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HomeMy WebLinkAboutUtilities 2014-02-03 COMPLETE AGENDA PACKETCity of Tukwila Utilities Committee • Kate Kruller, Chair • Allan Ekberg • Kathy Hougardy Distribution: K. Kruller A. Ekberg K. Hougardy D. Quinn D. Robertson Mayor Haggerton D. Cline K. Matej L. Humphrey B. Giberson F. Iriarte R. Tischmak G. Labanara P. Brodin S. Kerslake Clerk File Copy 2 Extra A. Le (e -mail pkt. pdf) e -mail cover to: C. O'Flaherty, D. Alm berg, B. Saxton, S. Norris, M. Hart, D. Robertson AGENDA MONDAY, FEBRUARY 3, 2014 Time: 5:15 PM Place: Foster Conference Room (CR #1, 6300 Building) Next Scheduled Meeting: Tuesday, February 18, 2014 (due to holiday) 46. The City of Tukwila strives to accommodate individuals with disabilities Please contact the Public Works Department at 206 - 433 -0179 for assistance. Item Recommended Action Page 1. PRESENTATION(S) 2. BUSINESS AGENDA a) Ordinance for Franchise Agreement with tw telecom of washington Ilc a) Forward to 2/10/14 C.O.W. and 2/18/14 Regular Pg. 1 b) Sewer Repair at 6450 Southcenter Blvd Change Order No. 1 to Contract No. 13 -181 b) Forward to 2/10/14 C.O.W. and 2/18/14 Regular Pg. 17 c) Brisco /Desimone Levee Interlocal Agreement with the City of Kent c) Forward to 2/10/14 C.O.W. and 2/18/14 Regular Pg. 23 3. ANNOUNCEMENTS 4. MISCELLANEOUS Future Agendas: Next Scheduled Meeting: Tuesday, February 18, 2014 (due to holiday) 46. The City of Tukwila strives to accommodate individuals with disabilities Please contact the Public Works Department at 206 - 433 -0179 for assistance. City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM TO: Mayor Haggerton Utilities Committee FROM: Bob Giberson, Public Works Director BY: Frank lriarte, Deputy Public Works Director DATE: January 31, 2014 SUBJECT: Franchise Agreement with tw telecom of washington Ilc ISSUE Approval of Franchise Agreement with tw telecom of washington Ilc. BACKGROUND On June 1, 2009, the Tukwila City Council granted tw telecom of washington Ilc (TWTC) a non - exclusive franchise through Ordinance No. 2231 (Franchise Agreement) to construct, maintain and operate a fiber optic cable system in the City's rights -of -way. Ordinance No. 2231 has expired and must be renewed. DISCUSSION In 2001, TWTC constructed a fiber optic system in Tukwila to provide voice and data services to customers in the Puget Sound area. Through purchase of conduit assets and expansion of their infrastructure, TWTC was able to provide more broadband options to Tukwila businesses. Their current fiber optic system is described in Exhibit A. The attached Franchise Agreement would allow TWTC to continue operating in the City's right -of -way and facilitate construction of future fiber optic projects. FINANCIAL IMPACT Under the terms of the Franchise, TWTC will pay a $5,000 administrative fee within 30 days of franchise approval. RECOMMENDATION Council is being asked to approve the Ordinance that will grant a franchise agreement to tw telecom of washington Ilc and consider this item at the February 10, 2014 Committee of the Whole and subsequent February 18, 2014 Regular Meeting. Attachment: Draft Franchise Ordinance with Exhibits A & B Z: \01AgendaBusiness\Ordinances For Review \2014 Ordinances \UC 2 -3 -14 \Info Memo Ordinance Franchise Ag tw telecom 01 -31 -14 gl.docx 1 Li! AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A NON-EXCLUSIVE FRANCHISE TO tw telecom of washington Ilc, LEGALLY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF WASHINGTON, FOR THE PURPOSE OF CONSTRUCTING, OPERATING, AND MAINTAINING A TELECOMMUNICATIONS SYSTEM IN CERTAIN PUBLIC RIGHTS-OF-WAY IN THE CITY; REPEALING ORDINANCE NO 2231; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, Ordinance No. 2231, granted tw telecom of washington Ilc, hereinafter referred to as "TWTC," a three-year, non-exclusive franchise, which expired June 9, 2012, and the parties have been operating under such franchise on a holdover basis until a new franchise is in place, during which time TWTC has acted in compliance with that franchise and applicable permits; and WHEREAS, TWTC is a telecommunications company that, among other things, provides voice and data services to customers, including those in the Puget Sound region; and WHEREAS, TWTC's desired route through the City of Tukwila, hereinafter referred to as "City," requires the use of certain portions of City rights-of-way for the installation, operation, and maintenance of a telecommunications system; and WHEREAS, the City Council has determined that the use of portions of the City's rights-of-way for installation of a telecommunications system is appropriate from the standpoint of the benefits to be derived by local businesses and the region as a result of such services; and WHEREAS, the City Council also recognizes that the use of public rights-of-way must be restricted to allow for the construction of amenities necessary to serve the future needs of the citizens of Tukwila and that the coordination, planning, and management of the City's rights-of-way is necessary to ensure that the burden of costs for the operations of non-municipal interests are not borne by the citizenry; and W: Word Processing \Ordinances‘tw telecom franchise agreement 1-28-14 Fl:bjs Page l of 11 2 WHEREAS, the Revised Code of Washington (RCW) authorizes the City to grant and regulate non-exclusive franchises for the use of public streets, rights-of-way, and other public property for transmission of communications; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Non-exclusive Franchise Granted. A. The City hereby grants to TWTC, subject to the conditions prescribed in this ordinance ("Franchise Agreement"), the franchise rights and authority to construct, replace, repair, monitor, maintain, use and operate the equipment and facilities necessary for a telecommunications facility within the City-owned rights-of-way generally described in Exhibit A, and hereinafter referred to as the "Franchise Area." B. The foregoing franchise rights and authority ("Franchise") shall not be deemed to be exclusive to TVVTC and shall in no way prohibit or limit the City's ability to grant other franchises, permits, or rights along, over, or under the areas to which this Franchise has been granted to TWTC; provided, that such other franchises do not unreasonably interfere with TWTC's exercise of franchise rights granted herein as determined by the City. This Franchise shall in no way interfere with existing utilities or in any way limit, prohibit, or prevent, the City from using the Franchise Area or affect the City's jurisdiction over such area in any way. C. This Franchise Agreement merely authorizes TWTC to occupy and use the Franchise Area. Nothing contained herein shall be construed to grant or convey any right, title, or interest in the Franchise Area to TWTC. Section 2. Authority. The Director of Public Works or his or her designee is hereby granted the authority to administer and enforce the terms and provisions of this Franchise Agreement and may develop such lawful and reasonable rules, policies, and procedures as he or she deems necessary to carry out the provisions contained herein. Section 3. Franchise Term. The franchise rights granted herein shall remain in full force and effect for a period of five years from the effective date of this ordinance. However, this Franchise Agreement shall not take effect and TWTC shall have no rights under this Franchise Agreement unless a written acceptance with the City is received pursuant to Section 4 of this agreement. If TVVTC requests a renewal request prior to the expiration date, the City may, at the City's sole discretion, extend the term of this Franchise Agreement for up to one year beyond the expiration date to allow processing of renewal. If the City elects to extend the term of this Franchise Agreement, written notice of the extension shall be provided to TWTC prior to the Franchise expiration date. Section 4. Acceptance of Terms and Conditions. The full acceptance of this Franchise Agreement and all the terms and conditions shall be filed with the City Clerk within 30 days of the effective date of this ordinance in the form attached hereto as W: Word Processing \Ordinances\tw telecom franchise agreement 1-28-14 FI:hjs Page 2 of 11 3 Exhibit B. Failure on the part of TVVTC to file said consent within 30 days of the effective date of this ordinance shall void and nullify any and all rights granted under this Franchise Agreement. Section 5. Construction Provisions and Standards. The following provisions shall be considered mandatory and failure to abide by any conditions described herein shall be deemed as non-compliance with the terms of this Franchise Agreement and may result in some or all of the penalties specified in Section 6. A. Permit Required. No construction, maintenance, or repairs (except for emergency repairs) shall be undertaken in the Franchise Area without first obtaining appropriate permits from the City of Tukwila, Department of Public Works. In case of an emergency, TWTC shall, within 24 hours of the emergency, obtain a permit from the City of Tukwila Department of Public Works. B. Coordination. All capital construction projects performed by TWTC within the Franchise Area shall be inspected by a City inspector. All work and inspection shall be coordinated with the Public Works Engineering Division to ensure consistency with City infrastructure, future Capital Improvement Projects, all developer improvements, and pertinent codes and ordinances. C. Construction Standards. Any construction, installation, maintenance, and restoration activities performed by or for TWTC within the Franchise Area shall be constructed and located so as to produce the least amount of interference with the free passage of pedestrian and vehicular traffic. All construction, installation, maintenance, and restoration activities shall be conducted such that they conform to the City's development guidelines and standards and comply with Title 11 of the Tukwila Municipal Code. D. Underground Installation Required. All telecommunications cables and junction boxes or other vaulted system components shall be installed underground unless otherwise exempted from this requirement, in writing, by the Director of Public Works. E. Relocation. 1. Whenever the City causes a public improvement to be constructed within the Franchise Area, and such public improvement requires the relocation of TWTC's facilities, the City shall provide TWTC with written notice requesting such relocation, along with plans for the public improvement that are sufficiently complete to allow for the initial evaluation, coordination and the development of a relocation plan. The City and TWTC shall meet at a time and location determined by the City to discuss the project requirements including critical timelines, schedules, construction standards, utility conflicts, as-built requirements, and other pertinent relocation plan details. W: Word Processing \Ordinances ttw telecom franchise agreement 1-28-14 Fl:bjs Page 3 of 11 4 2. To ensure timely execution of relocation requirements, TWTC shall, upon written request from the City, provide at TWTC's expense, base maps, current as-built information, detailed relocation plan (including detailed schedule of relocation activities, identification of critical path, identification of facilities, and relocation procedures), and other design, technical or operational requirements within the time frame specified by the City. 3. TWTC may, after receipt of written notice requesting a relocation of its facilities, submit to the City written alternatives to such relocation within a reasonable time specified by the City. Such alternatives shall include the use and operation of temporary facilities in adjacent rights-of-way. The City shall evaluate such alternatives and advise TWTC in writing if one or more of the alternatives are suitable to accommodate the work, which would otherwise necessitate relocation of the facilities. If requested by the City, TWTC shall submit additional information to assist the City in making such evaluation. The City shall give each alternative proposed by TWTC full and fair consideration. In the event the City ultimately determines that there is no other reasonable alternative, TWTC shall relocate its facilities as otherwise specified in Section 5.E. 4. Upon final approval of the relocation plan by the City, TWTC shall, at its own expense, unless otherwise prohibited by statute, and at the time frame specified by the City, temporarily or permanently remove, relocate, place underground, change or alter the position of any facilities or structures within the right-of-way whenever the City has determined that such removal, relocation, undergrounding, change or alteration is reasonably necessary for the construction, repair, maintenance, installation, public safety, or operation of any public improvement in or upon the rights-of-way. 5. If during the construction, repair, or maintenance of the City's public improvement project an unexpected conflict occurs from TWTC's facilities, TWTC shall, upon notification from the City, respond within 24 hours to resolve the conflict. F. Removal or Abandonment. Upon the removal from service of any service antennas or other associated structures, facilities and amenities within the Franchise Area, TWTC shall comply with all applicable standards and requirements prescribed by the City of Tukwila Public Works Department for the removal or abandonment of said structures and facilities. No facility constructed or owned by TWTC may be abandoned without the express written consent of the City. G. Bond. Before undertaking any of the work, installation, improvements, construction, repair, relocation, or maintenance authorized by this Franchise Agreement, TWTC shall, upon the request of the City, furnish a bond executed by TWTC and a corporate surety authorized to operate a surety business in the State of Washington, in such sum as may be set and approved by the City as sufficient to ensure performance of TWTC's obligations under this Franchise Agreement, provided, however, that such sum shall not exceed 150% of the cost of the telecommunications system to be installed by TVVTC in the City rights-of-way. At TWTC's sole option, W: Word ProcessinglOrdinances\tw telecom franchise agreement 1-28-14 Fitjs Page 4 of 11 5 TVVTC may provide alternate security in the form of an assignment of funds or a letter of credit, in the same amount as the bond. All forms of security shall be in the form reasonably acceptable to the City. The bond shall be conditioned so that TWTC shall observe all the covenants, terms, and conditions and shall faithfully perform all of the obligations of this Franchise Agreement, and to repair or replace any defective TWTC work or materials discovered in the City's roads, streets, or property. H. "One-Call" Location & Liability. TWTC shall subscribe to and maintain membership in the regional "One-Call" utility location service and shall promptly locate all of its lines upon request. The City shall not be liable for any damages to TWTC's system components or for interruptions in service to TVVTC customers which are a direct result of work performed for any City project for which TVVTC has failed to properly locate its lines and facilities within the prescribed time limits and guidelines established by One-Call. The City shall also not be liable for any damages to the TVVTC system components or for interruptions in service to TVVTC customers resulting from work performed under a permit issued by the City. 1. As-Built Plans Required. TWTC shall maintain accurate engineering plans and details of all installations within the City limits and shall provide such information in both paper form and electronic form using the most current Autocad version prior to close-out of any permit issued by the City and any work undertaken by TVVTC pursuant to this Franchise Agreement. The City shall determine the acceptability of any as-built submittals provided under this section. J. Recovery of Costs. -WIC shall be subject to all permit fees associated with activities undertaken through the authority granted in this Franchise Agreement or under ordinances of the City. Where the City incurs reasonable costs and expenses for review or inspection of activities undertaken through the authority granted in this Franchise Agreement or any ordinances relating to the subject for which permit fees have not been established, TWTC shall pay such reasonable costs and expenses directly to the City. K. Vacation, lf, at any time, the City shall vacate any City road, right-of-way or other City property which is subject to rights granted by this Franchise Agreement and said vacation shall be for the purpose of acquiring the fee or other property interest in said road, right-of-way or other City property for the use of the City, in either its proprietary or governmental capacity, then the City may, at its option and by giving 30 days written notice to TVVTC, terminate this Franchise Agreement with reference to such City road, right-of-way or other City property so vacated, and the City shall not be liable for any damages or loss to TWTC by reason of such termination other than those provided for in RCW 35.99. W: Word Processing\Ordinancesqw telecom franchise agreement 1-28-14 Fl:bjs Page 5 of 11 6 Section 6. Franchise Compliance. A. Franchise Violations. The failure by TWTC to fully comply with any of the provisions of this Franchise Agreement may result in a written notice from the City that describes the violations of the Franchise Agreement and requests remedial action within 30 days of receipt of such notice. If TWTC has not attained full compliance at the end of the 30-day period following receipt of the violation notification, the City may declare an immediate termination of all franchise rights and privileges, provided that full compliance was reasonably possible within that 30-day period. B. Emergency Actions. 1. If any of TWTC's actions, or any failure by TVVTC to act to correct a situation caused by TWTC, is deemed by the City to create a threat to life or property, financial harm, or cause a delay of the construction, repair or maintenance of the public improvement, the City may order TVVTC to immediately correct said threat, financial harm, or delay or, at the City's discretion, the City may undertake measures to correct said threat, financial harm or delay itself; provided that, when possible, the City shall notify TWTC and give TWTC an opportunity to correct within a reasonable specified time, said threat, financial harm or delay before undertaking such corrective measures. TWTC shall be liable for all reasonable costs, expenses, and damages attributed to the correction of such an emergency situation as undertaken by the City to the extent that such situation was caused by TWTC and shall further be liable for all reasonable costs, expenses, and damages resulting to the City from such situation, and any reimbursement of such costs to the City shall be made within 30 days of written notice of the completion of such action or determination of damages by the City. The failure by TWTC to take appropriate action to correct a situation caused by TWTC and identified by the City as a threat to public or private safety or property, financial harm, or delay of the construction, repair or maintenance of the public improvement shall be considered a violation of the terms of this Franchise Agreement. 