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HomeMy WebLinkAboutCity Council Committees - Public Works/Planning - 05/19/2003 Public Works Committee Agenda May 19, 2003 ACTION III 1. Operation and Maintenance Agreement 10 Min Yes Martin for use of Kent Commuter Rail Station Garage—Authorize 2. Improvement of Existing Public Highway 10 Min Yes Wickstrom Crossing at MP 166.66 Seattle Subdivision Agreement -Authorize i 1 I i i i PUBLIC WORKS COMMITTEE MINUTES MAY 199 2003 COMMITTEE MEMBERS PRESENT: Chair Tim Clark, Julie Peterson, Rico Yingling STAFF PRESENT: Don Wickstrom, Gary Gill, Tom Brubaker, Mike Martin,Nathan Torgelson, Jackie Bicknell PUBLIC PRESENT: Debbie Raplee, Ted Nixon The meeting was called to order by Chair Tim Clark at 5:00 P.M. Approval of Minutes of Mav 5,2003 Committee Member Rico Yingling moved to approve the minutes of May 5, 2003. The motion was seconded by Committee Member Julie Peterson and passed 3-0. Kent Commuter Rail Station Garage—Operation and Maintenance Agreement Economic Development Manager Nathan Torgelson said that Sound Transit's original intention was to build a surface parking lot and the City had negotiated with them and contributed $4 million towards a structured Sounder parking facility which was more in line with the City's vision for the downtown. The Operation and Maintenance Agreement allows the general public to use the garage for non-rail commuting purposes on weekdays, after the last train leaves in the morning, and during all operating hours on the weekends. The City has negotiated with Sound Transit to have the City assume the operation and maintenance costs for any increase in use of the garage that is directly attributable to general commuters. The estimate for those costs is between $75,000 and $100,000 a year. Negotiations are underway with the Kent Station developer to have them assume the costs as part of the Kent Station project, and there should be no budgetary impact to the City. At the last Public Works Committee meeting, the Offsite Improvements Agreement with Sound Transit was reviewed, and the intention is to take that agreement and the Operations and Maintenance Agreement to the full Council on June 3`a as one package. I Julie Peterson moved to recommend that the Council approve the Operation and Maintenance Agreement for use of the Kent Commuter Rail Station Garage. The motion was seconded by Rico Yingling and passed 3-0. Union Pacific Railroad Agrcement—Highway Crossing at MP 166.66 Public Works Director Don Wickstrom said the city was installing a traffic signal at the intersection of 74`h Avenue South and West Willis Street(SR516) to improve access into the industrial area located south of Willis Street. The agreement with the Union Pacific Railroad covers the $187,000 cost associated with a traffic light pre-emption to the Public Works Committee,5/19/03 2 existing crossing signal system. LID 329 has been formed and property owners are aware of the updated costs associated with the signal project. Rico Yingling moved to recommend that Council authorize the Mayor to sign the Improvement of Existing Public Highway Crossing at MP 166.66— Seattle Subdivision Agreement with Union Pacific Railway Company to cover costs associated with a traffic light pre-emption to existing crossing signal system, subject to the Public Works Director and the City Attorney's concurrence of the language therein. The motion was seconded by Julie Peterson and passed 3-0. The meeting adjourned at 5:12 PM, Jackie Bicknell j Council Secretary i i OFFICE OF THE MAYOR Jim White, Mayor �( ®U Phone:Fax: 253-856-6700 `�E • -T Address: 220 Fourth Avenue S. WA5HINGTON Kent,WA.98032-5895 DATE: May 19, 2003 TO: Kent City Council Public Works Committee FROM: Nathan Torgelson, Economic Development Manager THROUGH: Mayor Jim White SUBJECT: Operation and Maintenance Agreement for Use of Kent Commuter Rail Station Garage SUMMARY: The City of Kent has negotiated an Intcrlocal Operation and Maintenance Agreement with Sound Transit for the use of the Kent Commuter Rail Station Garage until 2034 with an option to renew until 2040, The Agreement allows the general public to use the garage for non-rail commuting purposes on weekdays after the last train leaves in the morning and during all operating hours on weekends. The Agreement also limits the circumstance in which Sound Transit can charge for parking in the garage. The City of Kent will pay for the incremental operations and maintenance costs (estimated to be between $75,000 and $100,000 ayear) associated with general public use of the garage. BUDGET IMPACT: This proposed action has an estimated unbudgeted cost of between $75,000 and $100,000 a year. The City is,however,negotiating for the developer of the Kent Station project to assume these costs. MOTION: I move to recommend/not recommend approval of the Operating and Maintenance Agreement for Use of the Kent Commuter Rail Station Garage to the Kent City Council. BACKGROUND: Tn 2001 Sound Transit completed construction of an 871 stall parking garage next to the Kent Commuter Rail Station. The City of Kent agreed to contribute$4 million towards the construction of the parking garage. Sound Transit's original plans were to build a surface parking lot. King County is also contributing$2 million toward the construction of the garage for use by its transit customers. The Agreement recognizes that the primary purpose of the garage is to provide parking for Sound Transit(commuter rail) and King County Metro (bus) commuters. The Agreement, however, also permits parking by the general public for non-rail purposes to maximize the public benefit from investment in the garage. The Kent Station developer is using the parking garage to satisfy the project parking requirement. The peak use of the parking garage by commuters will be during the morning and afternoon hours on weekdays, while the peak use of the parking garage by the general public will be evenings and weekends. The primary public (non-commuter) users of the garage will be patrons of the proposed 12-screen Kent Station Cineplex,which will be located directly north of the garage. Kent Council Public Works Committee I O&M Agreement for Garage May 2,2003 i Per the Agreement,the general public will be able to park in the garage on weekdays after the last commuter rail train leaves the station during the morning hours, and during all operating hours on weekends. After the Kent Station project opens, the operating hours of the garage will be extended and willbe from 6:30am to 2:30am. The Agreement requires the City of Kent to pay Sound Transit the incremental costs to operate and maintain the parking garage for use by the general public, including fixed and variable costs, The Agreement is valid until 2034 with an option to renew for one additional six-year term until 2040. The Agreement also reserves Sound Transit's right to charge for parking in the future,but only under special circumstances. These circumstances include if the parking garage reaches capacity before the last train leaves in the morning, if the City or a private party within the immediate area charges for parking, or if Sound Transit adopts a system-wide policy to charge for parking in all of its parking structures. The Sound Transit Board is scheduled to take action on this Agreement at its May 8t1'meeting. We look forward to talking with you about this Agreement at your May 5 Public Works Committee meeting. If we may answer any questions prior to the meeting,please call Nathan Torgelson at 856-5703. attachment II III Kent Council Public Works Committee 2 O&M Agreement for Garage f May 2,2003 INTERLOCAL OPERATION AND MAINTENANCE AGREEMENT BETWEEN I CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY AND THE CITY OF KENT FOR I THE USE OF THE KENT COMMUTER RAIL STATION GARAGE i I i i I TABLE OF CONTENTS i Page 1.0 Scope of the Agreement 2.0 Parking Structure Described 3.0 Ownership and Operation 4.0 Use by the General Public 5.0 Operations and Maintenance 6.0 Reimbursements 7.0 Audits,Inspections and Retention of Records i 8.0 Designated Representatives 9.0 Dispute Resolution i 10.0 Legal Relations 11.0 Insurance 12.0 Legal Compliance i 13.0 Cessation of Operation 14.0 Termination of Agreement 15.0 Notice Requirements i 16.0 Effective Date and Term of Agreement 17.0 Execution of Agreement 18.0 FTA Approval i EXHIBITS II Exhibit A: Description of Parking Structure Exhibit B: Operating Hours Exhibit C: Map of area surrounding Parking Structure Exhibit D: List of Fixed Costs Exhibit E: List of Variable Costs If i i ii j Parking Structure Agreement Sound TransiUCity of Kent DRAFT 030420 Garage Use Agr(ST rl) AGREEMENT THIS AGREEMENT is entered into this day of 2002, by and between the