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HomeMy WebLinkAboutUtilities 2012-06-26 Item 2A - Cooperative Agreement - Howard Hanson Dam Flood Response - Tukwila Levee Repairs and Maintenance with King CountyCity of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM TO: Mayor Haggerton UTILITIES COMMITTEE FROM: Bob Giberson, Public Works Director BY: Ryan Larson, Senior Engineer DATE: June 22, 2012 SUBJECT: Howard Hanson Dam Flood Response/Tukwila Levee Repairs Maintenance Project No. 10901301 Cooperative Agreement for Completion of Emergency Flood Protection Measures Project ISSUE Approve an agreement with the King County Flood Control Zone District (Flood District) to provide funding for removal of the temporary emergency flood protection measures. BACKGROUND The City of Tukwila, King County, Kent, and Auburn installed temporary flood protection measures in 2009 in response to the damage sustained and subsequent reduced flood protection from the Howard Hanson Dam. These temporary measures included Supersacks placed along the Tukwila 205 Levee and Hesco barriers placed along the West Valley Highway. The Army Corps of Engineers (Corps) has notified the affected jurisdictions that all repairs have been completed to the Howard Hanson Dam and that the dam is operating at full protection level. The cities of Tukwila, Kent, and Auburn requested funding to remove the temporary emergency flood protection measures through the Flood District and they have agreed to pay 75% of the costs up to $1,611,152.00 for Tukwila's portion. The funding includes necessary property restoration to the levee trail, private property, and public rights -of -way. ANALYSIS The City Attorney's Office has worked with the King County Prosecutors Office to develop an agreement that sets forth the terms and conditions for reimbursement. These funding conditions include proper coordination with the Flood District on contract approval, construction notifications, inspections, receiving all required permits, returning any required materials to the Corps, properly disposing of waste materials, restoring all disturbed areas, and contract closeout. RECOMMENDATION The Council is being asked to approve a Cooperative Agreement for Completion of Emergency Flood Protection Measures with King County Flood Control Zone District and consider this item at the July 9, 2012 Committee of the Whole meeting and subsequent July 16, 2012 Regular Meeting. Attachment: Cooperative Agreement for Completion of Emergency Flood Protection Measures Project WAPW Eng\PROJECTMA- DR Projects\Tukwila Levee Repair and Maintenance (10901301) \Design \Info Memo KCFCZD ILA sb.docx COOPERATIVE AGREEMENT FOR COMPLETION OF EMERGENCY FLOOD PROTECTION MEASURES PROJECT THIS COOPERATIVE AGREEMENT FOR COMPLETION OF EMERGENCY FLOOD PROTECTION MEASURES PROJECT "Agreement is entered into on the last date signed below by and between the Parties, the CITY OF TUKWILA, a Washington municipal corporation "City and KING COUNTY, a political subdivision of the State of Washington "County (collectively referred to herein sometimes as the "Parties with reference to the following facts: RECITALS A. This Agreement is a contract setting the terms and conditions by which the City will complete the temporary emergency flood protection measures project, initially authorized by that certain Agreement for Flood Protection Services by and between the City and the County, dated October 15, 2009, as amended "Initial Contract by removing the temporary flood protection barriers along the Green River and restoring and repairing the levees to their previous condition, and by which the County will reimburse the City for such work up to a specified amount and grant to the City rights of access and license as required for the City to complete the work. B. In 2009, the United States Army Corps of Engineers "Corps announced that the Howard Hanson Dam, over which the Corps has jurisdiction and operational responsibilities, had a diminished capacity due to identified side wall seepage, and that the dam may have had to release waters in the coming months into the Green River that could cause flooding in the City. The Corps also purchased materials for flood protection purposes that it made available to the County, the City and other local jurisdictions, so long as the materials were used in accordance with the recommendations provided by the Corps, and were returned to the Corps once the threat posed by the diminished capacity of the Howard Hanson Dam had been addressed. COOPERATIVE AGREEMENT FOR COMPLETION OF EMERGENCY FLOOD PROTECTION MEASURES PROJECT Page 1 of 9 2 C. Following the announcement by the Corps, the King County Executive issued an emergency proclamation declaring that the threat of releases of additional waters from the Howard Hanson Dam constituted an emergency, waived county procurement requirements for contracts related to the county's response to the emergency, and postponed County permitting procedures for public works. D. The Mayor and City Council of the City of Tukwila also issued an emergency proclamation that declared that the state of emergency conditions declared by the County were approved, confirmed and adopted by the City Council, and that provided that during the existence of the emergency, the Mayor of the City was authorized to implement administrative procedures deemed necessary to prepare for, respond to, stabilize and control the emergency, consistent with state law and local regulations. E. The King County Flood Control Zone District, a quasi municipal corporation and taxing district under the constitution of the State of Washington, whose