues pertaining to solid waste planning and policy. One of
the recommendations is for MSWMAC to take over the SWIF and that RPC continue in its
role of reviewing and recommending to the County Council approval of regional solid waste
plans and policies.
2. Dispute Resolution Process. Currently, no process for dispute resolution is provided for in
the ILA's.
3. Framework for Developing Financial Policies. The current financial policies for the KCSWD
are very broad in nature. Cities are interested in working with the Division to develop more
detailed financial policies such as budgets, debt financing, rates and grant programs.
4. Host City Mitigation. Although KCSWD employs a wide range of mitigation measures for the
siting and operations of facilities, it does not have specific policies in place to guide the
establishment of mitigation agreements for host communities.
In summary, it is in the best interest of both member cities and KCSWD to collaboratively
develop a new ILA. During the upcoming meetings, MSWMAC will discuss ILA issues prior to
negotiations. There will be opportunities for interested parties to comment throughout the
collaborative process. Once a new ILA is developed, the documents will be sent to member
cities' councils for action.
RECOMMENDATION
For information only.
Attachments:
1 MSWMAC letter dated August 6, 2010
2. Interlocal Agreement between City of Tukwila and King County
WW:IPW Eng10THER1Frank IriartelSolid Wastellnfomation Memo -Solid Waste Interlocal Agreement.doc
mswmAc ec-' '77
Metropolitan Solid Waste Management Advisory Committee
August 6, 2010
The Honorable Jim Haggerton
City of Tukwila
6200 Southcenter Blvd.
Tukwila, WA 98188
RE: NEGOTIATION OF SOLID WASTE INTERLOCAL AGREEMENTS
Dear Jim,
RECEIVED
buci 0 2010 7
CITY OF t urviV
MAYOi-?'c r CE
l T'
i
As the chair of the Metropolitan Solid Waste Management Advisory Committee (MSWMAC), I have been
asked to update the member Cities regarding a critical opportunity that we are faced with. The
purpose of this letter is twofold: 1) to advise your City of the rationale and intent to renegotiate
member cities' solid waste Interlocal Agreements ("ILAs with the King County Solid Waste Division
(KCSWD), and 2) to invite your City and its representatives to identify and formally submit any specific
issues and /or areas of concern your jurisdiction would like to have addressed in a new ILA in advance
of the collaborative negotiation process with the KCSWD.
Cities in attendance at the June 11, 2010 MSWMAC meeting gathered in caucus to discuss the general
framework, process, and tone of a negotiation with KCSWD. In general, the consensus is that there is
an opportunity to engage in a collaborative, expedited negotiation process with the KCSWD. The cities
and the KCSWD share a mutual interest in drafting a new ILA that will ensure the long term stability of
our cooperative solid waste management system's rates, infrastructure, and services well into the mid
21 century.
Background
Our regional solid waste system cooperative was formally established in 1988 when 37 King County
cities and King County entered into 40 year ILAs. The boilerplate ILAs designate responsibility for
different aspects of solid waste management to the KCSWD and the cities. In part, the agreements
give KCSWD the ownership and operating authority for the transfer and disposal system which includes
several transfer stations and the Cedar Hills Landfill. In return, the ILAs obligate the cities to provide
local solid waste collection services and to direct their solid waste to the KCSWD system.
In 2006, cities collaborated with the KCSWD on the development of the Solid Waste Transfer and
Waste Management Plan ("the Plan which established the need to renovate the aging transfer
system. The KCSWD is currently actively implementing key components of the Plan which includes the
construction of new or the replacement of existing transfer stations. KCSWD has expressed an interest
in extending the length of the ILAs in order to issue and secure the 20-30 year bonds required to fund
the improvements identified in the transfer system capital improvement plan.
In 2007, the Interjurisdictional Technical Staff Group, a staff committee of MSWMAC, drafted a
Governance Report that contains preliminary recommendations on four key governance issues of
interest to cities that could be addressed in a new ILA. The issues include: MSWMAC taking over the
role of the Solid Waste Interlocal Forum a role current filled by the Regional Policy Committee, the
Page 2
inclusion of a dispute resolution process, host city mitigation, and the development of a framework for
financial policies.
I would like to strongly encourage your City to take advantage of this first opportunity to submit any
other issues or recommendations so that they can be appropriately discussed and vetted by MSWMAC
preceding negotiations. Please provide your comments to me via email by August 31, 2010 at
iareenwav(ci.kirkland.wa.us. Other opportunities to comment will be provided throughout the
process.
To review the full length documents referenced in this letter, please go to
htto:// vour.kinacountv.aov /solidwaste/ about /olannina /documents olannina.aso.