2. If during construction or maintenance of TWTC's facilities any damage occurs to an underground facility and the damage results in the release of natural gas or other hazardous substance or potentially endangers life, health, or property, TWTC or its contractor shall immediately call 911 or other local emergency response number. C. Other Remedies. Nothing contained in this Franchise Agreement shall limit the City's available remedies in the event of TWTC's failure to comply with the provisions of this Franchise Agreement, to include but not limited to, the City's right to a lawsuit for specific performance and/or damages. D. Removal of System. In the event that this Franchise Agreement is terminated as a result of violations of the terms of this Franchise Agreement, TWTC shall, at its sole expense, promptly remove all system components and facilities, provided that the City, at its sole option, may allow TWTC to abandon its facilities in place. W: Word Processing \Ordinances\tw telecom franchise agreement 1-28-14 FI:bjs Page 6 of 11 7 Section 7. Insurance. A. TWTC shall maintain liability insurance written on a per-occurrence basis during the full term of this Franchise Agreement for personal injuries and property damages. The policy shall contain coverage in the amounts and conditions stipulated in Title 11 of the Tukwila Municipal Code. B. Such insurance shall specifically name as additional insured the City, its officers, and employees, shall apply as primary insurance, shall stipulate that no insurance affected by the City will be called on to contribute to a loss covered thereunder, and shall further provide that the policy shall not be modified or canceled during the life of the permit or Franchise Agreement without giving 30 days written notice to the City. Notice shall be by certified mail, return receipt requested to the City. C. If the City determines that circumstances warrant an increase in insurance coverage and liability limits to adequately cover the risks of the City, the City may require additional insurance to be acquired. The City shall provide written notice should the City exercise its right to require additional insurance. Section 8. Other Permits and Approvals. Nothing in this Agreement shall relieve TWTC from any obligation to obtain approvals or necessary permits from applicable federal, state, and City authorities for all activities in the Franchise Area. Section 9. Transfer of Ownership. A. The rights, privileges, benefits, title, or interest provided by this Franchise Agreement shall not be sold, transferred, assigned, or otherwise encumbered, without the prior written consent of the City, with such consent not being unreasonably withheld or delayed. No such consent shall be required, however, for a transfer in trust, by other hypothecation, or by assignment of any rights, title, or interest in 1VVIC's telecommunications system in order to secure indebtedness. Approval shall not be required for mortgaging purposes provided that the collateral pledged for any mortgage shall not include the assets of this franchise. Approval shall not be required for any transfer from TWIG to another person or entity controlling, controlled by, or under common control with TWIG. TWTC may license fibers to other users without the consent of the City provided that TWTC remains solely responsible for the terms and conditions outlined in this Franchise Agreement. B. In any transfer of this Franchise which requires the approval of the City, TWTC shall show that the recipient of such transfer has the technical ability, financial capability, and any other legal or general qualifications as reasonably determined by the City to be necessary to ensure that the obligations and terms required under this Franchise Agreement can be met to the full satisfaction of the City. The qualifications of any transferee shall be determined by hearing before the City Council and the approval to such transfer shall be granted by resolution of the City Council. Any actual and reasonable administrative costs associated with a transfer of this Franchise which WI Word ProcessinglOrdinancesltw telecom franchise agreement 1-28-14 FI:bjs Page 7 of 11 8 requires the approval of the City shall be reimbursed to the City within 30 days of such transfer. Section 10. Administrative Fees. A. Pursuant to the Revised Code of Washington (RCW), the City is precluded from imposing franchise fees for any "telephone business" as defined in RCW 82.16.010 or "service provider" as defined in RCW 35.99.010, except that fees may be collected for administrative expenses related to such franchise. TWTC does hereby warrant that its operations as authorized under this Franchise Agreement are those of a telephone business as defined in RCW 82.16.010 or a service provider as defined in RCW 35.99.010. B. TWTC shall be subject to a $5,000 administrative fee for reimbursement of costs associated with the preparation, processing, and approval of this Franchise Agreement. These costs shall include, but not be limited to, wages, benefits, overhead expenses, equipment, and supplies associated with such tasks as plan review, site visits, meetings, negotiations, and other functions critical to proper management and oversight of the City's right-of-way. Administrative fees exclude normal permit fees as stipulated in Title 11 of the Tukwila Municipal Code. Payment of the one-time administrative fee is due 30 days after franchise approval. C. In the event TWTC submits a request for work beyond the scope of this Franchise Agreement, or submits a complex project that requires significant comprehensive plan review or inspection, TWTC shall reimburse City for amendments and expenses associated with the project. TWTC shall pay such costs within 30 days of receipt of bill from the City. D. Failure by TWTC to make full payment of bills within the time specified shall be considered sufficient grounds for the termination of all rights and privileges existing under this ordinance utilizing the procedures specified in Section 6 of this ordinance. Section 11. Notices. Any notice to be served upon the City or TWTC shall be delivered to the following addresses respectively: City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila, WA 98188 Email: christy.oflahertytukwilawa.gov Phone: 206-433-1855 W: Word ProcessinglOrdinancesqw telecom franchise agreement 1-28-14 Ftlojs Page 8 of 11 9 Greg Diamond Vice President, Regulatory tw telecom of washington Ilc 10475 Park Meadow Drive Littleton, CO 80124 Email: greq.diamond©twtelecom.com Phone: 206-676-8052 with an additional copy to: Tina Davis Senior VP & General Counsel tw telecom of washington Ilc 10475 Park Meadow Drive Littleton, CO 80124 Email: tina.davis©twtelecom.com Phone: 303-566-1279 Section 12. Indemnification. A. TWTC shall use reasonable and appropriate precautions to avoid damage to persons or property in the construction, installation, repair, operation, and maintenance of its structures and facilities within the Franchise Area. TWTC shall indemnify and hold the City harmless from all claims, actions or damages, including reasonable attorney's and expert witness fees, which may accrue to or be suffered by any person or persons, corporation or property to the extent caused in part or in whole by any negligent act or omission of TWTC, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted to TWIG by this Franchise. In the event any claim or demand is presented to or filed with the City which gives rise to TWTC's obligation pursuant to this section, the City shall within a reasonable time notify TWTC thereof and TWTC shall have a right, at its election, to settle or compromise such claim or demand. In the event any claim or action is commenced in which the City is named a party, and which suit or action is based on a claim or demand which gives rise to TWTC's obligation pursuant to this section, the City shall promptly notify TWTC thereof, and TWTC shall, at its sole cost and expense, defend such suit or action by attorneys of its own election. In defense of such suit or action, TWTC may, at its election and at its sole cost and expense, settle or compromise such suit or action. This section shall not be construed to require TWTC to: 1. protect and save the City harmless from any claims, actions, or damages; 2. settle or compromise any claim, demand, suit, or action; 3. appear in or defend any suit or action; or, 4. pay any judgment or reimburse the City's costs and expenses (including reasonable attorney's fees), to the extent such claim arises out of the negligence or intentional acts of the City, its employees, agents or independent contractors. W: Word Processing \Ordinances\tw telecom franchise agreement 1-28-14 Fl:bjs Page 9 of 11 10 B. To the extent of any concurrent negligence between TWTC and the City, TVVTC's obligations under this paragraph shall only extend to its share of negligence or fault. The City shall have the right at all times to participate through its own attorney in any suit or action which arises out of any right, privilege, and authority granted by or exercised pursuant to this Franchise when the City determines that such participation is required to protect the interests of the City or the public. Such participation by the City shall be at the City's sole cost and expense. C. With respect to the performance of this Franchise and as to claims against the City, its officers, agents and employees, TWTC expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, for injuries to its officers, agents and employees and agrees that the obligation to indemnify, defend and hold harmless provided for in this paragraph extends to any claim brought by or on behalf of TWTC's officers, agents or employees. This waiver is mutually negotiated by the parties. Section 13. Severability. If any section, sentence, clause or phrase of this ordinance is held to be invalid or unconstitutional by a court of competent jurisdiction, either party may deem the entire ordinance to be affected and thereby nullified. However, in the event that a determination is made that a section, sentence, clause, or phrase in this ordinance is invalid or unconstitutional, the parties may agree to treat the portion declared invalid or unconstitutional as severable and maintain in force the remaining provisions of this ordinance; provided that, if the City elects, without agreement by TWTC, to enforce the remaining provisions of the ordinance, TWTC shall have the option to terminate the Franchise Agreement. Section 14. Reservation of Rights. The parties agree that this agreement is intended to satisfy the requirements of all applicable laws, administrative guidelines, rules, orders, and ordinances. Accordingly, any provision of this agreement or any local ordinance which may conflict with or violate the law shall be invalid and unenforceable, whether occurring before or after the execution of this agreement, it being the intention of the parties to preserve their respective rights and remedies under the law, and that the execution of this agreement does not constitute a waiver of any rights or obligations by either party under the law. Section 15. Police Powers. Nothing contained herein shall be deemed to affect the City's authority to exercise its police powers. TWTC shall not by this Franchise Agreement obtain any vested rights to use any portion of the City right-of-way except for the locations approved by the City and then only subject to the terms and conditions of this Franchise Agreement. This Franchise Agreement and the permits issued thereunder shall be governed by applicable City ordinances in effect at the time of application for such permits. W: Word ProcessingkOrdinances1tw telecom franchise agreement 1-28-14 Flibjs Page 10 of 11 11 Section 16. Future Rules, Regulations, and Specifications. TWTC acknowledges that the City may develop rules, regulations, and specifications, including a general ordinance or other regulations governing telecommunications operations in the City. Such regulations, upon written notice to TWTC, shall thereafter govern TWIC's activities hereunder; provided, however, that in no event shall regulations: 1. materially interfere with or adversely affect TWTC's rights pursuant to and in accordance with this Franchise Agreement; or 2. be applied in a discriminatory manner as it pertains to TWTC and other similar user of such facilities. Section 17. Repealer. Ordinance No. 2231 is hereby repealed. Section 18. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force and effect five (5) days after passage and publication as provided by law. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of , 2014. ATTEST/AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk APPROVED AS TO FORM BY: Office of the City Attorney Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Attachments: Exhibit A — tw telecom of Washington Ilc — Fiber Optic System Description and Route Map Exhibit B tw telecom of Washington Ilc — Franchise Agreement Acceptance Form W: Word Processing \Ordinances\tw telecom franchise agreement 1-28-14 Flbjs Page 11 of 11 12 EXHIBIT A — Page 1 tw telecom of washington Ilc (TWTC) Fiber Optic System Description TWTC currently has a fiber optic system along Interurban Avenue South. On Interurban Avenue South, the system continues east to Boeing Access Road and heads north on Airport Way South into Seattle. TWTC purchased telecommunications conduits from McLeod USA and installed a fiber optics infrastructure. The fiber optic system is located on East Marginal Way from Interurban Avenue South to South 133rd Street. It continues east on South 133rd Street to Interurban Avenue South. McLeod USA and TWTC fiber optic systems are in common manholes at each tie-in point on Interurban Avenue South. TWTC's fiber optic system also serves customers in the Commercial Business District, starting from a vault on Interurban Avenue South and Family Fun Center Way and heading to Southcenter Boulevard. On the north side, attached to the bridge portion of Southcenter Boulevard, the system heads to the Christianson Trail on the west side of the Duwamish River, then heads south to the intersection of Tukwila Parkway and Christensen Trail. TWTC's system continues westerly on the south side of Tukwila Parkway to the intersection of Andover Park West and Tukwila Parkway. From the west side of Andover Park West, the system heads south to Corporate Drive North. At this location, the system heads back north across the Corporate Drive North then west on the north side of Corporate Drive North, and terminates into a telecommunications vault. Beginning at an existing communications vault located on the south west corner of Corporate Drive North and Andover Park West, TWTC's system proceeds east across Andover Park West to the eastside at which point it turns and proceeds south along the eastside of Andover Park West to where it enters King County Housing Authority located at 600 Andover Park West. 13 Exhibit A TWTC Fiber Optic System Map W:\PW Eng \GIS\ Projects\ Frank \Fiber Optics \TWTC \TWTC Fiber.mxd Date: 01/14/14 By: R. Linsao 14 Date: EXHIBIT B tw telecom of washington Ilc Franchise Agreement Acceptance Form City of Tukwila City Clerk's Office 6200 Southcenter Boulevard Tukwila, WA 98188 Re: Ordinance No. , adopted on Dear City Clerk: In accordance with and as required by Section 4 of City of Tukwila Ordinance No. , passed by the City Council and approved by the Mayor on (the "Ordinance "), tw telecom of washington, Ilc hereby accepts the terms, conditions and obligations to be complied with or performed by it under the Ordinance. Sincerely, Signature Printed Name and Title cc: Frank Iriarte, Public Works Department, City of Tukwila 15 16 TO: FROM: BY: DATE: SUBJECT: City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM Mayor Haggerton Utilities Committee Bob Giberson, Public Works Director Mike Cusick, Senior Program Manager January 31, 2014 Sewer Repair at 6450 Southcenter Blvd Project No. 91340203 Change Order No. 1 to Contract No. 13 -181 ISSUE Approve Change Order No.1 to the contract with Green River Construction, Inc. for the Sewer Repair at 6450 Southcenter Blvd in the amount of $104,462.03 (including sales tax). BACKGROUND While cleaning and jetting a plugged sewer line near the intersection of Southcenter Blvd and 65th Ave S, City staff encountered problems that prevented them from clearing the unknown obstruction and resulted in the jet head and hose becoming stuck in the sewer line. Staff was unable to free the hose and it had to be cut and left in the manhole and sewer line. It was determined that the only way the blockage could be cleared was to install a new manhole where the jet hose was stuck. A contract was approved by Council on November 4, 2013 with Green River Construction, Inc. in the amount of $34,164.00 to install the new manhole, clear any blockages, and /or make any other necessary repairs to the sewer main. DISCUSSION The initial excavation work encountered sewage in the soils at approximately 5 feet deep and 2 feet above the sewer pipe. Staff determined that the sewer line must be broken near this location and that bypass pumping would be required for the sewer line to be repaired. A temporary pumping system was installed in order to control raw sewage from continuing to contaminate the work area. With the temporary pumping system in place, the contractor was able to excavate and examine the broken sewer pipe. With the sewer line now exposed, it was found that two orange fiber optic ducts installed by directional boring equipment had broken through the sewer line at multiple locations. Because the fiber optic ducts were installed adjacent to the sewer line, the trench length had to be greatly increased to determine if there was any further damage to our sewer pipe and to allow for the necessary repairs. The scope of the actual sewer repairs changed dramatically from the scope of the repair project that was awarded to Green River Construction, Inc. Since the bid items do not accurately reflect the work that was performed, the contract work was tracked on a time and material basis in order to calculate fair compensation for the contractor's effort. The changed scope of work also merits an extension of contract time for the contractor to complete landscaping and irrigation work to March 31, 2014. W:\PW Eng \PROJECTS\A- SW Projects \2013 Annual Sewer Repair (91340201) \Sewer Repair at 6450 SC Blvd (91340203) \Info Memo 65th CHANGE ORDER 1 JAN 24 2014 RRT gl.doc 17 INFORMATIONAL MEMO Page 2 FINANCIAL IMPACT The original construction contract was $34,164.00 (including sales tax) for the sewer manhole installation. The additional scope of work included the installation of approximately 100 feet of sewer pipe, traffic control, landscaping, and pavement/sidewalk restoration for a total of $104,462.03. As this is an emergency repair, the project was not budgeted and construction costs will come from the Sewer Fund's ending fund balance. While the final cost of this project is significantly more than the awarded bid amount, this change order reflects the tracking of actual costs to the contractor and includes standard mark -ups for force account items. The time and material approach was the most reasonable and equitable solution to compensate for the changed conditions during construction and complete the necessary repairs. The City will be filing a claim against Comcast and their contractor for the damages to the sewer line and costs incurred for the repair by the City. Original Contract Amount $ 31,200.00 Change Order No. 1 95,399.11 Sales Tax (9.5 %) 12,026.92 Total $138,626.03 RECOMMENDATION Council is being asked to approve Change Order No. 1 in the amount of $104,462.03 (including sales tax) to Contract No. 13 -181 with Green River Construction Co., Inc. for the Sewer Repair at 6450 Southcenter Blvd and consider this item at the February 10, 2014 Committee of the Whole and subsequent February 18, 2014 Regular Meeting. Attachments: Change Order No. 1 Site Photos W:\PW Eng1PROJECTS\A- SW Projects12013 Annual Sewer Repair (91340201)1Sewer Repair at 6450 SC Blvd (91340203)1Info Memo 65th CHANGE ORDER 1 JAN 24 2014 RRT gl.doc 18 CITY OF TUKWILA CONTRACT CHANGE ORDER NO. 01 DATE: JANUARY 28, 2014 BUDGET NO.: PROJECT NO.: 91340203 CONTRACT NO.: PROJECT NAME: SEWER REPAIR AT 6450 SOUTHCENTER BLVD. TO JERRY KNUDSON You are hereby directed to make the herein described changes to the plans and specifications or do the following