purpose is to sponsor and implement flood control and protection measures "District by resolution authorized $1,285,760.00 in funding to assist the City in undertaking temporary emergency flood protection measures and authorized the County, as Service Provider to the District, to enter into a contract with the City to provide this funding for the City to implement identified emergency flood protection measures. F. The City and the County on October 15, 2009, executed the Initial Contract, which authorized the City to undertake temporary emergency flood protection measures, consistent with Corps specifications, on County and District property, and the County to pay the City up to $1,285,760.00 as reimbursement for costs incurred by the City in undertaking such emergency measures. The Initial Contract also provided that upon a determination by the Corps that the Howard Hanson Dam had been restored to its design capacity, the City was to be responsible for removal of the flood protection materials, and restoration of the levees to their previous condition. The City was to pay the costs for such removal and restoration unless the County determined that funds were available to pay for some or all of such costs. G. On September 16, 2011, the Corps announced that significant repairs had been completed to the Howard Hanson Dam and that the capacity of the Dam had been restored to its pre- damaged state. H. On May 14, 2012, the Board of Supervisors of the District, through adoption of FCD Resolution No. FCD2012 -02, identified up to $2,148,202.00 of funds to be used by the City for actual costs incurred in removing materials COOPERATIVE AGREEMENT FOR COMPLETION OF EMERGENCY FLOOD PROTECTION MEASURES PROJECT Page 2 of 9 3 previously installed by the City on the Green River levees and in restoring and repairing the levees, provided that 75% of such funds come from the District, and 25% of such amount ($537,050.00) be contributed directly by the City, with 1% per annum to be charged to the City on the unpaid balance. I. The County, as the Service Provider to the District under the terms of that certain Interlocal Agreement Between King County and the King County Flood Control Zone District Regarding Flood Protection Services, as amended, and pursuant to FCD Resolution No. FCD2012 -02, is authorized to enter into this Agreement to utilize funds from the District and to agree to the terms under which the Work, as hereinafter defined, is to be completed. J. The City and the County wish to set forth the terms and conditions under which the County will reimburse the City for actual costs incurred in completing the temporary emergency flood protection measures initiated in 2009 by removing the flood barrier materials from the levees and restoring and repairing the levees to their previous condition, up to the amount of $1,611,152.00, with 25% of the $2,148,202.00 amount identified by the District, or $537,050.00, being paid from loans from the District Opportunity Fund or from funds paid directly by the City, and under which the City will undertake and complete such removal, restoration and repair measures. NOW, THEREFORE, in consideration of the mutual promises, benefits and covenants contained herein, the Parties agree as follows: AGREEMENT 1. All recitals are hereby ratified as part of this Agreement. 2. The City shall complete the work "Work which is hereby defined to include: a. Removal of all temporary emergency flood protection material that was added to the Green River levee system by or on behalf of the City pursuant to the Initial Contract. The City shall provide notice to the County at least 10 days before such removal is to begin, and the County shall have the right to have personnel present during such removal for the purposes of monitoring the activities associated with the removal. b. Provision of notice to the Corps of the removal of such materials and coordination with the Corps on the return to the Corps of any materials COOPERATIVE AGREEMENT FOR COMPLETION OF EMERGENCY FLOOD PROTECTION MEASURES PROJECT Page 3 of 9 4 and containers originally provided by the Corps that the Corps determines should be returned. The Corps shall have full discretion in terms of what materials it wishes to have returned, and those that it does not. If the Corps determines that specified materials originally provided by the Corps should not be returned, then the City in its discretion may keep such materials or dispose of them as provided in 2.c. below. c. Disposal of all materials determined to be waste, after consultation with the Corps. Such disposal, management and transport shall be in accordance with all applicable local, state, and federal directives, laws, and regulations. d. Restoration and repair of all areas where temporary emergency flood protection materials were placed, or were impacted by such placement, to the condition previous to the placement of the materials. The City shall provide notice of and coordinate such restoration activities with the County agencies having custodial responsibilities for such areas. The restoration and repair shall be deemed complete when the County issues its notice of Final Acceptance, as described in No. 15 below. 3. Any contracts that the City intends to enter into for performance of the Work shall be provided to the County at least ten (10) days prior to the intended date of execution. The County shall have the right to provide comments on such contracts and shall provide those comments to the City no later than five (5) working days after the date the documents are provided to the County, which the City shall take into account in good faith before executing the contract. Such contracts shall be in compliance with all state and federal laws and regulations governing the procurement of services as applicable to a local government. 