Sincerely yours,
ON BEHALF OF MSWMAC
Je sica Greenway
airperson, MSWMAC
Council Member, City of Kirkland
This Agreement is entered into between King County, a political subdivision of
the State or Washington and the City of Tukwila a municipal
corporation of the State of Washington, hereinafter referred to as "County" and
"City" respectively. This agreement has been authorized by the legislative
body of each Jurisdiction pursuant to formal action as designa`gd below:
King County: Motion No. 7143
KING CO. SOLID WASTE DIV
Solid Waste Interlocal Agreement
City: Prn..�� i; �,J� ant bW '4 on S c. J 1 6, 1 ?f( v Y mo �i ari
PREAMBLE
This Agreement is entered into pursuant to chapter 39.34 for the purpose of
cooperative management of solid waste in King County. It is the intent of the
parties to work cooperatively in establishing a solid waste management plan
pursuant to Chapter 70.95 and with emphasis on the established priorities for
solid waste management of waste reduction, waste recycling, energy recovery or
incineration, and landfillfng. The parties particularly support waste
reduction and recycling and shall cooperate to achieve the .goals established by
the comprehensive solid waste management plan.
The parties acknowledge their intent to meet or surpass applicable
environmental standards with regard to the solid waste system. The parties
agree that equivalent customer classes should receive equivalent basic
services.
Post -it'" brand fax transmittal memo 7677 II of payee /5
To TR Ank 18111 X r" Maef' b157'gc'rs 1
co. _oT_,N,, I� KC&vi
(Dept. JPhone3 n 1
solid waste.
KING CO. SOLID 'WASTE DIv
I. DEFINITIONS
For purposes of this Agreement the following definitions shall apply:
"Basic Services" means services provided by the King County Department of
Public Works,'Solid Waste Division, including the management and handling of
"Comprehensive Solid Waste Management Plan" means the comprehensive plan for
solid waste management as required by RCW 70.95.080.
"Designated Interlocal Forum" means a group formed pursuant to the Forum
Interlocal. Agreement comprised of representatives of unincorporated King County
designated by the King County Council, representatives of the City of Seattle
designated by the City of Seattle, and representatives of other incorporated
cities and towns within King County that are signators to the Forum Interlocal
Agreement.
"Disposal" means the final treatment, utilization, processing, deposition, or
incineration of solid waste but shall not include waste reduction or waste
recycling as defined herein.
"diversion" means the directing or permitting the directing of solid waste to
disposal sites other than the disposal site designated by King County.
"Energy /Resource Recovery" means "the recovery of• energy in a usable form from
mass burning or refuse derived fuel incineration, pyrolysis of any other means
-2—
KING CO. SOLID WASTE DIV
of using the heat of combustion of solid waste that involves high temperature
(above 1,200 degrees F) processing." (WAC 173-304-100).
"Moderate Risk Waste" means "(a) any waste that exhibits any of the
characteristics of hazardous waste but is exempt from regulation under this
chapter solely because the waste is generated in quantities below the threshold
for regulation and (b) any household wastes which are generated from the
disposal of substances identified by the department as hazardous household
substances." (RCW 70.105.010)
"Solid Waste" means all putrescible and nonputrescible solid and semisolid
wastes, including but not limited to garbage, rubbish, ashes, industrial
wastes, swill, demolition and construction wastes, abandoned vehicles or parts
thereof, and discarded •commodities but shall not include dangerous, hazardous
or extremely hazardous waste.
"System" means King County's system of solid waste transfer stations, rural and
regional landfills, energy /resource recovery and processing facilities as
authorized by RCW 36.58.040, and as established pursuant to the approved King
County Comprehensive Solid Waste Management Plan.
Qo oa
"Waste Recycling" means "reusing waste materials and extracting valuable
materials from a waste stream." (RCW 70.95.030)
"Waste Reduction" means reducing the amount or type of waste generated but
shall'not include reduction through energy recovery or incineration.
effect through June 30, 2028.
KING Co. SOLID WASTE DIY
"Landfill" means "a disposal facility or part of a facility at which wast
.placed in or on land and which is not a land treatment facility." (Rcw
70.95.030)
II. PURPOSE
The purpose of this Agreement is to.establish the. respective-responsibility of
the parties in a solid waste management system which includes, but is not
limited to: Planning, waste reduction, recycling, and disposal of mixed
municipal solid waste, industrial waste, demolition debris and all other waste
defined as solid waste by RCW 70.95.030, and moderate risk waste as defined in
RCW 70.105.010.