Central Puget Sound Regional Transit Authority (hereinafter referred to as "Sound Transit") and the City of Kent (hereinafter referred to as the "City") and as may be referred to individually as "Party" and collectively as "Parties". RECITALS WHEREAS, pursuant to Chapter 81.112.070 RCW and public vote, Sound Transit is authorized to perform regional high capacity transportation functions within Sound Transit's jurisdictional boundary as set forth in Sound Mote, its ten year Regional Transit System plan; and WHEREAS, Sound Transit and the City are authorized by Chapter 39.34 RCW to enter into agreements for cooperative action "to make the most efficient use of their powers;"and WHEREAS, Sound Transit currently owns and operates a parking structure with 871 parking stalls along with surrounding improvements located in Kent next to the Kent Commuter Rail Station (hereinafter the "Parking Structure"); and WHEREAS, the City and Sound Transit entered into a Commuter Rail Project Interlocal Agreement dated April 9, 1998 in which the Parties expressed their mutual desires to: - 1. Integrate the Project development with existing infrastructure and development, including other transit facilities, private facilities, utilities, and parking, and develop operational plans that minimize project impacts; i 2. Derive the maximum effectiveness out of Sound Transit's investment by implementing accessible and efficient facilities and services; including adequate park-and-ride capacity,bus transfer facilities, and bicycle/pedestrian access; and 3. Work toward development of transit-oriented land use policies to attract and shape development around transit facilities in ways that benefit both transit users and the community; and WHEREAS, Sound Transit originally had planned to build a surface parking lot for the Kent Commuter Rail Station; and WHEREAS, the City and Sound Transit entered into a Commuter Rail Station Parking Structure Interlocal Agreement on December 16, 1999 ("Parking Structure Construction Agreement"), in which the City agreed to contribute $4,000,000 towards the building of a Parking Structure rather than a surface parking lot; and Page 1 of 14 Parking Structure Agreement Sound Transit/City of Kent DRAFT 030420 Garage Use Agr(ST rl) - WHEREAS, King County had agreed to pay Sound Transit $2,000,000 toward the construction of an additional 191 stalls in the Parking Structure for use by its transit customers; and WHEREAS, the Parties agree that the primary purpose of the Parking Structure is to i provide parking for Sound Transit and King County Metro commuters; and i WHEREAS, in the Parking Structure Agreement, Sound Transit also agreed to permit parking by the general public for non-rail purposes, subject to terms and conditions to be established by a later use agreement; and WHEREAS, the Parties agree that permitting the general public to use parking spaces not being used by Sound Transit and King County Metro commuters maximizes the public benefit from the investment in the Parking Structure, and WHEREAS, the City's planned "Kent Station" project relies upon the Parking Structure for satisfying the parking requirements of certain proposed uses of adjacent property; and WHEREAS, the uses contemplated by the City on its land surrounding the Parking Structure would require that the Parking Structure be opened until the early morning hours and on weekends; and WHEREAS, the City agrees that Sound Transit should not have to bear any additional cost that are a result of non-commuter use of the facility. WHEREAS, the City and Sound Transit desire to enter into this Parking Structure Use Agreement ("Agreement") to establish terms and conditions relating to the use of the Parking Structure by the City. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the sufficiency of which is hereby acknowledged, the Parties agree as follows: 1.0 Scope of the Agreement This Agreement specifies the relationship and roles of the Parties as to the use and contribution to the costs of operating and maintaining the Parking Structure. The terms of this Agreement shall control in the event it is in conflict with the more general terms of the Parking Structure Construction Agreement. 2.0 Parking Structure Described A description of the Parking Structure is attached to this Agreement as Exhibit "A" and incorporated by this reference. 3.0 Ownership and Operation Page 2 of 14 Parking Structure Agreement Sound Transit/City of Kent DRAFT '... 030420 Garage Use Agr(ST ri) '.. Sound Transit owns and operates the Parking Structure, Sound Transit shall be responsible for the control and use of the Parking Structure, subject to the terms of this Agreement and its agreement with King County. 4.0 Use by the General Public 4.1 Use The operating hours of the Parking Structure are provided in Exhibit `B". The general public, under the rights secured in this Agreement by the City of Kent, may use the parking spaces in the Parking Structure for non-transit related purposes, with the following exceptions, limitations and reservations: 4.1.1 Exceptions The following stalls are available to transit users only: a. Parking stalls identified as accessible only to persons with disabilities. 4.1.2 Limitations a. Weekdays, non-holiday: The general public may park in the Parking Structure beginning when the last train leaves before noon or 10 A.M., whichever is later, until closing. b. Weekends and State Holidays: The general public may park in the Parking Structure during all operating hours except as otherwise provided in section 4.1.3. below. 4.1.3 Reservations Sound Transit reserves the right to further limit parking by the general public in the following circumstances: a. In up to 191 parking stalls (excluding parking identified for persons with disabilities) if the County's transit customers do not have access to at least 191 parking stalls on any day, before 9:00 P.M.; or b. In all parking stalls when damage, destruction, renovation, maintenance or other conditions make it necessary to close portions of the Parking Structure. 4.2 Cost to the General Public I i Page 3 of 14 Parking Structure Agreement Sound Transit/City of Kent DRAFT 030420 Garage Use Agr(ST rl) Parking will initially be free. However, Sound Transit reserves the right, without limitation of other parking restrictions to charge the general public to park in the Parking Structure under the following circumstances: a. The City charges for parking on any of its streets, surface parking lots, or parking structures; b. Any other parking structure, garage or surface parking lot within the area depicted on Exhibit"C" charges for parking; C. The Parking Structure has reached "`Capacity." Capacity is reached when the Parking Structure is 95% full (excluding ADA parking) prior to the last train leaving before noon or 10 A.M., which ever is later, during eight out of 10 consecutive business days. The counting to determine Capacity can be requested by Sound Transit at anytime. Sound Transit, with a representative of the City, if the City wishes to participate, shall count actual open spaces by driving through the Parking Structure starting at the ground floor at the time the last morning train pulls into the station or 10 A.M., whichever is later. Under this subsection (c), Sound Transit may only charge the public to park until noon. However, this subsection does not prohibit Sound Transit from charging for parking if any of the other subsections of section 4.2 are satisfied.; d. When it is determined that the County's transit customers do not have use of 191 parking stalls on any day before 9:00 P.M.; or e. Sound Transit adopts a system-wide policy to charge for parking in all of its parking structures. 5.0 Operations and Maintenance 5.1 Maintenance, Repair and Replacement Responsibilities 5.1.1 Sound Transit Sound Transit shall be responsible for the maintenance and the operation of the Parking Structure, except as otherwise provided in this Agreement. 5.1.2 City The City has proposed in-kind maintenance to offset some of its reimbursements for operation and maintenance of the Parking Structure. Although the Parties could not agree on this at the time of the execution of the Agreement, the Parties agree to revisit the issue in connection with the annual meetings held per subsection 6.3,below. 6.0 Reimbursements 6.1 Baseline Operation and Maintenance Costs The City agrees to pay Sound Transit the incremental cost to operate and maintain the Parking Structure for use by the general public. This incremental cost to be paid by the Page 4 of 14 Parking Structure Agreement Sound Transit/City of Kent DRAFT 030420 Garage Use Agr(ST rl) City is the cost that Sound Transit must expend above baselines established in subsection 6.1.1 and 6.1.2 below for the actual fixed and variable costs of Sound Transit to operate and maintain the Parking Structure. The City's obligation to pay these incremental costs will begin the same month that any portion of the City's Kent Station project opens for business to the public, which is expected to be July 2004. 