4. Any change orders to the contracts entered into by the City for the performance of the Work that exceeds $100,000 shall be provided to the County, at least five (5) days prior to the intended date of execution, for County review and comment within three (3) days, which comments the City shall take into account in good faith before executing the change order. If the City determines that such change order process will negatively affect construction timing, it may proceed with the change order, but only after consulting with the appointed County representative. 5. The City agrees to maintain documentation of all Work performed sufficient to meet state and if applicable, federal, audit standards for the implementation of a capital project. The City agrees to maintain additional documentation that is reasonably requested by the County in order for the County COOPERATIVE AGREEMENT FOR COMPLETION OF EMERGENCY FLOOD PROTECTION MEASURES PROJECT Page 4 of 9 5 to accurately track expenditures and use of funds. City contract and internal documents will be made available to the County for review and /or independent audit upon request. 6. Subject to the provisions of No. 7 below, the County will reimburse the City for the actual costs incurred for the performance of the Work within sixty (60) days of submittal of the invoices to the County, up to an amount not to exceed $1,611,152.00.00, unless the Parties agree to extend that time to resolve disputes. Of the $2,148,202.00 amount of total costs identified by the District, the City is required to provide a 25% match, or $537,050.00, which may be paid from funds loaned to it by the District out of the District's Opportunity Fund, at a 1% per annum interest charge until paid in full, or be paid directly from funds held by the City. For payment of any given invoice, the County shall pay 75% of the invoice amount with funds from the District and 25% with loan funds from the District's Opportunity Fund, if such loans are requested by the City, or if no loan is requested, the City shall pay its 25% share of the invoiced amount. Any costs in excess of $2,148,202.00 required to accomplish the Work shall be paid by the City. 7. Until the County issues its Notice of Final Acceptance, as described in No. 15 below, the County may in its discretion retain 10% of the total costs of the Work. Upon issuance of the Notice of Final Acceptance, the County shall pay the retained amount to the City. 8. The County, to the extent that its property interests and those of the District allow, hereby grants the City the right of access to the levees and license and permission for special use to perform the Work upon the levees, including those levees that are outside the City Limits and are identified in Exhibit A, attached hereto and incorporated herein by this reference (such levees, both within and outside the City limits are collectively referred to herein as the "Levees The County waives any applicable bond requirements. 9. The City shall be responsible for complying with all applicable laws, and obtaining all required permits in connection with the Work. 10. 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 by the City, the County and /or the District, granted under state statute, including Chapters 86.12 and 86.15 of the Revised Code of Washington, or as otherwise granted or provided for by law. COOPERATIVE AGREEMENT FOR COMPLETION OF EMERGENCY FLOOD PROTECTION MEASURES PROJECT Page 5 of 9 I 11. The City acknowledges and agrees that it will not allow any lien or encumbrance to be placed upon the real property interests and any other interests held by King County and /or the District in connection with the Work. If any lien or encumbrance is so placed, King County and /or the District shall have the right to remove such lien and charge back the costs of such removal to the City. 12. The City authorizes, but does not require, the County, its employees, contractors, agents and volunteers to visually inspect and monitor the condition and performance of the Work at all times during the duration of this agreement at the County's sole expense. 13. The City, its officers, employees, agents, contractors, invitees and volunteers acknowledge that the County and the District have made no representations as to the current condition of the Levees. The City agrees to hold harmless and indemnify the County and /or District for any negligent act or omission of the City, its officers, employees, agents, contractors, invitees and volunteers, to the extent not within any immunity conferred by law on the County and /or the District arising out of the Work performed on the Levees pursuant to this Agreement Such indemnification shall extend to any claims, including all demands, suits and judgments, for damages arising out of injury to persons or damage to property, where such injury or damage is caused by, arises out of the City's negligence. The City shall by contract terms require its contractors to pass through indemnification to the District and County to the extent of their respective property interests. The Parties recognize that the Work is intended to restore the Levees to the condition that previously existed before damage occurred to the Howard Hanson Dam. With the Dam restored to its previous functioning capacity, there still remains no guarantee that flooding will not occur. In the event that flooding does occur, the City, County and the District shall continue to enjoy the