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HomeMy WebLinkAbout25-242 - Contract - Water District 125 - Cost Share Agreement: 2025 Overlay Project25-242 Council Approval 8/4/25 FUNDING AGREEMENT This Funding Agreement ("Agreement") is made by and between the City of Tukwila ("City") and Water District 125 ("District"), a political subdivision of the State of Washington, a franchise utility district within Tukwila limits. These entities may be referred to individually as "Party" or collectively as the "Parties." RECITALS A. The City is performing a grind and overlay on 51" Ave S continuing to Macadam Rd S from Klickitat Dr to 43rd Ave S. This is part of the City's Annual Overlay Project. B. In the summer of 2024, Water District 125 completed upgrades to its watermain infrastructure along Macadam Rd S. The City agreed to allow the District to leave the Macadam Rd S with a permanent trench patching, rather than require the District to undertake full re -paving in exchange for the District providing funding in the amount of $102,124.00 to be allocated to the City of Tukwila for their Annual Overlay Project. C. The purpose of this Agreement is to set forth the terms and conditions by which the City permitted a temporary patch instead of a pen-nanent repair, in exchange for receiving $102,124.00 dollars for the purposes of the Annual Overlay Project. NOW, THEREFORE, in consideration of the mutual promises and other undertakings by and between the Par -ties and set forth in this Agreement, the sufficiency of which is hereby acknowledged, the Parties agree as follows: AGREEMENT 1. Term This Agreement shall take effect once executed by the Parties ("Effective Date") and shall remain in effect until December 31, 2026. In addition, this Agreement also applies to costs incurred and actions taken prior to the "Effective Date" that specifically fall within the terms of this Agreement. 2. Responsibilities 2.1. District Responsibilities. Within thirty (30) days of the Effective Date of this Agreement, The District 125 shall pay a one-time lump sum payment of one hundred two thousand one hundred twenty-four dollars ($102,124.00) ("Lump Sum Payment") to the City of Tukwila for the purchase and installation of hot mix asphalt, as further described in Attachment A. ii. In addition to the Lump Sum Payment, the District will hold in reserve a contingency payment of $10,212.40 ("Contingency Payment"), to be made available to the City within thirty (30) days written notice by the City of the need for the Contingency Payment. Use of the Contingency Payment is to address unforeseen subsurface conditions, including but not limited to unsuitable or unstable sub- base material discovered during grinding and overlay operations. Use of these funds shall be limited to corrective measures such as excavation, replacement, stabilization, or other remedial work necessary to ensure structural integrity and compliance with project specifications. 2.2. City Responsibilities: The City will be responsible for completing, or causing to be completed, the work described in Attachment B ("Work") and all associated attachments, including design, permitting, and construction of Macadam Rd S asphalt overlay. 3. Dispute Resolution. 3.1 The Parties agree to negotiate in good faith to resolve any disputes arising, under this Agreement. The Parties shall designate representatives for purposes of managing this Agreement and the dispute resolution process under this Section 3. The Parties' Agreement administrators are the persons identified in Section 8 to receive notice. Except as otherwise provided in this Agreement, the Parties shall use the following dispute resolution process: Step One: The Parties' Agreement administrators shall confer and attempt to resolve the dispute within ten (10) business days of written notification by any Party. Step Two: If the Agreement administrators are unable to resolve the dispute within ten (10) business days, any Party may refer the dispute to the District Director or designee and the superior to the contract administrator for the City. 3.2 No Party may seek relief in a court of law until and unless the two-step process in Paragraph 3.1 is completed in good faith. 3.3 If the Parties cannot resolve the dispute using the process in Section 3. 1, the Parties may, by agreement, submit the matter to non-binding mediation. The Parties shall share equally in the cost of the mediation. If additional parties participate in the mediation then each participant shall pay a share of the cost of the mediation, such share to be calculated by dividing the total cost of the mediation by the number of parties participating. Mediation shall not be a prerequisite to litigation. 