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Home My WebLink AboutCAG2003-0527 - Original - City of Des Moines - Joint Use Stormwater Detention Treatment Facility - 10/17/2003 C f 1 INTERAGENCY AGREEMENT BETWEEN THE CITY OF KENT AND THE CITY OF DES MOINES REGARDING THE PACIFIC HIGHWAY SOUTH HOV LANES PROJECT JOINT USE STORMWATER DETENTION/TREATMENT FACILITY THIS INTERAGENCY AGREEMENT is entered into between the City of Kent, a Washington Municipal Corporation, located and doing business at 220 Fourth Avenue South, Kent, Washington 98032 (hereinafter called"City of Kent") and the City of Des Moines, a Washington Municipal Corporation, located and doing business at 21650 11`h Avenue South, Des Moines, Washington 98198 (hereinafter called"City of Des Moines"). RECITALS WHEREAS, the City of Kent is required to construct a stormwater detention/treatment facility for their Pacific Highway South HOV Lanes Project; and WHEREAS, the City of Des Moines is required to construct a stormwater detention/ treatment facility for their Pacific Highway South HOV Lanes Project; and WHEREAS both the City of Kent's and the City of Des Moines' drainage systems will discharge to the headwaters of Massey Creek within the City of Kent limits; and WHEREAS the City of Kent recently acquired property within the City of Kent and partially within the City of Des Moines to provide for its detention/treatment facility, a map of this property is attached to this AGREEMENT as Exhibit A; and Page i of 7 08/12/2003 r s WHEREAS the City of Des Moines desires to utilize portions of the Kent acquired property to construct a joint-use detention pond; and WHEREAS the calculated volume that the City of Des Moines requires within the pond area is 60 percent of the total and the calculated volume that the City of Kent requires within the pond area is 40-percent of the total. NOW THEREFORE, in consideration of the terms, conditions, covenants and performances contained herein, or attached and incorporated and made part hereof, IT IS MUTUALLY AGREED BY THE CITY OF KENT AND THE CITY OF DES MOINES AS FOLLOWS: AGREEMENT A. PACIFIC HIGHWAY SOUTH STORM WATER DETENTION/TREATMENT FACILITIES 1. The City of Kent will allow the City of Des Moines to utilize 60 percent of the joint-pond area on the City of Kent owned property. 2. The City of Des Moines will perform all work and assume all costs associated with the design and construction of the stormwater detention/treatment facility and associated appurtenances. The pond will be designed to accommodate the City of Kent's and the City of Des Moines' stormwater in accordance with the provisions of the City of Kent's May 2002 Surface Water Design Manual and the City of Des Moines' requirements. A preliminary drawing of the stormwater detention/treatment facility contemplated by this AGREEMENT is attached as Exhibit B to this AGREEMENT. Page 2 of 7 08/12/2003 3. The City of Des Moines will submit to the City of Kent and/or other agencies all required permit applications and, prior to start of construction, receive all approvals necessary to construct the stormwater detention facility and appurtenances including approvals from the City of Kent. 4. The City of Des Moines agrees that they will perform all work and assume all costs associated with the design, construction and maintenance of any required environmental mitigation measures necessitated by the construction of the pond and appurtenances. S. The City of Des Moines and the City of Kent agree that, after the City of Des Moines completes construction and the City of Kent accepts the construction as complete, the City of Kent will perform periodic maintenance of the pond and its appurtenances. The costs for this maintenance work will be shared between the parties. The City of Des Moines will be responsible for 60-percent of the maintenance costs and the City of Kent will be responsible for 40-percent of the maintenance costs. The labor and material cost for maintenance will be at normal City of Kent rates including associated overhead costs. In the event that the City of Kent should decide to contract for or transfer maintenance responsibilities to a third party,the City of Des Moines will have the right and opportunity to review and approve any procurement or bidding process and any contract for maintenance responsibilities and, if such a contract for maintenance is ultimately entered into with a third party,the City of Des Moines will be responsible for 60 percent of the total third party maintenance costs and the City of Kent will be responsible for 40 percent of the total third party maintenance costs. 6. The cost of any future modifications to the stormwater detention/treatment facility required for repair, maintenance, or by any federal, state or local ordinance or Page 3 of 7 08/12/2003 requirement shall be shared between the parties at the rate of 60 percent for the City of Des Moines and 40 percent for the City of Kent. 7. The City of Kent reserves the right to surplus or sell the remaining portion of the property not required for the stormwater detention/treatment facility. B. MISCELLANEOUS 1. Termination Items 1 through 4 of Section A of the AGREEMENT shall terminate on the date that construction of the stormwater detention/treatment facility is completed and both parties have accepted the pond construction as final. Items 5, 6 and 7 of Section A of the AGREEMENT shall remain in force in perpetuity unless modified by a future agreement executed by both parties pursuant to Item 5, Section B of this AGREEMENT. 