described work not included in the plans and specifications on this contract: NOTE: This change order is not effective until approved by the "Owner" and a notice to proceed is issued. Conditions: A. The following change, and work affected thereby, are subject to all contract stipulations and covenants; B. The rights of the "Owner" are not prejudiced; and C. All claims against the "Owner" which are incidental to or as a consequence of this change are waived. D. The Contractor Must Submit all Field Overhead and Home Office Overhead rates for approval in advance of all Change Orders. CHANGE: Revise the fixed amount contract to force account for the repair of the sewer near 6450 Southcenter BvId. Please see Information Memo There is 121 Day in time extension with this Change Order due to change in scope the project. We the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal is approved, that we will provide all equipment, furnish all materials, except as may otherwise be noted above, and perform all services necessary for the work above specified, and will accept as full payment therefore the prices shown above and below. / - i - 1 L-/ Contractor ' -e MJ ? �4 Gf ( �ACCE : Date nn By Title P.eSldf yt T Origin I Con ( witho u t t ax) $ 31,200.00 APPROVED BY THE CITY OF TUKWILA Previous Change Order $ 0.00 Date This Change Order (without tax) $ 95,399.11 By Mayor REV. CONTRACT AMOUNT $ 126,599.11 ORIGINAL: City Clerk (1 of 2) Contractor (2 of 2) cc: Finance Department (w /encumbrance); Construction Inspector; Construction Engineer; file: 19 CONTRACT CHANGE ORDER NO. 01 CHANGE: Sheet 2 of 2 During the first day of work on November 14, 2013, Green River Construction began excavating for the proposed sewer manhole in front of the business at 6450 Southcenter Blvd. The contractor excavated down above the sewer line near where the City of Tukwila staff determined the end of the Vactor truck jetting hose was lodged in the sewer pipe. The contractor was down about 5 feet from the surface and 2 feet above the sewer pipe, when sewage came boiling out of the bottom of the trench. The contractor tried to control the sewage flow into the trench with a trash pump. The small trash pump could not keep up with the flow of sewage into the trench. Staff determined that the sewer line must be broken near this location and that bypass pumping would be required for the sewer line to be repaired. The City of Tukwila then contacted Godwin Pumps to provide and install a temporary pumping system around the work area. Godwin installed temporary piping and a large diesel pump with the assistance of Green River Construction on the afternoon of November 14. On November 15, with the temporary pumping system up and running, Green River was able to excavate down to the sewer pipe. With the sewer line now exposed it was found that two orange poly fiber optic ducts were running parallel and immediately adjacent to the sewer line and the sewer line was broken in two places. The Vactor Truck jet hose could be seen inside the sewer pipe. The original scope of the project was to open up about 15 feet of trench above the sewer line for the installation of the proposed manhole. With the fiber optic ducts running this close to the sewer line the trench length would have to be increased to verify the condition of the sewer line. At this point, there was a major change in conditions in contract for the manhole installation project. The City of Tukwila then requested Green River Construction work under Force Account Rules to repair the sanitary sewer line damaged by the installation of the fiber optic cables by Comcast earlier in the summer 2013. The installation of manhole was deleted from scope of the contract. The revised scope of work is to repair the damaged sanitary sewer line and restore the disturbed area back to the existing condition prior to the repair. This work is to done by Force Account for the sewer repair and fixed dollar amount for the site restoration. Please see attached invoice and documentation from Green River Construction to justify the project costs. 20 1 21 ���' a✓' 6Virr, y, niY�4�'% ar�aw�u+ rrr�roii�reRO (lrir:;+uw,'w�,r+�vrt!((.mrr�rc m�ar�( „ �� „�ur� And rill 6 22 TO: FROM: By: DATE: SUBJECT: City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM /FM Mayor Haggerton Bob Giberson Public Works Director Ryan Larson, Senior Program Manager January 31, 2014 Brisco /Desimone Levee Project No. 81441202 Interlocal Agreement with the City of Kent ISSUE Approve an Interlocal Agreement (ILA) with the City of Kent for repairs to the Brisco /Desimone Levee. BACKGROUND The Brisco /Desimone Levee is 2.5 miles long and is located along the east side of the Green River between S 180th St in Tukwila and S 200th St in Kent. Both the City of Kent and King County Flood Control District (KCFCD) studied ways to improve the levee and bring it up to 100 -year flood protection standards. On February 26, 2013, the KCFCD approved the proposal from Kent to use setback levees that are retained by walls on the landward side and assigned Kent responsibility for design and construction of those improvements. An ILA between Kent and the KCFCD has been executed. Kent's studies have identified a total of four reaches (sections) of the Brisco /Desimone Levee that require repairs in order to provide a 100 -year level of flood protection. Reach #1 is entirely within Tukwila, Reach #2 has a small portion within Tukwila, and Reach #3 and #4 are entirely within the City of Kent. A map of the individual reaches is located in Appendix C of the attached ILA. ANALYSIS In order for the City of Kent to perform work in the City of Tukwila, an Interlocal Agreement must be executed that authorizes the work, designates SEPA authority, grants condemnation authority, and allows Kent's contractors to work within the City of Tukwila. Staff from both cities has worked on the draft ILA that allows the City of Kent to act as our agent. The agreement will require Kent to meet Tukwila's shoreline regulations as adopted by Tukwila or through the variance process. FINANCIAL IMPACT KCFCD funding and secured grant funds are expected to cover all costs for the four Briscoe/ Desimone Levee reaches scheduled for repair. No Tukwila funding is anticipated at this time. RECOMMENDATION The Council is being asked to approve an Interlocal Agreement with the City of Kent for repair work to the Brisco /Desimone Levee and consider this item at the February 10, 2014 Committee of the Whole Meeting and subsequent February 18, 2014 Regular Council meeting. Attachment: Interlocal Agreement between Cities of Kent and Tukwila W: \PW Eng \PROJECTSA- DR Projects \Brisco - Desimone Levee (81441202)\ Info Memo ILA w Kent for Desimone- Briscoe Levee.docx 23 INTERLOCAL AGREEMENT BETWEEN THE CITY OF KENT AND THE CITY OF TUKWILA FOR CONSTRUCTION AND ACCREDITATION OF THE DESIMONE LEVEE THIS INTERLOCAL AGREEMENT is entered into pursuant to the Interlocal Cooperation Act, Chapter 39.34 of the Revised Code of Washington between the City of Kent, a Washington Municipal Corporation ( "Kent ") and the City of Tukwila, a Washington Municipal Corporation ( "Tukwila "). RECITALS A. The Federal Emergency Management Agency (FEMA), the agency responsible for the nation's flood insurance program, has determined that the Green River levees do not have the documentation to be accredited to provide 100 -year flood level protection. B. FEMA is responsible for and is reissuing the Flood Insurance Rate Maps for the Green River Valley. The preliminary map encompasses the cities of Kent and Tukwila and shows a large segment of Kent and Tukwila to be within the 100 -year flood -plain and floodway, even though they are behind existing levees. Properties within the 100 -year flood plain typically must acquire costly flood insurance, are subject to increased development standards, and subject to dramatic devaluation. C. These flood insurance requirements act as a disincentive to development and redevelopment in the Green River Valley. D. Kent and Tukwila share a mutual boundary in an area along the Green River that is protected by the " Desimone Levee." A breach in the Desimone Levee section in Tukwila would inundate properties within both Kent and Tukwila. E. Beginning in 2010, Kent prepared the necessary engineering studies to verify, through FEMA's Conditional Letter of Map Revision process, that the levee segments along the Green River are constructed to federal levee safety standards, and identify any repairs needed in order to meet the standards. The study identified 2 weak portions of the levee system located in the city limits of Tukwila, see Exhibit E. F. Both parties desire to have the necessary repairs made to have the levee meet federal levee safety standards. G. Kent, along with King County, was instrumental in obtaining a $7,000,000 state grant which was awarded to the King County Flood Control Zone District (KCFCD) for Briscoe - Desimone Levee improvements, see Exhibit A. H. The KCFCD passed Resolution FCD2013 -02.2 on February 26, 2013, providing for use of the state grant, providing additional KCFCD funding for the Briscoe - Desimone Levee project, supporting the use of setback levees that are retained by Interlocal with Tukwila - Desimone Levee Page 1 of 6 01/24/14 24 walls on the landward side, and assigning Kent responsibility for design and construction of these setback levee improvements. I. Kent entered into an interlocal agreement with the KCFCD on June 6, 2013, see Exhibit B, relating to the use of state and KCFCD funds, assigning Kent as lead for design, permitting and construction of the Briscoe - Desimone Levee project. Tukwila desires that Kent act as lead agency for permitting, design and river levee construction as well as certification of the Desimone Levee in Tukwila. J. The Briscoe Levee is located along the right bank (easterly side) of the Green River between S. 200th Street and S. 189th Street within Kent, River Mile 17.0 to 15.45. The Desimone Levee is located along the right bank of the Green River between S. 189th Street and S. 180th Street within Tukwila, River Mile 15.45 to 14.3. The location of the Briscoe & Desimone Levees as shown on Exhibit C. K. Because both parties desire to work together for the mutual and overall benefit of their citizens and property owners, Kent shall be responsible for processing and acquiring all permits, except for shoreline permits for work conducted within Tukwila. IN CONSIDERATION OF THE MUTUAL COVENANTS, CONDITIONS, PROMISES, AND BENEFITS ESTABLISHED BELOW, THE PARTIES AGREE AS FOLLOWS: AGREEMENT 1. AUTHORITY TO PERFORM NECESSARY STUDIES. Tukwila grants to Kent authority to perform all necessary studies, engineering investigations and all other work necessary to prepare a Letter of Map Revision (LOMR) to accredit the Desimone Levee, as shown in Exhibit E, whose failure would inundate a portion of Tukwila and Kent. Kent will prepare all studies, submit LOMR applications and respond to FEMA questions as needed to complete the LOMR process. Kent will track all costs associated with this work. 2. PERMITTING AND SEPA REVIEW. Kent shall be responsible for conducting SEPA review and for processing all permits necessary to complete the Desimone levee improvements, except for shoreline permits required for work completed in Tukwila, which shall be processed by Tukwila. Tukwila grants Kent the authority to process and acquire permits for Tukwila and to conduct SEPA within Tukwila. 3. AUTHORITY TO PERFORM FINAL DESIGN OF NEEDED IMPROVEMENTS. Tukwila hereby grants Kent the authority to perform all necessary design and acquire necessary permits for needed repairs to the existing levees within the city limits of Tukwila as required to certify the levee and obtain a LOMR from FEMA. Whenever practical, Kent will provide Tukwila design drawings, specifications and cost estimates of needed improvements for Tukwila's review and prior written approval, which approval will not be unreasonably withheld. Interlocal with Tukwila - Desimone Levee Page 2 of 6 01/24/14 25 4. AUTHORITY TO CONDEMN PROPERTY. Both parties have the authority, under Title 8 of the Revised Code of Washington, to condemn property for the protection of the public by the construction or reconstruction of this levee. Tukwila grants Kent the authority to condemn, or to acquire in lieu of condemnation, property within Tukwila, but only to the extent necessary to construct the levee improvements as evidenced by approved preliminary or final construction plans. 5. CONSTRUCTION OF NECESSARY IMPROVEMENTS. It is anticipated that one or more segments of the Desimone levee will require reconstruction in order to certify that the levee meets FEMA requirements. Tukwila grants Kent the authority to construct any necessary improvements to segments of the Desimone levee that are located within Tukwila; provided, Tukwila shall have the right to inspect all work done for workmanship and compliance with Tukwila's standards and to require corrections when necessary. Tukwila shall be invited to all construction meetings held by Kent. 6. COST SHARING All design, acquisition, and construction costs will be included under this Agreement, provided the location of the wall is consistent with KCFCD Resolution FCD2013 -02.2. Any changes specifically requested by Tukwila that result in cost increases will be paid by Tukwila. Tukwila will provide reimbursement to Kent within thirty (30) days of a request for reimbursement from Kent. Compliance with the Tukwila Shoreline Master Program will not be considered to be a change. The parties expect that all costs for work covered under this agreement will be covered by the state grant, KCFCD funding, or other grant sources. However, in the event any work, including design, property acquisition, permit, and CLOMR work performed after January 1, 2013, is not funded fully by other sources, funds are withdrawn, the project is not able to obtain a variance to the Tukwila Shoreline permit in order to construct the project consistent with KCFCD Resolution FCD2013 -02.2, or cost overruns exceed funding amounts, all work will cease and the two parties will meet to discuss available options to allow the project to move forward. 7. DESIGNATED REPRESENTATIVES. Each party shall designate a representative to meet, confer, evaluate and administer expenditure proposals in connection with these projects. The representatives shall meet as warranted at dates and times determined by them to be most convenient. The representatives are also empowered to designate, identify and develop procedures and processes for their interaction in connection with the administration of the project. 8. INSURANCE. Each party shall be responsible for maintaining, during the term of this Agreement, and at its sole cost and expense, insurance coverage in amounts determined to be sufficient by each party's representative. 9. INDEMNIFICATION. Each party shall defend, indemnify and hold harmless the other party, and all of its officials, employees, principals and agents, from any and all claims, demands, suits, actions, fines, penalties and liability of any kind, including injuries to persons or damages to property, arising out of or relating to any negligent acts, errors or omissions of the indemnifying party and its Interlocal with Tukwila - Desimone Levee Page 3 of 6 01/24/14 26 contractors, agents, employees and representatives in performing these obligations under this Agreement. However, if any such damages and injuries to persons or property are caused by or result from the concurrent negligence of Kent or its contractors, employees, agents, or representatives, and the city of Tukwila or its contractors, employees, agents, or representatives, each party's obligation hereunder applies only to the extent of the negligence of such party or its contractor or employees, agents, or representatives. This indemnification provision shall not be construed as waiving any immunity granted to Kent or Tukwila, under state statute, including chapters 86.12 and 86.15 RCW, as to any other entity. The foregoing indemnity is specifically and expressly intended to constitute a waiver of each party's immunity under industrial insurance, Title 51 RCW, as respects the other party only, and only to the extent necessary to provide the indemnified party with a full and complete indemnity of claims made by the indemnitor's employees. This waiver has been mutually negotiated. 10. RESOLUTION OF DISPUTES AND GOVERNING LAW. This agreement shall be governed by and construed in accordance with the laws of the State of Washington. If the parties are unable to settle any dispute, difference or claim arising from the parties' performance of this agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue, rules and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties' performance of this agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals; provided, however, nothing in this paragraph shall be construed to limit a party's right to indemnification under Section 9 of this agreement. 11. WRITTEN NOTICE. All communications regarding this agreement shall be sent to the parties' respective city clerks at the addresses listed on the signature page of the agreement. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail. 12. ASSIGNMENT. Any assignment of this agreement by either party without the written consent of the other party shall be void. If the non - assigning party gives its consent to any assignment, the terms of this agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. 13. MODIFICATION. No waiver, alteration, or modification of any of the provisions of this agreement shall be binding unless in writing and signed by a duly authorized representative of the parties. Modifications to this agreement shall not require approval of the parties' respective city councils. 14. ENTIRE AGREEMENT. The written provisions and terms of this agreement, together with any attached Exhibits, shall supersede all prior verbal statements of any officer or other representative of the parties, and those statements shall not be effective or be construed as entering into or forming a part of or altering in any Interlocal with Tukwila - Desimone Levee Page 4 of 6 01/24/14 27 manner this agreement. However, should any language in any of the Exhibits to this agreement conflict with any language contained in this agreement, the terms of this agreement shall prevail. 15. COMPLIANCE WITH LAWS. The parties agree to comply with all federal, state, and local laws, rules, and regulations that are applicable to this agreement. 16. COUNTERPARTS. This agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. 17. DURATION. This Agreement shall take effect on the date on which the second party signs this Agreement, and shall remain in effect through December 31, 2023. 18. PURPOSE. The purpose of this agreement is to facilitate the accreditation and construction of needed repairs of the Desimone Levee section because its failure could inundate property within Kent and Tukwila. 19. ADMINISTRATION. Kent shall be the administrator of this agreement, with oversight and assistance provided by the respective named representatives identified in Section 7. 20. OWNERSHIP AND MAINTENANCE OF COMPLETED PROJECT. Upon completion of the project, the responsibilities for maintenance and ownership of the improvements shall revert back to the parties that had the maintenance responsibilities and ownership prior to the commencement of this agreement. 21. TERMINATION. Any party may terminate this agreement, with or without cause, upon providing the other parties not less than 180 calendar days advanced written notice. A party terminating this agreement shall remain responsible for its proportionate share of expenses incurred under this agreement. 