immunity for flood prevention measures conferred by law, and it is the intention of the Parties that the City, as contractor to the County, shall likewise be included within such immunity to the extent allowed by law, and to the extent not covered by the City's own immunity or its reasonable exercise of its police powers. Nothing in this No. 13 shall be construed to eliminate, reduce, or otherwise abrogate any immunity conferred on the City, County and /or District in connection with acts or omissions arising out of the Work. The indemnification provided for in this No. 13 shall survive termination of this Agreement. COOPERATIVE AGREEMENT FOR COMPLETION OF EMERGENCY FLOOD PROTECTION MEASURES PROJECT Page 6 of 9 7 14. This Agreement shall remain in force and effect until the Work is completed and the County has issued a Notice of Final Acceptance, as defined and described in No. 15 below. 15. The City shall complete that portion of the Work described in Nos. 2.a., 2.b., and 2.c. by November 1, 2012 or within one hundred eighty (180) days of the execution of contracts entered into under this Agreement, whichever is later. The City shall complete all Work described in Nos. 2.a., 2.b., 2.c., and 2.d. by July 1, 2013. When the City determines that it has completed all elements of the Work, it shall provide written notice to County. Within 30 days of receipt of this notice, the County shall inspect the completed Work and notify the City of any deficiencies. The City will have 30 days to cure such deficiencies. Upon completion of the deficiencies to the satisfaction of the County, the County shall issue a notice of final acceptance "Notice of Final Acceptance to the City. In the event that the Parties do not agree regarding the existence of or cure of any deficiencies identified by the County, the dispute resolution provisions in No. 18 shall apply. 16. Solely for the purpose of enforcing the indemnification provision in Section 13 above, each Party expressly waives, with respect to the other Party only, any immunity that would otherwise be available against such claims under the Industrial Insurance provisions of Title 51 of the Revised Code of Washington; provided that, such waiver shall not preclude any indemnifying Party from raising such immunity as a defense against any claim brought against the indemnifying party by any of its employees. 17. Each Party recognizes that the other is self- insured and accepts such coverage for liability arising under this Agreement. Should any Party choose not to self- insure, that Party shall maintain and keep in full force and effect a policy of general liability insurance in an amount not less than One Million Dollars ($1,000,000) per occurrence with an additional excess liability policy of not less than Ten Million Dollars ($10,000,000) and will provide the other Party with a certificate of insurance and additional insured endorsement that will name the other Party as an additional insured. 18. The Parties will seek to resolve any disputes under the Agreement as follows: a. For disputes involving cost reimbursements, submittal of all relevant information to an independent Certified Public Accountant and /or a Construction Claims Consultant, if agreed upon by the Parties, for a non binding opinion as to the responsibility. COOPERATIVE AGREEMENT FOR COMPLETION OF EMERGENCY FLOOD PROTECTION MEASURES PROJECT Page 7 of 9 N b. For disputes not involving cost reimbursements, these disputes shall be referred for informal resolution to the Public Works Director of the City, or the Director's designee, and the Director of the Water and Land Resources Division of the County, or the Director's designee. C. If the foregoing processes in 18.a. and 18.b. do not result in resolution, the Parties may mutually select any informal means of resolution and resort will otherwise be had to the Superior Court for King County, Washington. d. Each Party will be responsible for its own costs and attorney's fees in connection with the dispute resolution provisions of this Section 18. 19. This Agreement represents a full recitation of the rights and responsibilities of the parties and may be modified only in writing and upon the consent of both Parties. 20. The rights and licenses contained in this Agreement shall inure to the benefit of and are binding upon the Parties, and their respective successors in interest and assigns. 21. All communications regarding this Agreement shall be sent to the parties at the addresses listed below unless a party gives notice of a change of address. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the address state below or such other addresses as may be hereinafter specified in writing. If to City: Bob Giberson, Director Public Works Department City of Tukwila 6300 Southcenter Blvd. Tukwila, WA 98188 If to District and /or County: Christie True, Director King County DNRP 201 South Jackson St, Ste. 700 Seattle, WA 98104 -3855 COOPERATIVE AGREEMENT FOR COMPLETION OF EMERGENCY FLOOD PROTECTION MEASURES PROJECT Page 8 of 9 N 22. The undersigned warrant that they have the authority duly granted by their respective legislative bodies to make and execute this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement, which shall become effective on the last date signed below. CITY OF TUKWILA By: DATE: Jim Haggerton Its: Mayor APPROVED AS TO FORM: KING COUNTY By: DATE: Its: Director of the Department APPROVED AS TO FORM: By: By: City Attorney Deputy Prosecuting Attorney for King County City of Tukwila ATTEST: By: City Clerk for City of Tukwila COOPERATIVE AGREEMENT FOR COMPLETION OF EMERGENCY FLOOD PROTECTION MEASURES PROJECT Page 9 of 9 10