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HomeMy WebLinkAboutReg 2014-02-18 Item 5D - Interlocal Agreement - Briscoe-Desimone Levee Repair with City of KentCOUNCIL AGENDA S OPSIS lIeelinDale Prepared by AI,Dq :1:fre. r» Council /2 21' 02/10/14 B . Levee Agreement with the City of Kent tin lon 02/10/14 02/18/14 B G El 0) dr nalhe 111,; DA, F Bid lniaLl IN DA _ PuiVr, I lc,illq IN 1)7/, 01110 llig 0 7/( C \ tic ,( )10 Di 11/g I) iii AIN,Dale Si 't AS( )R C oun,r1 Alajo) DCD E Fenalhe I— Pile IT 1)--12. _ Poll, Plf ITEM INFORMATION ITEM No. 5.D. St \I I SP()N,`,OR BOB GIBERSON ORR,1\ \I Acd Ni) \ D \ i i 02/10/14 ,\( ,i Ni) \ tit \t1 1 HI Brisco/Desimone Interlocal Levee Agreement with the City of Kent tin lon 02/10/14 ,1Iolion 02/18/14 E Reoluthn ,I1A 0,7/0 El 0) dr nalhe 111,; DA, F Bid lniaLl IN DA _ PuiVr, I lc,illq IN 1)7/, 01110 llig 0 7/( C \ tic ,( )10 Di 11/g I) iii AIN,Dale Si 't AS( )R C oun,r1 Alajo) DCD E Fenalhe I— Pile IT 1)--12. _ Poll, Plf S1)( tN,St )R'S There are four reaches (sections) of the Brisco/Desimone Levee that require repairs in sniv \in order to provide a 100-year level of flood protection. King County Flood Control District has approved Kent's plan. As two reaches are located in Tukwila, an Interlocal Agreement between Tukwila and Kent is needed that will authorize the work, designate SEPA authority, grant condemnation authority, and allow Kent's contractors to work in Tukwila. Kent will be required to meet Tukwila's shoreline regulations. Ri VII \\ I I) M — CO\\' Mtg. E CAM' Cmte F&S (-nti franTortatton Cmte Cmte Art:, Comm. — Paris, Comm Planning Comm. COMNILITI EL C H A I R : KATE KRULLER Utilities DA I E 02/03/14 RECOMMENDATIONS: SP( )\N )R/A1) Co \NIIIII miN Public Works Department Unanimous Approval; Forward to Committee of the Whole COST IMPACT / FUND SOURCE F\pi \i)ItuRI RI QuIRI i) AMOUNT BUDGETED APPROPRIATION REQUIRED $0.00 $0.00 $0.00 Fund Source, Comments: MTG. DATE RECORD OF COUNCIL ACTION 02/10/14 Forward to next Regular Meeting with changes 02/18/14 MTG. DATE ATTACHMENTS 02/10/14 Informational Memorandum dated 01/31/14 Interlocal Agreement between the cities of Tukwila and Kent Minutes from the April 22, 2013 Committee of the Whole and Special Meeting Minutes from the Utilities Committee meeting of 02/03/14 02/18/14 Tnterinral Agreement with amendments based on Council discussion 66 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 02/10/14 67 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. L. Tukwila will be notified immediately of any substantial design and /or construction changes or substantial funding changes. Both parties agree that substantial for the purpose of this agreement means work valued at over $40,000, or anything that impacts the interpretation or application of the Tukwila Shoreline Master Program. 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 Interlocal with Tukwila - Desimone Levee 68 Page 2 of 6 02/10/14 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. 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. Tukwila will be notified immediately of any design changes or substantial funding changes. 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. Interlocal with Tukwila - Desimone Levee Page 3 of 6 02/10/14 69 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 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 Interlocal with Tukwila - Desimone Levee 70 Page 4 of 6 02/10/14 authorized representative of the parties. Substantial modifications to this agreement shall 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 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 Interlocal with Tukwila - Desimone Levee Page 5 of 6 02/10/14 71 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 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 Haggerton Its: Mayor (title) DATE: Attest: Christy O'Flaherty, City Clerk APPROVED AS TO FORM: Shelley Kerslake, City Attorney Interlocal with Tukwila - Desimone Levee 72 Page 6 of 6 02/10/14 EXHIBIT A Ecology Grant Agreement No. G13OO118 between the State of Washington Department of Ecology and the King County Flood Control Zone District Interlocal with Tukwila - Desimone Levee 01/24/14 73 EXHIBIT B Agreement for Levee Construction, Operation and Maintenance Briscoe - Desimone Levee River Mile 14.3 to 17.0, Right Bank Interlocal with Tukwila - Desimone Levee 01/24/14 74 EXHIBIT C Location Map with River Miles Interlocal with Tukwila - Desimone Levee 01/24/14 75 EXHIBIT D CLOMR by Reference Interlocal with Tukwila - Desimone Levee 01/24/14 76 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 77 Interlocal with Tukwila - Desimone Levee 01/24/14 78