22. COPIES OF THE AGREEMENT. Copies of this agreement shall be recorded in King County or otherwise made public in conformance with the Interlocal Cooperation Act. 23. AUDITS AND INSPECTIONS. The records and documents with respect to all matters covered by this contract shall be subjected to inspection, review or audit by the Parties at the requesting party's sole expense during the term of this Agreement and six (6) years after expiration or termination. Such records shall be made available for inspection during regular business hours within a reasonable time of the request. 24. INTERLOCAL COOPERATION ACT. The purpose of this Agreement is to repair the Desimone levee so that it meets federal levee safety standards. This Agreement does not create a separate joint board or other legal or administrative entity. The parties shall hold and dispose of property as set forth in this Agreement. The parties are each responsible for their own finances in connection with this Agreement, and Interlocal with Tukwila - Desimone Levee Page 5 of 6 01/24/14 28 nothing in this Agreement shall be deemed or construed otherwise. The duration of this Agreement shall be ten years from the date of final execution. THIS AGREEMENT WILL TAKE EFFECT ON THE LAST DATE ENTERED BELOW. CITY OF KENT: 220 Fourth Avenue South Kent, WA 98032 By: (signature) Print Name: Suzette Cooke Its: Mayor (title) DATE: Attest: , City Clerk APPROVED AS TO FORM: Kent Law Department CITY OF TUKWILA: 6200 Southcenter Blvd. Tukwila, WA 98188 By: (signature) Print Name: Jim Haagerton Its: Mayor (title) DATE: Attest: Christy O'Flaherty, City Clerk APPROVED AS TO FORM: Shelley Kerslake, City Attorney Interlocal with Tukwila - Desimone Levee Page 6 of 6 01/24/14 29 DEPARTMENT OF ECOLOGY State of Washington Ecology Grant Agreement No. G1300118 between the State of Washington Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements THIS is a binding agreement entered into by and between the State of Washington, Department of Ecology, (PO Box 47600, Olympia, Washington, 98504 -7600) hereinafter referred to as the "DEPARTMENT" or as "ECOLOGY" and the King County Flood Control Zone District, hereinafter referred to as the "RECIPIENT" to carry out the activities described herein as authorized by the 2012 Washington State Legislature, Supplemental Budget Bill, ESB 6074, §3009 of the Capital Budget. Recipient Name: Recipient Project Coordinator: Telephone Number: e -mail address: King County Flood Control Zone District Water and Land Resources Division 201 South Jackson, Suite 600 Seattle, WA 98104 -3855 Jennifer Rice 206 -263 -0153 Jennifer. RiceAKingCounty.gov Fiscal Contact for Recipient: Katrina Johnston Telephone: 206 -296 -1963 e -mail address: Katrina .Johnston(a,Kinocounty.gov Payee on Warrant: King County Flood Control Zone District (address as above) Project Officer for the Department: David Radabaugh SEA Program — NWRO WA State Department of Ecology 3190 — 160`h Avenue SE, Bellevue, WA 98008 -5452 Telephone Number: 425 - 649 -4260 e -mail address: david.radabaughAecy.wa.gov The source of funds provided by the DEPARTMENT are from the 2012 Washington State Legislature, Supplemental Budget Bill, ESB 6074, §3009 of the Capital Budget to improve the Green River Briscoe / Desimone Levee. Maximum Eligible 100% State Project Cost: $7,000,000 State Maximum Cost Share Rate: 100% UP TO a maximum State Share of $7,000,000 *. This agreement is effective from January 1, 2013 through June 30, 2015. Page 1 of 24 30 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Scope of Work Project Title: Briscoe - Desimone Levee Improvements Description: The project involves improvements to the Briscoe and Desimone levees which are on the right (eastern) bank of the Green River between River Miles (RM) 14.3 -17.00 in the cities of Kent and Tukwila. The Briscoe and Desimone levees are aging earthen levees with over- steepened slopes, a levee crest less than 12 feet wide, and toe scour protection that is generally missing or inadequate. The adjoining river channel lacks adequate in- stream and aquatic edge habitat structure, such as deep pools, large woody debris, and overhanging cover. While originally built to provide flood risk reduction to farmland in the Kent Valley, these aging levees now protect $2.8 billion worth of urban structures and contents. A levee breach or overtopping in this location would have serious implications including threats to public safety, damage to public infrastructure, impacts on the regional economy, and damage to private structures (including homes and businesses). Single -flood damage estimates for a failure of containment by these levees exceed $830 million. The economic disruption to the valley would be measured in years. Businesses with expensive and difficult to relocate or replace industrial machinery are particularly at risk. Because of these significant risks, improvements to this levee segment are a very high priority to the City of Kent and the King County Flood Control District. Work: The scope of this grant agreement focuses on the portion of the levee segment that is between River Mile 15.98 and 16.36. The Recipient shall perform the following work: 1 Scope of Work 1 Task 1: Project Coordination and Administration The Recipient will coordinate throughout the grant period with Ecology and other federal, state, local agencies, and Indian tribes. In its commitment to provide technical assistance throughout the grant period, Ecology will meet with the jurisdiction to present and discuss approaches to floodplain construction issues before work begins. This Task also covers expenses for the recipient to administer the grant including, but not limited to: contract monitoring; coordinating with the Corps of Engineers, FEMA, the City of Kent, and other parties; internal staff reviews; construction engineering management; etc. Cost: $500,000 State contribution: $500,000 Page 2 of 24 31 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Deliverable: Progress Reports are due quarterly for both years per the matrix that follows; see Special Terms and Conditions, Paragraph 9 for details on progress reporting and page 5 for invoicing information. ia0 reSS eport` ` � ®rein Pericid ,. � � :R.. p . 9 s` Da'�e-Due First Quarter July 1 - September 30 October 30 Second Quarter October 1 — December 31 January 30 Third Quarter January 1 — March 31 April 30 Fourth Quarter April 1 — June 30 July 30 Task 2: Right of Way (ROW) Plans and Property Acquisitions Acquire ROW necessary for project, including 15 foot maintenance easement on the landward side of the constructed flood wall. All properties acquired will be used to enhance the levee system or used in perpetuity for open space purposes only. Restrictions from future development will be placed on the deeds and will be recorded on the titles. See Exhibit C for the restrictive covenant and related documents which shall become part of the acquisition. Ecology shall be in receipt of complete documentation before payment is released for the acquisition. Cost: $400,000 State contribution: $ 0 Deliverable: (Two copies) Acquisition Report to include but not limited to: 1. A map showing the location of properties purchased; 2. List of properties with names / addresses acquired 3. Right of Way plans 4. Acquisition documents for each property including: a. Title Reports b. Appraisals c. Appraisal Reviews d. Environmental Assessments e. Clean Site Certifications f. Closing Statements g. Offer Letters h. Recorded Deeds and Easements with title restrictions in a form approved by Ecology. 1. (Digital) photographic documentation of project properties before and after project implementation in sufficient quantity / quality to effectively illustrate project progress / demolition work. Date Due: June 30, 2014 Page 3 of 24 32 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Task 3: Design Plans The Recipient will prepare a detailed set of design plans for construction of an I -beam flood wall that will meet or exceed FEMA accreditation requirements. Cost: $875,000 State contribution: $875,000 Deliverable: (Two copies) Design Plans, signed and sealed by an engineer licensed in the State of Washington and meeting FEMA accreditation requirements.- Date Due: June 30, 2014 Task 4: Project Permits The Recipient will acquire all permits and approvals necessary for project completion in a timely manner and in accordance with the schedule below. This task includes obtaining required federal, state, and local project permits and approvals, as well as preparation of all necessary technical studies, engineering studies, and habitat assessments. If a Letter of Map Revision (LOMR) is necessary, then the Conditional LOMR process shall be utilized. Permit Schedule The following permits have been, or will be, obtained. Permit Activity Work Dates Start End SEPA 2/2013 5/2013 NPDES Construction — Wash. Dept. of Ecology 3/2013 5/2013 Hydraulic Project Approval — WDF &W, if required 3/2013 5/2013 Shoreline Substantial Development 2/2013 6/2013 Shoreline Conditional Use Permit, if required 2/2013 6/2013 Flood Zone Permit, if required 3/2013 5/2013 Other, if required Cost: $25,000 State Contribution $25,000 Deliverable: (Two copies) All Permits Date Due: June 30, 2013 Page 4 of 24 33 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Task 5: Construction Project construction will be conducted in accordance with approved plans, specifications, permits, and generally accepted engineering practices. A contractor will be hired to construct the fioodwall to meet or exceed FEMA standards for 100 year flood levee certification. Cost: $5,700,000 State contribution: $ 5,600,000 Deliverables: • Two copies: As -built drawings, signed and sealed by a professional engineer licensed in the State of Washington. • Two copies: Final project summary report, signed by the Project Engineer declaring that the project was, to the best of his/her knowledge, constructed and completed in accordance with the construction plans and specifications and generally accepted engineering /construction practice. • Two sets: Digital photographic documentation of the project before and after construction in sufficient quantity to effectively illustrate important phases of construction and project progress. Date Due: June 30, 2015 Budget Budget Conditions 1. Project Administration: For the administration of this agreement the RECIPIENT must follow the current edition of the Administrative Requirements for Ecology Grants and Loans (Yellow Book). 2. Invoicing: • Grants are awarded on a reimbursable basis. The Recipient initially pays project costs in full. Upon presentation of an invoice to Ecology, Ecology's share of the project is reimbursed to the Recipient. • Expenditures will be monitored by the Ecology Fiscal Office for compliance with the budget (see below). Budget deviations are allowed between tasks (e.g., a grantee may spend less money on one task and more on another), but in no circumstances may the state share of the project cost be exceeded without a prior written amendment When submitting invoices to Ecology, the RECIPIENT shall itemize all costs by task and provide subtotals by task on Ecology's Form C2, Voucher Support Form. All payment requests must have forms A, B, C (and D if applicable), be accompanied by supporting invoicing documents a commensurate progress Page 5 of 24 34 Flood Agreement No. 61300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements report, and receive Ecology Project Officer approval before payment can be released. NOTE: For payment requests, the RECIPIENT must use the Ecology forms contained in the Yellow Book. Otherwise, Ecology will return requests to the RECIPIENT for submittal on the correct forms. • Forms - http: / /www.ecv.wa.gov /biblio /9118A.html • Yellow Book - http: / /www.ecy.wa.gov /biblio /9118.html • The RECIPIENT must maintain complete backup documents including but not limited to all invoiced costs and time sheets - signed and dated by employee and supervisor. The RECIPIENT must keep these expenses in grant files according to budget task for a period of three years after project completion and make them available at any time for inspection by the DEPARTMENT. • Requests for reimbursement must be submitted at least quarterly but not more than once per month by the RECIPIENT on state invoice voucher forms. Financial reports will be submitted 45 days after the quarter closes. The indirect rate must not exceed 25 percent of direct (staff) labor and benefit costs. This rate covers space utilities, miscellaneous copying, telephone, motor pool, janitorial services, records storage, rental, county fiscal and legal services, etc. Items not included in . this list must be reported with the first payment request and must remain consistent for the life of the grant. • Right to Audit: The Recipient agrees that payment(s) made under this grant shall be subject to reduction for amount charged thereto which are found after audit ex- amination not to constitute allowable costs under this grant. The Recipient shall refund by check payable to the DEPARTMENT the amount of such reduction of payments under completed or terminated grants.. • Final payment of grant projects is contingent on receipt of viable deliverables as listed in this grant agreement. A final invoice will be submitted 45 days after the final quarter of the grant agreement. 2. Budget (for RECIPIENT reporting and Ecology tracking purposes): The source of funds provided by the DEPARTMENT are from the 2011 -2013 Washington State Legislature, SB 6074, §3009 Capital Budget. State Funding is as follows: Maximum Eligible 100% State Project Cost: $7,000,000 Estimated Costs Work Item State Cost KCFCZD Cost Total Cost Task 1 Project Coordination & Administration $500,000 0 $500,000 Task 2 Right -of -way Plans & Property Acquisition 0 $400,000 $400,000 Task 3 Design Plans 875,000 0 $875,000 Task 4 Project Permits 25,000 0 $25,000 Task 5 Construction 5,600,000 100,000 $5,700,000 TOTAL PROJECT COST $7,000,000 $500,000 $7,500,000 Page 6 of 24 35 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Special Terms and Conditions AGREEMENT PROVISIONS 1. Compliance with all Laws: The Recipient shall comply fully with all applicable federal, state and local laws, orders, regulations and permits. 2. Restrictions on Lobbying: The Recipient of this agreement Is prohibited from using funds provided by this agreement for lobbying purposes in accordance with the Administrative Requirements for Ecology Grants and Loans, Publication No. 91 -18, current edition, Part III, Section G. 3. Local Decision: This grant is made in response to a request for financial assistance from the Recipient to undertake flood damage prevention projects. The choice of floodplain management activities addressed by this grant is a local decision made solely by the Recipient. The Recipient is not acting as an agent of the State. 4. Lawsuits: The Department shall not be responsible for any non - contractual damage or inverse condemnation claims resulting from the structures or works constructed, repaired, restored, maintained, or improved pursuant to this grant. 5. Indemnification, Hold Harmless and Duty to Defend a. The Department shall in no way be held responsible for payment of salaries, consultant's fees, and other costs related to the project described herein, except as provided in the scope of work. b. This paragraph applies to negligence based claims only. All other claims are governed by paragraph 4 of this section. To the extent the constitution and laws of the State of Washington permit, Recipient shall indemnify, defend and hold harmless the State, its agencies, officers and employees, from all claims, suits or actions brought for any or all injuries to persons or property arising from, or as a consequence of, negligent acts or omissions related to the construction, restoration, repair, maintenance, improvement or operation of the structures or works for which this grant is provided. If the structures or works for which this grant is received are a portion of an integrated flood protection system, Recipient agrees to indemnify, defend and hold harmless the State of Washington, its agencies, employees, and officers against any and all liability arising out of the operation, maintenance, or repair of that integrated flood protection system; PROVIDED, however, that this provision is not intended to and shall not be construed as a waiver by Recipient of any immunities conferred upon the Recipient by RCW 86.12.037 nor is it intended to, and it shall not be construed to, confer any rights upon third parties. The Recipient will not be required to indemnify, defend, or save harmless the State, its agencies, officers or employees as provided in the preceding paragraph of this section if the claim, suit, or action for injuries, death, or damages is caused by the sole negligence of the State. Where such claims, suits, or actions result from the Page7of24 36 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements concurrent negligence of (a) the State, or the State's agents or employees and (b) the Recipient or the Recipient's agents or employees, the indemnity provisions provided in the preceding paragraphs of this section shall be valid and enforceable only to the extent of the Recipient's negligence or the negligence of its agents and employees. c. To the extent that the constitution and laws of the State of Washington permit, Recipient shall indemnify and hold harmless the State of Washington, its agencies, employees, and officers against any and all liability arising out of the continued operation, maintenance, or repair of the structures or works constructed, restored, repaired, maintained or improved as a result of this grant. If the structures or works for which this grant is received are portions of an integrated flood protection system, Recipient agrees to indemnify, defend and hold harmless the State of Washington, its agencies, employees, and officers against any and all liability arising out of the operation, maintenance, or repair of that integrated flood protection system; PROVIDED, however, that the indemnity provisions of this paragraph are not intended to and shall not be construed as a waiver by Recipient of any immunities conferred upon the Recipient by RCW 86.12.037 nor are they intended to, and they shall not be construed to, confer any rights upon third parties. This agreement applies to all non- negligent, non - contractually based claims including, but not limited to, inverse condemnation, contribution, indemnification, trespass and /or nuisance. 6. Quality Assurance Project Plans (QAPP): IF this project involves the collection of environmental measurement data, the Recipient needs to prepare a QAPP to ensure the consistent application of quality assurance principles to the planning and execution of all activities involved in generating this data. The plan shall be conducted in accordance with the DEPARTMENT's Guidelines for Preparing Quality Assurance Proiect Plans for Environmental Studies , current edition, (Ecology Publication No. 04- 03 -030) available at http: / /www.ecv.wa.gov /biblio /0403030.html The plan must describe the monitoring and data quality objectives, procedures, and methodologies which will be used to ensure that all environmental data generated will meet these requirements. The size and complexity of the plan should be cost effective and in proportion to the magnitude of the sampling effort. In developing the plan, the RECIPIENT may also reference Ecology's Technical Guidance for Assessing the Quality of Aquatic Environments, February 1994 (Ecology Publication No. 91 -78), available at http:// www .ecv.wa.gov /biblio /9178.html. The QAPP report shall be limited to a concise description of the environmental measurement aspects of this project. Ecology's Project Officer shall review and approve this plan prior to initiation of work. The QAPP plan may describe the following elements: • Assumptions that direct the collection and analysis; • Resources used (such as flights for aerial photos); • Resource documents that will be consulted; • Field methods employed; • Office methods employed; • Training level of staff involved in data collection and analysis; • Equipment / materials to be used and accurate calibration assurance. 