2 3.4 The Parties agree that during any conflict or dispute resolution process they shall continue to diligently perform their respective responsibilities under this Agreement. 4. No Preclusion of Separate but Related Activities or Projects Nothing in this Agreement shall preclude any Party from choosing or agreeing to fund or implement any work activities or projects associated with any of the purposes hereunder by separate agreement or action, provided that any such decision or agreement shall not impose any funding, participation, or other obligation of any kind on the other Parties. 5. Hold Harmless and Indemnification To the extent permitted by state law, and for the limited purposes set forth in this Agreement, each Party shall protect, defend, hold harmless, and indemnify the other Parties, their officers, elected and appointed officials, agents and employees, while acting within the scope of their duties as such, from and against any and all claims (including demands, suits, penalties liabilities, damages, costs, expenses, or losses of any kind or nature whatsoever) ("Damages") resulting from such Party's own negligent acts or omissions related to such Party's participation and obligations under this Agreement. Each Party agrees that its obligations under this subsection extend to any claim, demand, and/or cause of action brought by or on behalf of any of its employees or agents. For this purpose, each Party, by mutual negotiation, hereby waives, with respect to the other Party only, any immunity that would otherwise be available against such claims under the industrial insurance act provision of Title 51 RCW. The Parties acknowledge that this Section 5 was expressly negotiated and agreed to by them. The provisions of this Section 5 shall survive and continue to be applicable to any Party exercising the right of termination pursuant to Section 9. 6. Notice; Designation of Agreement Administrators; Signature Authority 6.1 Any notice permitted or required to be given by any Party shall be given in writing and may sent by certified United States mail, with return receipt requested, properly addressed, postage prepaid; or by reputable overnight delivery service; or by personal service. Notice shall be deemed given two (2) days after deposit in the U.S, mail as specified in the preceding sentence; or upon delivery (or refusal of delivery) by an overnight delivery service or by personal service. Notwithstanding anything in this Section S to the contrary, a Party may provide notice by email or other electronic means with delivery confirmation or read receipt (or both) but the Party providing electronic notice shall bear the burden to prove the date that notice was delivered. 6.2 All notices, invoices, correspondence, or other materials, including Dispute Resolution Notices, shall be given to the Agreement administrators electronically. A Party may change their Agreement administrators by providing notice to the other Party. The initial Agreement administrators are as follows: Dylan Bailey Water District 125 3460 S 148th, Suite 110 Tukwila, WA 98168 206-242-9547 dylanbailey@waterdistrictl25.com Jen Tetatzin The City of Tukwila 6200 Southcenter Blvd Tukwila, WA 98188 206-433-0179 Jen.Tetatzin@TukwilaWA.gov 7. Records and Audit 7.1 For a period not less than six (6) years from the date of completion of the Work or for such retention period as may be required by law, whichever is longer, records and accounts pertaining to the Work of this Agreement shall be kept available for inspection and audit by representatives of the Parties. Copies of the records shall be furnished upon request. Records and accounts shall be maintained in accordance with applicable state law and regulations. 8. Extension; Amendments. 8.1 The Parties may agree in writing to extend or renew the term of this Agreement at any time prior to its expiration date as specified in Section I Such a change must be added as an amendment to the Agreement at which time an extension or renewal of the Agreement is enacted. 8.2 This Agreement may only be amended or extended by the mutual written consent of all Parties. 9. Termination 9,1 This Agreement can only be terminated by mutual written agreement of the Parties, 10. General Terms and Conditions 10.1 Entire A)areement,• Recitals and Exhibits lnc9p)grated. The Recitals and Exhibits to this Agreement are incorporated as if fully set forth herein. This document contains all of the terms, conditions, and provisions agreed upon by the Parties hereto, and shall not be modified except by written amendment. There are no other agreements between the Parties with respect to the matters described herein, whether in writing or otherwise, and all prior agreements and understandings are superseded with respect to the subject matter of this Agreement. 