6.1.1 Fixed Costs. Fixed costs are expenditures that are not expected to fluctuate due to an increase in garage use by commuters. Increases in fixed costs, if any, will be caused by use of the Parking Structure by the general public. The categories of Fixed Costs are listed in Exhibit"D". a. For Fixed Cost expenditures listed in Exhibit "D," except for security, an initial baseline will be established January 1, 2004 and will include the fixed costs incurred in each category in 2003. Given that King County Metro will not be using the Parking Structure for the full 2003 calendar year, the baseline will be adjusted to reflect King County Metro use of the Parking Structure for the full year based on costs incurred once King County Metro begins using the Parking Structure. Each year thereafter, and subject to adjustments made in accordance with section 6.3, the baseline will be calculated on January 1 by multiplying the past year's baseline by the national CPI-W for the previous twelve-month period that ended on December 31. The City shall pay all fixed costs incurred by Sound Transit above the baseline. The City agrees that in attributing costs for such Fixed Cost that are directly linked to the hours of operation, such as the cost of security, Sound Transit's hours of operation will be deemed to be between one-half hour before the first train arrives and one-half hour after the last train arrives (but not before 9:00 PM on weekdays). The City agrees that regardless of the possible use of the Parking Structure by the Sound Transit's or King County Metro's transit customers during extended hours requested by the City, the Fixed Cost increase associated with these extended hours shall still be attributed to the City. 6.1.2 Variable Costs. Variable Costs are expenditures that are expected to fluctuate with an increase in commuter use. Incremental increases in variable costs will be attributable to increased Commuter Use (including use by King County Metro's customers) and increased use by the general public. Commuter Use is use of the Parking Structure by Sowed Transit or King County Metro customers for purposes of boarding a train or bus operated by Sound Transit or King County Metro at the Kent Commuter Rail Station. The categories of variable costs are specified in Exhibit "E". a. Two baselines shall be established for variable costs in 2004. Page 5 of 14 Parking Structure Agreement Sound Transit/City of Kent DRAFT 030420 Garage Use Agr(ST rl) (i) The first baseline will be established January 1, 2004 and i will include the variable costs paid in 2003. Given that King County Metro will not be using the Parking Structure for the full 2003 calendar year, the baseline will be adjusted to reflect King County Metro use of the Parking Structure for the full year based on costs incurred once King County Metro begins using the Parking Structure. (ii) The second baseline shall be comprised of two components: the percentage of Parking Structure users attributed to either Sound Transit or King County Metro transit users and the percentage of Parking Structure users attributed to use by the general public as measured by the actual count of cars entering the Parking Structure during operating hours. Given that public use of the Parking Structure is not expected to begin until July 2004,the count of cars entering the Parking Structure shall be measured the first week in November 2004. In 2004, the City shall pay an amount equal to the increase in variable costs multiplied by the percentage of garage use attributable to the general public, retroactive to the month that any portion of the City's Kent Station project opens for business to the public. b. Two baselines for variable costs shall be established for 2005 and each year thereafter. i (i) The first baseline for 2005, and each year thereafter,will be established January I" and will include the variable costs from the previous year. (ii) The second baseline for 2005, and each year thereafter, shall be comprised of two components: the percentage of Parking Structure users attributed to commuter use and the percentage of Parking Structure users attributed to use by the general public as measured by the actual count of cars entering the Parking Structure during operating hours the third week in July and the third week in October. In 2005, and each year thereafter, the City shall pay 1) the amount paid the previous year for variable costs, and 2) an amount equal to the increase in variable costs from the previous year multiplied by the percentage of Parking Structure use attributable to the general public. 6.2 Schedule ofReimbursements Page 6 of 14 Parking Structure Agreement Sound Transit/City of Kent DRAFT 030420 Garage Use Agr(ST rl) At the end of each calendar quarter, Sound Transit shall submit an invoice to the City that includes the reimbursements due from the City for cost in accord with subsection 6.1 above. These costs shall be estimated for the first three-quarters based on the previous year, and shall be adjusted in the fourth quarter to reflect actual costs due under subsection 6.1. The City shall pay the amount of its reimbursements, less any in-kind maintenance by the City, within thirty(30) days after receipt of Sound Transit's invoice. 6.3 Adjustments 6.3.1 Necessity and Frequency of Services. Sound Transit and the City shall meet at least once per calendar year to discuss the necessity of performing the listed services and tasks in greater frequency, or new tasks that are deemed necessary by the parties, the extent to which these services or tasks are properly designated as a fixed or variable costs. However, it will be Sound Transit's decision as to the continued necessity of a particular service or the need for greater frequency or intensity of a particular task. The Parties will also discuss adjustments to the baseline due to cost-saving actions by Sound Transit that do not necessarily reduce the cost associated with use by the general public. 6.3.2 Baseline Adjustments. In the calculation or adjustment of the fixed cost baseline, the City agrees that but for the use by the City, the Parking Structure would open one-half hour before the first train arrives and close one-half hour after the last train arrives (but not before 9:00 P.M. on weekdays). Therefore, for example, the cost associated with charging the general public to park because of certain capacity issues being met under section 4.2(c) and 4.2(d) shall be borne by the City. Further, the City agrees that use of the Parking Structure by Sound Transit's or the County's transit customers during any extended operating hours requested by the City is deemed incidental and not a basis for adjustment of the fixed cost baseline. Therefore, for example, the cost associated with limiting parking by charging the general public and the cost of additional security during City-requested extended hours will be home by the City. 6.3.3 Written Amendment. The list of operations and maintenance tasks and services in Exhibit "D" and "E" may be modified by a written amendment. 6.4 Structure Mid-life Adjustments The mid-life of the Parking Structure is 2017, and it is anticipated that at that time there will be costs associated with the long term maintenance and repair of the Parking Structure that may not have been previously identified in Section 6.0, such as fixture Page 7 of 14 Parking Structure Agreement Sound TransitiCity of Kent DRAFT 030420 Garage Use Agr(ST rl) - upgrades or replacements. Prior to 2018, the Reimbursements in Section 6,0 will be adjusted to reflect these long-term costs. The parties shall discuss these adjustments during the meetings held under subsection 6.3 and if no agreement is reached the dispute resolution process in Section 9.0 shall be used. If an agreement is not reached using the dispute resolution process, the matter shall be settled by binding arbitration by a single arbitrator who has experience in real estate matters. The arbitration will be administered by JAMS if the parties have not otherwise agreed to use a different arbitrator or arbitration process. Each party will submit to the arbitrator and each other at least ten (10) days in advance of the hearing its best offer for the adjustments to Section 6.0 and the rational for the same. The arbitrator shall be limited to choosing one of the two i proposals. Each party will bear the cost of its own attorney's fees and one-half of the cost of the arbitrator. The same process as is described above shall be used to adjust the Reimbursements in Section 6.0 prior to the renewal period beginning in 2035. 