7. Coordination with Ecology's Geographical Information System (GIS): IF this project involves developing GIS data, the Recipient shall coordinate with Ecology's GIS office Page 8 of 24 37 Flood Agreement No. 61300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements in an effort to promote compatibility and to encourage sharing of geospatial data. To facilitate data sharing, the Department utilizes the following standards: 6Rr., , ESRI's ARC /INFO Current version ESRI's ArcView Current Version Horizontal Datum NAD 83 HARN Vertical Datum NGVD 88 Projection System Lambert Conic Conformal Coordinate System WA State Plane Coordinates Coordinate Zone South Coordinate Units Feet Accuracy Standard +1 -40 Feet (1:24,000) minimum accuracy to within a foot of the true North American datum system Vector Import Format ArcExport, DLG and /or DXF, shapefiles Raster Import Format TIFF, BIUBIP, RLC,GRID,ERDAS, SID Whenever possible, the Recipient is encouraged to utilize the standards listed above when compiling data. To discuss the usage of other standards, please contact Jerry Franklin at 360 407 -7470; Fax: 360 407 -6902; E -Mail: jfra461@ecy.wa.gov or Dan Saul at 360 - 407 -6419; E -Mail: dsau461(cr�ecv.wa.gov for further data sharing and compatibility information. The RECIPIENT shall submit copies to Ecology's Project Officer with complete documentation as it relates to all digital data, GIS coverages, shape files, related tables and map products. 8. Responsibilities of the Project Coordinator: The Recipient's Project Coordinator shall be responsible for the procedural obligations under this agreement in addition to his /her duty to coordinate the planning effort hereunder. He /She shall cooperate with all parties concerned in every way possible to promote successful completion of the services described in the Scope of Work. 9. Quarterly Reporting Quarterly Reports are contingent on the effective date of the agreement. For timely preparation and review, quarterly reports shall convey essential information in a simple, concise manner through the use of bulleted summary statements, lists, and tables and include the following: a. A comparison of actual accomplishments to the objectives established for the reporting period including a description of issues on fisheries resources; b. For any work related to GIS, designate data standard utilized and associated data documentation. c. Status of project schedule d. Personnel changes e. Any difficulties encountered during the quarter. f. Environmental benefits being achieved by the project Page 9 of 24 38 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Reporting Periods for each year of the agreement dependent on the start date: 1 s e0 j>te iod€kIte First Quarter (Year 1) July 1 — September 30 October 30 Second Quarter October 1 — December 31 January 30 Third Quarter (Year 2) January 1 — March 31 April 30 Fourth Quarter April 1 — June 30 July 30 For Report Contents and Ecology's form: Please visit our website at: http://www.ecv.wa.gov/probrams/sea/grants/flooddamageprevention County or City Name Grant No. G1300_ Project Title Task Title Task Number Date 10. Identification of Project Materials - All reports, maps, and other documents published as part of this grant agreement shall carry the name of the RECIPIENT, Ecology's grant number (in the upper right hand corner), title, the specific task number of the product and date centered on the front cover or title page (or in the case of maps, the block which contains the name of the Government unit or Department). 11. Format for Publications and Brochures: Any (hard copy) publications or brochures required as a product of this agreement shall conform to minimum standards of size, 8 -1/2" x 11" white, recycled paper equivalent in weight to 20 Ib. bond, single spaced, printed both sides, no Tess than 1" margins. Photos, illustrations, and graphs must be of reproducible quality. Any publications or brochures intended for public distribution shall comply with graphic requirements as specified in Ecology's "Publications Handbook ", publication number 91 -41 and any additional specifications as may be outlined in the Scope of Work, 12. Amendments: A "letter" amendment is a written request by the Recipient to extend the project completion and expiration dates provided that is allowed by the grant program . On the approval of Ecology's project officer, the request is then forwarded to the Ecology Budget and Fiscal Offices for processing. A formal amendment is required for a significant change to the scope of work or an increase to the total eligible project cost and is signed by both parties. 13. Minority And Women's Business (MWBE) Participation: The RECIPIENT agrees to solicit and recruit, to the maximum extent possible, certified minority -owned (MBE) and women -owned (WBE) businesses in purchases and contracts initiated after the effective date of this Agreement. In the absence of more stringent goals established by the RECIPIENT's jurisdiction, the RECIPIENT agrees to utilize the DEPARTMENT'S goals for minority- and women -owned business participation in all bid packages, request for proposals, and purchase orders. These goals are expressed as a percentage of the total dollars available for the purchase or contract and are as follows: Construction /Public Works 10% MBE 6 %WBE Architecture /Engineering 10% MBE 6 %WBE Page 10 of 24 39 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Purchased Goods 8% MBE 4 %WBE Purchased Services 10% MBE 4 %WBE Professional Services 10% MBE 4 %WBE Meeting these goals is voluntary and no contract award or rejection shall be made based on achievement or non - achievement of the goals. Achievement of the goals is encouraged, however, and the RECIPIENT and ALL prospective bidders or persons submitting qualifications shall take the following affirmative steps in any procurement initiated after the effective date of this Agreement: a. Include qualified minority and women's businesses on solicitation lists. b. Assure that qualified minority and women's businesses are solicited whenever they are potential sources of services or supplies. c. Divide the total requirements, when economically feasible, into smaller tasks or quantities, to permit maximum participation by qualified minority and women's businesses. d. Establish delivery schedules, where work requirements permit, which will encourage participation of qualified minority and women's businesses. e. Use the services and assistance of the State Office of Minority and Women's Business Enterprises (OMWBE) and the Office of Minority Business Enterprises of the U.S. Department of Commerce, as appropriate. By signing this Agreement, the RECIPIENT certifies that the above steps were, or will be followed. Any contractor engaged by the RECIPIENT under this agreement shall be required to follow the above five affirmative steps in the award of any subcontract(s). The RECIPIENT shall report to the DEPARTMENT at the time of submitting each invoice, on forms provided by the DEPARTMENT, payments made to qualified firms. The report will address: f. Name and state OMWBE certification number of any qualified firm receiving funds under the voucher, including any sub - and /or sub - subcontractors. The total dollar amount paid to qualified firms under this invoice. g. 14. Right to Audit: The Recipient agrees that payment(s) made under this grant shall be subject to reduction for amount charged thereto which are found after audit examination not to constitute allowable costs under this grant. The Recipient shall refund by check payable to the DEPARTMENT the amount of such reduction of payments under com- pleted or terminated grants. 15. Grant Closeout: The end date for this project is June 30, 2015. A grace period of 45 days for all deliverables and invoice vouchers is allowed as stipulated in the scope of work or by the State Office of Financial Management (OFM) through Ecology's Fiscal Office. 16. All Writings Contained Herein: This agreement, the appended "General Terms and Conditions ", and the Department's current edition of "Administrative Requirements for Ecology Grants and Loans" contain the entire understanding between the parties, and there are no other understandings or representations except those set forth or incorporated by reference herein. No subsequent modification(s) or amendments to this Page 11 of 24 40 Ftood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements agreement shall be of any force or effec unless in writing, signed by authorized representatives of the RECIPIENT and DEPARTMENT and made a part of this agreement; EXCEPT a Ietter amendment will suffice to extend the period of performance as set forth on the page 1 of this grant agreement. IN WITNESS WHEREOF, the parties hereby execute this Grant Agreement: State of Washington Department of Ecology ' ' Gordon White Date Program Manager 8hore|anda and Environmental Assistance Program Approved as to form only by The Assistant Attorney General Page 12 of 24 King Count Flood Control Zone District Signature, Authorized Official Date Print Na eof Authorized Official Title of Authorized Official (Note: Insert additional signature blocks(s) and/or pages if more than one signature block is required) 41 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Appendix A: GENERAL TERMS AND CONDITIONS Pertaining to Grant and Loan Agreements of the Department of Ecology A. RECIPIENT PERFORMANCE All activities for which grant/loan funds are to be used shall be accomplished by the RECIPIENT and RECIPIENT's employees. The RECIPIENT shall only use contractor /consultant assistance if that has been included in the agreement's final scope of work and budget. B. SUBGRANTEE /CONTRACTOR COMPLIANCE The RECIPIENT must ensure that all subgrantees and contractors comply with the terms and conditions of this agreement. C. THIRD PARTY BENEFICIARY The RECIPIENT shall ensure that in all subcontracts entered into by the RECIPIENT pursuant to this agreement, the state of Washington is named as an express third -party beneficiary of such subcontracts with full rights as such. D. CONTRACTING FOR SERVICES (BIDDING) Contracts for construction, purchase of equipment and professional architectural and engineering services shall be awarded through a competitive process, if required by State law. RECIPIENT shall retain copies of all bids received and contracts awarded, for inspection and use by the DEPARTMENT. E. ASSIGNMENTS No right or claim of the RECIPIENT arising under this agreement shall be transferred or assigned by the RECIPIENT, F. COMPLIANCE WITH ALL LAWS 1. The RECIPIENT shall comply fully with all applicable Federal, State and local laws, orders, regulations and permits. Prior to commencement of any construction, the RECIPIENT shall secure the necessary approvals and permits required by authorities having jurisdiction over the project, provide assurance to the DEPARTMENT that all approvals and permits have been secured, and make copies available to the DEPARTMENT upon request. 2. Discrimination. The DEPARTMENT and the RECIPIENT agree to be bound by all Federal and State laws, regulations, and policies against discrimination. The RECIPIENT further agrees to affirmatively support the program of the Office of Minority and Women's Business Enterprises to the maximum extent possible. If the agreement is federally- funded, the RECIPIENT shall report to the DEPARTMENT the percent of grant/loan funds available to women or minority owned businesses. 3. Wages And Job Safety. The RECIPIENT agrees to comply with all applicable laws, regulations, and policies of the United States and the State of Washington which affect wages and job safety. 4. Industrial Insurance. The RECIPIENT certifies full compliance with all applicable state industrial insurance requirements. If the RECIPIENT fails to comply with such laws, the DEPARTMENT shall have the right to immediately terminate this agreement for cause as provided in Section K.1, herein. Page 13 of 24 42 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements G. KICKBACKS The RECIPIENT is prohibited from inducing by any means any person employed or otherwise involved in this project to give up any part of the compensation to which he /she is otherwise entitled or, receive any fee, commission or gift in return for award of a subcontract hereunder. H. AUDITS AND INSPECTIONS 1. The RECIPIENT shall maintain complete program and financial records relating to this agreement. Such records shall clearly indicate total receipts and expenditures by fund source and task or object. All grant/loan records shall be kept in a manner which provides an audit trail for all expenditures. All records shall be kept in a common file to facilitate audits and inspections. Engineering documentation and field inspection reports of all construction work accomplished under this agreement shall be maintained by the RECIPIENT. 2. All grant/loan records shall be open for audit or inspection by the DEPARTMENT or by any duly authorized audit representative of the State of Washington for a period of at least three years after the final grant payment/loan repayment or any dispute resolution hereunder. If any such audits identify discrepancies in the financial records, the RECIPIENT shall provide clarification and /or make adjustments accordingly. 3. All work performed under this agreement and any equipment purchased, shall be made available to the DEPARTMENT and to any authorized state, federal or local representative for inspection at any time during the course of this agreement and for at least three years following grant/loan termination or dispute resolution hereunder. 4. RECIPIENT shall meet the provisions in OMB Circular A -133 (Audits of States, Local Governments & Non Profit Organizations), including the compliance Supplement to OMB Circular A- 133, if the RECIPIENT expends $500,000 or more in a year in Federal funds. The $500,000 threshold for each year is a cumulative total of all federal funding from all sources. The RECIPIENT must forward a copy of the audit along with the RECIPIENT'S response and the final corrective action plan to the DEPARTMENT within ninety (90) days of the date of the audit report. I. PERFORMANCE REPORTING The RECIPIENT shall submit progress reports to the DEPARTMENT with each payment request or such other schedule as set forth in the Special Conditions. The RECIPIENT shall also report in writing to the DEPARTMENT any problems, delays or adverse conditions which will materially affect their ability to meet project objectives or time schedules. This disclosure shall be accompanied by a statement of the action taken or proposed and any assistance needed from the DEPARTMENT to resolve the situation. Payments may be withheld if required progress reports are not submitted. Quarterly reports shall cover the periods January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31. Reports shall be due within thirty (30) days following the end of the quarter being reported. J. COMPENSATION 1. Method of compensation. Payment shall normally be made on a reimbursable basis as specified in the grant agreement and no more often than once per month. Each request for payment will be submitted by the RECIPIENT on State voucher request forms provided by the DEPARTMENT along with documentation of the expenses. Payments shall be made for each task/phase of the project, or portion thereof, as set out in the Scope of Work when completed by the RECIPIENT and approved as satisfactory by the Project Officer. Page 14 of 24 43 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements The payment request form and supportive documents must itemize all allowable costs by major elements as described in the Scope of Work. Instructions for submitting the payment requests are found in "Administrative Requirements for Ecology Grants and Loans ", part IV, published by the DEPARTMENT. A copy of this document shall be furnished to the RECIPIENT. When payment requests are approved by the DEPARTMENT, payments will be made to the mutually agreed upon designee. Payment requests shall be submitted to the DEPARTMENT and directed to the Project Officer assigned to administer this agreement. 2. Period of Compensation. Payments shall only be made for actions of the RECIPIENT pursuant to the grant/loan agreement and performed after the effective date and prior to the expiration date of this agreement, unless those dates are specifically modified in writing as provided herein. 3. Final Request(s) for Payment. The RECIPIENT should submit final requests for compensation within forty- five(45) days after the expiration date of this agreement and within fifteen (15) days after the end of a fiscal biennium. Failure to comply may result in delayed reimbursement. 4. Performance Guarantee. The DEPARTMENT may withhold an amount not to exceed ten percent (10 %) of each reimbursement payment as security for the RECIPIENT's performance. Monies withheld by the DEPARTMENT may be paid to the RECIPIENT when the project(s) described herein, or a portion thereof, have been completed if, in the DEPARTMENT's sole discretion, such payment is reasonable and approved according to this agreement and, as appropriate, upon completion of an audit as specified under section J.S. herein. 5. Unauthorized Expenditures. All payments to the RECIPIENT may be subject to final audit by the DEPARTMENT and any unauthorized expenditure(s) charged to this grant/loan shall be refunded to the DEPARTMENT by the RECIPIENT. 6. Mileage and Per Diem. If mileage and per diem are paid to the employees of the RECIPIENT or other public entities, it shall not exceed the amount allowed under state law for state employees. 7. Overhead Costs. No reimbursement for overhead costs shall be allowed unless provided for in the Scope of Work hereunder. K. TERMINATION 1. For Cause. The obligation of the DEPARTMENT to the RECIPIENT is contingent upon satisfactory performance by the RECIPIENT of all of its obligations under this agreement. In the event the RECIPIENT unjustifiably fails, in the opinion of the DEPARTMENT, to perform any obligation required of it by this agreement, the DEPARTMENT may refuse to pay any further funds thereunder and /or terminate this agreement by giving written notice of termination. A written notice of termination shall be given at least five working days prior to the effective date of termination. In that event, all finished or unfinished documents, data studies, surveys, drawings, maps, models, photographs, and reports or other materials prepared by the RECIPIENT under this agreement, at the option of the DEPARTMENT, shall become Department property and the RECIPIENT shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials. Despite the above, the RECIPIENT shall not be relieved of any liability to the DEPARTMENT for damages sustained by the DEPARTMENT and /or the State of Washington because of any breach of agreement by the RECIPIENT. The DEPARTMENT may withhold payments for the purpose of setoff until such time as the exact amount of damages due the DEPARTMENT from the RECIPIENT is determined. 2. Insufficient Funds. The obligation of the DEPARTMENT to make payments is contingent on the availability of state and federal funds through legislative appropriation and state Page 15 of 24 44 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements allotment. When this agreement crosses over state fiscal years the obligation of the DEPARTMENT is contingent upon the appropriation of funds during the next fiscal year. The failure to appropriate or allot such funds shall be good cause to terminate this agreement as provided in paragraph K.1 above. When this agreement crosses the RECIPIENT's fiscal year, the obligation of the RECIPIENT to continue or complete the project described herein shall be contingent upon appropriation of funds by the RECIPIENT's governing body; Provided, however, that nothing contained herein shall preclude the DEPARTMENT from demanding repayment of ALL funds paid to the RECIPIENT in accordance with Section 0 herein. 