2. Legal Relations The City of Des Moines shall defend and hold the City of Kent,its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out or in connection with the performance of this AGREEMENT, except for injuries and damages caused by the City of Kent's negligence. The City of Kent shall defend and hold the City of Des Moines, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out or in connection Page 4 of 7 08/12/2003 1 with the performance of this AGREEMENT, except for injuries and damages caused by the City of Des Moines' negligence. 3. Resolution of Disputes and Governing Law a. MEDIATION/ARBITRATION CLAUSE—If a dispute arises from or relates to this Agreement or the breach thereof and if the dispute cannot be resolved through direct discussions,the parties agree to endeavor first to settle the dispute in an amicable manner by mediation administered by a mediator under the American Arbitration Association's Commercial or Construction Rules before resorting to arbitration. The mediator may be selected by agreement of the parties or through the American Arbitration Association. Following mediation, any unresolved controversy or claim arising from or relating to this Agreement or breach thereof shall be settled through arbitration which shall be conducted under the American Arbitration Association's Commercial or Construction Arbitration Rules. The arbitrator may be selected by agreement of the parties or through the American Arbitration Association. All fees and expenses for mediation or arbitration shall be borne by the parties equally. However, each party shall bear the expense of its own counsel, experts,witnesses, and preparation and presentation of evidence. b. VENUE. APPLICABLE LAW and PERSONAL JURISDICTION- Except as otherwise provided by law, it is expressly understood that neither party can institute any legal action against the other based on this Agreement until the parties have exhausted the mediation and arbitration procedures required by the previous paragraph. This AGREEMENT shall be governed 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 Page 5 of 7 08/12/2003 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 located in Kent,King County, Washington. The parties each consent to the personal jurisdiction of such court. In any claim or lawsuit for damages arising from the parties' performance of this AGREEMENT, each party shall pay all of its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit,in addition to any other recovery or award provided by law; provided,however,nothing in this paragraph shall be construed to limit either parry's right to indemnification under Item 2, Section B of this AGREEMENT. 4. Assignment Any assignment of this AGREEMENT by either party without the written consent of the non-assigning party shall be void. 5. Modification No waiver, alteration, or modification of any of the provisions for the AGREEMENT shall be binding unless in writing and signed by a duly authorized representative of the City of Kent and the City of Des Moines. 6. Entire Agreement The written provisions and terms of this AGREEMENT, together with any attached Exhibits, shall supercede all prior verbal statements of any officer or other representative of either party, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner this AGREEMENT. This document, including all Exhibits, is the entire agreement between the parties. Should any language in any of the Exhibits to the AGREEMENT conflict with any language contained in this AGREEMENT, the terms of this AGREEMENT shall prevail. Page 6 of 7 08/12/2003 i 7. This AGREEMENT shall be effective as to all parties on the last date signed below. IN WITNESS WHEREOF,this AGREEMENT and Conveyance is executed by the Parties by their authorized officers indicated below. t il CITY OF DES MOINES e.�,�5,,�-h" Gbh, L;ly BY ITS ITS By Direction of the Des Moines City Council DATE in open public meeting on July 31, 2003. DATE of/s—lv3 ATTEST: ATTE : CITY CLERK, CITY OF4kENT CLERK, CITY OF DES MOINES APPROVED AS TO FORM: *MOIMNES S TO FORM: KE T CITY ATTORNEY CITY ATTORNEY Page 7 of 7 08/12/2003 EXHIBIT A , „i S 212TH ST e Y; _ - s 2167H ST J CITY OF > DES MOMES y a CITY OF K'ENT Nt//vFs RD m S 2347H ST F Ar- �-1 r JOINT - USE DETENTION / TREATMENT -F-'z l S 240TH ST GREEN w FACILITY LOCATION EEN a' Z N < 1— sAhnl MEEKER 1 _J i s�� IZii Q ftus S 252ND ST gLLJ f I =f J S 260TH ST LK. FENWigC 1 � ti f f / ^1 a S 268TH ST , r f co 1 1 1 ` KEHT qtt LIMITS 1 S 272ND ST a fr { I 1 1 - R y STA 1'K. -------------� s f C s CITY OF I{ENT PACIFIC HIGHWAY SOUTH HOV LANES PROJECT ENOINEERINO DEPARTMENT 4 IGENT 2x 41H A.E, s VICINITY MAP EXHIBIT B NEW STORMWATER kFNj,DES DETENTION/TREATMENT FACILITY Mp/NES RO, 0 6 W Z !— W N 44Y OO I p CITY O KENT c3 OWNED ROPERTY a fA W W Y O O I U a+vm. wbw.�arawu ---•mwR..mar f^V 1 � �.bt'Yed64S S� r r - c� r / CU � V 4 CITY OF KE1�TT ENGINEERING Dtp! 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