11I. DURATION
This Agreement shall become effective on July 1, 1988, and shall remain in
IV. APPROVAL
This Agreement shall be submitted to the Washington State Department of Ecology
for its approval as to all matters within its jurisdiction. This Agreement
shall' be filed with the City Clerk, with the Clerk of the King County Council
and with the Secretary of State of the State of Washington.
-4-
5.1 Either party may request review and /or renegotiation of any provision of
this Agreement other than those specified in Section 5.2 below during the
six -month period immediately preceding the fifth anniversary of the effective
date of this Agreement and during the six month period immediately preceding
each succeeding fifth year anniversary.thereafter. Such request must be in
writing and must' specify the provision(s) of the Agreement for which
review /renegotiation is requested. Review and /or renegotiation pursuant to
such written request shall be initiated within thirty days of said receipt.
5.2 Review and /or renegotiation shall not include the issues of system rates
and charges, waste stream control or diversion unless agreed by•both parties.
5.3 In the event the parties are not able to mutually and satisfactorily
resolve the issues set forth in said request within six months from the date of
receipt of said request, either party may unilaterally, request the Forum to
review the issues presented and issue a written recommendation within ninety
days of receipt of said request by the Forum. Review of said request shall be
pursuant to the procedures set forth in the Interlocal Agreement creating the
Forum and pursuant to the Forum's bylaws. The written decision of the Forum
shall be advisory to the parties.
KING Co. SOLID WASTE DIV
V. REVIEW AND RENEGOTIATION
Wioo3
5.4 Notwithstanding any other provision in this paragraph to the contrary, the
parties may, pursuant to mutual agreement, modify or amend any provision of.'
this Agreement at any time during the term of said Agreement.
-5-
6.1 KING COUNTY
RING Co. SOLID WASTE DIV Q006
VI. GENERAL OBLIGATION OF PARTIES
a. Management. King County agrees to provide county -wide solid waste
management, services for waste generated and collected within jurisdictions
party to this Agreement. The County agrees to dispose of or-designate disposal
sites for all solid waste including moderate risk waste generated and /or
collected within. the corporate limits of the City which is delivered to King
County in accordance with all applicable federal, state and local environmental
health laws, rules, or regulations.
b. Planning. King County shall serve as the .planning pthority within King
County for solid waste including moderate risk waste but shall not be
responsible for planning for hazardous or dangerous waste or any other planning
responsibility that is specifically designated by State or Federal statute.
c. Operation. King County shall be or shall designate. or authorize the
operating authority for transfer, processing and disposal facilities, including public landfills, waste reduction or recycling facilities and energy resource
recovery facilities as well as closure and post closure responsibilities for
'landfills which are or were operated by King County.
d. Collection Service. King County shall not provide solid waste collection
services within the corporate limits of the City, unless permitted by law and
agreed to by both parties.
RING Co. SOLID WASTE DIV
e. Support and Assistance. King County shall provide support and technical
assistance to the City if the City seeks to establish a waste reduction and
recycling program compatible with the County waste reduction and recycling
plan. The County shall develop educational materials related to waste
reduction and recycling and strategies for maximizing the usefulness of the
materials and will make these available to the City for its use. Although, the
County will not be required to provide a particular level of support or fund
any City activities related to waste reduction and recycling, King County
.intends to move forward aggressively to establish waste reduction and recycling
programs.
f. Forecast. The County shall develop waste stream forecasts as part of the
comprehensive planning process and assumes all risks related to facility sizing
based upon such forecasts.
g. Facilities and Services. County facilities and services including waste
reduction and recycling shall be provided pursuant to the comprehensive solid
waste plan. All personal and real property'acquired by King County for solid
waste management system purposes shall be the property of King County.
6.2 CITY
a. Collect1 The City, an entity designated by the City or such other
entity as is authorized by state law shall serve as operating authority for
solid waste collection services provided, within the City's corporate limits.
b. Disposal. The City shall by ordinance designate the County disposal system
for the disposal of all solid waste including moderate risk waste generated
-7-
Zoa7
and /or collected within the corporate limits of the City and shall— authorize
the County to designate disposal sites for the disposal of all solid waste
including moderate risk waste generated or collected within the corporate
KING CO. SOLID WASTE DIV [21008
limits of the City, except for solid waste which is eliminated through waste
reduction or waste recycling activities consistent with the Comprehensive Solid
Waste Management Plan. No solid waste generated or collected within the City
may be diverted from the designated disposal sites without Co.unty approval.