3. Failure to Commence Work. In the event the RECIPIENT fails to commence work on the project funded herein within four months after the effective date of this agreement, or by any date mutually agreed upon in writing for commencement of work, the DEPARTMENT reserves the right to terminate this agreement. L. WAIVER Waiver of any RECIPIENT default is not a waiver of any subsequent default. Waiver of a breach of any provision of this agreement is not a waiver of any subsequent breach and will not be construed as a modification of the terms of this agreement unless stated as such in writing by the authorized representative of the DEPARTMENT. M. PROPERTY RIGHTS 1. Copyrights and Patents. When the RECIPIENT creates any copyrightable materials or invents any patentable property, the RECIPIENT may copyright or patent the same but the DEPARTMENT retains a royalty -free, nonexclusive and irrevocable license to reproduce, publish, recover or otherwise use the material(s) or property and to authorize others to use the same for federal, state or local government purposes. Where federal funding is involved, the federal government may have a proprietary interest in patent rights to any inventions that are developed by the RECIPIENT as provided in 35 U.S.C. 200 -212. 2. Publications. When the RECIPIENT or persons employed by the RECIPIENT use or publish information of the DEPARTMENT; present papers, lectures, or seminars involving information supplied by the DEPARTMENT; use logos, reports, maps or other data, in printed reports, signs, brochures, pamphlets, etc., appropriate credit shall be given to the DEPARTMENT. 3. Tangible Property Rights. The DEPARTMENT's current edition of "Administrative Requirements for Ecology Grants and Loans ", Part V, shall control the use and disposition of all real and personal property purchased wholly or in part with funds furnished by the DEPARTMENT in the absence of state, federal statute(s), regulation(s), or policy(s) to the contrary or upon specific instructions with respect thereto in the Scope of Work. 4. Personal Property Furnished by the DEPARTMENT. When the DEPARTMENT provides personal property directly to the RECIPIENT for use in performance of the project, it shall be returned to the DEPARTMENT prior to final payment by the DEPARTMENT. If said property is lost, stolen or damaged while in the RECIPIENT's possession, the DEPARTMENT shall be reimbursed in cash or by setoff by the RECIPIENT for the fair market value of such property. 5. Acquisition Projects. The following provisions shall apply if the project covered by this agreement includes funds for the acquisition of land or facilities: a. Prior to disbursement of funds provided for in this agreement, the RECIPIENT shall establish that the cost of land /or facilities is fair and reasonable. b. The RECIPIENT shall provide satisfactory evidence of title or ability to acquire title for each parcel prior to disbursement of funds provided by this agreement. Such evidence may include title insurance policies, Torrens certificates, or abstracts, and attorney's opinions establishing Page 16 of 24 45 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements that the land is free from any impediment, lien, or claim which would impair the uses contemplated by this agreement. 6. Conversions. Regardless of the contract termination date shown on the cover sheet, the RECIPIENT shall not at any time convert any equipment, property or facility acquired or developed pursuant to this agreement to uses other than those for which assistance was originally approved without prior written approval of the DEPARTMENT. Such approval may be conditioned upon payment to the DEPARTMENT of that portion of the proceeds of the sale, lease or other conversion or encumbrance which monies granted pursuant to this agreement bear to the total acquisition, purchase or construction costs of such property. N. SUSTAINABLE PRODUCTS In order to sustain Washington's natural resources and ecosystems, the RECIPIENT is encouraged to implement sustainable practices where and when possible. These practices include use of clean energy, and purchase and use of sustainably produced products (e.g. recycled paper). For more information, see www.ecy.wa.gov /sustainability. O. RECOVERY OF PAYMENTS TO RECIPIENT The right of the RECIPIENT to retain monies paid to it as reimbursement payments is contingent upon satisfactory performance of this agreement including the satisfactory completion of the project described in the Scope of Work. In the event the RECIPIENT fails, for any reason, to perform obligations required of it by this agreement, the RECIPIENT may, at the DEPARTMENT's sole discretion, be required to repay to the DEPARTMENT all grant/loan funds disbursed to the RECIPIENT for those parts of the project that are rendered worthless in the opinion of the DEPARTMENT by such failure to perform. Interest shall accrue at the rate of twelve percent (12 %) per year from the time the DEPARTMENT demands repayment of funds. If payments have been discontinued by the DEPARTMENT due to insufficient funds as in Section K.2 above, the RECIPIENT shall not be obligated to repay monies which had been paid to the RECIPIENT prior to such termination. Any property acquired under this agreement, at the option of the DEPARTMENT, may become the DEPARTMENT'S property and the RECIPIENT'S liability to repay monies shall be reduced by an amount reflecting the fair value of such property. P. PROJECT APPROVAL The extent and character of all work and services to be performed under this agreement by the RECIPIENT shall be subject to the review and approval of the DEPARTMENT through the Project Officer or other designated official to whom the RECIPIENT shall report and be responsible. In the event there is a dispute with regard to the extent and character of the work to be done, the determination of the Project Officer or other designated official as to the extent and character of the work to be done shall govern. The RECIPIENT shall have the right to appeal decisions as provided for below. Q. DISPUTES Except as otherwise provided in this agreement, any dispute concerning a question of fact arising under this agreement which is not disposed of in writing shall be decided by the Project Officer or other designated official who shall provide a written statement of decision to the RECIPIENT. The decision of the Project Officer or other designated official shall be final and conclusive unless, within thirty days from the date of receipt of such statement, the RECIPIENT mails or otherwise furnishes to the Director of the DEPARTMENT a written appeal. In connection with appeal of any proceeding under this clause, the RECIPIENT shall have the opportunity to be heard and to offer evidence in support of this appeal. The decision of the Director or duly authorized representative for the determination of such appeals shall be final and conclusive. Appeals from the Director's determination shall be brought in the Superior Court of Page 17 of 24 46 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Thurston County. Review of the decision of the Director will not be sought before either the Pollution Control Hearings Board or the Shoreline Hearings Board. Pending final decision of dispute hereunder, the RECIPIENT shall proceed diligently with the performance of this agreement and in accordance with the decision rendered. R. CONFLICT OF INTEREST No officer, member, agent, or employee of either party to this agreement who exercises any function or responsibility in the review, approval, or carrying out of this agreement, shall participate in any decision which affects his /her personal interest or the interest of any corporation, partnership or association in which he /she is, directly or indirectly interested; nor shall he /she have any personal or pecuniary interest, direct or indirect, in this agreement or the proceeds thereof. S. INDEMNIFICATION 1. The DEPARTMENT shall in no way be held responsible for payment of salaries, consultant's fees, and other costs related to the project described herein, except as provided in the Scope of Work. 2. To the extent that the Constitution and laws of the State of Washington permit, each party shall indemnify and hold the other harmless from and against any liability for any or all injuries to persons or property arising from the negligent act or omission of that party or that party's agents or employees arising out of this agreement. T. GOVERNING LAW This agreement shall be governed by the laws of the State of Washington. U. SEVERABILITY If any provision of this agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this agreement which can be given effect without the invalid provision, and to this end the provisions of this agreement are declared to be severable. V. PRECEDENCE In the event of inconsistency in this agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: (a) applicable Federal and State statutes and regulations; (b) Scope of Work; (c) Special Terms and Conditions; (d) Any terms incorporated herein by reference including the "Administrative Requirements for Ecology Grants and Loans "; and (e) the General Terms and Conditions. SS -010 Rev. 04/04 Page 18 of 24 47 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Appendix B: Site Map - Detail Briscoe- Desimone Levee Improvement Proiect Aree Page 19 of 24 48 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Appendix C: Comprehensive Map (Briscoe — Desimone Levee: No. 1 red circle below) sv �av it, ". ri f. r ik?ini Page 20 of 24 49 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Appendix C: Restrictive Covenant Boilerplate for the Green River Levees Restrictive covenant for the City of Upon recording return to: Project Manager: Department: City: Address: Restrictive Covenants Tax Lot # Notice is hereby given that the property acquisition, hereinafter referred to as the " " property, more particularly described in Exhibit "A," is subject to the use restrictions listed below. The purpose of these restrictions is to prevent this land from future development and to ensure that the property will be used to enhance the Green River Levee system in perpetuity while allowing public access. These restrictions are a condition of the grant funding appropriated by the Department of Ecology as authorized by the 2012 Washington State Legislature, Supplemental Budget Bill, ESB 6074, §3009 of the Capital Budget to improve the Green River Briscoe / Desimone Levee that protects communities in the Lower Green River Valley from flooding and are enforceable by Ecology. Uses of the property are restricted as set forth below. These restrictions and obligations are intended to run with the land and shall be binding on the city of , its heirs, successors, and assigns: 1) Enhancing the Green River Levee to protect the Lower Green River Valley from flooding; 2) Maintaining vegetation and providing new native vegetation as necessary to prevent levee erosion and to manage the growth of non - native exotic species (such as Reed Canary grass, purple Ioosestrife, etc.); 3) Allowing for inspection, maintenance, repair, and necessary reconstruction of the levees; 4) Allowing for levee access ; 5) Maintaining and improving the levee system for the enhancement of fish and wildlife habitat; 6) Providing for open space as deemed appropriate; and 7) Restricting acquisition areas from future development other than required for levee improvements. Legal Description of Acquisition Area, is attached as Exhibit "A" Page 21 of 24 50 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements In witness whereof, the City of has executed this document this day of 20 , at (city), Washington. CITY OF Signature, Authorized Official Print Name of Authorized Official Title of Authorized Official STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) I certify that I know or have satisfactory evidence that (name) is the person who appeared before me, and said person acknowledged that she signed this instrument, on oath stated that she was authorized to execute the instrument and acknowledged it as the Mayor of the City of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: -Notary Seal Must Appear Within This Box- IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. (Signature) NOTARY PUBLIC, in and for the State of Washington, residing at My appointment expires Page 22 of 24 51 Flood Agreement No. G1300118 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Restrictive Covenants Exhibit A: Legal Description of Acquisition Area Page 23 of 24 52 Flood Agreement No. G1300 between the Washington State Department of Ecology and the King County Flood Control Zone District Project: Briscoe / Desimone Levee Improvements Appendix ID: Status of Property Acquisitions for the Levee Project For Quarterly Reporting in accordance with Ecology Grant 1) A map showing the location of each property purchased; 2) Right of Way plans 3) Acquisition documents for each property including: Property Acquired GPS Location Location on Map Title Report Appraisal Appraisal Review Environmental Assessment Clean Site Certification Closing Statements Recorded Deed With Covenant Digital Photos Name Include Include Date Date Date Date Date Date Date include Page 24 of 24 EXHII IT_ AGREEMENT FOR LEVEE CONSTRUCTION, OPERATION AND MAINTENANCE Briscoe — Desimone Levee River Mile 14.3 to 17.0, Right Bank THIS AGREEMENT FOR LEVEE CONSTRUCTION, OPERATION AND MAINTENANCE ( "Agreement ") of the Briscoe — Desimone Levee, River Mile 14.3 to 17.0, Right Bank ( "Levee ") is entered into on the last date signed below by and between the Parties, the CITY OF KENT, a Washington municipal corporation ( "City "), and KING COUNTY FLOOD CONTROL ZONE DISTRICT, a quasi - municipal corporation of the State of Washington ( "District ") (collectively, the "Parties "). RECITALS A. King County, Washington, through the Water and Land Resources Division of the King County Department of Natural Resources and Parks ( "WLRD "), as service provider to the District pursuant to an interlocal agreement with the District, operates and maintains a major portion of the Green River Levee System, B. The Briscoe - Desimone levee ( "Levee ") is a key part of the Green River levee system. The District Board of Supervisors desires to improve the Levee by constructing new floodwalls at four sites, known as Reaches 1, 2, 3 and 4, described and shown in Exhibit A (Sheet 1 of 4 and Sheet 3 of 4). The four floodwall projects will hereafter be referred to individually as "Reach "X" Project" or "Reach Project," and collectively as "Levee Project," "Levee Reaches," or "Reach Projects." The Levee Project is planned for construction from 2013 through 2015. The Reach 3 Project will be constructed first, beginning in 2013. C. Based on a collaborative effort, presentation and request to the State Legislature in the 2012 Legislative Session, the Legislature passed ESHB 6074 relating to the 2011-2013 State Capital Budget. Section 3009 of ESHB 6074 appropriated $7,000,000 to the District for the "Briscoe- Desirn.one levee improvement project ", This amount was based on the City's estimated cost to construct the Reach 3 Project in order to meet National Flood Insurance Program accreditation standards, and allow the Federal Emergency Management Agency ( "FEMA ") to verify compliance with such accreditation standards. Unless the State Legislature reappropriates the funds into the 2013 -2015 biennium, • the appropriation will need to be expended prior to June 30, 2013 D. Using ESHB 6074 funds, the District desires to authorize and the City desires to construct the Reach 3 Project as soon as possible, in order to provide for the safety of the residents and businesses that will be protected by this levee. 1 EC approved (RB -RK) 54 E. By Resolution FCD2013 -06, adopted on April 29, 2013, the District Board of Supervisors authorized the Chair of the Board to enter into a Grant Agreement (No. G1300118) with the state Department of Ecology relating to the use of the $7,000,000 for the Reach 3 Project ( "DOE Agreement "). The DOE Agreement estimates that the cost of the Reach 3 Project will be $7,500,000, with a maximum grant amount of $7,000,000 and a maximum District contribution of $500,000. F. By Resolution FCD2013 -02.2, adopted on February 26, 2013, the District Board of Supervisors declared its intent to address urgent flood risk reduction needs throughout King County and to work cooperatively with Green River cities to manage flood plain resources. In this Resolution, the District Board of Supervisors also approved funding for the Levee Project under certain conditions and requirements to be satisfied by both the City and the District G. In Resolution FCD2013 -02.2, the District Board of Supervisors did not specify a maximum funding for the Levee Project. During the District Board of Supervisors' discussions of this Resolution, the City stated that the estimated cost of the Levee Project would be $17,000,000. The District Board of Supervisors required changes to the design of the Levee Project floodwalls and called for additional setbacks for the Reach 1 levee. The City also stated that the required design change would add an additional $1,000,000 to the Reach 1 Project cost, resulting in a total cost of $18.000,000 for the Levee Project. H. After adoption of Resolution FCD2013 -02.2, the City revised its estimate for construction of the Levee Project to $18,500,000. The District has not reviewed or analyzed this City estimate. h The Parties desire to enter into this Agreement to establish the terms and conditions for the Levee Project, and for all four Reach Projects. J. By Motion FCD11 -02.1, adopted on July 6, 2011, the District Board of Supervisors adopted certain levee maintenance and repair standards and requirements and addressed county-wide flood protection levels, levee accreditation and certification. This Motion is applicable to the Levee Project, to the extent that the Motion is consistent with Resolution FCD2013 -02.2. AGREEMENT Based upon the foregoing, the Parties agree as follows: 1. Incorporation of Recitals — Scope All recitals above are hereby incorporated and ratified as part of this Agreement. This Agreement establishes the terms and conditions for design, construction, installation, operation, maintenance and repair of improvements to the Levee and its four Reaches, as those terms are defined in the recitals above. 2 EC approved (RE -RK) 55 2. Definition of District. Unless provided otherwise in this Agreement, the term "District" hereinafter also shall include WLRD in its capacity as service provider to the District. 3. Interlocal Agreement with Tukwila. The City of Kent shall enter into an agreement with the City of Tukwila to act as lead agency for all work within the City of Tukwila. 