7.0 Audits,Inspections and Retention of Records 7.1 Audits and Inspections The Parties, the State Auditor, the FTA, and any of their representatives shall have full access to and the right to examine, during normal business hours and as often as they deem necessary, all of each Party's records with respect to all matters covered by this Agreement. Such representatives shall be permitted to audit, examine and make excerpts or transcripts from such records, and to make audits of all Agreements, invoices, materials, payrolls, and other matters covered by or related to this Agreement. 7.2 Retention of Records All documents, books, papers, accounting records, and other materials pertaining to this Agreement shall be retained by each Party for six years, except in the event of litigation or settlement of claims arising from the performance of this Agreement, in which case each Party agrees to maintain same until all such litigation, appeals, claims or exceptions are finally resolved. 8.0 Designated Representatives To ensure effective cooperation, each Party shall designate representatives responsible for communications between the Parties on certain subjects. The Parties reserve the right to change Designated Representatives, with notice to the other Party. 9.0 Dispute Resolution 9.1 Step One In the event of any dispute concerning this Agreement, the Operations Manager of Sound Transit's Commuter Rail Division or designee and the Chief Administrative Officer for the City or designee shall confer to resolve the dispute. Said representatives shall use Page 8 of 14 Parking Structure Agreement Sound Transit/City of Kent DRAFT 030420 Garage Use Agr(ST d) their best efforts and exercise good faith to resolve disputes and issues arising out of, or related to this Agreement. In the event they are unable to resolve the dispute; the Operations Manager and the Chief Administrative Officer shall confer and exercise good faith to resolve the dispute. 9.2 Step Two In the event the Operations Manager and the Chief Administrative Officer are unable to resolve the dispute, the Executive Director of Sound Transit and the Mayor of the City shall engage in good faith negotiations to resolve the dispute. 9.3 Step Three- Mediation In the event the Executive Director of Sound Transit and the Mayor of the City are unable to resolve the dispute, the parties may submit the matter to a mutually agreed upon non- binding mediator. The Parties shall share equally in the cost of the mediator. 9.4 Prerequisite to Litigation Sound Transit and the City agree that they shall have no right to seek relief in a court of law until and unless the above procedural steps have been exhausted. 10.0 Legal Relations 10.1 No Agency. It is understood and agreed that this Agreement is solely for the benefit of the parties hereto and gives no right to any other party. No joint venture or partnership is formed as a result of this Agreement. No employees or agents of one party or any of its contractors or subcontractors, shall be deemed, or represent themselves to be, employees of the other Party 10.2 No Third Party Rights. It is understood and agreed that this Agreement is solely for the benefit of the Parties hereto and gives no right to any other party. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the Parties. 10.3 Liability for Own Employees. Each party specifically assumes potential liability for actions brought by its own employees against the other party and for that purpose the indemnifying Party specifically waives, with respect to the other Party only, any immunity under the Worker's Compensation Act, RCW Title 51; and each Party recognizes that this waiver was the subject of mutual negotiation and specifically entered into pursuant to the Page 9 of 14 Parking Structure Agreement Sound Transit/City of Kent DRAFT 030420 Garage Use Agr(ST rl) provision of RCW 4.24,115, if applicable. Each Party to this Agreement shall reasonably notify the other of any and all claims, actions, losses or damages that arise or are brought against that Party relating to or pertaining to this Agreement. hi the event either Party incurs attorney's fees, costs or other legal expenses to enforce the provisions of this section against the other party, all such fees, costs and expenses shall be recoverable by the prevailing Party. 10.4 Indemnification. The City shall protect, defend, indemnify, and save hamiless Sound Transit, its officers, officials, employees, and agents, while acting within the scope of their employment as such, from any and all costs, claims,judgment, and/or awards of damages, arising out of, or in any way resulting from, the negligent or intentional acts or omissions of members of the general public not using the Parking Structure as a park-and-ride transit facility. 10.5 Survival of Terms. The provisions of this section shall survive any expiration or termination of this Agreement. 11.0 Insurance Each party agrees, at its own expense (except as otherwise provided in this Agreement), to maintain coverage for its liability exposures for the duration of this Agreement. 12.0 Legal Compliance 12.1 Successors and Others in Interest This Agreement, together with all exhibits and attachments now or hereafter made a part, shall be binding on the Parties and their respective heirs, executors, administrators, successors and assigns. 12.2 Assigns The City may not assign its rights to general public parking to another party, except for another governmental entity, and only with the prior written consent of Sound Transit. 12.3 Amendments and Modifications This Agreement shall not be modified except by written amendment signed by personnel authorized to bind the parties. Amendments or modifications that do not exceed previously approved budgets may be authorized on behalf of Sound Transit by the Executive Director and on behalf of the City,by its Mayor 12.4 Severability Page 10 of 14 Parking Structure Agreement Sound Transit/City of Kent DRAFT 030420 Garage Use Agr(ST rl) If any provisions of this Agreement are held invalid by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to serve the purposes and objectives originally contemplated. 13.0 Cessation of Operations If Sound Transit determines that it will cease operating commuter rail service at the Kent Commuter Rail Station, and if King County does not wish to purchase the Parking Structure, Sound Transit shall provide the City with written notice and an opportunity to purchase the Parking Structure improvements and underlying real property. If the parties are unable to reach agreement on the terms of such a transfer, either party may invoke the dispute resolution procedures provided in this Agreement. If the parties cannot thereby reach agreement on the tenns of such a transfer, the parties shall agree upon the selection of a neutral party to establish the fair market value of the Parking Structure. If upon obtaining the fair market value from the neutral party, an agreement is not reached, Sound Transit may proceed with selling the Parking Structure to an outside party at which time this Agreement shall tenuinate. The terms of any sale by Sound Transit, other than to King County, shall include provisions that the new owner will either use the Parking Structure for use by the general public, or negotiate with the City the right for the City to purchase use for the general public. 14.0 Termination of Agreement 14.1 Termination and Remedies for Material Breach Either Party may terminate this Agreement in the event the other fails to perform a material obligation under this Agreement, and such failure has not been corrected to the reasonable satisfaction of the other in a timely manner after notice of breach has been provided to such other Party. Written notice of termination of this Agreement shall be given by the Party terminating this Agreement to the other party not less than one hundred eighty days (ISO) days prior to the effective date of termination. 14.2 Termination Plan Prior to termination of this Agreement by expiration of the term or as provided in this Section, the Parties agree to develop a coordinated plan for terminating the Agreement that includes compensating for Parking Structure use or services satisfactorily rendered up until the time of termination. 