VII. COUNTY SHALL SET DISPOSAL RATES AND
OPERATING RULES FOR DISPOSAL
In establishing or amending disposal rates for system users, the County may
adopt and amend by ordinance rates necessary to recover all costs of operation
including the costs of handling, processing, disposal, defense and payment of
claims, capital improvements, operational improvements and the closure of
landfills which are or were operated by King County. King County shall
establish classes of service for basic solid waste management services and by
ordinance shall establish rates for users of each class.
VIII. LIABILITY
8.1 Except as provided herein, the County shall indemnify and hold harmless
the City and shall have the right and duty to defend the City through the
County's attorneys against any and all claims arising out of the County's
operations and to settle such claims, recognizing that all costs incurred by
the County thereby are system costs which must be satisfied from disposal rates
as provided in section VII herein. In providing such defense of the City, the
-8-
SING CO. SOLID WASTE. DIV 008
County shall exercise good faith in such defense or settlement so as to protect
the City's interest. For purposes of this section "claims arising out of the
county's operations" shall include claims arising out of the ownership,
control, or maintenance of the system, but shall not include claims arising out
of the City's operation of motor vehicles in connection with the system or
other activities under the control of the City which may be incidental to the
County's operation.
8.2 If the County is not negligent, the City shall hold harmless, indemnify,
and defend the County for any property damages or personal injury solely caused
by the City's negligent failure to comply with the provisions of Section 8.5.a.
8.3 In the event the County acts to defend the City against a claim, the City
shall cooperate with the County. In the event the City acts to defend the
County, the County shall cooperate with the City.
8.4 For purposes of this section, references to City or County shall be deemed
to include the officers, employees and agents of either party, acting within
the scope of their authority.
8.5.a. All waste generated or collected fryn within the corporate limits of
the City which is delivered to the systen4 for disposal shall be in compliance
with the resource conservation and recovery act, as amended (42 U.S.C. 6901 et
seq.), RCW 70.95, King County Board of Health Rules and Regulations No. 8, and
all other applicable federal, state and local environmental health laws, rules
or regulations.
The City shall be deemed to have complied with the requirements of section
.8.5.a. if it has adopted an ordinance requiring solid waste delivered to the
system for disposal to meet such laws, rules, or regulations and by written
KING CO. SOLID WA$TE DIV Q010
agreement has authorized King County to enforce these within the corporate
limits of the City.
8.5.b. The County shall provide the City with written notice- of..any violation
of this provision.. Upon such notice, the City shall take immediate steps to
remedy the violation and prevent similar future violations to the reasonable
satisfaction of King County which may include but not be limited to removing
47—
the waste and disposing of itAan approved facility. If, in good faith, the
City disagrees with the County regarding the violatioon, such dispute shall be
resolved between the parties in Superior Court. Each party shall be
responsible for its attorney's fees and costs. failure of the City to take the
steps requested by the County pending Superlor.Court resolution shall not be
deemed a violation of this agreement; provided, however,.that this shall not
release the City fbr damages. or loss to the County arising out of the failure
to take such steps if the Court finds that the City violated the requirements
to comply with applicable laws set forth in this section.
8.6 City is not held harmless or indemnified with regard to any liability
arising under 42 USG (CERCLA) as amended by the Superfund
Amendments and Reauthorization Act of 1986 (SARA) or as hereafter amended or
pursuant to any state legislation imposing liability for cleanup of
contaminated property, pollutants or hazardous or dangerous substances.
KING CO. SOLID WASTE DIv Zo
IX. FORUM
By entering into this Agreement, the County and City agree to enter into and
execute a Forum Interlocal Agreement. Such agreement shall provide for the
establishment of a representative Forum for consideration a•nd /or determination
of issues of policy regarding the term and conditions of this Solid Waste
Interlocal Agreement.
S� l
X. COMPREHENSIVE PLAN
10.1 King County is designated to prepare the comprehensive solid waste
management plan and this plan shall include the City's Solid Waste Management
Comprehensive Plan pursuant to RCW 70.95.080(3).
10.2 The initial comprehensive plan prepared under the terms of this Agreement
shall be submitted to the King County Council and the designated interlocal
.Forum by .December 31, 1988. The plan shall be reviewed and any necessary
revisions proposed at least once every three years following the approval of
the Comprehensive Plan by the State Department of Ecology: From the effective
date of this Agreement until the 1988 plan is approved, the 1974 Solid Waste
Management Plan as approved in 1977 by DOE shall be used to meet the
requirements of RCW 70.95.185 as directed by the State Department of Ecology.
-King County shall provide services and build facilities in accordance with the
adopted Comprehensive Plan.