4. Levee Design, Construction and Reimbursement. a. The City shall design, construct and install the improvements to the Levee Project and the four Reach Projects described and depicted on Exhibit A, attached hereto and incorporated herein by reference in accordance with this Agreement, the DOE Agreement ", and District Resolution FCD2013 -02.2 ( "Resolution ") (the Resolution is attached as Exhibit B, which is incorporated herein by reference), as supplemented by the terns and conditions of Attachment A to Exhibit B, attached hereto and incorporated herein by reference. By executing this Agreement, the Parties acknowledge receipt and review of the DOE Agreement. b. The City shall obtain and be responsible for all necessary local, state, and federal permits and approvals for the Levee Project, and shall fully comply with all applicable requirements and conditions thereof. c. The Parties acknowledge and understand that at the effective date of this Agreement, most but not all of the estimated cost of the Levee Project is included in the District's 2013 -2018 Six -Year CIP, most but not all of the estimated cost of the Reach 3 Project is included in the District's 2013 Budget, and the estimated cost of the Reach 1, 2 and 4 Projects is anticipated to be included in the District's budgets for 2014 and thereafter. The District's obligation and responsibility to provide funding for the Levee Project, including all four Reach Projects, is conditioned upon appropriation by the District Board of Supervisors of sufficient funds to finance the Levee Project and the four Reach Projects, including the Reach 3 Project in the 2013 and 2014 calendar years. If the District Board of Supervisors fails to appropriate expenditures in a District budget to reimburse the City for costs and expenses related to the Levee Project or any of the four Reach Projects, the District reserves the right to terminate this Agreement, and the City shall immediately terminate work on any and all Reach Projects; provided, that until substantial completion of a Reach Project, the District shall continue to accept and review City requests for reimbursement up to the amount of funds appropriated in an approved District budget and still available for reimbursement under the DOE Agreement or this Agreement. d. The City's cost and expense for the Levee Project improvements shall be reimbursed pursuant to the procedures, requirements and restrictions of paragraph 13 below. e. The City shall obtain and convey to the District or King County any necessary easements for design or construction of or access to the Levee in the form of the standard River Protection Easement in Reference 8 -P to the King County Surface Water Design Manual. These 3 EC approved (R6 -RK) 56 easements shall include all of the improvements designed and built under this Agreement; all areas necessary for any temporary erosion control measures; a 15 -foot maintenance /inspection corridor along the landward side of these areas; and suitable access for heavy equipment to reach all of these areas from the public roadways. All of the easements required for construction of any floodwall segment in Reaches 1 through 4 must be approved, accepted and recorded by the District before commencement of construction of such floodwall segment. The City also shall obtain and convey to the District or King County all restrictive covenants as required by the DOE Agreement for the Reach 3 Project, and as required by other state of Washington Department of Ecology agreements that provide funding for the other Reach Projects. 5. Levee Maintenance, Operation and Repair Standards. The District shall operate, maintain and repair the Levees in accordance with this Agreement, which includes Exhibit C, attached hereto and incorporated herein by reference, and with District general standards, requirements and policies for operation, maintenance and repair of Green River levees, as these are determined and applied by the District, provided that: a. The District shall not be obligated to operate, maintain and repair a Levee if FEMA does not approve a risk -based approach to operation, maintenance and repair of the Levee; and b. If the total cost of Levee operation, repair, and maintenance in the project area shown on Exhibit A exceeds the sum of average annual costs for the Green River levee system over the number of years this agreement has been effective, the City shall cover all costs and expenses in excess of the average. For this purpose, the average annual cost is $95,000 per levee mile per year in 2013, to be adjusted for inflation each year thereafter. The District will provide the City with an annual report of operation, repair, and maintenance costs incurred in the project area. 6. District Review of Levee Plans and CLOMR Applications. The City shall provide to the District a schedule of the material and significant events and actions for design and bidding of each Reach Project, which events and actions shall include, but not be limited to, three design stages and the invitation to bid. The City shall submit plans and specifications for each of these three design stages to the District for review and comment. For all Levee Reaches, at least thirty (30) days before advertising an invitation to bid, the City shall submit to the District for review and comment the plans, specifications and requirements of the invitation to bid and the application (with attachments and exhibits) for a FEMA Conditional Letter of Map Revision ( "CLOMR "). The District shall submit any comments within thirty (30) days of receipt of the documents. 7. Additional Activities. The District will provide enhanced monitoring of the Levee through slope stability instrumentation, and the District may seek reimbursement of the cost of such monitoring from State of Washington funding 4 EC approved (RB -RK) 57 8. District Inspections. The District shall have the right to inspect the City's construction of the Levee Project. 9. Contracts for Levee Work. Upon execution of a contract for construction of a Reach Project, the City shall send a copy of the contract to the District. 10. Record Drawings; Retention and Review of Documents. The City shall submit to the District record drawings for each Reach Project, in a form and with detail required by the District. The City agrees to maintain documentation of all planning, design, construction and inspection of all Reach Projects sufficient to meet state audit standards for a capital project, recognizing that the costs of the Levee work are paid for in whole or in part by City, District and State of Washington funding sources, and that the City, the District and /or King County may seek recovery of costs expended from other governmental funding sources. The City agrees to maintain any additional documentation that is requested by the District. City contracts and internal documents shall be made available to the District for review and /or independent audit upon request. 11. Access; Special Use Permit. To the extent that the District's or King County's property interests require and allow, the City shall follow the District and /or King County processes for obtaining, as applicable, special use permits, consistent with King County special use permit procedures and standards, and shall obtain such permits for any City access to and construction and inspection work on the Levee. The District shall waive any applicable bond requirements. If Levee Project work involves access to and use of real property for which neither the District nor King County has real property interests or rights, the City shall be responsible for obtaining real property rights sufficient for City access to and construction and inspection of such Levee Project work, and District and WLRD access to and maintenance, operation and repair of the Levee. 12. District Costs and Expenses. a. The total cost to the District of the four Reach Projects shall not exceed $11,000,000, of which the District's maximum contribution toward the Reach 3 Project shall be $500,000. b. For the Reach 3 Project, the District shall seek reimbursement from the State of Washington funding under the DOE Agreement or from the District's maximum contribution of $500,000 toward the Reach 3 Project. The District reimbursement shall be for all actual costs and expenses incurred by the District as of January 1, 2013 to review Reach 3 Project design and construction documents and to inspect the Reach 3 Project work. c. For Reach Projects 1, 2 and 4, the District shall seek reimbursement from the District's maximum contribution of $10,500,000 toward Reach Projects 1, 2 and 4, for all actual 5 EC approved (RB -RK) 58 costs and expenses incurred by the District as of January 1, 2013 to review Reach Projects 1, 2 and 4 design and construction documents and to inspect the Reach Project work. d. For King County employees providing the services to the District described in subsections b and c above, the actual costs shall include salaries, employment benefits and administrative overhead. 13. Reimbursement of City Expenditures. a. No more than once a month, the City shall submit requests for reimbursement of City costs and expenses incurred on or after January 1, 2013 for design, right -of -way acquisition, construction and inspection of the Reach Projects. The requests shall be in a form and shall contain information and data as is required by the District. b. For the Reach 3 Project, the District shall review the requests to confirm that they are reimbursable and payable under the DOE Agreement and this Agreement. The District shall endeavor to complete such review within thirty (30) days of receipt of a request. For reimbursement amounts approved by the District and paid for under the DOE Agreement, the District shall send a request for such reimbursable amounts to the appropriate State department for review and approval, up to a maximum of $7,000,000. Within thirty (30) days of receipt of State funds, the District shall forward the State funds to the City. For requests that are not reimbursable and payable under the DOE Agreement, the District shall endeavor to review such requests within thirty (30) days of receipt of the request, in order to determine whether they are reimbursable and payable under this Agreement. Any approved additional reimbursement shall not exceed a total of $500,000, less any fiords paid to the District under this Section 13, without prior authorization from the District. If there are funds remaining from the DOE grant subsequent to construction, the District shall submit a request to DOE to utilize those funds on Reaches 1, 2, and /or 4. The District shall forward the approved reimbursement to the City within forty -five (45) days of the City request. c. For Reach Projects 1, 2 and 4, the District shall review the requests to determine whether they are reimbursable and payable under this Agreement. The District shall endeavor to complete such review within thirty (30) days of receipt of a request. Any approved reimbursement shall not exceed a total of $1.0,500,000, less any funds paid to the District under Section 12.c., without prior authorization from the District. The District shall forward the approved reimbursement to the City within forty-five (45) days of receipt of the City request. d. The District may postpone review of a City request for reirbursement where all or any part of the request is inaccurate or incomplete. The District shall notify the City of any inaccuracies or incompleteness within thirty (30) days of receipt of the request, The City shall provide the requested information or data within thirty (30) days of the request for such 6 EC approved (RB -RK) 59 information or data. If the request is still inaccurate or incomplete in the opinion of the District, the dispute shall be resolved in accordance with paragraph 22 below. After resolution of the dispute, the District shall send a request for reimbursement to the appropriate State Department or provide reimbursement as provided in this section 13. 14. Levee Warranty. The City shall warrant the materials, work and function of a Reach Project for five (5) years after the City's acceptance of construction of the Reach Project. 15. Compliance with Laws and Regulations. The City shall be responsible for compliance with all applicable laws and regulations, and obtaining all required permits, approvals and licenses in connection with a Reach Project. 16. Impact on Other Reaches or Segments. The District and the City agree that the improvements to the Levee under this Agreement should not have a detrimental effect on other segments or reaches of the Green River levee system. The improvements to the Levee shall be deemed not to have such a detrimental effect where the improvements fully protect the conveyance capacity and storage volume of the floodplain during base flood (100 -year flood) conditions, as demonstrated by compliance with King County flood hazard regulations, which are Sections 21A.24.230 through 21A.24.260 of the King County Code. 17. Duration. This Agreement shall take effect on the date on, which the second party signs this Agreement, and shall remain in effect for thirty (30) years from the effective date. 18. Third Parties. 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 City, the District and /or King County, granted under state statute, including Chapters 86.12 and 86.15 RCW, or as otherwise granted or provided for by law. 19. Liens and Encumbrances. The City acknowledges and agrees that it will not cause or allow any lien or encumbrance arising from or related to the Levee work authorized by this Agreement to be placed upon the real property interests of King County and the District. If such lien or encumbrance is so placed, King County and the District shall have the right to remove such lien and charge back the costs of such removal to the City. 20. Indemnification. To the maximum extent permitted by law, the City shall defend, indemnify and hold harmless the District and King County, and all of their officials, employees, principals and agents, from any and all claims, demands, suits, actions, losses, costs, reasonable attorney fees and expenses, fines, penalties and liability of any kind, including injuries to persons or damages to property, arising out of, or as a consequence of, the design and construction of the improvements to the Levee under this Agreement. As to all other obligations under this Agreement, to the maximum extent permitted by law, each Party shall defend, indemnify and 7 EC approved (RB -RI<) 60 hold harmless the other Party, and all of its officials, employees, principals and agents, from any and all claims, demands, suits, actions, fines, penalties and liability of any kind, including injuries to persons or damages to property, arising out of or relating to any .negligent acts, errors or omissions of the indemnifying Party and its contractors, agents, employees and representatives in performing these obligations under this Agreement. However, if any such damages and injuries to persons or property are caused by or result from the concurrent negligence of the District or its contractors, employees, agents, or representatives, and the City or its contractor or employees, agents, or representatives, each Party's obligation hereunder applies only to the extent of the negligence of such Party or its contractor or employees, agents, or representatives. This indemnification provision shall not be construed as waiving any immunity granted to the City, the District, or King County, under state statute, including chapters 86.12 and 86.15 RCW, as to any other entity. The foregoing indemnity is specifically and expressly intended to constitute a waiver of each Party's immunity under industrial insurance, Title 51 RCW, as respects the other Party only, and only to the extent necessary to provide the indemnified Party with a full and complete indemnity of claims made by the indemnitor's employees. This waiver has been mutually negotiated. 21. Insurance. 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. 22. Dispute Resolution. The Parties will seek to resolve any disputes under this Agreement as follows: a. For disputes involving cost reimbursements or payments, as provided for in paragraph 13 above, submittal of all relevant information and data 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. 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 paragraph 22. n 0 EC approved (RB -RK) 61 23. Entire Agreement; Amendment. This Agreement, together with its Exhibits A through D, 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. Should any conflict exist between the terms of this Agreement and the terms of the Exhibits, this Agreement shall control. 24. Binding Nature. The rights and duties contained in this Agreement shall inure to the benefit of and are binding upon the Parties and their respective successors in interest and assigns. 25. Notices, Communications and Documents. All conununications and documents 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. 26. Authority. 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 KENT APPROVED AS TO FOii M: KING COUNTY FLOOD CONTROL ZONE DISTRICT dlBLL' 1't�t�� Its: Board Chair 1 --3 ,7 Lit DATE: APPROVED AS Td FORM:. ity Atidrney EC approved (RB -RK) 9 By: Legal Counsel 62 EXHIBIT A Sheet 1 of 4 Description of Briscoe- Desimone Levee Improvements The Briscoe - Desimone Levee is located along the right bank (easterly side) of the Green River between S. 200th Street and S. 180th Street, (see Figure 1, Exhibit A Sheet 2 of 4). The Briscoe levee is located along the right bank of the Green River between S. 200th Street and S. 189th Street within the City of Kent. The Desimone levee is located along the right bank of the Green River between S. 189th Street and S 1 80th Street in the City of Tukwila. Together these levee segments are approximately 2.7 miles in length and protect properties within the cities of Kent, Tukwila and Renton. Tilt -up style buildings (manufacturing and industrial) are located adjacent to the entire stretch of levee. Four sections (reaches) of the levee, approximately 4,450 linear feet, don't meet slope and stability requirements and need repair to meet FEMA accreditation requirements. Reach 1 is located between RM 14.47 and 14.63 and totals 1,050 lf. Reach 2 is located between RM 15.45 and 15.57 and totals 8501f. Reach 3 is between RM 15.98 and 16.36, totaling 2,350 lf, and Reach 4 is between RM 16.95 and 17.00 and totals 200 If. Reaches 1, 2 and 3 are on the outside of sharp bends in the river and Reach 4 is just north of the S. 200th Street Bridge. Structural steel sheet pile walls are proposed to be installed at the back of the existing levee slope to act as a secondary Ievee to reduce flood risk to the cities of Kent, Tukwila and Renton and protect the large number of warehouses, manufacturing facilities and some retail establishments behind these levees. These areas are shown on Figure 2, Reach Location Map (see Exhibit A Sheet 3 of 4). In addition, large stumps and roots will be removed in areas between the four reaches along the levee where they could compromise levee stability and /or are in the construction project area. The walls will provide a minimum of 3 feet of freeboard above the predicted 100 -year flood event, (see artist rendering Exhibit A Sheet 4 of 4). This proposal allows for some re- vegetation and habitat restoration work along the river between the ordinary high water line and the trail in areas where the wall is constructed. In areas where walls are installed, benches will be constructed where feasible and native vegetation will be planted above the ordinary high water line. 10 EC approved (RB -RK) 63 , .5 180TH ST TUKWILA S 190th ST ( S 1911th S 1 1 S 196th S 200TH ST -44 KENT WA, vo BRISCOE DESIMONE LEVEf„.. 1 ilt •-• I r-- 1 CrixY OF KEN. ,-..1 7 S 212TH SI i- d to . „ . ENGNEFLRING DEPARTMENT CITY OF KENT SCALE NOT TO SCALE APPROVED DATE 10-10-12 I OESIMONE SEPA Fi7urzt d119, 10/12/2)12 1:2625 FM EAST VALLEY HWY Id/ f o j 208THI FIGURE 1 VICINITY MAP BRISCOE DESIMONE LEVEE 64 _ — -- V4G:NEERING DEPARTMENT CITY OF KENT DRAM Mq,„}zrr WAR IMA Q'T 11 APPROVED SCALE NOT TO SCALE DATE i0-10-12 FIGURE:: 2 LOCATION MAP BRISCOE DESIMONE LEVEE GAO.? ign `,1:7-3011 DESIMONE rt'ALl5\ dwg \ SEP Af.'ique-q2 I0/10/ 2012 1'46:00 PI 65 C E ES ARISTS EN * .• t E E LEVEE N G Kin &rny KING COUNTY Signature Report February 26, 2013 FCD Resolution nowt> e 1200 King County Courthouse 516 Third Avenue Seattle, WA 93104 Proposed No. FCD2013 -02.2 Sponsors 1 A RESOLUTION relating to the Briscoe - Desimone levee on the 2 Green River; initiating a comprehensive planning process and 3 providing funding for the Briscoe - Desimone levee project on 4 certain conditions. 