15.0 Notice Requirements Any notice given under this Agreement shall be in writing and given by sending such notice by registered mail,return receipt requested, with postage prepaid addressed as follows, or at such other address as the Party to be notified last directed in writing,or by serving said notice personally. The effective date of notice shall be the date of personal service or the date of receipt as shown on the return receipt, as applicable. The agency contacts for this project are as follows: i Page 11 of 14 ii Parking Structure Agreement Sound Transit/City of Kent DRAFT 030420 Garage Use Agr(ST rl) City: Chief Administrative Officer 220 Fourth Avenue South Kent, Washington 98032-5895 Sound Transit: Director of Commuter Rail Sound Transit Regional Express 401 South Jackson Street Seattle, Washington 98 1 04-2 8 1 6 16.0 Effective Date and Term of Agreement This Agreement shall be effective on the last date signed, and end on December 31, 2034, subject to adjustments to Reimbursements in Section 6.4. Additionally, so long as the City is not in default of this Agreement and Sound Transit (i) plans at that time to continue operating commuter rail through the City, (ii) plans to continue using the Parking Structure for commuter rail customer parking, then the City shall have the option to renew this Agreement for one (1) additional term to expire on June 1, 2040 subject to adjustments to Reimbursements in Section 6. The option must be exercised in writing and delivered to Sound Transit at least one hundred and eighty(180) calendar days before the end of the tern then in effect. 17.0 Execution of Agreement This Agreement shall be executed in two (2) counterparts, any one of which shall be regarded for all purposes as one original. 18.0 Subject to FTA Approval The use of the Parking Structure as contemplated by the Parties is subject to compliance with NEPA and approval of the FTA. IN WITNESS WHEREOF, each party has caused this Agreement to be signed by its duly authorized officer or representative as of the date set forth below its signature and as of the date first written above. CITY OF KENT CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY ("Sound Transit") By: By: Jim White, Mayor Joan M. Earl, Executive Director Date: Date: Page 12 of 14 Parking Structure Agreement Sound Transit/City of Kent DRAFT 030420 Garage Use Agr(ST rl) APPROVED AS TO FORM: APPROVED AS TO FORM: Tom Brubaker, City Attorney Sound Transit Legal Counsel Page 13 of 14 Parking Structure Agreement Sound Transit/City of Kent DRAFT 030420 Garage Use Agr(ST rl) EXHIBIT A LEGAL DESCRIPTION OF PARKING STRUCTURE i i i I Page 14 of 14 I i EXHIBIT B PARKING STRUCTURE OPERATING HOURS i The Parking Structure will initially be open for parking as follows: Weekdays: One-half hour before the arrival of the first morning train until one-half hour after the last train (but not before 9:00 p.m.) Weekends: Closed, except for special Sounder service. State Holidays: Closed Sound Transit, at the request of the City of Kent, will increase the operating hours of the Parking Structure so that it is opened every day from at least 6:30 a.m. to 2:30 a.m. EXHIBIT C MAP OF AREA SURROUNDING PARKING STRUCTURE ICI III EXHIBIT D FIXED COSTS 1. Security a. Security Officers 2. Utilities a. Pay Phones, Elevator Emergency Phones b. Drainage—storm water 3. Ongoing Maintenance a. Landscaping and Irrigation b. Pest Control c. CCTV/Panic buttons d. Oil and Water separators/detention, annual cleaning e. Elevator Maintenance 4. Vandalism Repair 5. Parking Fee Collection a. Capital costs to build collection booths and gates, set up system to differentiate between transit and general public parking b. Operations and maintenance relating to parking fee collection 6. Collection of data (i.e., car counting) for determining variable costs. i it i EXHIBIT E VARIABLE COSTS 1. Janitorial and Maintenance including supplies a. Elevator cabin/door cleaning— 2 cabins b. Trash/ashtrays c. Trash can liners d. Parking level sweeping—5 level (recommended 2x/mo) e. Stairs— sweep/blow (reasonable frequency) £ Stairs —dust handrails/wet mop (reasonable frequency) g. Interior garage trash hand pick 5 levels h. Exterior landscaped area trash hand-pick i. Garbage disposal. 2. Major Maintenance a. Includes complete restriping, concrete leakage, crack repairs, new concrete sealer, membrane applications and painting, etc. 3. Ongoing Maintenance a. Painting/Sealing/Striping Parking Lot b. Concrete and Masonry c. Electrical/Plumbing/Mechanic d. Glass Repair and Replacement 4. Insurance and payment of claims up to Sound Transit's insurance deductibles. PUBLIC WORKS DEPARTMENT Don E. Wickstrom, P.E. Public Works Director Phone:253-856-5500 ® -g- Fax: 253-856.6500 KEN1 Address: 220 Fourth Avenue S. WASHINGTON Kent,WA. 98032-5895 I DATE: May 19 2003 TO: Pub orks Committee FROM: Don kstrom, Public Works Director SUBJECT: Improvement of Existing Public Highway Crossing At M.P. 166.66—Seattle Subdivision Agreement SUMMARY: Agreement with Union Pacific Railroad Company covering the costs associated with a traffic light pre-emption to existing crossing signal system. BUDGET IMPACT: No Unbudgeted Fiscal/Personnel Impact MOTION: Recommend authorizing the Mayor to sign the Improvement of Existing Public Highway Crossing at MP 166.66— Seattle Subdivision Agreement with Union Pacific Railway Company to cover costs associated with a traffic light pre-emption to existing crossing signal system subject to the Works Director's and the City Attorney's concurrence of the language therein. BACKGROUND: The City is installing a traffic signal a the intersection of 74th Ave S and West Willis Street(SR 516) to improve access into the industrial area located South of Willis Street. LID 329 has been formed and property owners are aware of the updated costs associated with the signal project. The contract to install the signal was awarded by Council on April 1, 2003 This agreement will allow Union Pacific Railroad to proceed with the installation of the traffic signal pre-emption equipment associated with the Rail Road grade crossing enabling the traffic signal to become fully operational upon completion of the traffic signal installation. i Kent Council Public Works Committee Improvement of Existing Public Highway Crossing At M.P. 166.66-Agreement May 19,2003 1 I I UNION PACIFIC RAILROAD COMPANY ENGINEERING SERVICES DEPARTMENT '.. J.W.TRUMBULL 5424 S.E.McLoughlin Blvd. Manager Portland,OR 97202 Industrial&Public Projects (503)872-1809 Fax:(503)872-1900 May 2,2003 City of Kent Public Works �� 220 4'b Avenue South `� Kent,WA 98032-5895 �� Attn: John Rostad—Signal Operations Engineer ENGINEERINv, Dear Mr.Rostad: Subject: Crossing,Public WA,Kent Willis Street M.P. 166.66 Seattle Subdivision DOT 396 581U This is regarding a traffic light pre-emption project at the above noted location Attached are two topics Of agreement executed by the Railroad covering costs associated with a traffic light pre-emption to our existing crossing signal system. Please execute on behalf of the City. I will need your authorization to order materials before I can order materials and schedule a png to do the work. Sincerely, John W.Trumbull Manager Industry and Public Projects Agreement Number Improvement of Existing Public Highway Crossing At M.P. 166.66— Seattle Subdivision 74th Avenue South Kent, King County, Washington THIS AGREEMENT, made and entered into as of the_day of by and between UNION PACIFIC RAILROAD COMPANY, a Utah corporation (hereinafter the "Railroad") and the CITY of KENT, a municipal corporation of the State of Washington to be addressed at 400 West Gowe Street, Kent, Washington, 98032-5895 (hereinafter the "City"), WITNESSETH: RECITALS: The City intends to install a traffic signal at the intersection of 74"' Avenue S, 2"a West Willis Street (SR 516). To reduce the likelihood of a motorist being caught on the railroad tracks and impeded from moving off the tracks by vehicles stopped at the signal, the City desires that the Railroad install equipment to detect trains approaching the existing grade crossing with sufficient advance warning as to allow preemption of the traffic signals in Kent, Washington (hereinafter the `Trojecl"). The part of the City's Project that affects the Railroad is that portion of the right-of-way of the Railroad at Mile Post 166.66, Seattle Subdivision (hereinafter the "Crossing Area") shown outlined in heavy black line on the attached print dated February 24, 2003, marked Exhibit C. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows: Article 1. WORK TO BE PERFORMED BY THE RAILROAD (a) The Railroad may make any and all changes, alterations or relocations, whether temporary or permanent, and may provide flagging and other protective services and devices, which in the Railroad's judgment may be or become necessary or expedient within the Railroad's right-of-way because of the Project. Such work shall include, without limitation, the installation of automatic warning devices as reflected on Exhibit A. (b) The Railroad shall, at its sole cost and expense, maintain, repair, and replace the warning devices installed hereunder; PROVIDED, HOWEVER, that this provision shall not Articles of Agreement Page 1 of 13 , negate the Railroad's eligibility for any further federal, state or local or other public funds that may become available for the maintenance of said devices. (c) The City agrees to pay the Railroad the actual cost of the Railroad's work performed and materials supplied as hereinabove set forth, which is estimated to be One Hundred Eighty Seven Thousand Seven Hundred and Ninety Five dollars ($187,795.00). Actual costs to the Railroad include customary additives to materials and services provided by the Railroad as shown on Exhibit D, attached hereto and hereby made a part hereof. Article I1. IF WORK IS TO BE PEFORMED BY CONTRACTOR If a contractor is to do any of the work performed on the Project (including initial construction and subsequent relocation or substantial maintenance and repair work), then the City shall require its contractor to execute the Railroad's form of the Contractor's Right of Entry Agreement and understanding of its terms, provisions, and requirements, and will inform its contractor of the need to execute the Agreement. Under no circumstances will the City's contractor be allowed onto Railroad's premises without first executing the Contractor's Right of Entry Agreement. Article III. CERTIFICATE OF INSURANCE (a) Before any work on the Premises begins, the City or its contractor/subcontractor (as defined in Section 5(a) of Exhibit B to this Agreement) will provide the Railroad with a Certificate issued by its insurance carrier providing the insurance coverage required pursuant to Exhibit B-1 of this Agreement in a policy containing the following endorsement: "Union Pacific Railroad is named as additional insured with respect to all liabilities arising out of Insured's performance of the work." (b) The City or its contractor/subcontractor WARRANTS that this agreement has been thoroughly reviewed by its insurance agent(s)/broker(s) and that said agent(s)/broker(s) has been instructed to procure insurance coverage and an endorsement as required herein. Article IV. EFFECTIVE DATE; TERM. This Agreement shall become effective as of the date first herein written, or the date work commences on the Project, whichever is earlier, and shall continue in full force and effect until terminated as herein provided. Article V. AGREEMENT SUPPLEMENTARY i This Agreement is entered into pursuant to the terms of a December 16, 1970, agreement between the parties which obligates the City to bear the cost of railroad signal work necessitated by its highway improvements. This Agreement is supplementary to and does not terminate the December 16, 1970, agreement. i Articles or Agreement Page 2 of 13 Article VI. ADMINISTRATIVE HANDLING CHARGE The City shall pay the Railroad an administrative handling fee of Five Hundred Dollars ($500.00) upon execution of this agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY i By ppt�+rr 1 Title: �FCpE��fj t Attest: CITY OF KENT I i By: Title: Its: i Pursuant to Resolution/Order dated t (Seal) - hereto attached. Ir Articles of Agreement Page 3 of 13 EXHIBIT A Public Highway Crossing Section 1. CONSTRUCTION OF HIGHWAY (a) The City, at its own expense, will apply for and obtain all public authority required by law, ordinance, rule or regulation for the Project, and will furnish the Railroad upon request with satisfactory evidence that such authority has been obtained. (b) Except as may be othenvise specifically provided herein, the City, at its own expense, will furnish all necessary labor, material and equipment, and shall constrict and complete the highway and all appurtenances thereof. The appurtenances shall include, without limitation, all necessary and proper highway warning devices (except those installed by the Railroad within its right-of-way), and all necessary and proper drainage facilities, guard rails or barriers, and right-of-way fences between the highway and the railroad tracks. Upon completion of the Project, the City shall remove from the Railroad's property all temporary structures and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad. (c) Except as may be specifically provided herein, the Railroad shall not be required to pay or contribute any part of the cost of the Project. If the Project is to be financed in whole or in part of Federal funds, all constriction work by the City shall be performed, and any reimbursement to the Railroad for work it performs shall be made, in accordance with the applicable Federal acts, regulations, and this Agreement. (d) All construction work of the City upon the Railroad's property (including, but not limited to, construction of the highway and all appurtenances and all related and incidental work) shall be performed and completed in a manner satisfactory to the Vice President-Engineering Services of the Railroad or his authorized representative and in accordance with detailed plans and specifications prepared by and at the expense of the City, and approved in writing by the Railroad's Vice President-Engineering Services. (e) All construction work of the City shall be performed diligently and completed within a reasonable time, and in any event within three (3) years from the effective date of this Agreement, or within such further period of time as may be specified in writing by the Railroad's Vice President-Engineering Services. No part of the Project shall be suspended, discontinued or unduly delayed without the Railroad's written consent and subject to such reasonable conditions as the Railroad may specify. It is understood that the Railroad's tracks at and in the vicinity of the work will be in constant or frequent use during progress of the work and that movement or stoppage of trains, engines or cars may cause delays in the work of the City. The City hereby assumes the risk of any such delays and agrees that no claims for damage on account of any delay shall be made against the Railroad. (f) If the Project includes construction of a structure over which trains are to be operated, or for which the Railroad has any responsibility for maintenance, the City shall furnish Articles of Agreement Page 4 of 13 the Railroad permanent reproducible prints of all design and shop drawings as soon as possible j after approval by the Vice President-Engineering Services of the Railroad or his authorized representative. Upon completion of construction, the City shall furnish the Railroad two sets of j "as constructed"prints and, in addition, upon request of the Vice President-Engineering Services of the Railroad, "as constructed" permanent reproducible prints of all or any portion of the structure. Section 2. INJURY AND DAMAGE TO PROPERTY. j i If the City, in the performance of any work contemplated by this Agreement or by the 1 failure to do or perform anything for which the City is responsible under the provisions of this Agreement, shall injure, damage or destroy any property of the Railroad or of any other person lawfully occupying or using the property of the Railroad, such property shall be replaced or repaired by the City at the City's own expense, or by the Railroad at the expense of the City,and to the satisfaction of the Railroad's Vice President-Engineering Services. Section 3. PAYMENT FOR WORK BY THE RAILROAD COMPANY (a) Bills for work and materials shall be paid by the City promptly upon receipt thereof. The Railroad will submit to the City current bills for flagging and other protective services and devices during progress of the Project. The Railroad will submit final billing for flagging and other protective services within one hundred and twenty (120) days after completion of the Project, provided the City advises the Railroad of the commencement of the 120-day period by giving the Railroad written notification of completion of the Project. (b) The Railroad may contract for the performance of any of its work by other than railroad forces. The Railroad shall notify the City of the contract price within ninety (90) days after it is awarded. Unless the Railroad's work is to be performed on a fixed price basis, the City shall reimburse the Railroad for the amount of the contract. Section 4. MAINTENANCE (a) If the Project involves a grade crossing: The City shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire Crossing Area, except the portions between the track tic ends, which shall be maintained by and at the expense of the Railroad. (b) If the Project involves a public highway crossing under the Railroad's tracks: (1) The City shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire substructure of the highway-railroad grade