10.3 The Comprehensive Plan will promote waste reduction and recycling in
accordance with Washington State solid waste management priorities pursuant to
chapter 70.95 RCW, at a minimum.
RING Co. SOLID WASTE DIv 21012
10.4 The comprehensive solid waste management plan will be prepared in
accordance with chapter 70.95 RCW and solid waste planning guidelines developed
by the Oepartment of Ecology. The plan shall include, but not be limited to:
a. Descriptions of and policies regarding management practices and facilities
required for handling all waste types;
b. Schedules and responsibilities.for implementing policies;
c. Policies concerning waste reduction, recycling, energy and resource
recovery, collection, transfer, long -haul transport, disposal, enforcement and
administration;
d. Operational plan for the elements discussed in Item c above.
10.5 The cost of preparation by King County of the Comprehensive Plan will be
considered a cost of the system and financed out of the rate base.
10.6 The Comprehensive Plan will be adopted when the following has occurred:
a. The Comprehensive Plan is approved by the King Council; and
b_ The Comprehensive Plan is approved by Cities representing three- quarters of
the population of the incorporated population of jurisdictions that are parties
to the Forum Interlocal Agreement. In calculating the three quarters, the
'calculations shall consider only those incorporated jurisdictions taking formal
action to approve or disapprove the Plan within 120 days of receipt of the
-12-
RING CO. SOLID WASTE DIV 2013
Plan. The 120 day time period shall begin to 'run from receipt by an
.incorporated jurisdiction of the Forum's recommendation on the Plan, or, if the
Forum is unable to make a recommendation, upon receipt of the Comprehensive
Plan from the Forum without recommendation.
10.7 Should the Comprehensive Plan be approved by the King County Council, but
not receive approval of three- quarters of the Cities acting Plan, and
should King County and the Cities be unable to resolve their disagreement, then
the Comprehensive Plan shall be referred to the State Department of Ecology and
the State Department of Ecology will resolve any disputes regarding Plan
adoption and adequacy by approving or disapproving the Comprehensive Plan or
any part thereof.
10.8 King County shall determine which .cities are affected by any proposed
amendment to the Comprehensive Plan. If any City disagrees with such
determination, then the City can request that the Forum determine whether or
not the City is affected. Such determination shall be made by a two thirds
"majority vote of all representative members of the Forum.
10.9 Should King County and the affected jurisdictions be unable to agree on
amendments to the Comprehensive Plan, then the proposed amendments shall be
referred to the Department of Ecology to resolve any disputes regarding such
amendments.
10.10 Should there be any impasse between the parties regarding Plan adoption,
adequacy, or consistency or inconsistency or whether any permits or programs
adopted or proposed are consistent with the Comprehensive Plan, then the
Department of Ecology shall resolve said disputes.
-13-
KING CO. SOLID WASTE DIV
XI. FORCE MAJEURE
The parties are not liable for failure to perform pursuant to the terms of this
Agreement when failure to perform was due to an unforeseeable event beyond the
control of either party to this Agreement.
XII. MERGER
This Agreement merges and supersedes all prior negotiations, representation
and /or agreements between the parties relating to the subject matter of this
Agreement and constitutes the entire contract between the parties except with
regard to the provisions of the ForunrInterlocal Agreement.
XIII. WAIVER
No waiver by either party of any term or condition of this Agreement shall be
deemed or construed to constitute a waiver of any other term or condition or of
any subsequent breach whether of the same or a different provision of this
Agreement.
XIV. THIRD PARTY BENEFICIARY
This Agreement is not entered into with the intent that it shall' benefit any
other' entity or person except those expressly described herein, and no other
such person or entity shall be entitled to be treated as a third party
beneficiary of this Agreement.
-14-
If any of-the provisions contained in this Agreement are held illegal, invalid
or unenforceable, the remaining provisions shall remain in full force and
effect.
IN WITNESS WHEREOF this Agreement has been executed by each party on the date
set forth below:
CITY
DATE: 4 7- /S Pe
ds7modelswl
K ATTEST
C 0 Mo
PURSUANT T
ITY ATTORNEY
DATE: 9- /S-gs”
RING CO. SOLID WASTE DIV 2101s
XV. SEYERABIL1TY
XVI. NOTICE
KING COUNTY
e4e4o� FOR
KI COUNTY AEXECUlyE
DATE: NOV 1 5 9GRR
PURSUANT TO ORDINANCE NO.74
CLERK ATTEST
APPROVED AS TO FORM AND tom' APPROVED AS TO FORM A
1
KING COUNTY DEPUTY PRWCUTING ATTORNEY
DATE: 1 p/ s.(
-15-
TO:
FROM:
DATE:
SUBJECT:
City of Tukwila
INFORMATIONAL MEMORANDUM
Mayor Haggerton „il,
Utilities Committee 0
Public Works Directory
August 16, 2010
Howard Hanson Dam Flood Response Emergency Levee Work
Project No. 10901301, Contract No. 09 -164
Project Completion and Acceptance
ISSUE
Accept contract as complete and authorize release of retainage.