5 WHEREAS, public safety is the highest priority for the allocation of King 6 County Flood Control Zone District ( "District ") funds; and 7 WHEREAS, the District seeks to address urgent flood risk reduction needs 8 throughout King County; and 9 WHEREAS, the Green River valley is home to over 100,000 jobs, contains one 10 of the Largest warehouse and distribution complexes in the nation, has an annual payroll 11 of $2.8 billion (one - eighth of the gross domestic product of the state of Washington) and 12 accounts for annual taxable revenue of over $8 billion; and 13 WHEREAS, Policy G -13 of the 2006 King County Flood Hazard Management 14 Plan, which has been adopted by the District as its comprehensive plan ( "District's 15 Comprehensive Plan "), states that King County and the cities and towns therein should 16 work cooperatively to manage ftoodplain resources; and 17 WHEREAS, Policy G -9 of the District's Comprehensive Plan states that King 18 County's rivers and tributaries and their associated floodplains should be managed for 19 multiple, and sometimes competing, uses and objectives; and 1 67 FCD Resolution 20 WHEREAS, the Briscoe - Desimone levee on the Green River is located between 21 South 180th Street and South 200th Street in the cities of Kent and Tukwila ("Briscoe - 22 Desimone Levee "); and 23 WHEREAS, in 2012 the Washington state legislature awarded to the District a 24 grant of $7 million for the Briscoe - Desimone Levee project; and 25 WHEREAS, the District hired an expert third party ( "Third -Party Reviewer ") to 26 review two alternative designs for the Briscoe- Desimone Levee improvements; and 27 WHEREAS, the Third -Party Reviewer has expertise in analyzing the stability of 28 I -walls and levees, and served on national independent review panels for levee failures in 29 the state of Louisiana following Hurricane Katrina and on review panels for the 30 Sacramento -San Joaquin Delta in California; and 31 WHEREAS, on January 29, 2013, the Third -Party Reviewer submitted to the 32 District a report of his analysis and findings, entitled "Expert Engineering Independent 33 Third -Party Review, Briscoe - Desimone Levee Design, Green River Basin, State of 34 Washington" ( "Report"); and 35 WHEREAS, on January 23 and February '7, 2013, the Third -Party Reviewer gave 36 a presentation of his analysis and findings to the District executive committee, which 37 considered the presentation, the Report and comments from the public, including 38 comments by King County, the city of Kent, and interested organizations; and 39 WHEREAS, based on the District's Comprehensive Plan, the Report, and 40 reports, information and data prepared by District staff, consultants and contractors, the 41 Board of Supervisors of the District desires to select one of the two alternative designs 2 68 FCD Resolution 42 for the Briscoe - Desimone Levee improvements and to authorize funding for the Briscoe- 43 Desimone levee; now therefore 44. BE I I' RESOLVED BY THE BOARD OF SUPERVISORS OF THE KING 45 COUNTY FLOOD CONTROL ZONE DISTRICT; .46 SECTION 1. The District will initiate a comprehensive planning process, such 47 as the United States Army Corps of Engineers' System -wide Improvement Framework, 48 after accepting at an executive committee meeting the information provided about the 49 scope, anticipated staff time and estimated costs. Issues to be studied should include, but 50 are not limited to, the following: 51 A. Safety and levee heights; 52 B. Economic objectives; 53 C. Environmental objectives; 54 D. Howard Hanson Dam risk assessment; .55 E. Land use; 5 F. Operations and maintenance; and a7 G. FERVIA levee accreditation. SECTION 2. The District will execute a grant agreement with the state of 59 Washington for the $7 million grant award for the Briscoe - Desimone levee project as 60 soon as possible. '51 SECTION 3 The District will provide funding for the Briscoe- Desimone •62 levee project designed using setback levees that are retained by walls on the landward 3 69 FCD Resolution 63 side at the four outside bends of Green River between South 200th and South 180th 64 Streets in the Cities of Kant and Tukwila and incorporating the conditions and 65 responsibilities of this Resolution. 66 SECTION 4. For the Briscoe - Desimone levee project, the District supports the 67 use of setback levees that are retained by walls on the landward side. The following 68 conditions must be met: 69 A. The design and installation of the Briscoe Desimone levee project shall be 70 consistent with applicable state and federal regulations and standards, including but not 71 limited to the state Shoreline Management Act, the federal Clean Water Act, and state 72 water quality standards, and shall receive all necessary local, state, and federal permits, 73 B. The top of the setback levee retaining wall shat be consistent with the height 74 of the adjoining levee sections. 75 C. The city of Kent's ( "City ") responsibilities and conditions in relation to the 76 Briscoe - Desimone levee project are as follows: 77 1. The City, or its engineering consultants, shall submit to the District a 78 plan to provide for resiliency of the landside levee and wall in the event of overtopping. 79 The plan should include identification of the areas that are most susceptible to erosion, 80 such as the base walls and valleys on the landside slopes of Briscoe- Desimone Levee at 81 the bends. 82 2, The City shall reduce and mitigate the potential for erosion. The City, 83 or its engineering consultants, shall identify permanent or temporary strategies to 84 minimize erosion in these locations of potential erosion. 4 70 FCD Resolution 85 3. If the City uses temporary erosion control measures, such as 86 sandbags, the City must commit to paying for and having on hand the materials and 87 necessary equipment to install the temporary measures in the event of over - topping. 88 4, Where the bases of the walls encroach on private property and the 89 erosion forces are more significant, the City shall obtain any necessary easements for 90 design or construction of or access to the Briscoe - Desimone levee. 91 5. The City shall move the setback wall back from the toe of the existing 92 levee in the northernmost setback segment near the West Valley Highway, consistent 93 with the alternative of the GET report prepared for the City and dated 2012. 94 6. Prior to release of District funds for the Briscoe- Desimone levee 95 project, the City shall provide to the District a plan to address potential corrosion of the 96 sheet pile walls. This plan must include options for addressing potential corrosion. 97 7. The City shall enter into an agreement with the Washington State 98 Department of Transportation related to the West Valley Highway and its role as a levee. 99 8. The City shall permit, design, and construct replacement of the trail to 100 meet King County Parks regional trail standards. 101 9. Any contracts between the City and any consultants, engineers, contractors or 102 other design or construction entities (collectively, "contractors ") shall include provisions whereby 103 the City and its contractors name the King County Flood Control Zone District and King County 101 as additional insureds. All such contracts shall provide insurance coverage to the King County 105 Flood Control Zone District and to King County, consistent with King County's guidelines and 106 requirements for insurance for similar contracts. 71 FCD Resolution 107 10. The City and King County shall provide a monthly written report to the 108 Executive Committee on the first day of each month regarding implementation of the Briscoe - 109 Desimone levee project including any regulatory requirements that may impact the budget, 110 schedule, design, construction and /or maintenance. 111 11. The City shall cover the costs of any maintenance for the project in excess of 112 the average annual maintenance and repair costs for the Green River ($95,000 per mile per year). 113 This amount shall be adjusted for inflation annually. 114 D. King County's responsibilities and conditions, as the District's service provider, in 115 relation to the Briscoe- Desimone levee project are as follows: 11.6 1. King County shall include inspection of the sheet pile walls for 117 corrosion in the County's operations and maintenance activities. 118 2. King County shall monitor deformation and erosion of the Briscoe - 119 Desimone Levee riverbank to provide quantitative and scientific information for future 120 projects about how the river is working with its flow regulated by the Howard Hanson 121 Darn. This information will assist the District in preparing public warnings in the event of 122 a breach in the Howard Hanson Dam. 123 3. King County shall prepare a plan to ensure that materials and 124 equipment for emergency repairs to the Briscoe - Desimone levee are available in as 125 timely a manner as possible. 126 4. King County and the City shall provide a monthly written report to the 127 executive committee on the first day of each month regarding implementation of the Briscoe - 128 Desimone levee project including any regulatory requirements that may impact the budget, 129 schedule, design, construction, and /or maintenance. 6 72 FCD Resolution 130 5. King County as the District's service provider will provide the 131 District with timely technical assistance in reviewing plans submitted to the District by 132 the City. 133 SECTION 5. The District shall provide funding for inspections, operations and 134 maintenance on the Briscoe - Desimone levee. King County, as the District's service provider, 135 shall inspect, maintain and repair the Briscoe - Desimone levee. 136 5ECTION_0, The District will ensure that public safety plans are in place, 137 including annual outreach to residents and workers along the Green River, as well as 138 other basins in King County, The District will make these plans a priority in the 139 District's 2014 budget, 140 SECTION 7. The District will encourage all businesses and residents in low - 141 lying areas near rivers, regardless of levee accreditation, to purchase flood insurance. 142 SECTION 8. The conditions along the South 200th Street to South 180th Street South 143 corridor in the cities of Kent and Tukwila represent a unique set of circumstances in King 144 County. The approval of the use of flood walls in this location does not set a precedent for their 145 use in other parts of the County or the Green River corridor, nor should this limited use be 146 considered a departure from the District's intent of setting back levees where appropriate, 147 SECTION 9. The District hereby directs District staff to work with King County to 148 develop a funding strategy for consideration by the District using bond financing to accelerate 149 high - priority flood protection projects throughout the county that are not fully funded through 150 pay -as- you -go implementation of the District's capital improvement program. This strategy 151 should consider the long -term financial stability of the Flood Control District, the ability to 152 commit Flood District revenue to pay necessary debt service over the life of the bond, the 7 73 FCD Resolution 153 preservation of capacity to provide for ongoing maintenance, and the maintenance of adequate 154 reserves to respond to flood emergencies. 155 FCD Resolution was introduced on and passed as amended by the King County Flood Control District on 2/26/2013, by the following vote: Yes: 8 - Mr, Phillips, Mr. von Reichbauer, Mr. Gossett, Ms. Hague, Ms. Patterson, Mr. Dunn, Mr. McDermott and Mr. Dembowski No: 0 Excused: 1 - Ms. Lambert ATTEST: Anne Noris, Clork of the District Attachments: None KING COUNTY FLOOD CONTROL ZONE DISTRICT KINGG:UU ;; "::r', WASHINGTON Reagan Dunn, Chair 8 74 ATTACHMENT A TO EXHIBIT B SUPPLEMENTAL TERMS AND CONDITIONS — RESOLUTION 2012-02.2 1 The top of the setback levee retaining wall shall be consistent with the height of the adjoining levee sections, except as is appropriate for safety of cyclists, pedestrians and others using the trail along the top of the wall. Transitions at the ends of each wall shall provide for trail user safety and for levee erosion resistance from overtopping flows that might be concentrated around the ends of the wall and around the ends of trail user protection measures. 2. The City, or its engineering consultants, shall submit to the District a plan to provide for resiliency of the landside levee and wall in the event of overtopping. The plan shall include identification of the areas that are most susceptible to erosion, and shall propose appropriate protection measures for each of those areas. The City shall submit the plan as a recommendation for consideration and approval by the District in the Levee construction plan review process. 3. The City shall reduce and mitigate the potential for erosion. The City, or its engineering consultants, shall identify permanent or temporary strategies to minimize erosion in locations of potential erosion. The City shall submit these strategies as recommendations for consideration and approval by the District in the Levee construction plan review process. 4. If the City strategy to minimize erosion in the event of overtopping relies upon temporary erosion control measures such as sandbags, the City must commit to paying for and having on hand the materials and equipment, and access to sufficient labor, to install all temporary measures in preparation for overtopping. The City shall prepare a plan that describes the temporary measures, the staging . of material and equipment, sources of labor, estimated tirne for installation, and specific river conditions that will trigger installation. This plan must be submitted for consideration and approval by the District in the Levee construction plan review process. The City must also prepare before October 1 each year by staging all necessary materials and equipment specified in the plan. The City must fully install all such temporary measures immediately upon recognition that the trigger conditions in the approved plan are met. The City rnust also remove all such temporary measures within eight weeks after flood conditions subside. The City is fully responsible for all associated costs including but not limited to materials, equipment, and labor. 15 EC approved (RB -RK) 75 5. The City shall move the setback wall back from the landward toe of the existing levee in the northernmost setback segment near the West Valley Highway, consistent with the alternate alignment described by GEI Consultants, Inc., in section 8.3.2.5 of its April, 2012 draft FEMA Accreditation Report for the Briscoe - Desimone Levee System. 6. The plan to address potential corrosion of the sheet pile walls shall be submitted for consideration and approval by the District in the Levee construction plan review process. 7. The agreement with the Washington State Department of Transportation shall be approved by the District prior to the release of State or District funds for Reach 1 of the Levee. 8. To assist in implementing the District plan for emergency repairs, the City shall provide project design information and emergency planning recommendations of observations, physical measurements, tolerances, thresholds, and considerations for the District's inspection and risk -based decision- making as appropriate for emergency plans associated with the Levee design. The City will provide this information to the District by August 1, 2014. 9. The City shall permit, design, and construct replacement of the trail to meet King County Parks regional trail standards. The City shall submit plans to King County Parks for review coincident with District plan review at each design phase. 16 EC approved (RB -RK) 76 EXHIBIT C Levee Inspection, Maintenance, Operation and Repair 1. The Levee shall be maintained and operated consistent with the District's Flood Hazard Management Plan Policy PROJ -6, Flood Protection Facility Design and Maintenance Objectives (or its successor) which states as follows: "[The District] should construct new flood protection facilities and maintain, repair or replace existing flood protection facilities in such a way as to: • Require minimal maintenance over the long term, • Ensure that flood or channel migration risks are not transferred to other sites, ® Protect or enhance aquatic, riparian and other critical habitats, and ® Protect or enhance multiple beneficial uses of flood hazard area." 2. Levee maintenance and operation shall be based on a risk -based analysis approach. If a risk -based approach is not acceptable to FEMA, and as a result FEMA fails to issue a CLOMR or LOMR for the Levee, the District shall not be obligated to operate and maintain the Levee, 3. The upper 1/3 of the riverward slope above the OHWM may be mowed and maintained in grass cover. 4. The Levee crest shall be maintained to provide for unimpeded vehicular access at all times, including access by heavy construction equipment and earth - hauling machinery. 5. The landward Levee slope may be mowed and maintained in grass cover. 6. The 15 -foot maintenance access and inspection area along the landward Levee toe may be mowed and maintained in grass cover. 7. All such mowed areas may alternatively be planted and maintained with native riparian woody vegetation. 8. Upon acceptance of completed Levee construction by the District, the Levee, as constructed to these standards, shall be inspected by the District prior to leaf emergence each spring, at low -flow conditions in the late Summer or early Fall, prior to the onset of 17 EC approved (RB -RK) 77 fall rains and seasonal high flows, and during and immediately following flood events at Phase III (9,000 cfs) or greater. 9. All structural features of the Levee shall be inspected by the District for deterioration or damage, including the presence of any slope erosion, washouts, slumping, slides, or sloughing, and any conditions noted shall be included in prioritization of District and /or King County maintenance and repair needs, and in performance of maintenance and repair actions at the earliest appropriate opportunity. 10. All vegetation on the levee slopes, benches, or along the lower embankment shall be inspected by the District for erosion of the riverward embankment in the root zone, and appropriate corrective action shall be taken where such conditions may be present. 11. The District and /or King County shall perform continuing levee patrols during all Phase III or greater flood events. 12. Damaged or impaired Levee conditions observed by the District during flood patrols shall be evaluated for emergency repair actions. 13. Any emergency repairs performed will be inspected by the District at the next low -water period for evaluation of permanent repair needs or additional measures required to restore the function and integrity of all affected locations. 14. The District and /or King County shall prioritize repairs consistent with the adopted policies of the District's Flood Hazard Management Plan, or its successor, 15. The City shall be responsible for all local drainage inspections and maintenance. The District and King County shall not assume any responsibility for stormwater management activities. 18 EC approved (RB -RK) 78 am= otmement ,,,.;;.=".2110111PIMMIN EX in.: RIS-14 !'„ REACHJ CITY OF UKWILA rf: " 'REACH 4 I RAI-11 CITY OF KENT "'1'1111;„1111111;1., „ , BRISCOE-DESIMONE LEVEE RIGHT BANK OF THE GREEN RIVER S. 130th ST. TO S. 200th ST. ' LEGEND PROPOSED SETBACK WALL • RM-17 RIVER MILE NOT SCALE GAIImIpA08-.011 SON \I•■■ I S+1.2. uflPoI tafl NA 79 EXHIBIT D A. Stability and Certification Report Briscoe /Desimone Levees Kent, Washington by GeoEngineers, Inc. dated October 24, 2011. B. FEMA Accreditation Report Green River Right Bank Levee Briscoe - Desimone Levee System by GEI Consultants, Inc. dated April 2012. Interlocal with Tukwila - Desimone Levee 01/24/14 80 EXHiBiT S 180TH ST TUKWILA LEVEE REACH S 190th ST REACH 2 S 196th ST REACH 3 REACH 4 CITY OF KENT NT WAOHgNOTOM ENGINEERING DEPARTMENT CITY OF KENT COLE NOT TO SCALE APPROVED DATE 10-10-12 FIGURE 2 LOCATION MAP BRISCOE DESIMONE LEVEE CA0e DESIMONE WALLSviwq\SEPAViou,?.2 10/1D/2012 1 4E,t)0 Phi 81