separation structure. Articles of Agreement Page 5 of 13 (2) The Railroad shall, at its own sole expense, maintain and repair, or cause to be maintained and repaired, the entire superstructure of the highway- railroad grade separation structure. (c) If the Project involves a public highway crossing over the Railroad's tracks, the City shall, at its own sole expense, maintain, repair and renew, or cause to be maintained, repaired and renewed, the entire highway-railroad grade separation structure. Section 5. SAFETY MEASURES: PROTECTION OF RAILROAD COMPANY OPERATIONS. It is understood and recognized that safety and continuity of the Railroad's operations and communications are of the utmost importance; and in order that the same may be adequately safeguarded, protected and assured, and in order that accidents may be prevented and avoided, it is agreed with respect to all of said work of the City that the work will be performed in a safe manner and in conformity with the following standards: (a) Definitions: All references in this Agreement to the City shall include the City's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority; and all references in this Agreement to work of the City shall include work both within and outside of railroad property. (b) Compliance with Laws: The City shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The City shall use only such methods as are consistent with safety, both as concerns the City, the City's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The City (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad's premises. If any failure by the City to comply with any such laws, regulations, and enactments, shall result in any fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the City shall reimburse and indemnify the Railroad for any such fine, penalty, cost or charge, including without limitation attorney's fees, court costs and expenses. The City further agrees in the event of any such action, upon notice thereof being provided by the Railroad, to defend such action free of cost, charge, or expense to the Railroad. (c) No Interference or Delays The City shall not do, suffer or permit anything which will or may obstruct, endanger, interfere with, hinder or delay maintenance or operation of the Railroad's tracks or facilities, or any communication or signal lines, installations or any appurtenances thereof, or the operations of others lawfully occupying or using the Railroad's property or facilities. (d) Supervision: The City, at its own expense, shall adequately police and supervise all work to be performed by the City, and shall not inflict injury to persons or damage to property for the safety of whom or of which the Railroad may be responsible, or to property of the Railroad. The responsibility of the City for safe conduct and adequate policing and supervision Articles of Agreement Page 6 of l3 of the Project shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad's representatives, or by compliance by the City with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the City will give due consideration to suggestions and recommendations made by such representative for the safety and protection of the Railroad's property and operations. (e) Suspension of Work: If at any time the City's engineers or the Vice President- Engineering Services of the Railroad or their respective representatives shall be of the opinion that any work of the City is being or is about to be done or prosecuted without due regard and precaution for safety and security, the City shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. (f) Removal of Debris: The City shall not cause, suffer or permit material or debris to be deposited or cast upon, or to slide or fall upon any property or facilities of the Railroad; and any such material and debris shall be promptly removed from the Railroad's property by the City at the City's own expense or by the Railroad at the expense of the City. The City shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad's property during snow removal from the Crossing Area. (g) Explosives: The City shall not discharge any explosives on or in the vicinity of the Railroad's property without the prior consent of the Railroad's Vice President-Engineering Services, which shall not be given if, in the sole discretion of the Railroad's Vice President- Engineering Services, such discharge would be dangerous or would interfere with the Railroad's property or facilities. For the purposes hereof, the "vicinity of the Railroad's property" shall be deemed to be any place on the Railroad's property or in such close proximity to the Railroad's property that the discharge of explosives could cause injury to the Railroad's employees or other persons, or cause damage to or interference with the facilities or operations on the Railroad's property. The Railroad reserves the right to impose such conditions, restrictions or limitations on the transportation, handling, storage, security and use of explosives as the Railroad, in the Railroad's sole discretion, may deem to be necessary, desirable or appropriate. In addition to any conditions, restrictions or limitations as may be specifically imposed: (1) Unless the Railroad's Vice President-Engineering Services agrees otherwise, the City shall provide no less than 48 hours' notice, excluding weekends and holidays, before discharging any explosives. (2) Any explosives loaded in holes or placed or otherwise readied for discharge on a day shall be discharged on the same day during daylight hours, and at mutually acceptable times. (3) The City, at its own expense, shall take all precautionary measures and construct all temporary shelters necessary to guard against danger of damage, destruction or interference arising out of or connected with any Articles of Agreement Page 7 of 13 I blasting or any transportation, handling, storage, security or use of explosives. (4) The City shall require explosives to be transported, handled, stored or otherwise secured and used in a manner satisfactory to the Railroad and in accordance with local, state and Federal laws, rules and regulations, including, without limitation, United States Department of Labor, Bureau of Labor Standards, Safety and Health Regulations for Construction, 29 CFR Part 1518, Subpart U — `Blasting and the Use of Explosives'; and Occupational Safety and Health Administration Occupational Safety and Health Standards, 29 CFR Part 1910, Subpart H—"Hazardous Materials". (h) Obstructions to View: Except as otherwise specifically provided herein, the City shall not cause or permit the view along the tracks of the Railroad to be obstructed, nor place any combustible material on the premises, nor erect any structures thereon. If public law or regulation requires control or removal of weeds or vegetation on each side of the Crossing Area, the City will perform such control or removal work without expense to the Railroad, or if the City may not lawfully perform the control or removal work, reimburse the Railroad for the cost of performing such control or removal. If the crossing is not equipped with automatic train activated warning devices with gate arms: (1) The City shall control or remove weeds and vegetation within and on each side of the Crossing Area so that the view of approaching motorists to approaching trains is not obstructed by weeds or vegetation; and (2) Insofar as it may lawfully do so, the City will not permit non-parties to construct sight obstructing buildings or other permanent structures on property adjacent to the right-of-way. (i) Excavation: The City shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock, or impair or endanger the clearance between existing or new slopes and the tracks of the Railroad. The City shall not do or cause to be done any work which will or may disturb the stability of any area or adversely affect the Railroad's tracks or facilities. The City, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation and/or trenching performed by the City in connection with construction, maintenance or other work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved by the Railroad's Vice President-Engineering Services to withstand all stresses likely to be encountered, including any l stresses resulting from vibrations caused by the Railroad's operations in(lie vicinity. i (j) Drainage: The City, at the City's own expense, shall provide and maintain suitable facilities for draining the highway and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad. The City, at the City's own expense, shall provide adequate passageway for the waters of any streams, bodies of water and drainage facilities (either natural or artificial, and including water from the