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HomeMy WebLinkAboutPW13-183 - Original - King County Flood Control Zone District - Russell Road Upper Levee - North Reach RM 19.5-19.8 Right Bank - 7/26/13 AGREEMENT FOR LEVEE CONSTRUCTION, OPERATION AND MAINTENANCE Russell Road Upper Levee—North Reach River Mile 19.5 to 19.8, Right Bank THIS AGREEMENT FOR LEVEE CONSTRUCTION, OPERATION AND MAINTENANCE ("Agreement") of the Russell Road Upper Levee —North Reach. River Mile 19 5 to 19 8, 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 Russell Road Upper Levee — North Reach ("Levee") is a key part of the Green River levee system The District Board of Supervisors desires to improve the Levee by constructing a new secondary earthen levee described and shown in Exhibit A as part of a longer term plan for a setback levee in this area The secondary levee project will hereafter be referred to individually as "Project" or "Levee Project". The Levee Project is planned for construction from 2013 through 2014. C. The District desires to authorize and the City desires to construct the Project as soon as possible, in order to provide for the safety of the residents and businesses that are protected by this levee. D. By Resolution FCD2012-09.3, adopted on November 5, 2012, the District Board of Supervisors determined that the flood control improvements included in that resolution generally contribute to the objectives of the District's comprehensive plan of development. In this Resolution, the District Board of Supervisors also approved funding for the Levee Project. E. The City estimate for construction of the Levee Project is $1,500,000. The District has not reviewed or analyzed this City estimate. F The Parties desire to enter into this Agreement to establish the terms and conditions for the Levee Project 1 Upper Russell—North Reach(RB/WLR/Kent) G. The Parties desire to complete future additional improvements of the overall Upper Russell Road Levee in a setback alignment and the City agrees to work with the District and/or King County to convey 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 improvements shall include the upstream and downstream ends of this Project, where the District's eventual setback alignment is landward of the transition sections. AGREEMENT Based upon the foregoing, the Parties agree as follows: 1. Incorporation of Recitals—Scope of Agreement. 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, as those terms are defined in the recitals above 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. Levee Design, Construction and Reimbursement. a. The City shall design, construct and install the improvements to the Levee Project described and depicted on Exhibit A, attached hereto and incorporated herein by reference in accordance with this 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, all of the estimated cost of the Levee Project is included in the District's 2013-2018 Six-Year CIP The District reserves the right to terminate this Agreement, and the City shall immediately terminate work, provided, that until substantial completion of the 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 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 12 below. e. The City shall obtain and convey to the District or King County, as determined by the District, all necessary easements for design, construction of or access to the Levee Project, using the form of the standard River Protection Easement in Reference 8P to the King County Surface Water Design Manual, or an alternative form approved by the District or King County. The necessary easements shall include a 15-foot maintenance/inspection easement along the 2 Upper Russell—North Reach(RB/WLR/Kent) k landward side of_`_bApLevee Project. This easement is not required for construction and may be conveyed followm�completion of construction of the Levee Project. 4. Levee Maintenance, Operation and Repair Standards. The District shall operate, maintain and repair the Levees in accordance with this Agreement which includes Exhibit B, 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 the District shall not be obligated to operate. maintain and repair a Levee if FFMA does not approve a risk-based approach to operation. maintenance and repair of the Levee. 5. 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 the 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 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. 6. Additional Activities. The District will provide enhanced monitoring of the Levee through slope stability instrumentation. 7. District Inspections. The District shall have the right to inspect the City's construction of the Levee Protect. 8. Contracts for Levee Work. Upon execution of a contract for construction of a Levee Project, the City shall send a copy of the contract to the District 9. Record Drawings, Retention and Review of Documents. The City shall submit to the District record drawings for the 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 the Project sufficient to meet state audit standards for a capital project, recognizing that the costs of the Project are paid for in whole or in part by the City and the District. 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. 10. 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 3 Upper Russell—North Reach(RB/WLR/Kent) 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. 11. District Costs and Expenses. The total cost to the District of the Project shall not exceed$1,500,000 without prior authorization of the District. 12. 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 July 8, 2013 for right-of-way acquisition, construction and inspection of the Project. The requests shall be in a form and shall contain information and data as is required by the District b. The District shall review the requests to confirm that 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 in order to determine whether they are reimbursable and payable under this Agreement. The District shall forward the approved reimbursement to the City within forty-five (45) days of the City request. C. The District may postpone review of a City request for reimbursement 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 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 21 below. After resolution of the dispute, the District shall provide reimbursement as provided in this section 12. 13. Levee Warranty. The City shall warrant the materials, work and function of the Project for five (5) years after the City's acceptance of construction of the Project. 14. 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 the Project 15 Impact on Other Reaches or Segments dents The District and the City agree that the improvements to the Levee under this Agreement shall 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) 4 Upper Russell—North Reach(RB/WLR/Kent) conditions, as demonstrated by compliance with King County flood hazard regulations, which are Sections 21A 24 230 through 21 A.24.260 of the King County Code. 16. Duration. This Agreement shall take effect on the date on which the second party signs this Agreement, and shall remain in effect until the Levee Warranty expires. 17 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. 18. 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. 19. 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 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 5 Upper Russell—North Reach(RB/WLR/Kent) indemnity of claims made by the indemnitor's employees. This waiver has been mutually negotiated. 20. 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. 21. 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 12 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 21. 22. Trail Design. 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 23. Entire Agreement, Amendment. This Agreement, together with its Exhibits A and B, 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 terns 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 communications 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 6 Upper Russell—North Reach(RB/WLR/Kent) 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 KING COUNTY FLOOD CONTROL ZONE DIST By: By S e Cooke S. a r Its: Board Chair DATE- DATE: 7118 13 APPRO D AS TYI FORM: APPROVED AS O By: By. City tto Legal Counsel 7 Upper Russell—North Reach(RB/WLR/Kent) EXHIBIT A Description of the Russell Road Upper Levee-North Reach Improvements The North Reach of the Russell Road Upper Levee is located along the right bank(easterly side) of the Green River between S 233`d Place and S 237th Place, (see Figure 1). The Russell Road Upper Levee segment protects properties within the cities of Kent, Tukwila and Renton. Multi- family residences and single family residences are located adjacent to the levee The North Reach Levee, approximately 1,290 linear feet, does not meet slope and stability requirements and needs improvement to meet FEMA accreditation standards This section of levee is located between RM 19.5 and 19 8 This section of levee is on the outside of a sharp bend in the river and has indications of minor slumping of soils The North Reach Levee will provide a mimmum of 3 feet of freeboard above the predicted 100-year flood event. This proposal allows for future re-vegetation and habitat restoration work along the river between the ordinary high water line and the trail in areas where the secondary levee is constructed In areas where secondary levees are installed. mid slope terraced areas or benches may be constructed where feasible and native vegetation will be planted above the ordinary high water line as part of a future phase after the North Reach Levee is constructed. 8 Upper Russell—North Reach(RB/WLR/Kent) EXHIBIT B 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 9 Upper Russell—North Reach(RB/WLR/Kent) fall rains and seasonal high flows, and during and immediately following flood events at Phase 111 (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 10 Upper Russell—North Reach(RB/WLR/Kent)