Jim Haggerton, Mayor
BACKGROUND
The Notice to Proceed for Contract No. 09 -164 with Goodfellow Brothers, Inc. of Maple
Valley, Washington was issued on October 19, 2009 for the Tukwila Emergency Levee
Reinforcement. This project installed roughly 18,000 lineal feet of Super Sack sand bags
on the west side of the Green River levee, and 16,000 feet of Hesco barriers on the east
side. This emergency levee protection project was due to a potential threat of flooding
from the Green River, due to water release from Howard Hanson Dam.
This contract was approved through emergency City Resolution No. 1697, allowing Public
Works to address a hazard without a bid. The Corps of Engineers supplied the Super
Sacs and Hesco barriers, King County Flood Control District reimbursed the City
$1,285,760.00, and the City collected $2,745,362.00 in utility taxes to date, for a total of
$4,031,122.00.
ANALYSIS
Construction was physically completed on December 24, 2009. Nine change orders were
executed for unanticipated site adjustments and additions to levee protection measures.
Unit price over -runs were mainly due to underestimated Hesco barrier quantities prior to
starting the project. The retainage remaining is $117,144.53.
Contract Award Amount
Change Order Nos. 1 9
Unit Price Over -run
Sales Tax
Total Amount Paid (including retainage)
$1,922,200.00
237,976.25
182, 714.28
222.574.60
$2.565.465.13
RECOMMENDATION
The Council is being asked to formally accept and authorize the release of retainage,
subject to standard claim and lien release procedures, for the Tukwila Emergency Levee
contract with Goodfellow Brothers, Inc. in the final amount of $2,565,465.13, and to
consider this item on the Consent Agenda of the September 7, 2010 Regular Meeting.
Attachment: Dept of Revenue Notice of Completion
W:\PW Eng \EMERGENCY OPSWHD Flood Response Plan 10901301 \Tukwila Emergency Levee Reinforcement Construction Phase\After ConslruchonUnfo Memo Closeout Goodfellows 8 -17 -10 doc
From:
State of Washington
Department of Revenue
PO Box 47474
RE VENUE Olympia WA 98504 -7474
Contractors Registration No. (UBI No.) 048 000 968
City of Tukwila
6200 Southcenter Boulevard
Tukwila, WA 98188
Date
NOTICE OF COMPLETION OF PUBLIC WORKS CONTRACT
Name Address of Public Agency Department Use Only
Assigned To
Date Assigned
Notice is hereby given relative to the completion of contract or project described below
Description of Contract Contract Number
Tukwila Emergency Levee Reinforcement, Project No. 10901301
Contractor's Name
Goodfellow Brothers, Inc. 425- 432 -2202
Contractor's Address
P.O. Box 1419, 22035 S.E. Wax Road, #14, Maple Valley, WA 98038
Date Work Commenced
10/19/09
Surety or Bonding Company
Travelers Casualty and Surety Company of America
Agent's Address
Gellatly Agency, Inc., 22 N. Chelan, P.O. Box 37, Wenatchee, WA 98807
Sub -Total
Amount of Sales Tax Paid at 9.5
(If various rates apply, please send a breakdown.)
TOTAL 2,565,465.13
Comments: Finance approval
'31,0/,x,
Date Work Completed Date Work Accepted
12/24/09
Contract Amount 1,922,200.00
Additions 420,690.53 Liquidated Damages 0.00
Reductions 0.00
2,342,890.53
222,574.60
Signature
Type or Print Name Diane Jaber
Phone Number 206 433 -1871
Amount Disbursed
Amount Retained
09 -164
Telephone Number
2,448,320.60
117,144.53
TOTAL 2,565,465.13
Disbursing Officer
The Disbursing Officer must complete and mail THREE copies of this notice to the Department of Revenue,
PO Box 47474, Olympia, WA 98504 -7474, immediately after acceptance of the work done under this contract. NO
PAYMENT SHALL BE MADE FROM RETAINED FUNDS until receipt of Department's certificate, and then only in
accordance with said certificate.
To inquire about the availability of this document in an alternate format for the visually impaired, please call (360) 753 -3217 Teletype
(TTY) users please call (800) 451 -7985. You may also access tax information on our Internet home page at http. /dor.wa.gov.