Railroad's culvert and drainage facilities), so that said waters may not, because of any facilities or work of Articles of Agreement Page 8 of 13 the City, be impeded, obstructed, diverted or caused to back up, overflow or damage the property of the Railroad or any part thereof, or property of others. The City shall not obstruct or interfere with existing ditches or drainage facilities. (k) Notice: Before commencing any work, the City shall provide 48 hours prior notice (excluding weekends and holidays) to the Railroad's Manager-Track Maintenance. (1) Fiber Optic Cables: Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. City shall telephone the Railroad at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the City. if it is, City will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Railroad's premises. Section 6. INTERIM WARNING DEVICES If at anytime it is determined by a competent authority, by the City, or by agreement between the parties, that new or improved train activated warning devices should be installed at the Crossing Area, the City shall install adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect the motoring public until the new or improved devices have been installed. Section 7. OTHER RAILROADS All protective and indemnifying provisions of this Agreement shall inure to the benefit of the Railroad and any other railroad company lawfully using the Railroad's property or facilities. Section 8. REMEDIES FOR BREACH OR NONUSE If the City shall fail, refuse or neglect to perform and abide by the terms of this Agreement, the Railroad, in addition to any other rights and remedies, may perform any work which in the judgment of the Railroad is necessary to place the highway and appurtenances in such condition as will not menace, endanger or interfere with the Railroad's facilities or operations or jeopardize the Railroad's employees; and the City will reimburse the Railroad for the expenses thereof. i Section 9. ASSIGNMENT• SUCCESSORS AND ASSIGNS l This Agreement shall not be assigned without the written consent of the Railroad. Subject hereto, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. Articles of Agreement III Page 9 of 13 EXHIBIT B Public Road Insurance Requirements The City and/or its Contractor/Subcontractor shall, at its own and/or its Contractor's/Subcontractor's sole cost and expense, procure the following kinds of insurance and promptly pay when due all premiums for that insurance. The Railroad Protective Insurance described in Paragraph D below only needs to be obtained and kept in force during the duration of construction or major reconstruction of the highway located on the Premises. The other insurance coverage described in paragraphs A, B and C below shall be kept in force by the City during the life of this Agreement. A. General Public Liability insurance providing bodily injury, including death, personal injury and property damage coverage with a combined single limit of at least $2,000,000 each occurrence or claim and a general aggregate limit of $4,000,000. This insurance shall provide Broad Form Contractual Liability covering the indemnity provisions contained in this Agreement, Underground Hazard, Broad Form Property Damage, a waiver of governmental immunity(ISO Form GL 24 14 or equivalent), severability of interests and name Railroad as an additional insured with respect to all liabilities arising out of City's obligation to Railroad in the Agreement. If coverage is purchased on a "claims made" basis it shall provide for at least a three (3) year extended reporting or discovery period, which shall be invoked should insurance covering the time period of this Agreement be cancelled. B. Automobile Public Liability insurance providing bodily injury and property damage with a combined single limit of at least $2,000,000 each occurrence or claim. This insurance shall provide contractual liability by endorsement ISO Form CA 00 25 or equivalent covering all motor vehicles including hired and non-owned, mobile equipment to the extent it may be excluded from general liability insurance, severability of interests and name Railroad as an additional insured with respect to all liabilities arising out of City's obligation to Railroad in the Agreement. C. Worker's Compensation insurance covering the statutory liability as determined by the compensation laws of the state(s) affected by this Agreement and Employers' Liability with a limit of at least$1,000,000. Also compliance with all laws of states which require participation in their state workers' compensation fund. D. Railroad Protective Liability insurance naming Railroad as insured with a combined single limit of$2,000,000 per occurrence with a $6,000,000 aggregate. The policy form shall be AAR-AASHTO with broad form coverage for "Physical Damage to Property" (ISO Form GL 00 30) or as revised ISO-RIMA (Form CG 00 35) and include pollution arising out of fuels and lubricants brought to the job Articles of Agreement Page l0 of 13 site (ISO Form CG 00 35) and include pollution arising out of fuels and lubricants brought to the job site (ISO Form CG 2831 or equivalent). If the Lloyd's London policy form is used, limits shall be $3,000,000 per occurrence with a $9,000,000 aggregate and the Extended Claims Made Date shall be determined by adding the length of the original policy period plus one year to the policy expiration date. The City and/or its Contractors)/Subcontractor(s) hereby waive their right of subrogation, as respects the above insurance policy(ies), against Railroad for payments made to or on behalf of employees of City or its agents or its Contractor(s)/Subcontractor(s) and for loss of their owned or leased property or property under their care, custody and control while on or near Railroad's right-of-way or other real property. City's and/or its Contractor's Subcontractor's insurance shall be primary with respect to any insurance carried by Railroad. City and/or its Contractor(s)/Subcontractor(s) shall furnish to Railroad certificate(s) of insurance evidencing the required coverage and endorsement(s) and upon request a certified duplicate original of any of those policies. The insurance company(ies) issuing such policy(ies) shall notify Railroad in writing of any material alteration including any change in the retroactive date in any "claims-made" policies or substantial reduction of aggregate limits, if such limits apply, or cancellation thereof at least thirty(30) days prior thereto. The insurance policy(ies) shall e written by a reputable insurance company or companies acceptable to Railroad or with a current Best's Insurance Guide Rating of B and Class VII or better. Such insurance company shall be authorized to transact business in the state(s) affected by this Agreement. I Articles of Agreement Page 11 of 13 gMt gee ,ee -=t Jq I J r S Aga a g ` i tld d8 c zPmPFF sN a P mh °�� 4: NN e �;! i �8 c ;:� - ;7 b t i. au°° _ a •3 �'�, �Fa 3 �' +� J1 fin y K 1 1 Y ' 41�tt• 1 4 M pp � XX a 1 I c I I I I I m ._. �. h. ¢ z sa �k �wES 4�°°6�G° ��kxK�ooM^k 63 F Mika c +� I DATE: 2002-09.15 �XN)15IT ESTIMATE OF MATER.IA.L A11D FCRCE A'COONT WORK BY TYE DNION PACIFIC RAILROAD DESCRIPTION OF WDRK: INSTALL Cm)2 CROSSING WARNING SYSTEMS AT WILLIE & JAPIE3 STE IN MIT WA MP. 155.66 & 167.24 ALSO a, REMOTE .AT F;P. IES-61 ALL ON TEE SEATTLE SUB. SIGNAL PROJECT hL',Np.GER:Fi.L.JOf'.NSON 165-6335 RAILROAD TO PERFORM ALL WORK I CCST DISTRIBUTED AS FOLLOWS: SIGtSAL - CITY OF kiNT 100$ RECOLLECTIBLE MID: 33727 AFO: 33514 IMP,SVBDIV: 166.66, SEATTLE SERVICE UNIT. 18 CITY: KENT STATE: WA DESCRIPTION QTY UNIT LABOR F'A.ERIAL RECCLL UPF.R. TOTAL ---- ----- -------- ------- £F'GINEERING WORK ENGINEERING 10153 10193 LA20R ADDITIVE 1391 1610S 16i05 L6105 SLC-Plv'1 }.'NG 1479 1478 1.7A- - 4 - -- - - ------- -------- ?vT,AL ENCINEPAING 27776 27776 27776 SIGNAL WORK PATL STORE EXPENSE 3150 3'_50 3150 SIGNAL E3001 63001 53001 eI_i PR Er" 9 300 00 CONTRACT 5300 6300 63 300 EQUIPMENT RENTAL 00 Lono loan laou FOREIGN LI21E FREICHT i250 1260 126C LABOR ADDITIVE 13S4 33711 33 PERSONAL EXPENSES 2- LEE TAX 1327E 14096 13276 33711 4095 4095 4035 i .G-F.YIY XNG 2,1428 25423 24423 T-F?ISFCRTATION CP-4RGES 4113 4418 d416 USAGE EQUIPMENT 4480 4480 4480 ____ ____ -___ TOTAL STCNAL 59035 100980 1E0019 160015 LABOR/MATERLIL EXPEF?SE - B6B25 10o5?0 -------- PECCLLE!CTIBLE/UPRR EXPENSE 137735 0 •------- ESTIMATED PF.OJECT COST 18779E EXISTING REUSEASLE MATERIAL CREDIT 0 S,kT AGE NONUSEABLE I•IATERIAL CREDIT 0 RECOLLECTIBLE LESS CREDITS THE ABOVE FIGURES ARE ESTIMATES ONLY A-\'D SUBJECT TO FLUCTUAT_ON. IN TPE ET,CF1T OF AN INCREASE OR DEC"r,EASE IN TEE COST OR QUANTITY OF MATc'4IAL OR LAEOR R2QVIRED, UPRR WILL BILL FOR ACTUAL CONSTP,UCTION COSTS AT TEE CURRENT EFFECTIVE RATE. I