10.2 Legal Relations,. This Agreement is solely for the benefit of the Parties hereto and creates no right, duty, privilege, or cause of action in any other person or entity not a party to it. No joint venture or partnership is formed as result of this Agreement. No employees or agents of one Party or its contractors shall be deemed, or represent themselves to be, employees of the other Party. 10.3 Compliance with Laws. The Parties shall comply and shall insure that their respective contractors and subcontractors comply, with all Federal, state, and local laws, regulations, and ordinances applicable to the Work to be performed under this Agreement, including but not limited to prevailing wages requirements under Chapter 39.12 RCW. 10.4 Remedies Cumulative. The Parties' rights and remedies in this Agreement are in addition to any other rights and remedies provided by law or equity. 10.5 Nonwaiver. A Party's failure to require full and timely performance of any provision of this Agreement at any time shall not waive or reduce that Party's right to insist upon complete and timely performance of any other provision thereafter. 10.6 Choice of Law; "Venue. Any and all claims relating to this Lease shall be governed by and construed in accordance with the substantive and procedural laws of the State of Washington without giving effect to its conflicts of law rules or choice of law provisions. The sole and exclusive venue for any legal action arising from or related to this Lease shall be in the Superior Court of King County, Washington; and the Parties hereby agree to the personal jurisdiction of such court. 10.7 Le=al Fees. In any lawsuit between the Parties with respect to the matters covered by this Agreement, the prevailing party shall be entitled to its reasonable attorney's fees, costs and expenses to be paid by the other Party, in addition to any other relief it may be awarded. 10.8 Survival. The provisions of Section 5 (Indemnity) and this Section 11 shall survive the expiration or earlier termination of this Agreement. 10.9 Severability. If any term of this Agreement is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable tern. 10.10 NoExnenditureln Excess of Afropriatiop. Nothing in this Agreement shall be construed as obligating any Party to expend money in excess of appropriation authorized by law and administratively allocated for the Work in this Agreement. 10.11 No Ass4zrnment. Neither this Agreement nor any of the rights or obligations of any of the Parties arising under this Agreement may be assigned, without the other Parties' prior written consent. Subject to the foregoing, the Agreement will be biding upon, enforceable by, and inure to the benefit of the Parties and their successors and assigns. 10.12 No Tliird-Party Beneficiaries. There are no third -party beneficiaries to this Agreement, and this Agreement shall not impart any rights enforceable by any person or entity that is not a party hereto. 10.13 Count elcarts. This Agreement may be executed by facsimile or any other electronically reproduced signature that is consistent with Chapter 19.360 RCW in any number of current parts and signature pages hereof with the same effect as if all Parties had all signed the same document. All executed current parts shall be construed together, and shall, together with the text of this agreement, constitute one and the same instrument. 10.14 Force Maieure., Any Party shall be excused from performing its obligations under this Agreement during the time and to the extent that it is prevented from performing by a cause beyond its control, including, but not limited to: any incidence of fire, flood, earthquake or acts of nature; strikes or labor actions commandeering material, products, or facilities by the federal, state or local government; when satisfactory evidence of such cause is presented to the other Party, and provided further that such non-performance is beyond the control and is not due to the fault or negligence of the Party not performing. Upon any force majeure, all Parties may jointly elect to terminate this Agreement or suspend work upon written notice. In no event should this provision eliminate the need to make any payment to either Party to the extent any such payment is required pursuant to this Agreement. [Signatures -Proceed to Next Page] IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date affixed to their signatures. WATER D Date A ed as to Form By: G� Water District 125 Attorney r Date THE CITY OF TUKWILA Signed by: AbwtGlS hGt",4 8/6/2025 12:39 PM PDT Date Printed Name Thomas McLeod Position Ma or APPROVED AS TO FORM: Signed by: d' S" 8/6/2025 11132 AM PDT Office of the City Attorney Date