REV 31 0020e (6- 27 -01)
TO:
City of Tukwila
INFORMATIONAL MEMORANDUM
Mayor Haggerton
FROM: Public Works Director
DATE: August 17, 2010
SUBJECT: Tukwila 205 Levee Repair Lily Pointe
Project No. 08 -DRO2
Easement Interest Payment
ISSUE
Approve interest payment to Lily Pointe LLC for the Tukwila 205 Levee Repair project.
Attachments: Letter from Lily Pointe on established value and interest payment
Lily Pointe Possession and Use Agreement
W: \PW Eng\PROJECTS\A- DR Projects \08 -DR02 (205 Levee Repair)\Design Phase \Site 3 \Lily Pointe Final Easement \Info Memo Easement Interest Payment doc
Jim Haggerton, Mayor
BACKGROUND
The US Army Corps of Engineers completed repairs to the Tukwila 205 Levee in 2008. These
repairs required additional easement widths to allow for laying the levee slopes back to provide a
more stable river bank. The City of Tukwila is responsible (under an agreement with the US Army
Corps of Engineers) to provide all easements necessary for the construction and maintenance of the
levee. City staff worked with the two affected property owners to secure Possession and Use
Agreements that allowed the repair project to move forward quickly and avoid losing federal repair
funding The agreement with Lily Pointe, LLC, called for the City to reimburse the property owner for
the value of the easement plus 12% interest per year from the date of possession until payment.
The King County Flood Control District (District) has committed to reimbursing the City for the actual
cost of the easement but did not commit to the interest payment. Since completion of the
Possession and Use Agreement, it has taken over two years to finish the site survey, appraisal,
easement funding approval through the District, and final easement negotiations through the Corps,
District, Lily Pointe, and the City.
ANALYSIS
An appraisal has been completed and Lily Pointe has accepted the appraised value of $343,000.
The District is working with a closing agent to complete the transaction and record the easement.
Per the Possession and Use Agreement, the City will need to provide approximately $106,000.00 in
interest at the time of closing.
Staff has reviewed options for funding the interest payment and it is recommended that the 412
Surface Water be used and then reimbursed using the City's share of the District's Annual
Opportunity Fund over then next several grant cycles. Funding is anticipated at $44,000 each year
and may be used for any flood related project. These Opportunity funds are currently programmed in
the Annual Small Drainage Program.
RECOMMENDATION
The Council is being asked to approve funding for the interest of this easement acquisition in the
amount of $106,000 and consider this item at the September 13, 2010 Committee of the Whole
meeting and subsequent September 20, 2010 Regular Meeting.
July 2, 2010
City of Tukwila
Tukwila City Hall
6200 Southcenter Blvd.
Tukwila, WA 98188
Sincerely,
Lily Pointe Investments, LLC
4128 West Ames Lake Drive NE Redmond, Washington 98053
RE: Tukwila -205 Site 3 Levee Repair Project
Lily Pointe Investments, LLC Property (TPIN 362304- 9087 -04)
To Whom It May Concern,
We have received and reviewed the appraisal prepared by GVA Kidder Mathews dated February
24, 2009, which assesses the value of our property before and after the granting of those
permanent easements across the property that are necessary for the above referenced project. We
agree that the $343,000 is a fair valuation of the easements.
However, $89,198.97 in interest must be paid in addition to the above valuation amount. As you
know, Lily Pointe entered into a Revised Possession and Use Agreement dated October 14, 2008
to allow the City and County immediate use of the easement areas until the parties could resolve
the issue of just compensation and final easements could be granted. Section 4 of the Revised
Possession and Use Agreement states that upon final valuation of the easements, the City would
pay Lily Pointe the amount determined plus 12% interest per annum from May 19, 2008 until
final payment was made. We calculate such interest to be $89,198.97, assuming that payment is
made on July 20. 2010.
Please let us know if you disagree with the above calculation or if you have any questions
regarding this letter. We look forward to finalizing the remaining details of the actual easement
document.
John Deininger Carol -Ann O'Mack
Manager, Lily Pointe Investments, LLC Co- Manager
PL 84 -99 Tukwila 205
Levee Rehabilitation
PROJECT
POSSESSION AND USE AGREEMENT REVISED
08o tI (aj
Tax Accounts 362304-9087 -04
TRACT OR OTHER PROPERTY IDENTIFICATION
This Agreement is entered into by and between The City of Tukwila, a municipal corporation of the State
of Washington (the "City") and Lily Pointe Investments, LLC, a Washington Limited Liability Company
(the "Owner"). This document supersedes the previously recorded Possession and Use Document
recorded under King County records number 20080604000331.
RECITALS
A. The document attached as Attachment 1 to this Possession and Use Agreement contains pertain
easements rights (the "Easements that are necessary for repairs and improvements to the Tukwila 205
Federally Certified Levee under the guidelines for the U.S. Army Corps of Engineers PL 84 -99 Levee
Rehabilitation Effort along the Left Bank afire Green River (The "Project"). Delay in acquisition and
construction of the Project is contrary to the public interest_
B. Owner is the owner of that certain real property (the "Property") commonly known as 6801 S. 180th
Street, Tukwila, Washington, and more particularly described on Attachment 2.
C. Owner and City acknowledge that this Agreement is being entered into under threat of condemnation
and shall be subject to just compensation by the City (in an amount that will be determmined upon a
mutually acceptable settlement or trial) in order to compensate Owner far the Easements. Nothing heroin
shall be construed as a waiver ofthe Owner's right to object to any further use or occupancy of any other
portion of the property that the City may require in the future.
D. The Owner wishes additional time to resolve any questions it may have concerning the Easements,
including the issue ofjust compensation.
AGREEMENT
1. For and in consideration of payment by the City to the Owner for the Easements, in an amount to
be negotiated by the parties or determined at trial, the Owner grants to City possession and use of
those portions of the Property subject to the Easements (the "Easement Area for Project
purposes.
2. The parties agree that the Easement Area is necessary for a public use of the City. tithe parties
cannot agree as to the amount ofjust compensation due the Owner and the City institutes
condemnation proceedings, the Owner will not object to the City's entry of an Order Adjudicating
Public Use and Necessity, as provided in RCW 8.12.090.
3, The parties agree that if condemnation proceedings are instituted by the City, this Agreement
shall be deemed to satisfy the requirements of a stipulated Order of Ia ei...diate Use and
Possession. This Agreement shall continue in effect until said proceedings have terminated and
the Easement Area is finally acquired by the City-
4. The parties agree that the "Date of Possession" and the "Date of Valuation" for the Easement
Area shall be May 19, 2008. The City agrees that upon final valuation of Easement Area,
whether by mutual agreement or by trial, the City shall pay to Owner the amount determined plus
twelve percent (12 interest per annum as accrued from. the Date of Possession through the date
of final paymeznt. The parties agree to use canxtnercially reasonable efforts to negotiate a
mutually acceptable settlement on valuation of the Easement Area as soon as possdale after the
Date of Possession; however, should the parties fail to reach a mutually acceptable settlement
within six (6) months of the Date of Possession, the parties shall proceed to trial.
Page 1 of 13 O a_
20081103000918.002
5. Nothing in this Agreement shall be deemed to waive any right either party may have to a
subsequent adjudication of just compensation pursuant to state law. Neither this Agreement nor
the basis for the payment made pursuant to this Agreement shall be construed as evidence of or
an admission of fbir market value or just compensation by either party to the Agreement.
6. If condemnation proceedings are instituted, any payment of costs and attorneys fees shall be
governed by the provisions ofRCW 8.25.070 and 8.25.075.
7. If in the use of the Easement Area the City, the King County Flood Control Zone District (the
"County") or the Army Corps of Engineers (the "Corps') or any of their employees or agents
damage any portion of the Property (including, but not limited to, the Easement Area), the City
shall be solely responsible for ensuring that the Property is repaired, replaced and restored.
Additionally, other than in the event of Owner's gross negligence, the City shall indemnify,
defend and hold Owner, its successors and assigns harmless from and against all claims, damages
(to property, improvements or otherwise), injury to persons, expense, loss, liability, causes of
action or suit of any kind, including attorneys' fees and court costs, arising from or related to the
rights granted to the City herein or the poesession and use of the Easement Area by the County or
the Carps. The obligations contained in this Section 7 shall survive the granting of the
Easements, whether the Easements are granted by Attachment 1 or by condemnation action.
3. This Agreement, including its attachments, is the complete expression of the terms hereto and any
other representations, whether oral or in writing not incorporated in this Agreement are excluded.
Time is of the essence of the performance of the provisions of this Agreement. Waiver of any
default shall not be deemed to be a waiver of any other or subsequent default.
Dated: /O /I 7
OWNER: Lily O to Inve eats, Washingr ted Liability Company
BY
CITY:
'Name: e eff _OL.9sJAi Q flv ..14.
Title: P1r
The City of Tukwila, a municipal corporation of the State of Washington.
BY
GJlt
Tit tier Jr
Page 2 of 12
20081103000518.003